Sutherland v. Sutherland , 102 Iowa 535 ( 1897 )

Given, J.

I. Appellants insist that, as the will is not set out in nor as an exhibit to their answer it should nut be considered as a part thereof in passing upon the demurrer. As, under the admissions in their answer, the only defense they have, rests upon the provisions of the will, we do not discern why appellants desire to withhold the will from consideration. In Wishard v. McNeil, 78 Iowa, 48, this court said: “It is not uncommon for the pleadings to refer to and incorporate therein portions of the court files by specific averment. Such practice tends to abbreviate the record, and where confusion or other harm does not result we do not think it objectionable. The practice would be subject to control of the court in the exercise of a sound legal discretion.” Appellants, as we have seen, in express terms “make the will * * *' a part of this answer, and refer to the same as part of this answer.” Surely, in the face of this, they should not now be heard to say that the will is not a part of their answer.

2 II. In Howard v. Watson, 76 Iowa, 230, it is said “The devise to the defendant is an estate for life, and it has been held that a widow ‘may take dower, notwithstanding a devise to her in the will, unless there is an express provision in the will to the ■contrary, and the claim for dower be inconsistent with and will defeat some provision of the will/ ” — citing Daugherty v. Daugherty, 69 Iowa, 677. It also said: “And in Metteer v. Wiley, 34 Iowa, 214, it was held that the devise of a life estate would not hair the right of a widow to a distributive share of the real estate owned by her husband at his death.” The answer shows on its face that the devise is of a life estate, and fails to show that there is an express provision in 'the will that that estate shall be in lieu of dower. The allegation that it was so intended is the statement of a mere conclusion and one that is not warranted by what is said as to the devise. We think that the matter stated in the answer itself doe® not show a defense to plaintiff’s cause of action. The provision® in the will 'are these: “(1) It is my will that my wife, Nancy Sutherland, shall have, after my death, the possession and use of my property, real and personal, until her death. (2) After her death the remaining property, real and personal, shall be appraised, and sold and divided among our children in the following portions,” Then follow the names and portion® of the children. We think it entirely clear, under the eases cited, that the demurrer was properly 'Sustained. The judgment of the district court is therefore affirmed.