95 N.W. 229 (Iowa 1903), Burgoon v. Whitney

Citation:95 N.W. 229, 121 Iowa 76
Opinion Judge:McCLAIN, J.
Party Name:FIDELIA A. BURGOON AND ADELIA D. WHAYLEN v. MARY J. WHITNEY, Appellant
Attorney:Geo. W. Argo and S.W. De Wolf for appellant. Boies & Boies for appellees.
Case Date:June 01, 1903
Court:Supreme Court of Iowa
 
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Page 229

95 N.W. 229 (Iowa 1903)

121 Iowa 76

FIDELIA A. BURGOON AND ADELIA D. WHAYLEN

v.

MARY J. WHITNEY, Appellant

Supreme Court of Iowa, Des Moines

June 1, 1903

Appeal from Grundy District Court.--HON. FRANKLIN C. PLATT, Judge.

ACTION by plaintiffs, as sole surviving heirs, against defendant, as surviving widow of A. B. Whitney, who died in 1900, to determine their respective interests in certain real estate of which said A. B. Whitney died seised. Decree for plaintiffs, from which defendant appeals. -- Affirmed.

AFFIRMED.

Geo. W. Argo and S.W. De Wolf for appellant.

Boies & Boies for appellees.

OPINION

[121 Iowa 77] McCLAIN, J.

The defendant was the second wife of A. B. Whitney, and plaintiffs were his children by his first marriage. Before contracting the second marriage, Whitney conveyed real property to each of the plaintiffs, which the defendant claims was by way of advancement, and the defendant contends that by reason of these advancements she is entitled to a greater share in the real estate of which her husband died seised than she would otherwise have been entitled to; that is, she claims more than one-third of the real estate in controversy. It is difficult, however, to see how the fact of advancements made to plaintiffs by conveyance of real property prior to Whitney's marriage to defendant could in any way affect or enlarge

Page 230

defendant's share in the real property owned by her husband during their marriage. The interest of the surviving widow is determined by Code, section 3366, and is limited to one-third of the real property possessed by the husband during the marriage; and it would seem that defendant's interest in this case could not be larger than that thus provided for, whatever may have been the disposition [121 Iowa 78] of his property which her deceased husband made before the marriage. In deciding an analogous question as to whether the widow's interest in the personal property of her deceased husband was enlarged beyond the statutory third of the personal property of which he died possessed by reason of advancements of personal property made before his death to his children, it has been held that the interest of the widow is not affected by such advancements, inasmuch as her right is...

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