Linton v. Crosby

Decision Date12 June 1883
Citation16 N.W. 113,61 Iowa 293
PartiesLINTON v. CROSBY, EX'R.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from Clayton circuit court.

Action to recover, or for the admeasurement of, the plaintiff's distributive share or dower in the real estate of which her husband died seized. Judgment for the plaintiff and defendant appeals.L. O. Hatch and Jas. O. Crosby, for appellant.

Murdock & Larkin, for appellee.

SEEVERS, J.

This cause was before the court at a former term, and it was held the plaintiff was entitled to recover one-third in value of the estate owned by her husband at the time of his death. Linton v. Crosby, 54 Iowa, 478; [S. C. 6 N. W. REP. 726.] Upon filing the procedendo in the circuit court the defendant pleaded two additional defenses, the first being that he had paid mechanic's liens and taxes on the real estate. This was admitted by the plaintiff, but she claimed, and it was established on the trial, that such liens and taxes were paid from money which came into the hands of the defendant from rents of the real estate and from sales of the personal property belonging to plaintiff's deceased husband. The second defense pleaded was a prior adjudication. The only questions pressed in argument by counsel are the two just stated.

1. As to the mechanics' liens and taxes. The plaintiff's husband executed a will, which has been duly admitted to probate, and he therein devised all his property, both real and personal, to persons other than the plaintiff. In Ward v. Wolf, 56 Iowa, 465, [S. C. 9 N. W. REP. 348,] it was held, under a similar will, that the widow was entitled to one-third of the personal property notwithstanding the will. In other words, it was held a husband cannot by will deprive his widow of her distributive share of his personal estate. The writer and Mr. Justice DAY did not concur in that decision, but the court is not disposed to change the rule established in that case. In the case at bar, therefore, the plaintiff is entitled to a share of the personal estate, and as the mechanics' liens and taxes have been paid with money derived from the personal estate, it is apparent the plaintiff's interest therein has been reduced to that extent. Now, it is our opinion the liens and taxes paid should not be again deducted from the plaintiff's share of the real estate, or her interest therein lessened in any degree because of the discharge of such liens. Besidesthis, the personal estate constitutes the primary fund for the payment of debts. Code, § 2385; McGuire v. Brown, 41 Iowa, 650.

2. The plaintiff commenced an action to recover or have set apart to her certain personal property owned by her husband at his death, which she claimed to be entitled to because her husband was the head of a family and the property in his hands was exempt from execution. In that action the defendant pleaded-- First, a general denial; second, that decedent at the time of his death was not the head of a family; and, third, that decedent had disposed of all his property by a will. The circuit court rendered judgment for the defendant, but upon which of the above defenses we are not advised. The plaintiff appealed to this court, and the judgment of the circuit court was affirmed, on the ground the plaintiff's husband at the time of his death was not the head of a family. Linton v. Crosby, 56 Iowa, 386; [S. C. 9 N. W. REP. 311.] It is insisted, as...

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