Sutherland v. Sutherland

• Citation: 102 Iowa 535,71 N.W. 424
• Parties: SUTHERLAND v. SUTHERLAND ET AL.
• Decision Date: 28 May 1897
• Court: United States State Supreme Court of Iowa

102 Iowa 535

71 N.W. 424

SUTHERLAND

v.SUTHERLAND ET AL.

Supreme Court of Iowa.

May 28, 1897.

Appeal from district court, Jones county; William P. Wolf, Judge.

Plaintiff, widow of Donald Sutherland, asks that her share of certain real estate of which her husband died seised be set apart to her. The defendants, heirs at law of said deceased, answered that Donald Sutherland died testate; that his will was duly probated; that in it he bequeathed to plaintiff the real estate described in her petition, to have and to use during her natural life, with remainder to the defendants, in lieu of her dower or statutory rights in said land; that plaintiff has since said time used, occupied, and enjoyed said land, and is now estopped from claiming any interest therein different or contrary to said bequest. The defendants say in their answer as follows: “Defendants make the will, and the probated record, and all the papers, records, and proceedings in the matter of the estate of Donald Sutherland, deceased, in the district court of Jones county, Iowa, a part of this answer, and refer to same as part of this answer.” Defendants ask that the prayer of the petition be denied. Plaintiff demurred to the answer for the following reasons: “(1) That the facts in the defendant's answer do not entitle them to the relief demanded. (2) That the fact stated in said answer, and the provisions of the will referred to therein and made a part thereof, fail to show that the plaintiff is not entitled to the relief demanded.” The demurrer was sustained, and, defendants electing to stand on their answer, default was entered, and decree rendered as prayed in the petition. Defendants appeal. Affirmed.Welch & Welch, for appellants.

F. O. Ellison, for appellee.

GIVEN, J.

1. Appellants insist that, as the will is not set out in nor as an exhibit to their answer, it should not be considered as a part thereof in passing upon the demurrer. As, under the admissions in their answer, the only defense they have rests upon the provisions of the will, we do not discern why appellants desire to withhold the will from consideration. In Wishard v. McNeil, 78 Iowa, 48, 42 N. W. 580, this court said: “It is not uncommon for the pleading to refer to and incorporate therein portions of the court files by specific averment. Such practice tends to abbreviate the record, and where confusion or other harm does not result we do not think it objectionable. The practice would be subject to the...