Metteer v. Wiley

34 Iowa 214 | Iowa | 1872

Miller, J.

But a single question is presented by the record in this case, namely, is the widow’s dowel barred by her acceptance of the provisions of the will in her behalf? This question must be answered in the negative. It is a settled rule in the construction of wills, that where there is no express declaration in the will barring the dower of the wife, the intention that it shall be barred must be deduced by clear and manifest implication from the instrument, founded on the fact that the claim of dower would be inconsistent with the will or so repugnant to some of its dispositions as to disturb and defeat them. Corriel v. Ham, 2 Iowa, 552, and cases cited. And, in that case, and in Sully v. Nebergall, 30 Iowa, 339, it was held, that the widow’s election to take under the will, which gave her a life estate in all the real and personal property of the testator, did not defeat her right of dower.

In this, as in those cases, there is no express declaration in the will, of an intention to bar the widow of her dower, nor is her acceptance of the bequest in her favor inconsistent with her claim for dower. There is nothing in the provisions of the will, manifesting an intention to bar the dower of the widow. Its provisions are substantially the same, as in the cases before referred to, in both of which the widow was held entitled to her dower.

The judgment of the district court is reversed with directions to render such judgment and orders, as shall be consistent with this opinion.

Reversed.