70 Iowa 71 | Iowa | 1886
At common law, a widow’s dower, before assignment, was a mere right in action, and was not subject to attachment or levy of execution. This rule was applied in Rausch v. Moore, 48 Iowa, 611, which case arose under the law of 1862, and by which the widow’s dower right had been enlarged. Under the Code, § 2440, dower is abolished, and the widow takes a distributive share. That share is one-third in value of the whole real estate, and is not necessarily to be set oil' in every tract, but may be set off in one, and should be set off so as to include the ordinary dwelling-house, unless she prefers a different arrangement.
The plaintiff seeks to subject the defendant’s interest in the specific land described, and for this purpose he prays that he may be authorized and empowered to bring an action to recover the dower or one-third interest in said land, and to have the same set off’. We are not aware that a court of equity can empower a person to bring an action where the right does not already exist, and where it does exist no equitable relief is necessary. Possibly, in a proper case, a court of equity might, at the instance of a creditor of a widow, cause her distributive share to be set out, so that an execution could be levied upon it; but this question is not before us, and we do not determine it. It is manifest that the petition, in an action brought for such purpose, should show that the land or real estate belonging to the estate is all the real estate of which the widow’s husband died seized. In this case, the petition is defective in this respect. Again, before a court of equity could proceed to set out a widow’s distributive share, if it could, do it at all, it should have before it all the parties in interest. In this case no party in interest is made a party except the widow.
In our opinion the demurrer was rightly sustained.
AFFIRMED.