Sutherland v. Sutherland

• Citation: 71 N.W. 424,102 Iowa 535
• Parties: NANCY SUTHERLAND v. NATHANIEL SUTHERLAND, et al., Appellants
• Decision Date: 28 May 1897
• Court: United States State Supreme Court of Iowa

71 N.W. 424

102 Iowa 535

NANCY SUTHERLAND v. NATHANIEL SUTHERLAND, et al., Appellants

Supreme Court of Iowa, Des Moines

May 28, 1897

Appeal from Jones District Court.--HON. WILLIAM P. WOLF, Judge.

PLAINTIFF widow of Donald Sutherland, asks that her share of certain real estate of which her husband died seized 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 defendants answer do not entitle them to the relief demanded. (2) That the facts 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.

OPINION

GIVEN, J.

I.

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 40, 42 N.W. 578, this court said: "It is not uncommon for the pleadings 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 control of the court in the...