61 Iowa 293 | Iowa | 1883
— This cause was before the court at a former
I. As to the mechanics’ liens and taxes. The plaintiff’s husband executed a will, which has been duly admitted to probate, and he therein devised all his property, both real and personal, to persons other than the plaintiff. In Ward v. Wolf, 56 Iowa, 465, it was held, under a similar will,'that the widow was entitled to one-third of the personal property, notwithstanding the will. In other words, it was held that a husband cannot by will deprive his widow of her distributive share of his personal estate. The writer and Mr. Justice Day did not concur in that decision, but the court is not disposed to change the rule established in that case. In the case at bar, therefore, the plaintiff is entitled to a share of the personal estate, and, as the mechanics’ liens and taxes have been paid with money derived from the personal estate, it is apparent that the plaintiff’s interest therein has been reduced to that extent. Now, it is our opinion that the liens and taxes paid should not be again deducted from the plaintiff’s share of the real estate, or her interest therein lessened in any degree because of the discharge of such liens. Besides this, the personal estate constitutes the primary fund for the payment of debts. Code, § 2385. McGuire v. Brown, 41 Iowa, 650.
II. The plaintiff commenced an action to recover or have
III. The defendant also pleaded an adjudication in- an action brought by the plaintiff to obtain an allowance from her husband’s estate. This action was brought under section 2375’of the Code. The court refused to grant the relief asked. We do not understand' counsel in their argument to insist that plaintiff’s right to recover in this action is barred because of the adjudication just stated. But if mistaken in this, we do' not think the stated proposition constitutes a bar to the plaintiff’s recovery, upon substantially the same grounds as above, stated.
■ IY. . The appellee has filed a motion asking that the costs of this appeal be taxed against the defendant personally, or that the plaintiff be relieved from the payment of any portion of the costs of this appeal out of her share of the estate. We are not prepared to say that the appeal was not taken and prosecuted in good faith, under the belief that the .circuit court erred. This being so, the motion must be overruled and the judgment of the circuit court'
' Affirmed.