Bentley v. Bentley , 112 Iowa 625 ( 1900 )

Shbrwin/ J.

This case cannot be distinguished from the long line of cases heretofore holding the provisions of wills not inconsistent with or in lieu of the widow’s statutory interest. When the original will was executed in 1881, it must be presumed, as a matter of law, that the testator had in mind the law giving to his surviving spouse one-third of the entire estate left by him. The codicil executed in 1883 makes his entire estate chargeable with the support of his wife during her life, regardless of her statutory interest. These interests are in no way conflicting, nor does the allowance of her statutory interest in any way lessen the interest which could have been taken by the defendants under the will. Metteer v. Wiley, 31 Iowa, 215; Watrous v. Winn, 37 Iowa, 72; Bare v. Bare, 91 Iowa, 143; Daugherty v. Daugherty, 69 Iowa, 677; Watson v. Watson, 98 Iowa, 135; Sutherland v. Sutherland, 102 Iowa, 537; In re Proctor’s Estate, 103 Iowa, 237. The case of Ashlock v. Ashlock, 52 Iowa, 319, upon which appellants base their claim for a reversal, does not, in our judgment, hold adversely to the cases cited. In that case the plaintiff had made application to the court for an order carrying out the provisions of the will providing for her maintenance. While that application was pending she filed a written notice of her intention to claim her rights under the statute. Upon a hearing of the entire matter, she was allowed support, but the court ordered that it should be in lieu of her right of dower. She afterwards filed a petition asking that the court’s order as to her dower be set aside for want of jurisdiction to make it. Her petition was dismissed, and from that order she appealed. The question of jurisdiction was the only one before this court in that case. In the original opinion it was said: “Whether the bequests were intended in lieu of dower was a question before the court * * * The court, we conclude, had jurisdiction to decide those questions. It must stand unless reversed in a proper proceeding. She did not pursue her remedy by appeal, and cannot now question it in'this action.” What was said in the supplemental opinion filed on rehearing is very evidently based upon the conclusive finding in the court below, and by way of argument; for, as we have seen, only the question of jurisdiction was involved in the case. This disposes of the case, for, if the widow was not required to make an election, it would be immaterial whether she did or did not do so. The decree of the district court is aefirmed.