95 Iowa 728 | Iowa | 1895
I. Owing to the numerous pleadings filed in this case, and the condition of the record, it is difficult to ascertain the exact condition of the case. It appears that originally the plaintiffs and the defendant James Hunter appealed; that afterward Lemuel Hunter, defendant, served notice of .appeal. In appellees’ argument, it is said that plaintiffs’ appeal has been dismissed, and that James Hunter is now the only party appealing from the decree. We find nothing in the record or papers submitted to us showing such to be the fact. .So far as the record shows, the appeal is prosecuted by plaintiffs and the ¡defendant James Hunter, and the case will be so •treated. Inasmuch as appellees’ counsel, in argument, do not claim that Lemuel Hunter has appealed, and no argument is filed on his behalf as an appellant, but only as an appellee, his appeal will be treated as abandoned. We shall endeavor to state the issues between the par.ties, eliminating therefrom all pleadings for which substituted pleadings were filed, as well as all rulings which :were not relied upon by the parties, or which were .waived by the filing of subsequent pleadings.
III. This court held, on an appeal from the ruling of the district court accepting under the will for the ward Elizabeth Hunter, that, inasmuch as no notice of the proceedings was served upon the ward, that court was without jurisdiction in the matter—In re Hunter’s Estate, 84 Iowa, 388 (51 N. W. Rep. 20); hence no election to accept under the will was legally made for the widow. It is urged, however, that prior to the time the widow became of unsound mind her acts were such as that she should be held to have elected to accept, under The will, and that such acceptance would bar her right to dower. This contention of appellees, however, is based upon the further claim that there is an inconsistency in taking under the will and in claiming dower.