The Tipton advertiser. [volume] (Tipton, Cedar Co., Iowa) 1856-1962, 1871-11-23
THE DAVIS WILL CASE.

Decision of Judge Yates Upon l..
Question Involving the Right
of Dover in Personal
Property Otherwise
Disposed Of
by Will.
In the Matter Of the) Cedar County Circui
1is, visa" deceased a oo " ISL. oe'0oef erin
Jacob Davis made his will on the 27ti
day Of January, 1868, in which, afte
providing for the payment of his debts
he bequeathed all his property, boil
real and personal to his children. Sool
afterward he married the present claim
ant; and died Oh or about the 18th day O
March, 1870.
The case came on for hearing on the
following agreed statement of facts:
/. j." The widow Annie Davis claims
one third ofall the personal property O
the deceased, and of all the real estate
owned by him at his death.
2. 1.-The facts are as follows: Jacot
Davis made will on the 9th of Jan
'uary, 1868, which has now been duly
'probated.
3. "Afterward he married the present
claimant. No provision is made fol
her in this will.
4. 1.-THE will is of the files of this
court, and referred to, and covers all
property, real or personal.
5. eff it were necessary she has filed
a disclaimer under the will.
6. " The sole point now presented, is
this: Does the widow, upon the fore.
going facts, participate in the personal
property, and to what extent?
:. 1t is agreed by counsel that this
question shall be submitted in antici-
patton of final distribution, so that no
delays may occur. The widow claim
ing one third of all personal and real
property not necessary to pay the debts
of the estate.
8. 1T is conceded that she is entitled
to the usual dover in the real estate
and such priviledged property as the
law allows the widow"
Wolf & LANDT AND PIATT & CARR,
Attorneys for Claimant.
FAIRALL, BoAL & JACKSON,
Attorneys for Heirs.
AS no question is made as to the wild
ow's right of dover in the realty, the
sole point to be determined is this: Is
Viz "AAoH CuGltACu " uiStil JutlNS
share of the personality left after pay
ment of the debts and the setting apart
of what is given by law as privileged
property to the wife and family:
This question is a new one in this
state ; it having never been passed upon
by our Supreme Court.
And I approach its decision with hes
itation, from the belief that no question
likely to arise in the settlement of de-
cedents estates, is so complex and
difficult of understanding As that of de-
termining what disposition the law
makes of mans property after his de.
cease. Judge Dillon, late of our Su-
preme Court, remarks, in the determi-
nation of a a legal problem, that " of all
statutes, none should be palmer, more
exact and certain in meaning, than
those regulating the descent and distri-
button of property. 1t may be conf
IDENTIFY affirmed that of all existing
statutes in this state now are, in many
material respects, more obscure and IN.
certain than those which undertake to
define what becomes of, and who is en-
titled to, mans property after his
death.'
The statute provides that any person
of full age and sound mind may dis.
pose by will of all his property except
what is sufficient to pay his debts, or
what is allowed as a homestead, or 9TH
erwise given 10y law as privileged prop
erty to his wife and family Rev. Sec
1909.
The plain meaning of the above seems
to be that with the exception of such
property as the law gives to the widow
and children of deceased persons to-
gether with years support out of tho
property of their parent, man may
dispose of his property as he sees fit,
Notwithstanding his natural obligations
to his wife and family.
1t may be said then, that man may
bequeath his property, Of what nature
or kind it may be, whether real, per-
sonal, or mixed, to whom and in such
manner as he sees fit, with the excep-
tons mentioned, and that those to
whom he owes natural obligations must
y ielA " suCA ulspOsl tlOu.
The question now arises, what prop
erty is given by law, as privileged, to
the wife and family?
The statute provides that when the
deceased leaves widow, no property
which, in her hands as the head of a |
family, would be exempt from execu-
ton, shall be deemed assets in the
hands of the administrator, or admins
tered upon as such, but the same after
being inventoried without appraise-
nent, shall remain with her and the
family until disposed of according to
Iaw.-Rev. Sec. 1851.
The appraisers must also make an all
lowance for the support Of the widow
and minor children under fifteen years
Of age, for twelve months from the
Heath of the decedent.-I.aws 1862
Chap. %.
This, in my opinion, is the property
referred to in Rev. Sec. 300, as being
privileged to the wife and family; and
with these exceptions, man NAV dis
pose of all his personally as seems to
him fit and proper.
But it is said that" the personal prop.
arty of the deceased not necessary for
payment of debts nor otherwise disposed
IF as hereinfore provided, shall be dis
,ri"utcd to the same persons and in the