Blackman v. Wadsworth
| Decision Date | 24 October 1884 |
| Parties | BLACKMAN ET AL. v. WADSWORTH ET AL |
| Court | Iowa Supreme Court |
Appeal from Mitchell Circuit Court.
THIS is a controversy without action, submitted upon an agreed statement, under chapter 10 of title 20 of the Code. The question presented arises under the will of George Briggs deceased. The parties differ as to whether a certain legacy has lapsed or not. The devisee whose legacy is in controversy, Henry H. Blackman, died before the death of the testator, leaving, as his widow, the plaintiff, Nellie Blackman, and leaving his brother, the plaintiff, Charles M Blackman, and leaving no other brother, and no child, parent nor sister. It is conceded that, if the legacy has not lapsed, it should either be divided between the widow Nellie, and the brother, Charles M., or go to Charles M. alone; and, if it has lapsed, it should go to the residuary devisees, who are the defendants, Hester A. Wadsworth, Daniel M. Briggs, and the brother, Charles M., above mentioned. The court below held that the legacy had lapsed. Charles M. and Nellie Blackman appeal.
Upon Nellie Blackman's appeal. Judgment affirmed, and upon Charles M. Blackman's appeal judgment MODIFIED AND AFFIRMED.
Cyrus Foreman, for appellant.
F. F. Coffin, for appellees.
The determination of the question presented depends upon whether the widow, Nellie, and brother, Charles M., are to be regarded as the heirs of the deceased devisee, within the meaning of the word "heirs," as used in section 2337 of the Code. That section is in these words: "If a devisee die before the testator, his heirs shall inherit the amount so devised to him, unless, from the terms of the will, a contrary intent is manifest." It is undisputed that, if the devisee had survived the testator and died, the legacy would have become a part of his estate, and would have been distributed to his widow, Nellie, and his brother, Charles M. It is undisputed, also, that Charles M. is the heir of the deceased devisee within the ordinary meaning of the word "heir." The defendants, Hester A. Wadsworth and Daniel M. Briggs, residuary devisees, contend that in no proper sense is a widow the heir of her deceased husband, and that, while it is true that a brother, under some circumstances, is the heir of a deceased brother, he is not such within the restricted meaning which the word "heirs" should be deemed to have in the statute above cited. They contend that the word "heirs," as thus used, means children, and they cite in support of this position McMenomy v. McMenomy, 22 Iowa 148, and Will of Overdieck, 50 Iowa 244. A careful examination of these cases, however, will show that they do not go to the extent claimed. The most that can be said is that there is a slight intimation in the first case that the court thought that the word "heirs" in a different section, to-wit, section 2437 of the Revision, should be limited to children; and, in the last case, that there was no substantial difference in the use of the word in that section and the use of the same in that which provides for the legacy of a deceased devisee. But in neither case does the court say that the word is limited to children. In the last case, it is true, it was held that the legacy went to a brother of the deceased devisee, as residuary devisee, and on the theory that the legacy had lapsed; and it appears that there were two sisters of the deceased devisee, and they had been made parties. But the question presented was as to whether the executor should pay the legacy to the mother, as heir of the deceased devisee, or to the brother, as residuary devisee. The mother and brother appeared, and set up their respective claims. The sisters did not appear, and, by failing to appear, they tacitly conceded that, so far as they were concerned, either the claim of the mother or that of the brother should be sustained. The only ruling constituting any authority is that the mother could not take. The ruling that the brother took as residuary devisee, and on the theory that the legacy had lapsed, was, under the circumstances of the case, substantially a correct ruling.
We desire to say a word, in passing, upon the ruling respecting the mother. It was based upon McMenomy v. McMenomy, but there are reasons why it should not have great influence in the determination of the case at bar. What the court held in McMenomy v. McMenomy was that the widow took nothing from her deceased husband's estate by reason of a child which had been born to them, but which had died before its father died. There was certainly no reason in the nature of things why the widow's share should be greater by reason of such prior deceased child, and it had never been the practice, we think, to allow her share to be increased by reason of such child. It was accordingly held, and perhaps correctly, that the word "heirs," as used in section 2437 of the Revision, did not include the mother of the deceased child. It cannot be denied, we think, that the ruling involved a rather strained construction of the statute. Later, the statute was changed, and the mother is now precluded from such inheritance by a plain and unambiguous provision. It is now expressly provided that the share of a prior deceased child shall be disposed of in the same manner as if it had taken the share and outlived both parents. Code, § 2454, last clause.
If the case of McMenomy v. McMenomy had arisen under the present statute, it would have...
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