Price v. Ewell

• Citation: 151 N.W. 79,169 Iowa 206
• Decision Date: 18 February 1915
• Docket Number: 29887
• Parties: JOHN PRICE et al., Appellants, v. VALLIE PRICE EWELL et al., Appellees
• Court: Iowa Supreme Court

151 N.W. 79

169 Iowa 206

JOHN PRICE et al., Appellants, v. VALLIE PRICE EWELL et al., Appellees

No. 29887

Supreme Court of Iowa, Des Moines

February 18, 1915

Appeal from Lee District Court.--HON. H. BANK, JR., Judge.

SUIT for partition of real estate. The plaintiff was adjudged to have no interest therein and his petition was dismissed. He appeals.

Reversed.

T. B Snyder and Leggett & McKemey, for appellants.

J. R Frailey, for appellees.

EVANS J. DEEMER, C. J., WEAVER and PRESTON, JJ., concur.

OPINION

EVANS, J.

The defendant Storms is the grantee of his co-defendants and as such interposes the only defense made. The plaintiff Rosa Price is the wife of John Price and has no interest in the subject of the controversy except as such wife. Both parties to the controversy, viz.: plaintiff John Price and defendant C. W. Storms, rest their claim of title upon the will of Patrick Price, the former owner of the property. Patrick Price died testate in September, 1888, seized of the property. He left surviving him his widow Gemima and four children. Two of his children, Robert and John, were by a previous marriage. The other two children, Charles and Vallie, were children of the wife Gemima. After the death of Patrick, Robert died intestate, leaving no widow or child surviving. The will of Patrick contained the following provision:

"I do give and bequeath to my beloved wife, Gemima Price, my homestead, consisting of house and two and one-half lots on Fifth street, Fort Madison, Iowa, and the entire residue of my property, personal and real, after my funeral expenses shall have been defrayed and all my debts paid, to have and to hold in her exclusive right so long as she shall remain unmarried, provided, only, that if either of my sons, Robert, Sandy, John or Charles Anderson, shall marry, and shall so desire, he shall have the privilege of building upon any vacant portion of the homestead, and shall have the privilege of occupying and using such building as a home, and provided that in case of her marriage, my estate, real and personal, shall be divided as follows:

"One-third to my wife, Gemima, and the remainder divided equally among such of my children as shall have lived respectable lives; but if either of my sons above named shall have been convicted of a felony or if either of my daughters shall have been proven guilty of lewdness, such son or daughter shall thereby forfeit all right of inheritance under this will.

"In case of the death of my wife Gemima Price, before there shall have been a division of my estate as above provided for, I give and bequeath said estate to my children to be equally divided among such of them as shall have maintained reputable lives as above defined."

It is the claim of the plaintiff that by this will the widow Gemima took only a life estate in the property; whereas, the defendant Storms contends that the widow Gemima took a fee simple estate under such will, which she later devised by her own will to this defendant's grantors; and this presents the only disputed proposition in the case. The trial court held that the widow Gemima took a fee simple estate under the will of Patrick. Such holding cannot be sustained. A devise of real estate to a widow to be held during her widowhood is a life estate subject to being terminated by the marriage of the widow. This was the rule at common law and it has frequently been applied by this court. The recent case of Brunk v. Brunk, 157 Iowa 51, 137 N.W. 1065, is decisive of the question involved. To the same effect is Convey v. Murphy, 154 Iowa 421, 134 N.W. 1065; Archer v. Barnes, 149 Iowa 658, 128 N.W. 969. Appellee places special reliance upon Busby v. Busby, 137 Iowa 57, 114 N.W. 559, and contends that it rules the case before us. By the will involved in the ...