In re Franke's Estate

• Decision Date: 11 April 1896
• Citation: 66 N.W. 918,97 Iowa 704
• Parties: IN THE MATTER OF THE ESTATE OF FREDERICK H. FRANKE, Deceased, ANNA M. FRANKE, Appellant, v. CATHARINE WIEGAND, et al
• Court: Iowa Supreme Court

66 N.W. 918

97 Iowa 704

IN THE MATTER OF THE ESTATE OF FREDERICK H. FRANKE, Deceased, ANNA M. FRANKE, Appellant, v. CATHARINE WIEGAND, et al

Supreme Court of Iowa, Des Moines

April 11, 1896

Appeal from Dubuque District Court.--HON. J. L. HUSTED, Judge.

PROCEEDING in probate by the widow of the decedent for the allotment of her share in the estate. An answer to her application was filed, to which she demurred. The demurrer was overruled. She elected to stand upon it. Judgment dismissing her application at her cost, was rendered, and she appeals.

Reversed.

Longueville & McCarthy for appellant.

Lyon & Lenehan for appellees.

OPINION

ROBINSON, J.

The facts admitted by the pleadings, are substantially as follows: The applicant, Anna M. Franke, is the widow of Frederick H. Franke, who died testate, in January, 1888. It appears that his will was admitted to probate, that administration of the estate was granted, and that it is closed. The estate included a homestead and other real estate in the city of Dubuque, and personal property. The will contained the following provisions: "(2) I give and bequeath to my beloved wife, Anna Maria Franke, all my real estate, personal property, moneys, and credits, to be used by her for her sustenance, comfort and enjoyment during her natural life, as her exclusive property." "(3) After the death of my wife, I do give and bequeath to my daughter, Rosa Franke, the homestead [describing it]." "(4) After the death of my wife, I give and bequeath to my daughter, Barbara Lataur nee Franke, part of lot 151 [describing it] "(5) After the death of my wife, I give and bequeath to my stepson, Frank Horch, the sum of two hundred dollars." "(6) After the death of my wife, I give and bequeath to my stepdaughter, Marie Ruh, nee Horch, two hundred dollars." "(7) After the death of my wife, I do will and desire that real estate, personal property, moneys and credits, remaining after just debts and funeral expenses of my wife. Anna Maria, also the above legacies and bequests, to my daughters, Rosa Franke and Barbara Lataur, my stepson, Frank Horch, and stepdaughter, Marie Ruh, nee Horch, have been duly paid and executed, be equally divided among the following named children and stepchildren of mine: Katherine Wiegand nee Franke, Barbara Lataur, nee Franke, Margaretha Leike, nee Franke, Rosa Franke, Peter Horch. (8) I hereby appoint Ernest A. Freugel, sole executor of this, my last will and testament, * * * and give him full power to sell and convey all my real or personal estate at public or private sale, at such time or times, and on such terms, and in such manner, as he believes it is to the interest of the heirs to do so." The widow has occupied the homestead as such since the death of her husband. In June, 1889, after the payment of the debts of the estate, the personal property which remained, and its proceeds, amounting to one thousand, seven hundred and eighty-four dollars and five cents, were delivered to the widow, and she has had and enjoyed the use thereof since that time. The application in this case was filed in January, 1895. It describes the homestead; also two lots and parts of another; and avers that the applicant has a life estate in all the property described, in addition to her interest therein as a widow. The appointment of referees to set off her share is asked. The defendants are beneficiaries named in the will.

The grounds of the demurrer are: "(1) That it does not appear from said answer, that petitioner has accepted, as widow, the provisions made for her benefit, by the will of her deceased husband. (2) It appears from the statements of the answer and the will, that the provisions made for her benefit, were not in lieu of her share as widow, and that she is entitled to what the will gives her, and also her share as widow."

I. Section 2452, of the Code, provides 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 circuit (now district) court," No formal consent to take under the provisions of the will is shown, but that is not necessary to hold the widow to the provisions of the will. Her election may be shown in other ways. Baldozier v. Haynes, 57 Iowa 683 (11 N.W. 651); Pellizzarro v. Reppert, 83 Iowa 497 (50 N.W. 19). In Craig v. Conover, 80 Iowa 355 (45 N.W. 892), it is said, that the rule is, that "no particular form of words is necessary to denote an intention to take under the will, but, if the record discloses an act or declaration of the widow, plainly indicating a purpose to take under the will, she will be held to have so elected." In that case, statements contained in the report of the executors of the will, and a receipt signed by the widow for all the personal property bequeathed to her by the will, and consenting to the closing of the estate, were given the effect of a consent under the statute. See, also, Stoddart v. Cutcompt, 41 Iowa 329, and Ashlock v. Ashlock, 52 Iowa 319 (1 N.W. 594, and 3 N.W. 131). The plaintiff was entitled, by virtue of the statute, to but one-third of the personal property of the estate, but she received all of it under the provisions of the will. She could not elect to accept the provisions favorable to her, and reject the remainder, but was required to consent to the will as a whole, or reject it altogether. What she did must be given the effect of a consent to take under the will. The facts in regard to the delivery of the property and the payment of the money to her, should have been shown by the report of the administrator, and, with the receipt she gave, made of record. This, or something equivalent, was necessary to a settlement of the estate, and we must presume that the court, having jurisdiction of the matter, discharged its duty. The delivery to the widow of all the personal property and money belonging to the estate, could have been approved only on condition that she had consented to accept the will, and that her consent had been made of record within the time and in the manner required by law. We cannot presume that the court acted erroneously in approving what was done by the executor. It follows that the facts admitted by the demurrer are sufficient to show the statutory consent by the plaintiff to the will.

II. It is insisted that the plaintiff is entitled to accept all the benefits which the will gives her, and, in addition, the interest in real estate which the statute would have given had there been no will. It is the well-settled rule in this state that a devise by a testator to his widow, when accepted by...