Morey v. Morey

• Decision Date: 25 January 1901
• Citation: 84 N.W. 1039,113 Iowa 152
• Parties: JULIETTE MOREY, Appellant, v. GIDEON MOREY et al
• Court: Iowa Supreme Court

84 N.W. 1039

113 Iowa 152

JULIETTE MOREY, Appellant, v. GIDEON MOREY et al

Supreme Court of Iowa, Des Moines

January 25, 1901

Appeal from MitchellDistrict Court.--HON. C. H. KELLY, Judge.

ONE Hiram A. Morey died in 1884, having executed a will, the significant portions of which are as follows: "(1) I will and bequeath to my wife, Juliette Morey, all of my personal property, and the use of the north ninety acres of the southeast quarter of section thirty-four, and the south half of the northwest quarter of section thirty-five, all in township ninety-nine (99) north, of range fifteen west of the 5th principal meridian, so long as she may live; and at her death, I will and bequeath (2) to my niece Almira Morey three hundred dollars. (3) I will and bequeath to my niece Estella Morey three hundred dollars. (4) I will and bequeath to my two nephews, Gideon and Gilbert Morey the balance that may be left of the ninety acres above described; also the balance of any personal property that may be left in the hands of my wife at the time of her death." This will was probated in 1884, and in pursuance of its provisions the executor paid over to plaintiff, who is the surviving widow, all the personal assets of the estate, taking a receipt therefor. Plaintiff has also been in occupancy of the land described in the will from the death of testator until the present time under her right as life tenant. Testator left no issue, and his sole surviving heir was his father, who in 1893 conveyed to this plaintiff his interest as heir in the 80-acre tract in which she has a life estate. In this action it is sought to obtain a construction of the will as to the devisees and legatees therein named other than plaintiff, who are made defendants, and to have plaintiff's dower set out in fee in the 90-acre tract the "balance" of which beyond plaintiff's life estate is by will given to Gideon Morey and Gilbert Morey. The court ordered one-third in value of the 90-acre tract to be set off to the widow in fee, appointing referees for that purpose, and made the legacies to Almira Ripley and Estella Haigh (named in the will as Almira Morey and Estella Morey) charges upon the 80 acre tract, the fee title to which is now in plaintiff. Plaintiff appeals, questioning the correctness of the decision in each of these respects.

Affirmed.

Sweney & Lovejoy for appellant.

W. L Eaton for appellees.

OPINION

McCLAIN, J.

I.

It is conceded that the plaintiff is entitled to dower in addition to the life estate, and the only controversy in that respect is as to the method in which dower is to be set off. Plaintiff contends that she is entitled to have her dower interest in the entire 170 acres set apart to her in one tract, so as to include the "dwelling house given by law to the homestead" (Code, section 3367), which dwelling house is on the 90- acre tract, and that therefore the court should have ordered so much of the 90 acres to be set apart to her as would equal one-third in value of the entire 170 acres, and that the devisees of the remainder in the 90-acre tract would have no cause to complain thereof. It seems to us, however, that the decree of the court is correct in this respect. The devisees of the 90-acre tract and the heirs (the father and the plaintiff to the extent to which her one-half interest in the absence of issue exceeded her on-third dowr interest) all took subject to the widow's dower right. In a sense, this dower right was an incumbrance upon all the real estate; and while the widow, no doubt, had the right to take her dower in one lump, the devisees from whom it was taken are not bound to sustain the entire burden of the extinguishment of such incumbrance. If the incumbrance had been a mortgage instead of a dower right, there would be no question whatever. It is well settled that those who take similar interests in real estate on the death of the owner can compel claims on the property to be satisfied pari passu, and if one of them is compelled to satisfy such a claim he has a right of contribution from the other. Now certainly the heirs inheriting the remainder in the 80-acre tract had no higher right than the devisees taking the remainder in the 90-acre tract. The devisees do not contend that the entire dower interest should be taken out of the 80-acre tract, and certainly, on the other hand, the heirs (whose rights are now consolidated in plaintiff) could not insist that the entire incumbrance should be satisfied out of the 90-acre tract. If any authority is necessary for this proposition, it may be found in Livingston v. Livingston, 3 Johns. Ch. 148; Griswold v. Bigelow, 6 Conn. 258; Davis v Vansands, 45 Conn. 600, 7 F. Cas. 179; Cook v Cook, 92 Ind. 398; Shillito v. Shillito, 160 Pa. 167 (28 A. 637); Gallagher v. Redmond, 64 Tex. 622; Chase v. Lockerman, 11 G. & J. 185; and Taylor v. Taylor, 47 Ky. 419, 8 B. Mon. 419. And this doctrine has been specifically applied in a case like the one at bar, where the dower interest of the widow in two...