54 Iowa 478 | Iowa | 1880
I. The petition alleges that plaintiff is the w. low of John Linton, who died seized of certain lands in th u State; that he left no child or children surviving him; that he u‘.vised all the lands to his brothers and sisters; that the will x-as been admitted to probate, and that the plaintiff lias refused to accept under the will, and has not relinquished her dower i.x the property. The plaintiff claims as dower one-half of the lands, and prays for relief accordingly.
The defendants, answering, admit the marriage of plaintiff with deceased, and that no issue was born to them, but allege that in 1867 she abandoned him, and they always thereafter lived separately. It is further shown in the answer that; in consideration of the separation of the parties, they entered into a written contract by which each relinquished all dower interest or right to the other in and to all lands then owned, or thereafter to be acquired, by either of them. The consideration of this contract is declared to be the mutual agreement of the parties therein expressed. It was duly acknowledged and recorded. This instrument, defendants' claim, operates as a relinquishment of plaintiff’s dower: The answer admits the disposition of the property by will to the brothers and sisters of the devisor.
Plaintiff, in her reply to the answer, admits that she and her husband lived separate, alleging that he abandoned her without cause. She further alleges and insists that the contract,- under which defendants claim relinquishment of her
Code, section 2203, is in the following language: “When property is owned by either the husband or wife, the other has no interest therein which can bo the subject of contract between them, or such interest as will make the same liable for the contracts or liabilities of either the husband or wife who is not the owner of the property, except as provided in this chapter.”
, This provision relates to the interest which a husband or wife holds in the lands owned by his or her spouse which arises under-the marriage relations. It does not i’efer to a property interest that may be based upon contract, or may be derived from sources other than the marriage relation. The section evidently contemplates and includes in its language the dower estate. Upon the marriage relation this estate is based. The exception at the close of the section refers to section 2214, which provides that expenses of the' family, and of the education of the children, are chargeable upon the property of the husband and wife; contracts made by one spouse, under which such expenses are incurred, may be enforced against the other. Sections 2207 and 2208 provide for the enforcement of such contracts in cases of abandonment of the association required by the marriage relation.
These provisions relate to property owned absolutely by the husband and wife in their own right, and not to the interest one may have in lands of the other.
This construction of the several sections cited will give effect to all. It is, too, in accord with the obvious meaning of the language of each.
Section 2203 was first introduced into the present Code; it had not before been the law. Prior thereto this court had held that under an agreement to separate, a husband and wife could relinquish to each other dower held by each in the property of the other. Robertson v. Robertson, 25 Iowa, 350; McKee v. Reynolds, 26 Id., 578. The provision just cited was intended to change this rule.
For the error in adjudging that plaintiff’s interest is one-half instead of one-third of the lands of her deceased husband, the judgment of the court below is reversed and the cause is remanded for proceedings in accord with this opinion.
Reversed.