#### G. W. Byerly, Appellee, v. A. H. Sherman and C. W. Breed, Executor, et al., Appellants.

Wills: devise in lieu of dower: elecxion: estoppel. Under the 1 Code of 1873, the one-third interest of a widow in the real estate of her husband was not affected by his will giving her a life estate in lieu of dower, unless she consented thereto by an election entered of record within six months after notice to her by interested parties of the provisions of the will; nor would the management of the entire estate and receipt of rents and profits during her natural life work an estoppel.

Estates of decedents: sale of undivided interest. The unassigned 3 distributive share of an heir in the undivided interest of his intestate in real property may be levied upon.

Deeds: parol evidence of trust. A deed reciting a consideration 3 cannot be shown by parol to be a trust.

*Appeal from J ones District*Court.— HoN. J. H. PrestoN, J udge.

Thursday, January 19, 1905.

Suit for partition of certain real estate. Plaintiff claims to be the owner of an undivided one-tbirtieth interest in and to 320 acres of land acquired through a sheriff’s and a quitclaim deed. Defendants deny plaintiff’s ownership of any part of the property. The trial court made partition in accordance with plaintiff’s claims, and defendants appeal. — 1

*Affirmed.*

*Jamison &*Smyth, for appellants.

*Remley & Remley*and *F. 0.*Ellison, for appellee.

Deemer, J.

— t- Matthew Porter, the original owner of the land, died testate January 3, 1895, .seized of the property *448in dispute. By tbe terms of tbe will be devised tp. bis widow, a life estate in bis entire property in lieu of dower, and at ber death bis exeoutors, defendants herein, were authorized and directed to sell tbe real estate and distribute tbe proceeds among bis heirs in certain proportions. Shortly after tbe death of Porter, bis widow left tbe land where she and ber husband bad resided, and thereafter boarded until ber death in August, 1901. Tbe executors appointed in Matthew Porter’s will filed no inventory of tbe property, but one of them (Breed, a son-in-law) tools: charge of tbe premises in controversy, collected tbe rents, and looked after tbe place generally. Out of tbe proceeds received be paid a note of $700, with interest, given by tbe testator, Matthew Porter. After tbe death of Mrs. Porter tbe other executor took rent money, and paid it on a note,'which bad been jointly executed by him- and Mrs. Porter before bis (Porter’s) death. As this note was given for money borrowed for Marion Porter, a son, be (Marion), after tbe payment thereof, executed a note to tbe executors- for thq amount thereof. At tbe time of tbe senior Porter’s death' there were ten children, or tbe. survivors thereof, then in being; among them- being C. P. Porter. Plaintiff held a judgment against C. P. Porter. He sued out an execution thereon, and levied upon C. P. Porter’s interest in tbe land. This interest was sold, thereunder, and went to sheriff’s deed October 22, 1902. In February of tbe year 1902 O. P. Porter deeded all his interest in the land to one Lawrence, and Lawrence, in January of tbe year 1903, in turn conveyed tbe same to plaintiff. These deed were quitclaims. Plaintiff claims that tbe widow took an undivided one-third interest in tbe land in fee simple, and that tbe other two-thirds descended or passed by devise to tbe children or their representatives, and that be is the owner of C. F. Porter’s interest in tbe widow’s share in virtue of tbe sheriff’s deed and tbe conveyances above referred to; while defendants say that Maria Porter took a life estate under tbe will of ber husband, and that she and ber representatives or successors *449are estopped from claiming any other or greater estate in her.

^ this ER^Ueiection°w"^-ke estoppel. egt Seduced to its last analysis, tbe claim of plaintiff is that the widow took one-third in fee, and that he is entitled to the interest which C. F. Porter inherited from his_ mother of this one-third, or one-thirtieth of the land. The primary question in the case is, what interest did Maria Porter acquire in the lands of her deceased husband ? If she took but a life interest, then plaintiff is not entitled to recover. If, on the other hand, she was entitled to a distributive share as survivor of her husband, then plaintiff’s cause of action is well founded. Under the law as it existed at the time of Mr. Porter’s death the widow’s. share (one-third in value of the real estate) could not be affected by any will of her husband, unless she consented thereto within six months after notice to 'her of the provisions thereof by the other parties interested in the estate, “ which consent,” the statute provides, “ shall be entered on the proper records.of the circuit [district] court.” Code 1873, section 2452. It is conceded by all parties that no formal notice was ever given the widow by the parties in interest, or by any one else, of the provisions of the will, and that no consent thereto was ever entered upon the court records. This being true, there was no statutory election to take under the will, and her distributive share was not affected thereby. *Bailey v. Hughes,*115 Iowa, 304, and cases cited; *Howard v. Watson,*76 Iowa, 229. That the widow had verbal notice of the contents of the will, and seemed to be satisfied therewith, is of no moment, in so far as the question of statutory election is concerned. Under the law as it existed at the time of her husband’s death, which, of course, must control here, an affirmative act on the widow’s part was necessary in order to deprive her of her distributive share. And this affirmative act was required to be evidenced in a stated manner. See cases cited and *Houston v. Lane,*62 Iowa, 291.

