The Tipton advertiser. [volume] (Tipton, Cedar Co., Iowa) 1856-1962, 1871-11-23
5000 pl0p0ts10nBu y though It were real

! estate. Rev. Sec. =, 4A..
And that, in the absence of q will, the
widow is entitled to have set off to hel
as dover the one-third of all the real es
tate of her husband, which shall be hel
property in fee simple.-Laws of 1862
Chap. $50, Sec. l.
! That, "The widows dover can not be
effected by any will of her husband i
she objects thereto, and relinquinsies
all rights conferred upon her by the
will. "--Rev., Sec. 2435.
That it is further provided that, Sub
ject to the rights hereinafter contempla
ted, the remaining estate of which the
decedent died seized shall, in the absence
of other arrangement by will, descend
in equal shares to his children. Rev,
Sec 2426.
The argument based upon the forego-
ing provisions is this: That, inasmuch
as the widow is entitled to the one third
Of the realty, notwithstanding the pro-
visions of the will, (if she objects there.
toy; therefore she is entitled to the one
third of the personal property remaining
after payment of debts and the setting
apart of the priviledged property, not
withstanding the will makes no provi-
sion for her. In other words, that she
takes 1t the same as her dover in the
realty.
The word "dOwer' has reference solely
to the real estate, and is defined to be
THAT portion of mans lands and ten
ements to which his widow is entitled,
after his death, to have and to hold for
the term Of her natural life, for the sus-
tenance of herself, and the nurture and
education of her children"
By the statute at present in force, the
widow is entitled to hold her dover
share of the realty in fee simple. And
there is no kind Of doubt that, in the
absence of a will, the widow will take
third of the personally by virtue of
the provision of Sec. 2,422, Rev., and
that her title thereto will remain abso-
lute.-Rev., Sec. 2,4SO.
We must not, however, overlook the
provision of Sec. 2,422, Rev., which is
this: that personal property of the de-
ceased not necessary for the payment of
debts nor otherwise disposed of as here
in6efore prouided, shall be distributed
&c.
What do the words "nor otherwise
disposed of as hereinbefore provided"
refer to?
They evidently refer to Sec. 1909, Rev.,
which provides that any person may
dispose ofall his property by will with
certain exceptions. And also to Sec.
1851, which specifies what property is
privileged.
So, if part of the decedent's property
be taken to pay debts. portion set
apart to the widow as privileged, aud
the balance bequeathed to the children,
would not the whole be otherwise dis
posed of as hereinbefore provided ?"
And would there be anything left for
the law to distribute?
In my opinion this section Of the Rev,
2, 422 provides for the distribution of
such property only as has not been dis
posed of by will, nor set apart as privi-
legged, nor taken to pay debts. And if
the whole Of the personally is thus dis,
posed of, the widow is not entitled to
any distributive share. u
Without unduly extending this opin-
ion will simply say that the conclu-
sion at which l have arrived at is. that
upon the foregoing facts, the widow
does not participate in the distribution
of the personal property belonging to
the estate of her deceased husband.
1t may not be improper to remark
that have given this case careful inves-
tigation and have arrived at the fore
going conclusion somewhat reluctantly.
The rule here laid down would seem to
work hardship in the case at bar
there being large amount of personal
property and but a small quantity of re-
atty.
But it is not the province of the court
to make the law only t, declare what
1t IS. SYLvANUs YATES, Judge.