## Facts

- William Back married Mrs. Dirke in 1890; she had a daughter from a prior marriage (Reacke Back).
- Mrs. Dirke divorced William Back in 1900.
- In 1904, William Back married Reacke Back, his former stepdaughter; four children were born of that marriage.
- Mrs. Dirke died about two years after the second marriage; William and Reacke lived together as husband and wife until William’s death in 1906.
- In probate, Reacke sought an order setting apart exempt personal property as William’s widow.
- The executor argued the marriage was incestuous and void under an Iowa statute prohibiting marriage between a man and his wife’s daughter.
- The district court ruled the marriage was void and that Reacke was never William’s legal wife; her application was dismissed with costs against her.
- Reacke appealed; a threshold issue was whether she preserved review of an overruled demurrer by pleading over and trying the case on the merits.

## Issues

1. Whether a statute prohibiting marriage between a man and “his wife’s daughter” applies when the marriage to the mother was dissolved by divorce before the man married the daughter.
2. Whether the dissolution of the first marriage (and later death of the former wife) affects whether the second marriage is void for purposes of widow status and exempt-property rights in probate.
3. Whether a party preserves appellate review of an adverse demurrer ruling after pleading over and proceeding to trial on the merits.

## Decision

- The Iowa Supreme Court reversed the district court.
- The court held the incest statute did not bar marriage to a former stepdaughter after divorce ended the marriage that created the step-relationship.
- The court concluded Reacke was William’s lawful पत्नी at his death and could claim widow-related statutory benefits in probate, including exempt personal property.
- The court held the demurrer ruling was reviewable on appeal despite Reacke’s decision to plead over and try the case.

## Legal Principles

- A statutory prohibition of marriage between a man and “his wife’s daughter” is read to require an existing marital relationship to the mother at the time of the challenged marriage.
- The affinity-based step-relationship created by marriage does not, for purposes of the incest statute, continue after the underlying marriage is terminated by divorce.
- Marriage-disability statutes are not extended beyond their clear terms to invalidate marriages by implication.
- Under Iowa practice, a party does not necessarily waive appellate review of an overruled demurrer by filing subsequent pleadings and proceeding to trial on the merits.

## Conclusion

Because divorce ended the marriage that created the stepfather-stepdaughter relationship, the incest statute’s “wife’s daughter” bar did not apply, making the later marriage valid and entitling the surviving spouse to be treated as the decedent’s widow in probate.


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