In re Rawlings' Estate

• Decision Date: 27 January 1891
• Citation: 47 N.W. 992,81 Iowa 701
• Parties: IN RE RAWLINGS' ESTATE.
• Court: Iowa Supreme Court

81 Iowa 701

47 N.W. 992

IN RE RAWLINGS' ESTATE.

Supreme Court of Iowa.

Jan. 27, 1891.

Appeal from district court, Davis county; DELL STEWART, Judge.

James E. Russell, executor of John H. Rawlings, deceased, filed his petition asking for an order of sale of the lands of the testator in order to realize funds out of which to pay his indebtedness. Zeralda Rawlings, the widow of testator, who refused to take under the will, answered the petition and asks that she be allowed her dower interest in the lands, which shall be secured to her by the payment of one-third of the sum realized by a sale of the lands. Anna E. Cary, a daughter of the testator, resists the claim of plaintiff to dower. Other defendants, who answer, ask that their interests may be protected. The decree of the district court ordered the sale of the lands, and directed that one-third of the proceeds, after the payment of liens, be paid to plaintiff, in lieu of her dower in the lands. From this decree Anna E. Cary appeals.L. C. Mechem, for appellant.

Payne & Eichalberger, for appellee.

BECK, C. J.

1. The estate of the testator was largely indebted. One claim, held by H. H. Trimble, was secured by mortgage on certain lands. By the decree of the court below, the proceeds of the sale of the lands are to be appropriated to the payment of the mortgage, and one-third of any balance is to be paid to plaintiff upon her dower interest. No objection is made by any of the parties to this provision of the decree. It therefore demands no attention.

2. The testator executed to the Security Loan & Trust Company two mortgages upon two other tracts of land, aggregating in quantity 234 acres. One tract, of 200 acres, was the farm upon which testator and his widow lived for many years. The other tract, 34 acres, was not regarded as a part of the farm, not being adjacent to any part thereof. By the decree of the court below, the proceeds of the sale of the 34 acres is to be applied on the mortgage, with two-thirds of the proceeds of the other land constituting the farm, if such amount be necessary to pay the debt, but the whole proceeds, if it be necessary to use them to pay the mortgage, shall be so applied, the effect of the decree being to confirm the lien of the mortgage against all the land, but requiring one-third of any balance remaining from the proceeds of the farm to be applied, to the extent of one-third thereof, upon the widow's claim for dower. It is insisted that this provision of the decree is erroneous, for the reason that it was not held that the proceeds of the sale of the land be applied to the payment of the mortgage debt, without regard to the widow's dower interest. It is insisted that the widow held a homestead right in 40 acres only, and that her right to the protection awarded her by the decree should be limited to her homestead. But, in our opinion, the decree does not depend for support upon the widow's dower right. The decree, in effect, directs that the mortgage shall be paid, even though it requires all the proceeds of the sale of the lands; but, if less will pay the mortgage, then the widow takes one-third of the balance remaining. All of the proceeds of the 34 acres are applied upon the mortgage. The court had the authority to so decree, in order to rightly set apart to the widow the portion of the proceeds of the land to which she is entitled on account of her dower interest. That interest the district court may determine and set apart. We think that duty was rightly discharged by the decree. We are unable to discover in what regard defendant who appeals is prejudiced. The decree gives to the widow no more than she is entitled to. If the decree had given her less, it would have been erroneous.

3. Certain lands of the estate were unincumbered. The decree directs that they be sold, and one-third of the proceeds first applied to the widow's claim for dower. No objection is made to this provision of the decree.

4. The will is in the following language:

“In the name of God, amen. I, John H. Rawlings, of the town of West Grove, in Davis county, and state of Iowa, of the age of seventy-three years, and being of sound mind and memory, do make, publish, and declare this my last will and testament in manner following, that is to say: First. I give and bequeath to John H. F. Kery a lot of four (4) acres on the north corner of the south-west quarter section twelve, (12,) in consideration the timber on ten...