Poole v. Burnham

• Decision Date: 20 May 1898
• Citation: 75 N.W. 474,105 Iowa 620
• Parties: EDWARD POOLE v. EMMA BURNHAM, Appellant
• Court: Iowa Supreme Court

75 N.W. 474

105 Iowa 620

EDWARD POOLE v. EMMA BURNHAM, Appellant

Supreme Court of Iowa, Des Moines

May 20, 1898

Appeal from Des Moines District Court.--HON. JAMES D. SMYTH, Judge.

THE defendant, Emma M. Burnham, is the executrix of the last will and testament of Mary M. Poole, deceased, who died, leaving plaintiff as surviving husband. Mary M. Poole died, leaving an estate of about eighteen thousand dollars, consisting entirely of personal property. She died, testate, leaving to her husband a bequest of one hundred dollars in lieu of all statutory provisions in his favor. The executrix tendered to plaintiff the amount given him by the terms of the will which he declined, and institutes this proceeding, asking an order requiring the executrix to pay over to him one-third of the estate, as his distributive share under the law. In resistance, the executrix pleads a relinquishment in writing made during the life of Mary M. Poole, in words as follows "Burlington, Iowa July 3, 1893. In consideration of one dollar and divers other good and sufficient considerations, I do hereby agree with my wife, Mary M. Poole, that I will and do hereby relinquish all claim to any portion of her separate estate, and, in case she dies before I do, to make no claim to any property she may leave, except such provision as she may make for me in her last will and testament, and that I will take under such will, and will not in any manner contest the same, nor do anything to avoid the full operation thereof, as she in her best judgment may direct. [Signed] Edward Poole. Witnesses to signature: F. W. Brooks, John J Fleming." This instrument was signed by Edward Poole. The district court adjudged plaintiff entitled to a distributive share of the estate, and ordered distribution accordingly. The defendant appealed.

Affirmed.

Smyth & Lewald and Blake & Blake for appellant.

C. L. Poor for appellee.

OPINION

GRANGER, J.

I.

The case presents the single question whether husband and wife can contract as to the distributive share of the husband in the estate of the wife. That the written relinquishment set out is such a contract, there is no room for dispute. The question turns upon the construction to be placed on section 2203 of the Code of 1873, as follows "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 section has received consideration at the hands of this court. That prior to the adoption of the statute in question, husband and wife could contract as to the dower right of the wife, is settled in Blake v. Blake, 7 Iowa 46, and Robertson v. Robertson, 25 Iowa 350. The section in question became the law in 1873, at the adoption of the Code. Prior to the Code of 1873, it was the law, as declared, that the husband might by will dispose of his personal property, regardless of the distributive share of his wife surviving him. In re Davis Estate, 36 Iowa 24. Such, however, was not the rule as to real property. By the adoption of the Code of 1873, the rule as to personal property was changed, so that the husband could not, by will, dispose of the distributive share of the widow as to either class of property. Ward v. Wolf, 56 Iowa 465, 9 N.W. 348. After referring to these cases, appellant urges that the agreement or relinquishment, by Edward Poole, is not prohibited by section 2203 of the Code of 1873, because it was not intended to apply to personal property. In Linton v. Crosby, 54 Iowa 478, 6 N.W. 726, it is said, speaking of the section: "This provision relates...