Will of Overdieck

50 Iowa 244 | Iowa | 1878

Day, J.

The widow, Elise Overdieck, claims that she is entitled to the amount devised to Friedrich Overdeick, under section 2337 of the Code, which is as follows: “If a devisee die before the testator, his heirs shall inherit -the amount S0‘ devised to him, unless, from the terms of the will, a contrary intent is manifest.” The corresponding section, 2454 of the Code, 2437 of the Revision, respecting the disposition of the property of intestates, is as follows : “If any one of his children be dead, the heirs of such child shall inherit his share in accordance with the rules herein prescribed, in the same manner as though such child had outlived its parents. ” This section received construction in McMenomy v. McMenomy, 22 Iowa, 148. It is there held that this section does not authorize the widow of a deceased husband to inherit from their child who died before the death of the husband. This construction was followed at the present term. See Journell v. Leighton, 49 Iowa, 601. The purpose of the two sections is evidently the same, and it is not possible, with any consistency, to place upon them a different construction. That the construction placed upon the statute in McMenomy v. McMenomy meets the legislative approval, may be fairly inferred from the fact that, although the decision was announced eleven years ago, no declaration of a different purpose has been declared by alteration or amendment of the law. As was said in Journell v. Leighton, the construction adopted in McMenomy v. McMenomy establishes a rule of property, and cannot now, without great confusion and perhaps positive wrong, be departed from. The construction placed upon section 2454 of the Code, and which we cannot now consistently change, even if doubtful of its correctness, logically and necessarily leads to the holding that under section 2337 of the Code a widow of a deceased husband cannot inherit from their child who died before the death of the husband. If the word “heirs” is properly limited to children in one section, it must be so limited in the other. The construction placed by the court below upon the will, in view of prior decisions of this court, is correct.

Aeeirmed.