Greer v. Camery & Son
| Decision Date | 18 June 1886 |
| Citation | 28 N.W. 564,69 Iowa 220 |
| Parties | GREVE ET AL. v. CAMERY & SON |
| Court | Iowa Supreme Court |
Appeal from Tama Circuit Court.
ACTION in equity to restrain the defendants from selling a certain quarter section of land on execution. The facts disclosed by the petition are that Peter Overmier died in January, 1861 seized of the property in question, and leaving surviving him the plaintiff Eleanor Overmier, his widow, and three sons. He executed a will prior to his death, which contains the following bequest: "I give and bequeath unto my beloved wife, Eleanor, all my estate, both personal and real, during her natural life, and that after her death all the property aforesaid to her bequeathed, or so much thereof as may remain unexpended, to be equally divided among my legal heirs, or their legal representatives." He subsequently executed a codicil, by which he provided that his wife's mother should be supported out of the property devised to his wife. The will was duly admitted to probate. Subsequently the widow executed a conveyance of the property to the plaintiff Henry Greve, but before the conveyance was executed defendants obtained a judgment in the circuit court against two of the sons of the testator, and they were about to sell the premises on execution for the satisfaction of this judgment when this suit was instituted. The petition was presented to the circuit judge in vacation, and he made an order for the issuance of a temporary writ of injunction restraining defendants from selling any portion of the premises on said execution. At the next term of the court defendants filed a demurrer to the petition, but the same was overruled. They then filed a motion for a modification of the injunction. This motion was sustained and the injunction was so modified as to restrain only the sale of an undivided one-third of the land, and the life-estate of said Eleanor Overmier in the remaining two-thirds. From this order plaintiffs appeal.
AFFIRMED.
Struble & Kinne for appellants.
Stivers & Louthan, for appellees.
The circuit court held that the will conferred upon the widow an estate for life only, and that she was not empowered by it to alienate the real estate. There can be no doubt, we think, of the correctness of the holding as to the estate created by the devise. The language of the bequest is: "I give devise and bequeath unto my * * * wife, Eleanor, all my estate, both personal and real, during her natural life." Words could hardly have been chosen which would have expressed with more clearness and certainty than this language does the intention to limit the estate conferred to the life of the devisee; and the same purpose is indicated by the language following this bequest, which is a devise over to the heirs at law, of the remainder. The codicil contains the following language: "Whereas, I, Peter Overmier, * * * have made my last will in writing, * * * and have thereby willed my beloved wife, Eleanor, all my property, both personal and real, now I do by this, my writing, which I hereby declare to be a codicil to my said will, to be taken as a part thereof, will that Mary Hintz (my wife's mother) shall be supported out of the property willed unto my...
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... ... implied from the nature of the property, and the use to which ... it is adapted, as is pointed out in Greer v. Camery, ... 69 Iowa 220, 28 N.W. 564. But the [76 Iowa 369] extent of the ... interest conferred upon the devisee is not necessarily ... ...
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