In re Kennedy's Estate
| Decision Date | 15 March 1912 |
| Citation | 135 N.W. 53,154 Iowa 460 |
| Parties | IN THE MATTER OF THE ESTATE OF FRANCIS A. KENNEDY, Deceased |
| Court | Iowa Supreme Court |
Appeal from Dallas District Court.--HON. LORIN N. HAYS, Judge.
FRANCIS A. KENNEDY died, testate, in Putnam county, Ind., and his will was there admitted to probate November 12, 1910, and subsequently admitted to probate as a foreign will in the district court of Dallas county.
By the second clause, it bequeathed to his wife, Maggie Kennedy, the plaintiff herein, the household goods and kitchen furniture describing her as his second wife, and childless, adding "My said wife has heretofore received at my hands real and personal property amounting to about $ 12,000, which in addition to the above, I feel should be all that she should require." In other clauses of the will be devised all his real estate in Indiana and this state to a son, James M Kennedy, a grandson, Grover C. Kennedy, and William Linkenfelter, a member of his family. The widow elected not to take under the will, and in this action prayed that her dower interest in the land of which the testator died seised situated in Dallas county, be set apart to her. The answer of Linkenfelter alleged the devise of one of the tracts of land to him; that the value of the entire estate left by deceased did not exceed in value $ 24,000; that at the time of his death decedent was seventy-seven years of age and plaintiff fifty-eight; that they were married in Indiana in 1898 and immediately moved to Iowa, but in the following year returned to Indiana, where they resided until his death; that at the time of their marriage he owned property valued at $ 20,000; that a few years after his marriage he purchased real estate in Indiana, and caused it to be conveyed to the plaintiff, and also transferred to her personal property to the value of $ 2,000.
The above allegations are found in each count of the answer, and in addition thereto: (1) It is averred in the first count that the land was procured and caused to be conveyed to her, and the personal property given, by the deceased for the purpose and with the intent to make a partial equitable distribution of his estate to his wife, in advance of his decease, as an advancement, and that his wife assented to said advancement by the acceptance of said conveyance. (2) In the second count, that the decedent was a nonresident alien at the time said will was made and at his death; that plaintiff, as his survivor, also was a nonresident alien at the time Linkenfelter acquired the real estate in controversy as purchaser under the will, and for this reason she is not entitled to a distributive share therein. (3) In the third count, that the land was purchased and caused to be conveyed to the plaintiff in pursuance of a purpose on decedent's part to make a partial equitable distribution of his estate by transferring property to plaintiff and willing other property to the devisees named in the will; that said deeds are a part of said will of said decedent and, together with said will, constitute one instrument; that the provisions made for plaintiff in the deeds and will were understood by decedent and plaintiff to be in lieu of dower, and were accepted by plaintiff with that understanding; that plaintiff is now estopped from claiming her distributive share in the real estate acquired by the devisees in the absence of any renunciation of the claim to the real estate conveyed to her. (4) In the last count, that decedent and plaintiff entered into an oral agreement, whereby, in consideration of the real estate caused to be conveyed to her and certain personal property, plaintiff would abide by the last will and testament of the decedent; that decedent fully performed his part of the agreement by causing the real estate and personal property to be transferred to plaintiff, and plaintiff accepted the same and still retains the same, and thereby elected to take under the will of decedent, and is estopped from claiming her distributive share in the decedent's estate. James M. Kennedy and Grover C. Kennedy set up precisely the same defense as is interposed in the first count of the preceding answer.
The plaintiff moved that judgment be entered for plaintiff, as prayed in her petition, for that the allegations in the petition were admitted in the answers and no sufficient defense interposed. This motion was sustained, and the plaintiff's dower interest in the land ordered to be admeasured as prayed. The defendants appeal.
Affirmed.
Burton Russell, for appellant William Linkenfelter.
R. S. Barr, for appellants James Kennedy and Grover C. Kennedy.
White & Clarke, for appellee.
OPINION
As the widow refused to take under the will of her deceased husband, she was entitled to dower in the several tracts of land devised to his son, grandson, and another member of his family, unless some one of the several defenses interposed by them was sufficient. The motion for judgment by plaintiff necessarily conceded the allegations of fact contained in each count of the answer to be true (Scott v. Wilson, 150 Iowa 202, 129 N.W. 812), and the ruling by which it was sustained held that, even though true, they were not such as to deprive plaintiff of one-third of the real estate he owned during coverture.
I. For convenience, the second count of the answer may be considered first. It is averred therein that the decedent and plaintiff were nonresident aliens both at the time of making the will and when decedent died, and for this reason, when defendant Linkenfelter acquired the tract of land, plaintiff was the successor of a nonresident alien and herself, as such, not entitled to a distributive share in the real estate left by him. Section 3366 of the Code enacts that: "One-third in value of all the legal or equitable estates in real property possessed by the husband at any time during the marriage which have not been sold on execution or other judicial sale, and to which the wife has made no relinquishment of her right, shall be set apart as her property in fee simple, if she survive him." Section 3368: "As against a purchaser from a non-resident alien, the survivor shall not be entitled to a distributive share in the estate of deceased, if at the time of the purchase such survivor was also a non-resident alien." Although living in Indiana, the decedent and his wife were nonresidents, within the meaning of this statute. Re Estate of Gill, 79 Iowa 296, 44 N.W. 553. If, then, Linkenfelter, as devisee, was a purchaser, within the meaning of the last section, she, if an alien, was not dowable in the tract testator willed to him. Undoubtedly "purchaser," in its broad...
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