Watrous v. Winn

Day, J. The question presented by this appeal is not res nova. In Sully v. Nebergall, 30 Iowa, 341, it was held that a, will bequeathing to the wife of the testator all his estate, both real and personal, during her life or widowhood, and directing that at her death or marriage the estate be equally divided between the heirs of the testator, did not defeat the widow’s dower, upon her election to take under the will. It is true that when the will in that case construed was executed and when the testator died the dower was but a life estate. And in this regard that case differs from this. But in Metteer v. Wiley, 34 Iowa, 214, it was held that a bequest of all the real and pei’sonal property of the testator to his wife during her life, and directing that at her death the same be divided among the children of the testator, was not in lieu of dower, although the dower was then as now an estate in fee. This case seems to be fully decisive of the present. See, also, Adsit v. Adsit, 2 Johns. Ch. 448 ; Smith v. Kniskern, 4 id. 9 ; Lewis v. Smith, 9 N. Y. 502; Clark v. Griffith, 4 Iowa, 405; Coriell v. Ham, 2 id. 552; Bull v. Church, 5 Hill, 206. The direction that a portion of the real estate be sold in case the personal effects proved insufficient to raise the sums bequeathed to Flora and Martha Watrous does not, it seems to us, affect the construction of the will, at least under the facts averred in the petition. From the structure of the will it appears that the insufficiency of the personal effects to raise these bequests was regarded as a mere contingency against [75] which, it was thought proper to provide. It was regarded as a contingency not likely to arise. The language of the will is, “ if from any cause now unforeseen there should not be sufficient,” etc. The petition alleges that from the personal effects Martha Watrous has been paid the $1,000 bequeathed to her, and the executors hold in trust $300 for Flora Watrous according to the terms of the will. Thus it is rendered certain that the contingency requiring a sale of any portion of the real estate never can arise. The action of the court overruling the demurrer is in harmony with the prior rulings of this court and is Affirmed.