Linton v. Crosby
16 N.W. 113
Iowa
1883
Check Treatment
Seevers, J.

— This cause was before the court at a former *294term, and it was held that the plaintiff was entitled to recover one-third in value of the estate owned by her husband at the time of his death. Linton v. Crosby, 54 Iowa, 478. Upon filing the procedendo in the circuit court, the defendant pleaded two additional defenses, the first being that he had paid mechanics’ liens and taxes on the real estate. This was admitted by the plaintiff, but she claimed, and it was established on the trial, that such liens and taxes were paid from money which came into the hands of the defendant from rents of the real estate, and from sales of the personal property belonging to plaintiff’s deceased husband. The second defense pleaded was a prior adjudication. The only questions pressed in argument by counsel are the two just stated.

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 *295set apart to her certain personal property owned by her husband at his death, which she claimed to be entitled to because her husband was the head of a family, and the property in his hands was exempt from execution. In that action tlie defendant pleaded — -first, a general denial;' second, that the decedent at the time of his death was not the head of a family; third, that decedent had disposed of all his property by will. The circuit court rendered judgment for the defendant, but upon -which of the above defenses we are not advised. The plaintiff appealed to this court, and the judgment of the circuit court was affirmed- on the ground that the plaintiff’s husband at the time of his death was not the head of a family. Linton v. Crosby, 56 Iowa, 386. It is insisted that, as the judgment of the circuit court was general, it is thereby established that because of the provisions of the will the plaintiff was not entitled to recover, and, this being so, that the plaintiff must fail in this action because of such prior adjudication. - The second defense, that the deceased was not the head of a family, constitutes a sufficient and valid ground upon which the judgment-of the circuit court can be based. It is doubtful, to say the least, whether a husband can, by will^ deprive his widow of personal estate which in his hands was exempt from execution. Code, § § 2322, 2371. Estate of Jacob Davis, 36 Iowa, 24. We do not think we would bé warranted, in the absence of any showing, in presuming that the circuit court based its judgment on the doubtful proposition above stated. But, if we did so, this would not be equivalent to holding that, the adjudication would bar .a recovery in this action, which is brought to recover the plaintiff’s distributive share of the real estate belonging to her deceased husband at his death. It is not and cannot be- successfully maintained that; under the statute, a will can have such an, effect. The plaintiff, therefore, should not beestop]jed by the prior adjudication, unless the question determined in the prior action was, whether, because of the will, the plaintiff failed to recover what she how claims — thát *296is, an interest in the real estate. This never .has been decided adversely to the plaintiff.

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.