Craig v. Conover

• Citation: 80 Iowa 355,45 N.W. 892
• Parties: CRAIG ET AL. v. CONOVER ET AL.
• Decision Date: 29 May 1890
• Court: United States State Supreme Court of Iowa

80 Iowa 355

45 N.W. 892

CRAIG ET AL.

v.CONOVER ET AL.

Supreme Court of Iowa.

May 29, 1890.

Appeal from district court, Scott county; C. M. WATERMAN, Judge.

This is an action for the partition of certain real estate. It is alleged in the petition that the defendants S. H. Brazell and the Clinton National Bank claim to hold liens upon the property, but that the same are subject to the claims of the plaintiffs. The said Brazell and the said bank filed an answer, in which they claimed that they were the owners of judgments against the defendant Margaret J. Swim, and that she is the owner of a life-estate in all of said property, and that said judgments are a lien upon said life-estate. There was a demurrer to the answer, which was overruled, and the plaintiffs appeal.Davison & Lane, for appellants.

Pascal & Annentrout and George B. Young, for appellees.

ROTHROCK, C. J.

It appears from the averments of the petition and answer that Isaac Swim died on or about December 1, 1887, seised in fee of the said land. He died testate, and the provisions of his will are set out in the answer. The defendant Margaret J. Swim is his widow, and the plaintiffs and the other defendants, excepting said bank and said Brazell, are his heirs and devisees. The said will contains the following provisions, to-wit: “ Second. All of my personal property, of every kind and description, of which I shall die seised, I hereby give and bequeath unto my beloved wife, Margaret Jane Swim, to have and to hold in her own right forever. Third. And I hereby give and bequeath unto my said wife the use and occupation, during her natural life, of all the real estate of which I may die seised, or in which I may have any interest, legal or equitable, to have and to hold to her own use forever. The bequests contained in the two last paragraphs are to be by my said wife accepted in lieu of any dower right she might otherwise have in my said real estate.”

Margaret J. Swim continued to reside on the land, and it still is her home. She, with her son Charles Swim, were executors of the will, and settled the estate. On the 28th day of September, 1885, said executors prepared a report of their acts as such, and filed the same in court. The following language occurs at the close of said report: “In view of the fact that the will bequeaths to her all of the personal estate absolutely, and the use of the real estate for life, it is believed by the undersigned that it is better for the estate to permit her to convert the personal property into money, and pay the mortgage debt, and for this purpose they ask an extension of time for making a final report.” In the final report of said executors, which was filed on December 27, 1886, and which was signed by said executors, the following language is used: “That under the will of said Isaac Swim, his widow, Margaret Jane Swim, is given absolutely, and to her sole use, all the personal property of said deceased, and they file herewith her receipt for the same, and consent to the closing of said estate; that the real estate is by said will given to the sole use and benefit of said Margaret Jane Swim for her life. The undersigned, therefore, ask that they be discharged from further duty and liability. ...