In re Estate of Frick
| Decision Date | 10 May 1921 |
| Docket Number | 33359 |
| Citation | 182 N.W. 790,192 Iowa 75 |
| Parties | IN RE ESTATE OF SIDNEY F. FRICK. BELLE FRICK GUNDERSON, Appellant, v. S. ELLA FRICK, Executrix, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED OCTOBER 1, 1921.
Appeal from Polk District Court.--GEORGE A. WILSON, Judge.
APPEAL by a beneficiary under the will of Sidney S. Frick, deceased from an order in probate, refusing, upon the application of such beneficiary, to set aside or reduce a widow's allowance.
Affirmed.
J. G Myerly, for appellant.
Miller & Wallingford and Oliver H. Miller, for appellee.
It appears from the record that Sidney S. Frick died testate, seized of an estate having a net value in excess of $ 20,000; that, in March, 1917, which was about six months after his death, S. Ella Frick, his surviving widow, procured an ex- parte order from the probate court of Polk County, allowing her the sum of $ 1,200 for one year's support; that, on or about August 7, 1918, appellant filed her application, reciting that the allowance to said surviving widow was obtained without notice; that, as she had declined to elect, within the time allowed by statute after notice, whether she would take under the statute or under the terms of her husband's will, she was presumed to have elected to take under the will, which provided:
"Sixth: I further direct that the foregoing provisions of this will in favor of my said wife S. Ella Frick, shall be in lieu of any and all provisions of the law for her dower interest in my property or estate and of all statutory provisions in her favor including that of Section 3379 of the Code Supplement of the year 1913, and the provisions of this will in her favor shall be taken in full of all her interest in my estate."
Appellant claimed that, under the foregoing provision of the will, the widow was not entitled to an allowance for the support for one year, and asked that the allowance made be set aside and canceled.
The only question presented for decision is whether the widow, after having elected to accept the provisions of the will (which, it is disclosed by the record, she finally did), could claim an allowance for one year's support. The contention of counsel for appellant is that the provisions of the will are in lieu of any and all right to a distributive share or allowance for support under the statute. Appellant relies upon the provisions of Section 3270 of the Code, which, so far as material, are as follows:
"Any person of full age and sound mind may dispose by will, of all his property, subject to the rights of homestead and exemption created by law, and the distributive share in his estate given by law to the surviving spouse, except sufficient to pay his debts and expenses of administration 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...
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