Murphy v. Fallon (In re Fallon's Will)

Decision Date17 December 1898
PartiesIN RE FALLON'S WILL. MURPHY v. FALLON.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from district court, Clayton county; A. N. Hobson, Judge.

Proceedings for the probate of the will of M. J. Fallon, deceased. The widow of the decedent filed objections to the will, but she was held not to have such an interest in the estate as to be entitled to contest the will. From that holding she appeals. Affirmed.James O. Crosby, for appellant.

J. E. Corlett and D. D. Murphy, for appellee.

ROBINSON, J.

In April, 1897, an instrument in writing which purported to be the last will and testament of Michael J. Fallon, deceased, was filed in the office of the clerk of the district court of Clayton county, for probate, by D. D. Murphy, who was named therein as executor. The will gave to the widow of the testator one-third of his estate, in lieu of her distributive share therein; to the mother of the testator, his watch, clothing, violin, and property described as “other things personal, of my own, and things received from her”; and to his child, Sarah Marie Fallon, the remainder of the estate. The will further provided that the executor should have possession and control of the property given to the child, and invest it for her use until she should become of age, when it was to be delivered to her; but, in case of her death before attaining her majority, the share set apart for her was to go to four sisters of the testator, who were named. The widow of the testator objected to the will on the alleged ground that when it was made the testator was of unsound mind, and incapable of making a will. We are required to determine whether she had such an interest in the estate of the decedent as entitled her to contest the will.

1. Section 2452 of the Code of 1873, under which the question before us arose, is as follows: “The widow's share cannot be affected by any will of her husband, unless she consents thereto within six months after notice to her of the provisions of the will by other parties interested in the estate, which consent shall be entered on the proper records of the circuit court.” Under this provision the widow was entitled to the share of the estate of her husband which she would have had in case he had died intestate; and that is true of the property bequeathed to the mother of the decedent, as well as of the remainder of the estate. Therefore it was not necessary for her to have the will set aside, in order to obtain the share of the estate which the law gave her. That is not denied, but it is said that, if the will is established, she will be compelled to resort to another action in order to obtain the property to which she would be entitled. That would not be true, unless other persons assert claims which are not authorized by law. It must be presumed that all persons will abide by the law, and that no adverse claim will be made to any property to which the contestant is entitled, whether she does or does not elect to take under the will.

2. It is contended that the appellant should be permitted to contest the will, for the reason that, under its provisions, in case of the death of the child before she attains majority her share will go to the sisters of the decedent, instead of to the appellant, as it would if the will be set aside. But that does not show that the appellant has any interest in the estate of the decedent of which his will deprives her. She has no assurance that she will inherit from the child; and, if it can be said that she has any interest in what the will gives to the child, it is at best but a remote, contingent interest, which, under certain conditions which may never exist, might become an actual and vested right. But that is not such an interest as authorizes her to contest the will. If this were not so, then any person standing in such relation to the heir of a decedent as that he might, under possible conditions, inherit...

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6 cases
  • In re Swanson's Estate
    • United States
    • Iowa Supreme Court
    • 9 Marzo 1948
    ... ... is a valid defense to their attempt to probate the will and ... codicils. On the administrators' appeal we must determine ... they see proper. In re Estate of Murphy, 217 Iowa 1291, 252 ... N.W. 523; In re Estate of Stone, 132 Iowa 136, ... See authorities last ... above, also Fallon v. Fallon, 107 Iowa 120, 123, 77 N.W. 575; ... Re Meredith, 275 Mich ... ...
  • Fry v. Yeatman
    • United States
    • Maryland Court of Appeals
    • 10 Junio 1955
    ... ... in the estate of her brother sufficient to entitle her to caveat his will ...         The will of C. Boyd Keys was probated November 25, ... sister, and a similar holding in In re Fallon's Will, 107 Iowa 120, 77 N.E. 575, 576. See also Halde v. Schultz, 17 ... ...
  • In re Sexton's Estate
    • United States
    • Nebraska Supreme Court
    • 30 Noviembre 1945
    ... ... concerned from contesting a will ...         2 ... Under the provisions of section 30-217, ... 359, 58 A.L.R ... 1457 and annotation page 1462; In re Fallon's Will, 107 ... Iowa 120, 77 N.W. 575; In re Miller's Estate, 54 Ariz ... ...
  • Halde v. Schultz
    • United States
    • South Dakota Supreme Court
    • 2 Diciembre 1903
    ... ... will of Bella ... Cormack, deceased. From a judgment probating the will, ... Storrs v. St. Luke's Hospital, supra; In re ... Fallon's Will, 107 Iowa, 120, 77 N.W. 575; ... Kostelecky v. Scherhart, 99 Iowa, ... ...
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