Van Guilder v. Justice

Decision Date20 October 1881
Citation56 Iowa 669,10 N.W. 238
PartiesVAN GUILDER v. JUSTICE AND OTHERS.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from Guthrie circuit court.

The plaintiff, and defendants Emily and Ellen C. Van Guilder, are heirs and devisees of David Van Guilder. The defendant Sarah A. Justice is the widow of said David.

The plaintiff in this action seeks to have partitioned certain real estate devised to him and his sisters. Mrs. Justice claims she is entitled to a distributive share thereof, and asks the same be set apart to her. The court found for the plaintiff, and entered a decree accordingly. Mrs. Justice appeals.W. T. Dillon, for appellant.

C. A. & J. G. Berry and McCaughan & Dabney, for appellee.

C. S. Fogy, for minor defendants.

SEEVERS, J.

The facts are: David Van Guilder died in 1874, owning 120 acres of real estate and some personal property, which he disposed of by will, as follows: First. I give and bequeath to my beloved wife the following described property, to have and to hold free from all claims. [Here follows a description of 40 acres of the land, and other provisions which need not be stated.] Second. That the following described lands * * * be held in trust and controlled by my wife, Sarah A., during the minority of the following named children: Emily, Austin, and Ellen C.; the proceeds arising from the cultivation of said land to be appropriated for the equal benefit of said minor children, each of whom I desire to have an equal share in the above described property when or as they arrive at their majority.”

It is in this last real estate Mrs. Justice claims a distributive share as dower, although she has accepted under the will and claims the benefit of all the provisions therein made for her. The question is whether she can take under the will, and also have a share of the other real estate set apart to her as dower. In support of the claim she can do so, counsel cite Corrill v. Harn, 2 Iowa, 552;Sully v. Nebergall, 30 Iowa, 339;Metteer v. Willey, 34 Iowa, 214; and Watrous v. Winn, 37 Iowa, 72. When the first two cases were decided, the dower interest of a widow in the real estate of her husband was one-third for life, and the devise in each case was that the widow should have a life estate in a portion of the real estate, and it was held she might have dower in the whole, because the will was not inconsistent therewith The devise in Metteer v. Willey was for life, but in Watrous v. Winn it was in fee. In both cases the real estate not devised to the widow was devised to certain children, and it was held the widow could claim under the will, and...

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