*450But defendants contend that through, the receipt of the rents of the land, and various other matters to which we shall presently refer, thfe widow, and all persons claiming by, through, or under her, are estopped from saying that she did not take a life estate under the will. This, to our minds, presents the only debatable question in the case. The will gave the -widow a life estate upon condition that she should take the same in lieu of dower. After the death of the husband, the executors, or one of them, took charge of the property as -agent for the widow, and not as executor. They did not take charge of it as representatives of the husband until after the death of the widow. Matthew Porter left little or no property not exempt from execution. The rents, of the property were collected by the widow’s agent down to the time of her death, and were disposed of according to her directions, part in payment of the debts of her husband, and part were left in her hands, and were distributed after her death to her heirs. No one, it seems, thought of requiring an election on the widow’s part, and no one gave her notice of the terms of the will. She did not, as we have seen, make a statutory election; and, if there is any election, it must be bottomed on the theory of estoppel.

Counsel have diligently gone over our cases for a decision on this point, and it is contended on the one side that there cannot be an estoppel on the widow, save by following the statute; while on the other the theory of equitable estoppel as applied to wills in general is invoked. But for the statutory provision with reference to election, there would be no difficulty with the case; and there are some chance expressions in our cases which seem to indicate that there may be an estoppel or an election through conduct not evidenced by any court record. But in each and, every one of these cases, which were decided under the statute now under consideration, there was some record of an election, which was made the basis for the decision. We shall not attempt to review the cases to demonstrate this proposition. Suffice it to *451say tbat all tbe later decisions proceed upon the theory that there can be no election save as pointed out by statute. In construing this statute in *Howard v. Watson,*76 Iowa, 229, we said: *u*The thought is that, if no person interested in the estate as heirs or otherwise object, or cause the widow to be served with the required notice, she is not bound to make any election; but may enjoy what has been devised,to -her. She has six months after notice in which to make an election, and not six months after she has knowledge of the provisions of the will. She can remain passive until such notice is given.” In *Baldozier v. Haynes,*51 Iowa, 683, we held, in effect, that no one has the right to rely upon any acts or conduct of the surviving husband or wife not made of record in the manner required by law; that it was not the declarations or conduct of the survivor which estopped him, but the entry of record. The object and purposes of the statute were there considered, and the thought expressed that the Legislature undoubtedly intended a strict construction thereof, in order to afford certainty and security to titles. This case was also followed in *Bailey v. Hughes,*115 Iowa, 304, and the reasons for the rule again stated. See, also, *Whited v. Pearson,*87 Iowa, 513; *Houston v. Lane,*62 Iowa, 291. In *Bailey’s Gase*most of the authorities relied upon by appellant are referred to and analyzed. In the *Whited Case*it is said that there must be something of record upon which to base the conclusion of an election. *Houston Case, supra,*is a strong one, and the decision is planted squarely upon the thought that the survivor’s distributive share cannot be defeated by any conduct on his part short of some record entry of consent'. There are many reasons for these' holdings’, which are fully set forth in the opinions cited. The rule has often been challenged, but never departed from, as we understand the cases. If there be any apparent conflict, it is not in what is actually decided upon the facts, but in expressions used in argument, which were not necessary' *452to the decision of the case, or because the statute was not under consideration.

Appellants arg-ue with much plausibility and force that the survivor cannot have both, and that, if he takes the one he waives the other. This was a matter for the consideration of the Legislature, and the matter has now apparently been covered by the provisions of the Code of 1897. See sections 3270, 3376. Under previous statutes the widow took one-third absolutely. In order to defeat her thereof it was necessary to follow the státute we have quoted. She was not defeated of this interest, except that the statute be followed. This was not done in this case, and the widow was never called upon by any one to make an election. It does not appear that she knew she had to elect, or that any one was complaining of her collection of the rents. She was never called upon by any one to say what she would do. And, as said in the *Howard*Case, *supra,*she was not bound to make any election, but might enjoy what was devised to'her until served with notive to elect.' The statute has made a rule for such cases, and we must follow that rule, even if in some cases it may appear to work a hardship/ In all matters-relating to real estate it is quite important that all transactions affecting the title be of record, so as to give notice to the entire world. Oral testimony against people whose lips are sealed by death is too insecure a foundation upon which to rést titles to land. Undoubtedly this was the reason for the enactment of the provision now under consideration. Any one interested had the right to compel a statutory election, and,. if they did not see fit to do so, they should not be permitted to plead an election in some other manner. In none of the cases cited by appellants’ counsel from other-jurisdictions was there a statute like ours; hence these cases are of no consequence.

*453
      g. Estates of sSeEDoEfNun-teresR m
      *452It is further argued that, as a widow’s unassigned dower cannot be levied upon and sold under execution, plaintiff took nothing under his sheriff’s deed. To this there are *453two answers: First, Plaintiff did not attempt to levy upon an unassigned right of dower, but upon the in-' terest of an heir of a deceased widow, who owned an undivided one-third interest in the lands at the time of her death. True, this was a distributive share, and had not been assigned at the time of her death, but her fee title passed to her heirs upon her death intestate.

8' ?vMDencePof01 Second. Plaintiff holds a quitclaim to the land of C. P. Porter’s interest therein. True, an attack' is made upon this deed, but the evidence is not sufficient to set it aside. . The deeds under which plaintiff claims recite considerations as paid, and they cannot be shown by parol to be in trust. These propositions are elementary, and need not be fortified by authority.

It should be remembered that there is no competent evidence in this record that the widow ever had notice of the terms of her husband’s will, no evidence as to when, if ever, she saw it, and no claim that any notice was ever given her as provided by the quoted statute. For these reasons there was no such an election as to bar the widow of her one-third in fee of her husband’s land. She died owning this one-third, of which C. F. Porter acquired one-tenth. This one-tenth of one-third is now owned by the plaintiff, and the decree confirming his title thereto is *affirmed.*