73 Iowa 149 | Iowa | 1887
I. The petition alleges that the will of Thomas Gainer was duly admitted to probate. It gives to his wife a
“ (1) That the facts stated in the petition of plaintiff do ■not entitle him to the relief demanded; (2) that plaintiff’s petition shows upon its face that his cause of action is based upon a specific devise which has failed, and further shows that-the testator made no provision for said devise to be paid out of other property, in the event of failure of such specific devise; (3) that there is a defect of parties defendant, for the reason that plaintiff’s remedy is against his co-legatees, and not against the heirs at law of Thomas Gainer, deceased.”
II. The question presented-by the demurrer is this; Where a testator, having a wife living who survives him, leaves to her all his property for life, and devises to another his homestead, and the devise of the homestead fails, for the reason that the wife refuses to take under the will, may the devisee of the
Plaintiff does not claim that the widow is liable for the value of the homestead, or that her rights and interest are at all affected by the devise to him; nor does he make any claim against the devisees and legatees of the estate, all of whom have received the property willed to them; but he seeks to charge the estate therefor, and thereby indirectly to recover from the heirs of the testator. He bases his claim upon the doctrine of election and satisfaction, which Story defines “ to be the obligation imposed upon a party to choose between inconsistent or alternative rights or claims, in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both. Every case of election, therefore, presupposes a plurality of gifts or rights, with an intention, express or implied, of the party who had the right to control one or both, that one should be a substitute for the other.” (2 Eq, Jur., § 1075.) This doctrine is based upon the idea that, by the exercise of election by one, another will be deprived of rights or benefits. We need not inquire whether this doctrine is applicable to the case of the widow and the beneficiaries under the will other than plaintiff, for the reason that no claim is made against them in this action. It is
But let it be admitted that the heirs stand in the shoes of the testator, a'nd can urge no defense that cannot be urged by the estate. We can discover no legal or equitable ground upon which plaintiff can recover against the estate, which is not bound by contract to him, and which has done no act to defeat the devise. All there is of it is that the testator devised to plaintiff property which under the law he could not devise, except with assent of the widow. The law presumes that the execution of the will was with a knowledge of the law by the testator. He knew that nothing would pass to plaintiff except with the widow’s consent. The law will presume that it was his purpose to make the devise contingent upon such consent; that his purpose and wish was that, if the wife did not hold the homestead, plaintiff should, but, if she did, plaintiff should take nothing by the will. If we may inquire into the purpose and wish of the testator, we can reach no other than this conclusion. But the law will not, upon presumption of intention, adopt a construction of a will which will defeat an heir. Scott v. Guernsey 48 N. Y. 107; Crane v. Ex'rs of Doty, 1 Ohio St., 279.
We think the court below rightly sustained the demurrer, upon the first and second grounds thereof. The other ground need not be considered. The judgment of the district court is Affirmed.