Fay v. Smiley
| Decision Date | 16 February 1926 |
| Docket Number | 36726 |
| Citation | 207 N.W. 369,201 Iowa 1290 |
| Parties | KATHERINE FAY, Appellant, v. CATHERINE FAY SMILEY et al., Appellees. MICHAEL F. FAY et al., Appellants, v. KATHERINE FAY et al., Appellees |
| Court | Iowa Supreme Court |
OPINION ON REHEARING JUNE 21, 1926.
Appeal from Pottawattamie District Court.--O. D. WHEELER, Judge.
KATHERINE Fay was plaintiff and appellant in the first of the above cases, and defendant-appellee in the second case.
Reversed.
Turner & Turner and F. E. Carberry, for Katherine Fay, appellant.
Preston & Dillinger and W. C. Fraser, for all other parties appellees.
ALBERT J. DE GRAFF, C. J., and EVANS and MORLING, JJ., concur.
James Fay died on February 10, 1921. Shortly thereafter, his will was admitted to probate in the Avoca division of the Pottawattamie district court. The part that is material to our consideration is Paragraph 2, which reads:
"I give, devise and bequeath the sum of $ 1.00 to my beloved wife Katherine Fay, subject to her rights and dower interest allowed her by statute."
On February 10, 1922, Katherine Fay, appellant herein, instituted proceedings in the probate court for the construction of said will, which proceedings eventually resulted in the decision of In re Estate of Fay, 196 Iowa 1099, 196 N.W. 42.
On the 27th of January, 1922, in pursuance of law, a notice in due form was served on Katherine Fay, requiring her to elect between her dower right and her right given under the will. She failed, however, to file any written election within the statutory time. Prior to this, on the 12th of November, 1921, she had filed a petition in equity in the case at bar, asking for partition of the 80-acre tract of land involved herein, the title to which was in James Fay at the time of his decease. By way of an amended and substituted petition, she sets out the will of James Fay and claims that, under Paragraph 2, quoted above, she is entitled to "the whole of said estate to the amount of $ 7,500, after payment of the debts and expenses of administration, and one half of the excess of said $ 7,500." She asks that the land be partitioned, and that her interest be fixed and determined. Appellees filed reply, pleading the service of notice to elect and her failure to so elect, and alleged that, therefore, she had no interest in the land in controversy. On trial of the matter, the court dismissed appellant's petition,--hence this appeal.
The whole matter is clouded by reason of what seems to us to be a misinterpretation of our former opinion in the case of In re Estate of Fay, supra. It is seriously urged that that opinion held that, in event that the wife took under the will, she could get nothing but $ 1.00; but, as we view the opinion, it does not so hold. The real question discussed was whether or not the wife was entitled to the first $ 7,500 after the payment of debts and expenses, and one half of the surplus. This is the real question decided; and, while there is some language in the opinion which might lend color to the claim that, if she took under the will, she took only $ 1.00, that was not the decision in the case.
Under Section 3270, Code of 1897, governing the disposition of property by will, the following provision is made:
"But where the survivor is named as a devisee therein, it shall be presumed, unless the intention is clear and explicit to the contrary, that such devise is in lieu of such distributive share, homestead and exemptions."
It is quite apparent from the reading of this will that the devise of $ 1.00 made to the wife therein was not in lieu of her distributive share in the property of the deceased. It being apparent from the will that such was the intent of the testator, the presumption raised by the aforesaid section of the Code does not operate; and the conclusion we reach is that, under such circumstances, the surviving spouse is not put to her election, but is entitled to take under the provisions made in the will, and also under the provisions made for her by law, giving her, therefore, $ 1.00 under the will and her one-third distributive share under the law. The action of the district court in dismissing appellant's petition for partition of the 80-acre tract was, therefore, erroneous. It is hereby reversed, and this part of the case is remanded, with directions to the district court to enter an order in accordance herewith and grant the partition, as prayed.
Under the terms of this deed, the district court held that Katherine Fay took a fee-simple title; and hence the dismissal of her petition. The facts are not in dispute.
The above quoted deed bears date of October 14, 1915. On November 9, 1920, James Fay made to appellants herein a warranty deed for an undivided one-half interest in said 40-acre tract. James Fay died in February, 1921. On December 12, 1923 appellants filed their amended and substituted petition herein, asking partition of such tract, and claimed that appellants and appellee were respectively the owners of an undivided one-half interest in said tract of land. Katherine Fay, by way of answer, claims that she is the owner of said tract in fee simple. Her contention is based upon the thought that the deed above set out creates an estate in entirety, as recognized by common law, and that, therefore, on the death of James Fay she became the fee-simple owner. An estate in entirety is a creature of common law, created by legal fiction, and is based wholly on the common- law doctrine that the husband and wife are one, and that, therefore, a conveyance to the husband and wife created only one estate, and each was the owner of the whole estate; that neither could dispose of...
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