150 Iowa 671 | Iowa | 1911
(1) Appellee urges upon our attention the objections filed in the lower court and which are referred to in the foregoing statement. From what is there indicated as to the state of the record, we do not think she is in any position to be heard on the same, and we do not pass upon questions thus raised.
(2) The case was heard upon a stipulation of facts. John Mussehnan died testate in 1887. He left a will which was duly admitted to probate. It contained the following clauses:
First. I give and bequeath to my beloved wife, Sarah Musselman, the full and exclusive control of all my personal and real property of which I may die seised, to have and use for herself and the support of my minor children, with full power and authority to sell any of the property, personal or real at any time that she may think best, with full power to sell and convey any of my real estate by good and sufficient deed in fee simple, when she may consider it best so to do for her comfort and the best interest of my children, and the use and control of all my property as before given with the power and authority vested, shall continue in my said wife so long as she remains my widow; and at the decease of my said wife, I direct that all the property, both real and personal, that may remain undisposed of and not consumed in the support of her 'and the children, shall be equally divided among my children that may be living at that time, with this exception, that I will and direct that my son Samuel Gr. Musselman, shall have 'of my estate the sum of five dollars only, my reason for so limiting his amount is on account of unkind treatment to me by him and. his wife.
He left surviving him his widow, Sarah, and ten children. Of these ten children two were by a former marriage, viz., Samuel G. and Elizabeth Harlan, and the other eight were the children of the later marriage by himself 'and Sarah. After the death of the testator, his widow occupied the premises under the provisions of the will for nineteen years and died in 1906, leaving-surviving her seven children by the testator. One son, William, died before her, leaving as his only heir at law the minor defendant Thomas.
We think, also, that the remainder over after the death of the wife was clearly devised to such children of •the testator as should survive his widow, excluding Samuel. No title of any part of the property ever vested, therefore, in William, the father of appellant. Iimas v. Neidt, 101 Iowa, 348; Jordan v. Woodin, 93 Iowa, 453.
III. It appears from the record that the property was sold in pursuance of the former decree at referee sale. Appellant does not claim the right to interfere with ■ the title conveyed by such sale. It is agreed that Elizabeth Harlan received the one-eighth share of all the proceeds. The appellant is entitled to recover from her the one-third of such proceeds. To this extent the decree entered below will be modified, and the case will be remanded for further action of the trial court in harmony herewith.
Modified and remanded.