Paup v. Sylvester, 22 Iowa 371

Paup v. Sylvester

22 Iowa 371 | Iowa | 1867

Wright, J.

1. Pleading and practice: in action for personal property. There is no claim or averment that ' plaintiff did not get “ one-half of the things in the house ” at the time she' left the homestead. In other words, it is not pretended that either 01' any of the articles claimed are hers, in virtue of that clause of the will which directs the mother to give her this half when she shall leave. And this being true, the action of the court below was most clearly correct.

Plaintiff’s averments, we remark in the- outset, are wanting in clearness. A leading difficulty is, she does not state whether the articles claimed are the' same or other and different from those bequeathed to the widow. Some of them are ■ the same in name, and would meet equally well ..the-description given. This is also true as to the property set apart to the widow by the appraisers *375and that claimed by plaintiff. Whether she claims this, or other and. > different property,-does not- appear except by the remotest inference.'

2. Will: surplus money: residuary legatee. She is certainly not entitled-' to that bequeathed to the widow. For -this,- as against plaintiff, defendant- took absolutely and in'her own!-right,--and'not -for "the use of the family. ¡But, -assuming that it is other property, and whether it was or .was .not set apart to the widow by the appraiser, the demurrer was still properly sustained; Plaintiff claims this property as the residuary legateejinsistthat it was left to her as the residuwm of the estate by-the will. The position finds no support whatever in the will--itself. She is -given; certain real estate, one-half of the household furniture, and the surplus money on hand at-the time- of her father's death, after providing for a sixty-dollar annuity to • the grandmother. She does- not take the property.on hand-, nor the money realized from . the -sale -of the property;: hut the money offhand at the .time of her father’s-death. .

She is, therefore, no more the residuary legatee than the daughter Mariathat is.-to say, -she- takes what was devised or bequeathed tolher. And then, if,, after the debts are paid and the other charges, including that-given to .the grandmother, anything remains,-it goes- to the-widow and heirs according to the general-rules of descent. And plaintifff therefore, lias no. more: right at - present to demand its possession or its.value, or any part of it,- than the widow or other .heir..

3. Executor: property set apart to the widow. . If it was property set apart to the widow, and still so held, plaintiff has no claim. If properly set apart, and widow is- not- entitled to it because ’there "is no longer a.family within-.the meaning'of the law, then .-it ;is-.assets, in the hands of the executor, to-be disposed-of accordingly. . And if not ‘thus set apart, then it is. still more, unquestionably assets *376in his hands. For the will, aside from the requirements of the law, contemplates the sale of the personalty, and here be it remembered that the condition of the estate is not disclosed, and hence we do not know but this very property, if not exempt, may be necessary to pay debts. At all events, as the case stands, this property was either rightfully in the possession of the widow, or it was legitimate assets in the executor’s hands, to be by him disposed of and accounted for as required by law. Certain it is that plaintiff could not, in her own exclusive right, claim its possession, nor, at present, as against defendant, its value. If the executor shall fail to do his duty, lie may be made liable. But with this we have nothing to do. And the argument, we may remark in concluding this part of the case, that section 2361 of the Revision refers to the estates of intestates, and not to a case where the decedent disposed of his whole property, is without force, as it does not appear that the will did include the whole property. It, at least, does not appear that the plaintiff is the residuary legatee. Nor, again, does she show, for the reason already stated, that she has a future estate or interest in it within the meaning of section 3225 of the Revision. There is no suggestion that the executor is not discharging his duty, nor that the property will be lost to her, if by possibility she should be entitled to any part of it or its proceeds, if her rights are not now protected and recognized. Neither upon authority, nor in consonance with the reason of the law, can an heir, upon the case made, be entitled to the relief here sought.

4. _ case explained. Appellants refer to and rely upon Gaskell v. Case (18 Iowa, 147). That case holds (following Wilmington v. Sutton, 6 Id., 44, and Schaffher v. Guitzmacher, Id. 137) that the property set apart to the widow under section'2361 does not become hers absolutely; but *377that if no longer needed and used by her for the purposes therein contemplated, it falls into the general personal estate, and becomes liable, not to debts, but to distribution, according to law. And to this opinion we still adhere. In that case, however, it was alleged that the second husband had taken the property into his possession and sold and converted the same to his own use. The very basis of his defense was that it belonged to the wife absolutely, and that, hence, she had a right to sell it., or authorize him to do so, without liability to the heirs. This position was held untenable. But that case is no authority for the proposition that the heir may take such property- from the widow, who remains in possession, and using and enjoying the same as such. It is not held in that ease that if the wife and husband retained the possession there could have been a recovery; but the decision is limited strictly to the case before the court.

Whether' the widow — the children all having attained their majority, and left the homestead — if she continues to keep house, and in good faith manages and cares for, and needs the use of the property thus left and set apart, can be compelled to surrender it in whole or part to them, is a question of much doubt, and we forbear any expresión of opinion thereon until it shall actually arise. The case relied on does not go to this extent; and more than this we need not say at present; and especially so, as the property in controversy, if not set apart becomes assets in the hands of the executor, may be taken for debts, and plaintiffs would clearly have no cause of action.

Affirmed.