#### Jacob F. Heeb, et *al.,*Appellants, v. Catherine Heeb.

Wills: Disinheritance» A will which devises all to the wife, disinherits the children, though no intention to disinherit is expressed. See Code, 2453.

*Appeal from Dubuque District Court.*— Hon. Peed O’Donnell, Judge.

Wednesday, January 23, 1895.

Action playing for the construction or setting aside of a will. The District Court sustained a demurrer to the petition, from which order the plaintiffs *appealed.*

Affirmed.

*Martin Neilan*for appellants.

*John Deery*and *Alphons Mathews*for appellee.

Granger, J.

The facts are concisely stated in the petition as follows: “Come now the plaintiffs, and for cause of action state: (1) That Anton Heeb, late deceased, of the county and city of Dubuque, Iowa, was their father. (2) That Anton Heeb was married three times during his lifetime. (3) That the plaintiff Jacob F. Heeb is fifty-two years of age, and the son of Anton Heeb by his first wife, who died about fifty years ago. (4) That the plaintiff Lawrence J. Heeb is forty-eight years of age, and the son of Anton Heeb by hfe second wife, who died about forty-seven years ago. (5) That Afiton Heeb married his third wife, Catherine Gehrig, about 1845, and they lived together as husband and wife until the time of his death, in 1888. (6) That seven children were born to Anton Heeb and Catherine *417Heeb, his third wife, and all these children and the widow of Anton Heeb are now living. (7) That on the 29th day of January, 1886, Anton Heeb, the father of plaintiffs, made a will in writing, a copy of which, with the probate thereof, is hereto attached as Exhibit A, and made a part of this petition. (8) That Anton Heeb died in the year 1888, leaving Catherine Heeb, his wife, seven children by said wife, and the plaintiffs, as his heirs. (9) That, by the terms of said will, all the property of which Anton Heeb died seised wais devised and bequeathed to his wife and widow, Catherine Heeb, exempting her from giving bond or filing an inventory of the property of his estate. (10) That saliid will was probated in the District Court of Dubuque county, Iowa, on the 19th day of March, 1888. (11) That the plaintiffs are heirs of Anton Heeb, and by the terms of the will they are disinherited, while the intention to disinherit the plaintiffs is nowhere clearly expressed. (12) That Anton Heeb died seised of real and personal property valued at three hundred thousand dollars. (13) That the will places all their father’s property in the name of Catherine Heeb, who is not of their blood or kindred, and it is doubtful and uncertain whether they under the will can inherit any of-their father’s estate. (14) That said will, as to plaintiffs, is contrary to law, doubtful, and uncertain in its interpretation. (15) That the plaintiffs’ names are omitted in said will, while it nowhere appears in said instrument that such omission was intentional.” The prayer is that the will be so construed as to give plaintiffs the share of the estate provided by law, or sat the will aside. The demurrer sustained by the court was general. The following is the essential part of the will: “And, after the payment of all my just debts, I do hereby devise and bequeath all the property of which I may die seised or possessed, or to which I may *418be entitled at the time of my death, to my beloved wife, Catherine Heeb. I also desire that she shall not be required to give any bond or other security for the execution of this, my will. I also desire that she may be exempt from filing any inventory of the personal property belonging to my said estate I wish further to add that I have in my mind the intention of making some charitable bequests which I will not express herein, but will instruct my beloved wife above named in the mattef and trust to her judgment and discretion in the bestowal of them.”

It will be observed that Anton Heeb was the father of nine children at the time of the execution of his will, and that all are, if its provisions are to be observed, disinherited. It is said by appellant that “tine Code of Iowa, having no provision for children not referred to or named in the will of their parents, revives the common law;” and then it is said that, at common law, “no child shall be disinherited unless the intention to disinherit it is expressed.” The following was a territorial provision: “When any testator shall omit to provide in his will for any of his children, or for theissue of any deceased child, they shall take the same share of his estate, both real and personal, that they would have been entitled to if he had died intestate; unless they shall have been provided for by the testator in his lifetime, or unless it shall appear that such omission was intentional and not occasioned by any mistake or accident.” Rev. St 1843, p. 670, section 19. It is appellants’ thought that this provision was a change or modification of the common law, and that by its repeal or omission from the statutes of the state the common law rule obtains. It is further said that Code, section 2322, “being silent in reference to children not named in the will, and to the way a testator *419may dispose of his property, it is to be devised according to the common law.” We are a little in doubt as to appellants’ precise meaning, but we understand it to be that a testator may disinherit his children, by will if the intent is therein expressed; but that, in the absence of such expression, if the effect of the will, if observed, would be to disinherit a. child, the rule of the common law obtains a;s< to inheritance, notwithstanding the will. We do not understand appellants- to contend that it is not competent for the legislature to regulate the descent of property, but they base their contention on the absence of legislation. The difficulty with appellants’ contention is that it does not tafce into consideration some important provisions of the Code, whereby the descent of property is regulated, and the provisions of the common law acre superseded, even though they may be, to some extent, re-enacted. Section 2436 provides that personal property of the deceased, “ * * * not otherwise disposed of as herein-before provided, shall be.distribhted to the same persons ándin the same proportions as thoughit were real estate. ” By section 2440, one-tíiird in value of the real estate is given to the wife or husband, as the case- may be. Then follow, in other sections, some provisions- creating other rights and charges-, such as home,stead, support, and the distributive share of the widow; and then follows section 2453, as follows: “Subject to the- rights and charges hereinbefore contemplated, the remaining estate of which the deaedent died seised shall, in the absence of other arrangements by will, descend in equal shares to the children.” It would be difficult to imagine a more conclusive statutory regulation for the descent of'property than is embraced in the sections quoted. The following is section 2322, as to the disposition of property by will: “Any person of full age and sound mind may dispose, by will, of all Ms *420property except whait is sufficient to pay his debts, or what is allowed .as a homestead, or otherwise' given by law, as privileged property, to his wife and family.” It will be seen that the conditions upon which children inherit are fixed by .statute, and they are that, .subject to certain rights and charges, the property will descend to them “in the absence of other arrangements by will,” which means if the property is not otherwise disposed of by will. Appellants do not question b-ut that Heeb could have, disposed of all his property to' his wife if, in so doing, he had properly expressed his intent to not give any to his children. We do not see h'ow such an intent could have been, more conclusively manifested. Neither his soundness of mind nor his legal capacity in other respects is questioned. With, knowledge of his wife and children, all of whom, under the law, would share his estate, he gives it all, in express terms, to his wife. That is conclusive of his intent as to his children. To us it seems that, upon any theory of construction, the -will must be sustained. The judgment is *affirmed.*