157 Iowa 358 | Iowa | 1912
— Nothing seems to have been done with, the motions addressed to the petitions of intervention, and the case comes to us solely upon the allegations of the pleading filed by the administrator, as amended; the truth thereof being admitted by the demurrer. These allegations are to the effect that the deceased, Matilda Brumagem, died, intestate, some time in the year 1911, seised of certain real estate (describing it), and that she acquired title thereto through the will of a former husband, J. H. Brown.
Know all men by these presents that I, James Henry Brown of the county of Lee and state of Iowa, feeling the uncertainty of life and the certainty of death and wishing to arrange my worldly affairs in the best possible manner for the benefit of my wife and children, I therefore ordain this as my last will and testament.
1st. That all my honest debts shall be paid.
2dly. That I give all (that remains after said debts are paid) of my property real, personal and mixed to my well beloved wife, Matilda Brown, to be used by her in the best manner for the benefit of our children and whatever of said property that may remain after the decease of my wife shall be equally divided among our children she being fully empowered to do with said property whatever shall best promote their common interest.
Given under my hand this 7th day of February, 1863. J. H. Brown.
It also appears that this will was made in the year 1863, and that the testator died during the same year; but the instrument was not probated until M!ay 15, 1899. The demurrer was a general, equitable one, and the question presented thereby is whether or not the named devisee took an estate in the real property, and, if so, the nature thereof. Various other matters, as the right of the widow to elect, are argued, which we do not think properly arise upon the record.
None of the many cases cited by appellant’s counsel run counter to the views herein expressed. The nearest approach to it is Bulfer v. Willigrod, 71 Iowa, 620. That was an action, however, by an heir against her mother, a devisee under the will, for an accounting; and the will there construed expressly provided that the devise was to the widow, to her own use and benefit, as she shall deem best for herself and daughter. The court, 'among other things, said in that case: “The will confers upon plaintiff no interest either in the property or its proceeds. But, if it could be said that a trust was created in her favor, she clearly could not now maintain an action for the recovery of any portion of the' proceeds; for the right to use the property Tor her own use and benefit,’ which was conferred upon the widow, has not terminated. There is no provision for its termination in the will.”
The case is reasonably clear, and, in our opinion, the demurrer was properly sustained.
The motion to strike appellees’ abstract will be sustained. — Affirmed.