158 N.W. 662 (Iowa 1916), 30583, Schubert v. Barnholt

Docket Nº:30583
Citation:158 N.W. 662, 177 Iowa 232
Opinion Judge:LADD, J.
Party Name:WILLIAM SCHUBERT et al., Appellants, v. CLAUS BARNHOLDT, Executor, et al., Appellees
Attorney:C. B. Clovis and T. C. Whitmore, for appellants. George Cosson, for intervener, appellant. H. M. Boorman, Thomas B. Swan and Willard & Willard, for appellees.
Judge Panel:LADD, J. EVANS, C. J., GAYNOR and SALINGER, JJ., concur. EVANS, C. J., GAYNOR and SALINGER, JJ., concur.
Case Date:June 29, 1916
Court:Supreme Court of Iowa
 
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Page 662

158 N.W. 662 (Iowa 1916)

177 Iowa 232

WILLIAM SCHUBERT et al., Appellants,

v.

CLAUS BARNHOLDT, Executor, et al., Appellees

No. 30583

Supreme Court of Iowa, Des Moines

June 29, 1916

Appeal from Cass District Court.--E. B. WOODRUFF, Judge.

Affirmed.

C. B. Clovis and T. C. Whitmore, for appellants.

George Cosson, for intervener, appellant.

H. M. Boorman, Thomas B. Swan and Willard & Willard, for appellees.

LADD, J. EVANS, C. J., GAYNOR and SALINGER, JJ., concur.

OPINION

Page 663

[177 Iowa 233] THE opinion states the case. The plaintiff appeals.--Affirmed.

LADD, J.

Henry Barnholdt died testate May 29, 1910, leaving him surviving a wife, Elizabeth Barnholdt, and six children, and four children of a deceased son. About 24 hours thereafter, the widow died intestate, leaving as her heirs a brother, Wm. Schubert, and another brother, and the children of a deceased sister. The will of the decedent was admitted to probate, and, after directing the payment of debts and funeral expenses, provided that his personal and real property be held in trust by the executor, "and the income therefrom devoted to the use and benefit of my beloved wife, Elizabeth Barnholdt, her surviving me, during her life." Upon her death, the property was to pass to his heirs, in different amounts. Claus Barnholdt, nominated in the will, was appointed executor. John Barnholdt was appointed administrator of the estate of the widow, but, finding no property, [177 Iowa 234] and no claims being filed, was discharged. The heirs of the widow ask that the executor of the estate of Henry Barnholdt, together with the several legatees under the will, account for the dower interest or distributive share of the widow in the estate of her husband. David Hope, appointed administrator de bonis non of the estate of the widow, filed a petition of intervention, making substantially the same demand of the defendants. But two issues are presented here: (1) Whether Elizabeth Barnholdt was ever the wife of decedent, and (2) whether she elected to take under the will.

I. Every marriage is presumed to be valid, but the strength of that presumption depends on the circumstances of each particular case. In re Estate of Colton, 129 Iowa 542, 105 N.W. 1008; Tuttle v. Raish, 116 Iowa 331, 90 N.W. 66. Henry Barnholdt married Elizabeth in 1877, and for over 30 years they lived together as husband and wife, and until his death. Though her brother left Germany 8 or 9 years before she did, he had heard nothing of a previous matrimonial venture. But Claus, a son of the testator's by a former marriage, testified to having heard a conversation between his stepmother and his sister, somewhere, at some time not stated, in which the former confided to the latter that she had a husband in the old country, by whom she had had one child, which husband was still living...

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