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Law School Case Brief

Back v. Back - 148 Iowa 223, 125 N.W. 1009 (1910)


If any man marry his father's sister, mother's sister, father's widow, wife's mother, daughter, wife's daughter, son's widow, sister, son's daughter, daughter's daughter, son's widow, daughter's son's widow, brother's daughter or sister's daughter; or if any woman marry her father's brother, mother's brother, mother's husband, husband's father's son, husband's son, daughter's husband, brother, son's son, daughter's son, son's daughter's husband, daughter's daughter's husband, brother's son or sister's son; or if any person, being within the degree of consanguinity or affinity in which marriages are prohibited by this section, carnally know each other, they shall be guilty of incest, and imprisoned in the penitentiary not exceeding ten years nor less than one year. Iowa Code § 4936.


In 1890, William Back, the decedent, married a widow, one Mrs. Dirke, who then had living a daughter by her former husband. The daughter is the plaintiff in this case, In 1900, the wife obtained a divorce from said William Back, and four years later he married the plaintiff. No children were born to William Back by his first marriage, but as a result of his marriage to plaintiff four children were born, all of whom survive him. About two years after the second marriage the divorced wife, mother of the plaintiff, died, and thereafter plaintiff and the decedent continued to live together as husband and wife until his death in 1906. The resistance of defendant to plaintiff's application as widow to have the exempt property set apart to her was on the ground that the marriage was incestuous and void under the provisions of Code, section 4936, which within the definition of "incest" includes marriage between a man and his wife's daughter, and prohibits such marriage. The trial court ruled throughout that, notwithstanding the termination by divorce of the marriage between decedent and plaintiff's mother before the marriage of decedent to this plaintiff, plaintiff continued to be decedent's wife's daughter within the statutory definition, and that the marriage to plaintiff was void in its inception and continued to be void after the death of plaintiff's mother and until the death of decedent, and that, therefore, plaintiff is not the widow of decedent. 


Did the marriage between the plaintiff daughter and the decedent constitute incest, and was therefore invalid?




The court found that the daughter was not precluded from relying in this appeal on the insufficiency of the allegations of defendant's answer to constitute a defense. The relationship of affinity between the decedent and the daughter which existed during the continuance of the marriage relation between decedent and plaintiff's mother terminated when the latter procured a divorce from decedent, and after that time plaintiff was not the daughter of decedent's wife, and the marriage between them was valid.

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