Everett v. Croskrey

• Decision Date: 23 October 1894
• Parties: EVERETT ET AL. v. CROSKREY ET UX.
• Court: Iowa Supreme Court

92 Iowa 333

60 N.W. 732

EVERETT ET AL.

v.CROSKREY ET UX.

Supreme Court of Iowa.

Oct. 23, 1894.

Appeal from district court, Tama county; John R. Caldwell, Judge.

This is an action for the partition of certain real estate. There was a decree for the plaintiffs. Defendants appeal.W. H. Stivers and W. B. Louthan, for appellants.

Struble & Stiger, for appellees.

ROTHROCK, J.

1. The land involved in the suit is a tract of land of about 60 acres. It was formerly owned by Thomas Everett, who, by his last will and testament, devised it to his two daughters, Lavina Halstead and Caroline Croskrey, in equal shares. The plaintiff Sarah Everett purchased and now owns the undivided one-half of said land, which formerly belonged to Lavina Halstead. Caroline Croskrey continued to own the other undivided one-half until her death, which occurred in May, 1884. She had no issue, and the defendant Jacob Croskrey is her surviving husband. A short time before her death, Caroline Croskrey made her last will and testament, of which the following is a copy: “Know all men by these presents that I, Caroline Croskrey, of Columbia township, Tama county, Iowa, now being in sound mind and in full possession of my mental faculties, do make, declare, and publish this, my last will and testament. First, I give and bequeath to my husband, Jacob Croskrey, all the lands I now possess, and my interest in the same; and I bequeath to my said husband, Jacob Croskrey, all my right, title, and interest in and to all the real estate situated in the northwest quarter of section No. four in Columbia township, Tama county, Iowa, inherited by me from my father, Thomas Everett, to have and hold the same during his natural life, and after his death it is my desire that said lands shall descend to Silas H. Colvin, to hold forever; and should the said Silas H. Colvin die before my said husband, Jacob Croskrey, then and in that event the said Jacob Croskrey is to hold said real estate in fee simple and forever, so far as my interest in the same is concerned. Dated April 24th, 1884. Witness my hand hereunto set. Caroline Croskrey.” The said will was on the 24th day of November, 1885, duly admitted to probate. Before and after the probate of the will, written notices of its provisions were duly served on the defendant Jacob Croskrey.

Thomas Everett, the original owner of the land, left a widow surviving him, to whom he devised a life estate in the land. The widow died December 23, 1891; and at her death the devisees of the fee, and their grantees and representatives, became entitled to the possession of the property.

When Jacob Croskrey was served with notice of the provisions of the will, he took no action in the way of consenting thereto, and has at no time since, in any manner, made any election to accept its provisions. It is provided by section 2452 of the Code that “the widow's share cannot be affected by any will of her husband unless she consents thereto within six months after notice to her of the provisions of the will by the other parties interested in the estate which consent shall be entered on the proper records of the district court.” A...