143 Iowa 120 | Iowa | 1909
In Code, section 3314, it is provided that the probate court may make an allowance to the widow of decedent and to his children under fifteen years of age, or to either, of a suitable sum for their support for a period of one year. It is not contended that the allowance made in this case was not authorized, save on the ground that there was an antenuptial contract between the widow and deceased which excluded her from the benefit of such statutory provision. This contract, so far as material, was in the following terms: “We and each of us agree to marry the other, and, should the said Mary Eulk (applicant) survive the said Isaac Miller, she hereby agrees to accept in full of her part of all property of which the said Isaac Miller dies seized as owner, the household and kitchen furniture and three hundred dollars in cash, and it is hereby agreed by the parties hereto that in event of the death of said Isaac Miller before the death of said Mary Eulk the said Mary Eulk shall have all the household goods and kitchen furniture left by said Isaac
It is contended, however, for appellant that the contract now before us goes further than the contract in the Mahaffy case, in that 'it concludes with the general sweeping provision that the settlement made by the contract “shall be all that she shall receive of the estate of said Isaac Miller.” We do not see any reason for giving to this clause any greater effect than was given to the similar clause in the Mahaffy case. In a very proper sense the estate of Isaac Miller in which his widow would have been entitled to distributive share had no relinquishment been made consisted of the property belonging to him at the time of his death and remaining for distribution in accordance with his will or otherwise as provided by law after the payment of his debts and the charges and expenses of administration. ' The allowance to widow and children is one of the expenses of administration. It is not taken out of the estate which is to be distributed, but is, to be satisfied before the amount of such estate can be
As is said by the court in Pulling v. Durfee, Judge, 85 Mich. 34 (48 N. W. 48): “The statutory provisions [similar to those now under consideration] are clearly intended to protect the widow and children during the progress of the settlement of the estate and pending distribution.” And this court has said: “It must be understood that contracts designed to divest the wife of the benefits of the statutes in her favor after the death of her husband, and especially a statute providing for a necessary support immediately following such death,.must not be of doubtful interpretation, but specific and certain as to such intent. In general the provisions of the statute in this respect embrace interests not alone personal to the wife, but to the children, and in a sense to -the public, and a law thus designed is to be guarded with caution.” In re Estate of Peet, 79 Iowa, 185. The widow’s right to an allowance is in no sense an interest in the estate of her husband. Such an allowance can not be said to be an interest in the property itself of the husband. Phelps v. Phelps, 72 Ill. 545 (22 Am. Rep. 149). We reach the conclusion that there was nothing in the ante-nuptial contract precluding the court from making an allowance to the applicant.
Appellee’s motion, submitted with the case, to dismiss the appeal, on the ground of subsequent payment to the widow of the amount of the allowance, need not be considered in view of the conclusion reached on the merits.
