87 Iowa 188 | Iowa | 1893
On the twenty-fourth day of October, 1890, Mary 0. Jones executed a will, which contained provisions as follows:
“First. I give to my brother, Cai’son Jones Agan, one thousand dollars in money. Second. I give to my husband, L. M. Jones, and O. M. Jones, my youngest daughter, one thousand dollars in money; and, with thirty dollars that is due me as rent on my place for the year just past, he, my husband, shall pay all my sickness and burial expenses; and the balance of my money, which is six thousand, nine hundred and seventy-seven dollars, to be divided equally with my three children, namely, Miss J. J. Moon, J. J. Moon, E. A. Moon, as they become of age. * * *”
The only other property included in the will was a tract of land of small value, not involved in this appeal. O. M. Jones was the child of the decedent and her husband, Levi M. Jones, a defendant.in this action. The three children last named were her children by a former husband. The date of her death is not shown, but the will was filed for probate on the twentieth day of
“First. The property disposed of by the will is personal property, and as to such property the husband has no right of election, but is bound by the will of the wife. Second. That said Levi M. Jones is barred and estopped from objecting to said will for the reason that during the lifetime of said Mary C. Jones the said Levi Jones, her husband, had full knowledge of the provisions of said will, and made no objection thereto, but at all times expressed his consent to and his acquiescence in the same, whereby the said testator was induced to, and did, rely upon said consent and acquiescence, and made no other disposition of. her estate. The said Levi M. Jones has availed himself of the benefits conferred on him by said will, and received and accepted from the testator during her lifetime a check for the one thousand dollars bequeathed to him, and, after the death of said testator, cashed said cheek, and obtained the proceeds of the same.”
It is said that in Wilson v. Breeding, 50 Iowa, 629, 632, this court held that section 2440 is applicable to real estate only. It is true that in that case it was said of section 2440 that the provisions of the chapter in which it occurs relate exclusively to real estate, but that is a manifest error. The question which the court was really called upon to determine was whether section 2440 applies to section 2371, which relates to personal property of a deceased husband which was exempt from execution in his hands. The court rightly said that section 2440 did not so apply, for the reason that, hy its express words, it is limited to the provisions of the chapter in which it occurs, while section 2371, although under the same title, is found in another chapter. "What was said in regard to real estate was not necessary to a determination of the case. We conclude that the question under consideration must be answered in the negative. See Houston v. Lane, 62 Iowa, 291, 294.
The case of Hainer v. Legion of Honor, 78 Iowa, 246, is relied upon by appellant as sustaining his claim. In that case a certificate of life insurance had been issued to one Grabel, before he was married, for the benefit of his mother, in case of his death. After the certificate was issued, Grabel married, and had one child, but permitted the certificate to stand without making any new direction as to the payment of the amount thereof in case of his death. He made a will, however, by which he bequeathed to his daughter one-half of the amount of the certificate, and to his mother the other half, to be invested for her for a yearly income, and at her death to revert to the daughter. An interest in real estate was also devised to the mother.' She knew of the will, and acquiesced in its provisions. Her son was induced to rely on that
In Roberts v. Austin Corbin, 26 Iowa, 315, it was held that the delivery of a bank check carries with it a right of action against the bank on which it is drawn, if it have sufficient funds of the drawer on deposit to use for that purpose, and that such right was not defeated by a general assignment for the benefit of creditors made after the check was drawn, but before it was presented for payment. That holding was based upon the implied promise of the bank to pay out on the cheeks of the depositor the funds deposited. It was said that, when the depositor has indicated by his check the person to whom the money shall be paid, the promise inures to his benefit. The recent case of Fonner v. Smith, 47 N. W. Rep. (Neb.) 632, is to the same effect. In Poole v. Carhart, 71 Iowa, 37, bank checks were distinguished from other orders for the payment of money. It may be true that a check can not be regarded as an assignment of “funds/7 within the ordinary meaning of that term, but it transfers to the payee a right to recover its amount of the bank on which it is drawn, if the drawer have a sufficient deposit
The judgment of the district court is arnírmed.