Hart v. McClellan (In re McClellan's Estate)

• Decision Date: 15 November 1919
• Docket Number: No. 32913.,32913.
• Citation: 187 Iowa 866,174 N.W. 691
• Parties: IN RE MCCLELLAN'S ESTATE. HART v. MCCLELLAN ET AL.
• Court: Iowa Supreme Court

187 Iowa 866

174 N.W. 691

IN RE MCCLELLAN'S ESTATE.HART

v.MCCLELLAN ET AL.

No. 32913.

Supreme Court of Iowa.

Nov. 15, 1919.

Appeal from District Court, Polk County; Thos. J. Guthrie, Judge.

Appeal from an order of the court fixing the one year's allowance to a widow, and directing an automobile to be turned over to her as exempt property. Affirmed in part, and reversed in part.C. J. Lynch, of Mechanicsville, for appellant.

Miller & Wallingford, of Des Moines, for appellees.

STEVENS, J.

On February 2, 1918, appellee who is the surviving widow of F. R. McClellan, who died in Polk county January 15, 1918, obtained an order of the probate court of Polk county for an allowance for her year's support of $200 per month. She had no family, and resided in the home formerly occupied by herself and husband. The estate, in addition to the residence, which was sold about six months after the death of her husband for $8,500, consisted largely of moneys and credits, and was of the approximate aggregate value of $40,000. On February 15, 1918, the court also found that a Buick automobile of deceased, valued at $600, was exempt to him while the head of a family, and ordered the same turned over to appellee. On March 13, 1918, Maud E. Hart, appellant, who is a daughter of deceased by a former marriage and his sole surviving heir at law, filed an application in the office of the clerk of the district court of Polk county, asking that the allowance of $200 per month, made for the support of appellee, be reduced to $100 per month, and alleging that the automobile was not used by her father with which to make a living, and that same was not therefore exempt, and asked that the order setting the same aside to the widow be canceled, and the automobile placed with the general assets of the estate. Upon hearing, the application as to both of said matters was overruled, from which ruling Maud E. Hart appeals. Appellee had no other property, except a few hundred dollars, was 59 years of age, and unaccustomed to earning her own living. She formerly resided with her husband upon a farm near Stanwood, Iowa, but for a few years prior to her husband's death had lived in Des Moines.

[1][2][3] The allowance is rather large, but there was a great advance in the cost of living within the year following the death of her husband. The matter rested largely in the discretion of the probate court. The statute contemplates that such an allowance will be made as will be sufficient to support the surviving widow for a period of 12 months in the position occupied by herself and husband and in keeping with the manner in which the family lived prior to the husband's death. Of course, the amount of property and the claims of creditors should be considered, and the allowance should not be out of proportion to the...