Linton v. Crosby

• Decision Date: 06 October 1880
• Citation: 6 N.W. 726,54 Iowa 478
• Parties: LINTON v. CROSBY ET AL
• Court: Iowa Supreme Court

6 N.W. 726

54 Iowa 478

LINTON v. CROSBY ET AL

Supreme Court of Iowa, Des Moines

October 6, 1880

Appeal from Clayton Circuit Court.

THIS is an action for the admeasurement of the dower of plaintiff in the lands of her deceased husband. By the judgment of the Circuit Court it was declared that plaintiff was entitled, as her dower interest, to one-half of the lands, and referees were appointed to admeasure it. From this judgment defendants appeal.

REVERSED.

L. O Hatch and James O. Crosby, for appellants.

Murdock & Larkin and D. S. Wilson, for appellee.

OPINION

The facts of the case appear in the opinion.

BECK J.

I. The petition alleges that plaintiff is the widow of John Linton who died seized of certain lands in the State; that he left no child or children surviving him; that he advised all the lands to his brothers and sisters; that the will has been admitted to probate, and that the plaintiff has refused to accept under the will, and has not relinquished her dower in the property. The plaintiff claims as dower one-half of the lands, and prays for relief accordingly.

The defendants, answering, admit the marriage of plaintiff with deceased, and that no issue was born to them, but allege that in 1867 she abandoned him, and they always thereafter lived separately. It is further shown in the answer that, in consideration of the separation of the parties, they entered into a written contract by which each relinquished all dower interest or right to the other in and to all lands then owned, or thereafter to be acquired, by either of them. The consideration of this contract is declared to be the mutual agreement of the parties therein expressed. It was duly acknowledged and recorded. This instrument, defendants claim, operates as a relinquishment of plaintiff's dower. The answer admits the disposition of the property by will to the brothers and sisters of the devisor.

Plaintiff, in her reply to the answer, admits that she and her husband lived separate, alleging that he abandoned her without cause. She further alleges and insists that the contract, under which defendants claim relinquishment of her dower, is void under Code, § 2203, which forbids contracts of that character. A demurrer to plaintiff's reply was overruled, the court thereby holding plaintiff's dower is not barred. During the progress of the case other rulings, based upon the same view of the law, were made. They, as well as the pleadings and facts of the case not above set out, need not be recited here.

II. The sole question for our determination is this: Is the contract of plaintiff, entered into with her husband, whereby she relinquished to him her right of dower in his estate, valid under the statutes of this State? The question here presented is not one of difficulty, and may be disposed of upon a brief consideration.

Code, section 2203, is in the following language: "When property is owned by either the husband or wife, the other has no interest therein which can be the subject of contract between them, or such interest as will make the same liable for the contracts or liabilities of either the husband or wife who is not the owner of the property, except as provided in this chapter."

This provision relates to the interest which a husband or wife holds in the lands owned by his or her spouse which arises under the marriage relations. It does not refer to a property interest that may be based upon contract, or may be derived from sources other than the marriage relation. The section evidently contemplates and includes in its language the dower estate. Upon the marriage relation this estate is based. The exception at the close of the section refers to section 2214 which provides that expenses of the family, and of the education of the children, are chargeable upon the property of the husband and...