Gaskell v. Case

18 Iowa 147 | Iowa | 1864

Dillon, J.

1. Executor: property set apart to widow. The property, for the value of -which this action was brought, was set apart to the widow, under §2361 of the Revision. This section provides that, “ when the deceased leaves a widow no prop- . . erty which, m her hands, as the head of a family, would be exempt from execution, shall be deemed assets, or administered upon as such; but the same, after being inventoried without appraisement, shall remain with her and the family until disposed of according to law"

In relation to the distribution of the personal property of intestates, the statute contains the following provision : “The personal property of the deceased, not necessary for .the payment of debts, nor otherwise disposed of as herein-before provided, shall be distributed to the same persons and in the same proportions as though it were real estate.” Rev., § 2422.

The vague and general language of these two sections renders them somewhat difficult of construction and application. We. shall, therefore, limit ourselves strictly to a decision of the question before us. It appears from the petition that the children are all of age; and that the widow is not the head of the family of the decedent. It does not appear that, while the property remained with her and the family, it was, in good faith, exchanged (even if this is allowable) for other property of the like kind, or sold with that view.

The demurrer seems based upon the idea that the widow of the decedent, even though she be not the head of the family, and though none of the children are living with her, and though she has again married, is the absolute and sole owner of all of the property so set apart, and may dispose of the same to her second husband, or authorize him to sell it to others and convert the proceeds to his own use, without fault and without liability. That she is not such absolute and sole owner, is in effect decided by the cases of Wilmington v. Sutton, 6 Iowa, 44; Schaffner v. Grutzmacher, Id., 137.

Upon the best consideration we have been able to give to the statute, we are of the opinion that where property, set apart under section 2361, above quoted, is no longer needed and used by her for the special purposes contemplated by that section, it would fall into the general personal estate of the deceased, and be liable, not to debts, but to distribution according to law.

The statute was obviously intended for the benefit of the widow and the family of the deceased — not the widow alone, but the widow and the children. As we cannot see the justice or propriety of so construing it as to allow the widow’s second husband to enjoy its benefits at the expense of the children of him by whom the property was acquired, we feel constrained to reverse the judgment of the court below, and to remand the cause, with directions to allow the defendant to answer the petition if he is so advised.

Under the special circumstances of this case, as disclosed in the petition, we are of the opinion that on these facts being established, the plaintiffs are entitled to recover two-thirds of the value of the property sold and converted by the defendant to his use.

Reversed.