172 Iowa 575 | Iowa | 1915
James and George P.. Hanley died intestate on July 2,1912, seized of real estate in Polk and Dallas Counties.
The argument of appellants proceeds on the theory that this statute casts the descent on the legal heirs of the deceased parents. Were this true, there would be some ground for saying 'that the widow of a deceased parent was not such heir and might not take. Will of Overdieck, 50 Iowa 244; Blackman v. Wadsworth, 65 Iowa 80. But those who are to take are not so nominated. The design of the statute is to lay down a rule by which -the heirs of the intestate shall be ascertained. How ? By learning who- would have taken the estate if the parents of the intestate had outlived him and died in the possession and ownership of the property; and the persons who would thus have taken are, by this statute, declared the heirs of an estate of a person who has died without spouse or issue, and such persons take directly, and not through the parent. This is the purport of decisions somewhat relied on by appellants. See Lash v. Lash, 57 Iowa 88; Wilcke v. Wilcke, 102 Iowa 173; In re Hulett’s Estate, 121 Iowa 423.
“If the intestate leaves no issue, one half of the estate shall go to the parents, and the other half to the spouse; if no spouse, the whole shall go to the parents.”
“Sec. 3366. One third in value of all the legal or equitable estates in real property possessed by the husband at any time during the marriage, which have not been sold on execution or any other judicial sale, and to which the wife had*581 made no relinquishment of her right, shall be set apart as her property in fee simple, if she survive him. . . .”
There is no room for construction; for, under the plain language of the statute, one half of the estate of a person dying without issue passes to the surviving spouse, and his property would have been so disposed of had James Hanley, Sr., outlived James. This was avoided by the trial court by assuming that James Hanley, Sr., would not have died without issue, though this was contrary to the conceded facts. There is no escape, on the record as made, from the conclusion that Hannah Hanley, the stepmother, was entitled as heir to one half of what James Hanley, Sr., would have inherited from James, or eleven forty-eighths. This, added to the one twelfth inherited from George, makes fifteen forty-eighths of the estate, and she should have been decreed the owner of such portion of the estate of the intestates.
No exception is taken to the order in so far as it relates to the shares of others.
Affirmed, on appeal of plaintiffs and defendants other than Hannah Hanley. Modified and affirmed on appeal of Hannah Hanley.