| Iowa | Jan 25, 1872
The sole question presented for our determination involves the right of the widow to take as a distributee of the personal property of the estate notwithstanding it has been fully disposed of by the will of her deceased husband. The question depends mainly for solution upon the construction of our statutes governing the descent and distribution of property. And to one at all familiar with these enactments this statement is a sufficient indication of the difficult'nature of the task before us, for there are no laws, which we are called upon to interpret, so nearly enigmatical to the extent of incomprehensibility, as are these. It seems strange that statutes intended to supply rules, which, in the course of an age, must be applied to all the property of the people of the State, should be framed in such obscurity and doubt, and left to depend so much upon interpretation. In reaching a conclusion upon the question before us we have had most efficient and valuable aid from the carefully prepared and able briefs of counsel, as well as from a well-considered and well-expressed opinion of the learned circuit judge who tried the case
A consideration of tbe different statutory provisions applicable to tbe subject demands our attention. They will be better understood by grouping them together in tbe proper order of their relation to tbe question under consideration. They are found expressed in tbe following language:
“ Rev., § 2309. Any person of full age and sound mind may dispose, by will, of all bis property except what is sufficient to pay bis debts, or what is allowed as a homestead, or otherwise given by law as privileged property to bis wife and family.”
“ Section 2361. "When tbe deceased leaves a widow, no property wbicb, in her bands, as tbe bead of a family, would be exempt from execution shall be deemed assets or administered upon as such, but tbe same, after being inventoried without appraisement, shall remain with her and tbe family until disposed of'according to law.”
Section 2403 provided that an allowance should be made by the probate court for tbe maintenance of tbe widow and minor children wbicb afterward was deducted from their respective portions. This provision is amended by chap. 22, Acts 1862, § 1, as follows.: “ Tbe appraisers appointed to appraise tbe personal property belonging to tbe estate of any decedent, shall set off and allow the widow and children under tbe age of fifteen years of such decedent, if any there be, or if there be no widow, then to such children sufficient provisions or other property to support them for twelve months from tbe death of tbe decedent * * * * .” The requirement of Rev., § 2403, directing tbe amount set apart under it to be deducted from tbe portion of tbe heirs and widow is repealed by this statute. Chap. 151, Acts 1862, § 1, amendatory of former statutes in regard to dower, provides : “ One-third in value of all tbe real estate in wbicb tbe husband at any time during marriage bad a legal or equitable
Rev., § 2435. “ The widow’s dower cannot be affected by any will of her husband if she objects thereto, and relinquishes all rights conferred upon her by the will.”
§ 2422. “ The personal property of the deceased not necessary for the payment of debts nor otherwise disposed of as hereinbefore provided, shall be distributed to the same persons and in the same proportions as though it were real estate.”
§ 2480. The “ widow is entitled to receive the same amount of personal property that she is entitled to receive by virtue of section 2422, and her title thereto shall remain absolute.” This section was subsequently enacted and is amendatory to the one mentioned therein.
§ 2436. “ Subject to the rights and charges hereinbefore contemplated, the remaining estate of which the decedent died seized, shall, in the absence of other arrangements by will, descend in equal shares to his children.”
I. The power conferred by section 2309 to dispose of property by will is limited only by the restrictions therein prescribed and others found in the sections just quoted. The “ privileged property ” given by the law to the widow and family of decedent is provided for in sections 2361 and 2403, and the amendment to the one last mentioned. By this expression dower is not referred to. So far we find no inhibition upon the disposition by will of personal property that supports appellant’s claim to one-third thereof. Neither is it supported by chap. 151, § 1, Acts 1862, for by this statute provision is made as to the real estate only, and not as to the personal property.
II. But it is insisted that the term d-ower, used in section 2435, applies to personal property which is intended to be secured to the widow thereby in the same proportion as is the real estate of the deceased. But this construction is inadmissi
Upon this point appellant’s counsel has submitted an elaborate argument, and urges his views with great earnestness, and supports them by extended research. It would hardly be profitable to pursue the course of his argument and discuss the question at length. "We have seen no authority which, independent of statutory provisions, applies the term dower to personal property, and should we discover such a use of the word we would be quite as much surprised as would the profession should we adopt it in this case.
III. The appellant’s claim finds no support in section 21-22, for the decedent disposed of his personal property by will, as he was authorized to do, by section 2309. Whatever right the widow may have under this section only accrues when no disposition by will is made of the personalty. This position demands no further attention.
These views, which, to our minds, are quite satisfactory, lead us to the conclusion that the judgment of the circuit court is correct.
Affirmed.