145 Iowa 373 | Iowa | 1910
Pieper died testate December 24, 1906, and plaintiff is executor of his last will and testament. Defendant is the widow of William Pieper, deceased, and as such it is claimed that she is in possession of the sum of $3,500, the proceeds of certain real estate which it is claimed belonged to the deceased at the time of his death. Defendant claims that the money belonged to her, and that plaintiff has no interest therein. Defendant was the third wife of the deceased. She married him in the year 1868; she being twenty-two or twenty-three years of age, and her husband fifty-three. Shortly after the marriage they moved upon a farm of one hundred and ninety-five acres near Mechanicsville in this state. Pieper had two children by his first wife and five by his second, and these children became members of the family into which defendant was admitted. As a result of the third marriage, three children were born, two of whom are now living. Shortly after moving upon the farm, the husband entered into the “blooded stock” business, which he continued down until about the year 1872. This was a losing
Contract. This contract and agreement made and entered into this 5th day of April, 1900, by and between William Pieper, party of the first part, and Augusta Pieper, party of the second part, witnesseth: That the parties hereto have this day together mutually sold a farm in Pioneer township, Cedar County, Iowa, and the party of the second part has taken one-third of the proceeds and the party of the first part has taken two-thirds of the proceeds thereof. And it is mutually agreed and understood between the parties hereto that this is a full settlement of all matters between them; that is, in all transactions made hereafter, party of first part has his property absolutely, and party of the second part has her property absolutely, and neither one will make any claim whatever to the property of the other. It is also stipulated that the property in Lisbon, Iowa, now in the name of the party of the second part, Augusta Pieper, and belonging to the party of the second part hereto, is hers absolutely, and the party of the first part makes no claim and will make no claim for dower or any interest whatever in the same inasmuch as the division of the property this day made, is a full settlement of all of the matters and things between the parties hereto, and all of the property now in the name of either party is to remain therein and the other makes no claim whatever to the same, and this is true also of any after acquired property between parties hereto. And this money is hereby turned over to Augusta Pieper as her dower and if not so accepted then still belongs to first party.
It is claimed that there is no sufficient proof of the proper execution of this instrument; but this point we shall pass over for the present. It-is conceded, however, that it was never recorded. At the time of the sale of the farm, defendant discovered that her husband had again become indebted to an amount of about $2,000. After the sale of the farm, the parties continued to live at Lisbon until about the year 1906, when they moved to Springville,
This action is brought to require defendant to account for this eighty acres of land and for the money received by her pursuant to the agreement hitherto set out. After the executor was appointed, defendant made application to have her distributive share set aside, and also for her support; the claim for the latter being $800. Upon this state of facts plaintiff makes the following propositions, which he relies upon for a reversal of the decree dismissing his petition: .
(1) Even if the attempt in the contract to make a present release of dower was void, yet the transaction concerning the transfer of one-tliird of the proceeds of the farm to Mrs. Pieper was a conditional gift, to take effect in the future, and the title of the money did not vest in her unless after her husband’s death she relinquished her dower and other rights in the estate of her deceased husband.
(2) The defendant not having complied with the condition contained in the instrument creating the gift, the title to the money never vested in her, and the gift never became complete, and the money cán be recovered by the executor.
It will be observed that the title to the Lisbon property wras in the deceased for about a year, when it was conveyed to defendant, and that it remained in her name until it was exchanged for the eighty acres of land in contro
Section 3154 of the Code reads as follows: “When property is owned by the husband or wife, the other has no interest therein which can be subject of contract between them, nor such interest as will make the same liable for the contracts or liabilities of the one not the owner of the property, except as provided in this chapter.” It will be noticed that this inhibits the making of an interest which one has in the other’s land the subject of contract. Such agreements are not only invalid, but they can not even be ratified. Shane v. McNeill, 76 Iowa, 459. 'The parties may, of course, contract with reference to an interest owned by one in the land of another which does not grow out of the marital relation. Croup v. Morton, 49 Iowa, 16; Hamill v. Henry, 69 Iowa, 752.
We shall assume, for the purposes of our discussion,
Plaintiff, however, would divorce the last sentence of the contract from all that precedes, and asks us to consider that part of it as a sufficient basis for a recovery. With this thought uppermost, he insists that there was a conditional gift, and, as defendant has broken this condition and refused to abide by it, he is entitled to the return of the $3,500 paid thereunder. The exact point is that, as defendant has refused to accept the money as her dower,
We are constrained to hold that the contract contemplated not only dower consummate, but dower inchoate, and that this “was the thought of the parties. It is clear, however, that plaintiff has no right whatever to the lands standing in defendant’s name, growing out of the exchange of the Lisbon property; and we are also constrained to hold that he can not recover the $3,500 or any part thereof as a conditional gift. The invalidity of the contract as a whole prevents his doing that. Moreover, as the payment was upon a good consideration, plaintiff can not recover any part of it on the theory that defendant is holding money belonging to the estate. None of the cases cited by appellant are in point upon the propositions involved.
We reach the conclusion that the decree is correct, and it must be, and it is, affirmed.