62 Iowa 291 | Iowa | 1883
I. The plaintiff is the administrator of the estate of Fitz • Henry Warren, deceased, and the defendants are the executors of the will of his wife, Sophia H. Warren, deceased. On the 21st day of May, 1877, the will of Mrs. Warren was admitted to probate in the court below. It is in' the following language.
“I, Sophia II. Warren, wife of Fitz Henry Warren, of Burlington, Iowa, do make and publish this my last will.
“1. I appoint 0. 0. Warren and George H. Lane executors without-bond.
“2. After my debts are paid, I direct that one-third of my estate, real, personal or mixed, be held, invested and managed by my executors for the benefit of my husband, and that they semi-annually pay to him the income thereof during his natural life. If the income should prove insufficient for his comfortable support, then they are authorized to apply such part of the principal as may be necessary for that purpose. At my husband’s death, such property as shall remain shall be equally divided between my son, Francis, and daughter, Lilly.
“3. One-third of said rest, residue and remainder of my estate I give, devise and bequeath to my son, Francis J. Warren; provided, however, and this bequest is upon the following condition: That said bequest shall not be paid to him until he attain the age of thirty years, but in the meantime shall be invested and managed by my said executors, and the income paid to him semi-annually, &c.
“4.' The other and remaining third of said residue and remainder I give, devise and bequeath to my daughter, Lilly Johnson Warren, subject to the following conditions and limitations, viz: That the same shall not be paid her until she is twenty-five years of age; in the meantime the same shall*293 be held, invested and managed by my said executors, and the income thereof .paid to her semi-annually until she is twenty-five years of age as aforesaid.
“5. In order to enable my said executors the more effectually to carry out the several provisions of this my will, I do hereby give them full power and authority to sell any property left by me, and convey the same, whether real, personal or mixed, as fully as I could do, if living, and to invest the same, and the same again to sell, convey and invest, without limit or restraint. And in case of the decease of my executors, or their non-acceptance of or removal from said trust, I direct that their successors, to be appointed by the probate or other court having jurisdiction thereof, shall have the same power of disposal and investment of the real and personal estate, and the same duties in relation to the trusts herein established, as my executors have in and by this will.”
The defendants are executors under the will.
General Eitz Henry Warren died, June 21, 1818, and the plaintiff was duly appointed administrator of his estate.
No consent of General Warren to take under the will of his wife was made of record in the court below, as required by Code, § 2452, prior to the order appealed from in this ease. On the 18th day of May, 1882, the defendants moved the court below to cause to be entered of record such consent. The motion was sustained and the record was accordingly made on that day.
There was evidence showing that Gen’l Warren had full knowledge, from the first of the provisions of the will, and, indeed, that it was framed to accord with his suggestions, and that he received from the executors payments under the will, and transferred to his daughter by written assignment all his right to the sums of money to be paid him by the executors under the will. Upon this proof, and wdthout evidence of any formal assent by Gen’l Warren, either written or oral, made in court, or any showing that any such order had been directed but had not been entered of record, the
II. Code, § 2452, provides that “the widow’s share [of the estate of her deceased husband] cannot be affected by any will of her husband, unless she consents thereto within six months after notice to her of the provisions of the will by the other parties interested in the estate, wiiieh consent shall be entered upon the proper record of the circuit court.” This provision is applicable to the surviving husband of a deceased wife. Code, § 2440.
It will be observed 'that the interest of a surviving husband or wife in the estate of the deceased spouse is not affected by a will, unless consent thereto is entered of record within six months after notice of the provisions of the will. It is not claimed that record of such consent was made in this case at any time during the life of General Warren. More than six months transpired after his death before the order appealed from in this case was made. If it be conceded that he had the notice required by the statute, and consented, a point we do not determine, the record was not made within the time prescribed by the statute above quoted, which we have held to be essential in order to defeat the rights of the surviving spouse. See Baldozier v. Haynes, 57 Iowa, 683.
This decision is decisive of the case before us. It is, however, questioned by defendant’s counsel. We think it accord# with the plain language of the statute. Indeed, no other conclusion could be reached which would not be in conflict therewith. With the wisdom of the statute, or its policy, we have nothing to do. It in unmistakable words prescribes that, in the absence of a record of consent to the will made within six months of notice of its provisions, the survivor’s rights are not affected thereby. Ita lex scripta. We cannot nullify or change it by interpretation.
III. It is urged that Gen’l Warren did consent to the will in his lifetime. But consent alone does not defeat his
Other arguments are pressed with zeal by counsel for plaintiff. They are mainly based upon tbe effect of the law, considerations based upon a comparison of tbe statute with prior enactments upon tbe same subject, and tbe like. While they are not without force, they fail to convince' us that tbe case is not within tbe rule of Baldozier v. Haynes, or to satisfy us that our decision in that case is not correct. In our opinion tbe decision of tbe circuit court ought to be
Reversed.
