148 Iowa 127 | Iowa | 1910
It appears that by the will of William Hamilton, deceased, all his property, both real and personal, remaining after the payment of his debts and certain legacies, was devised and bequeathed to his wife, Ella Hamilton, for life, with remainder to this defendant, his sole heir at law, and that his wife being appointed executrix of his will disposed of his personal property and paid the debts of the estate, and on filing an account she was granted a final discharge, and the estate was declared settled. Subsequently she filed in the probate court an election to accept the provisions of the will in her behalf in lieu of her statutory share in the estate. Before
I. Wills: allowance to widow and children. I. The contention of appellant that the -acceptance of the provisions of the will in her favor was inconsistent with her right as surviving widow to have an allowance seems not to be supported by the language of fhe statute relating to such an allowance, nor by ^ ¿ecisi0]ls interpreting such statute. The provision is that “the court shall if necessary set off to the widow and children of the decedent under fifteen years of age or to either sufficient of his property of such kind as is proper to support them for twelve months from the date of his death.” Code, section 3314. This provition is clearly intended to afford protection to the widow and children pending distribution of the estate, and the amount thus applied by the court does not become a part of the estate for distribution, nor is the right to - it an interest in the estate. In re Miller's Estate, 143 Iowa, 120. In that case we held that the right to such an allowance was not cut off by the antenuptial contract by which the widow had agreed to accept certain specified property in full of all her interest in the estate of her husband. We
The judgment of the trial court is affirmed.