Ashlock v. Ashlock

• Decision Date: 10 June 1879
• Citation: 52 Iowa 319,1 N.W. 594
• Parties: BELINDA ASHLOCK, APPELLANT, v. JOHN ASHLOCK ET AL., APPELLEES.
• Court: Iowa Supreme Court

52 Iowa 319

1 N.W. 594

BELINDA ASHLOCK, APPELLANT,

v.JOHN ASHLOCK ET AL., APPELLEES.

Supreme Court of Iowa.

Filed June 10, 1879.

Appeal from Linn circuit court.

Action in chancery to annul and set aside a decree of the court, settling the rights of plaintiff, as widow and devisee of her deceased husband. Upon the final hearing the petition of plaintiff was dismissed, and she appeals to this court. The facts of the case appear in the opinion.J. B. Young, for appellant.

J. M. Preston & Son and W. G. Thompson for appellees.

BECK, C. J.

--The petition shows that plaintiff is the executrix of the estate of her deceased husband, and that by the will there was bequeathed to her a proper allowance for maintenance during her life. It is further shown that plaintiff filed in the circuit court a petition asking that a proper order be made to carry out the provision of the will providing for her maintenance. Pending the application she filed a written notice of her intention to claim her right of dower, and other rights secured by the statutes, and renouncing all claim under the will, so far as it might conflict with her statutory rights in the estate. Upon this application being heard the court allowed her a sum for her maintenance, and it was ordered that it should be in lieu of her right of dower. She alleges in the petition that she had no knowledge of the action of the court until after the adjournment of the term, and that she in no manner renounced her statutory right of dower in the estate, and never consented to the decree cutting off her dower rights. The petition charges that the decree was rendered without jurisdiction, and is, therefore, void, and asks that it may be set aside and vacated. The evidence shows that the will of plaintiff's deceased husband provides that the rents accruing from the farms owned by him should be set apart to plaintiff, and that a “proper allowance” should be made for her maintenance during her life. The will makes further specific bequests and devises to the children of the deceased. The plaintiff filed a petition asking that proper order to carry out the bequest be made. Afterward, and before final action upon the application, she filed a paper declaring that she renounced all claim under the will, so far as it conflicts with her right of dower, and insisting that her interest in the estate should not be affected by the will, and declaring that she relinquishes all rights thereunder incompatible with her dower claim under the statute. The record shows that upon the final hearing a sum was set apart to plaintiff under the will, to be invested, and the income thereof to be paid to her. It was also provided that she was to have the possession of certain lands, and is to receive the rents thereof. The order provides that the allowance to plaintiff is to be in lieu of her rights of dower under the statute. Plaintiff insists that this decree is without jurisdiction, and is, therefore, void, for the reason that after plaintiff had filed...