Parker v. Hayden

84 Iowa 493 | Iowa | 1892

G-raNG-er, J.

We are required to determine whether or not’ the widow is entitled to both the life ■estate under the will, and the dower right under the law. It is conceded by the appellant that “the widow will be entitled to claim her dower right, — here an •estate in fee, — in addition to the terms of the will, unless the bequests made therein are in lieu of dower, in words, or to that effect, or to be gathered from the will or established by clear and manifest implication of the terms thereof. ’ ’

• Tbe appellant seeks to distinguish, this case-from other similar cases in this court as follows: That, where all the property of the testator is devised,, the life estate to the wife and afterwards to he divided,, the taking of'the dower does not at all interfere with the-will; but where the devise is of specific property to-the devisee, whether the property is devised in fee or devised to be sold, in either case such devise bars-dower, for that dower cannot be taken without'interrupting. or defeating some provisions of the will. There-is no express provision in this will against dower, and. under the uniform rule of this court it must be allowed unless to do so “will be inconsistent with and will defeat some of the provisions of the will.” In the case of Daugherty v. Daugherty, 69 Iowa, 677, the facts do not bring it within the distinguishing rule claimed by appellants. In that case there was a devise of a life-estate in all the real estate of the testator,' and specific-devise of the remainder in certain described property to his son. In this case the devise is specific, describing the particular property,' both as to the life estate and the remainder. It is not easy to see how the allowance of.dower could defeat or be inconsistent with the provisions of the will in one case and not in the other. The cases, so far as the principle contended for is concerned, are identical; we discover no grounds upon which this case can be distinguished from that or the others on which that is m'ade to depend.

It is, however, urged to us that by a manifest implication the will on its face shows that the devise to the widow was intended in lieu of dower. The argument is forcible, and it is not necessary that we should attempt, from the standpoint of reason, to question it. What might be the view of this court, as now organized, with the question an' original one, is quite immaterial in the light.of former decisions. The Daugherty case ruled the point how before us as settled on authority. The district court followed the line of authorities given for its guidance, and, unless the former cases are to be overruled, our duty lies in the same direction, and must result in the judgment being aeeirmed.