120 Iowa 127 | Iowa | 1903
W. G. Bissell died intestate in September of the year 1900 seised of six hundred acres of land. This land was incumbered by mortgage in the sum of $11,000.
Plaintiff claims one-third in value of the lands left by her deceased husband, and contends that the amount awarded Edna by the decree of divorce above quoted should be treated as an advancement to her and taken into account in the partition of the property. Part of the land being homestead in character, plaintiff asked that this homestead be included in the premises assigned to her, and that the incumbrance on the property be adjusted so as to leave the homestead free; and that, of the part not homestead in character, an adjustment of the incumbrance be made so that it should bear its just proportion thereof. The trial court denied the claim of advancement, allotted to plaintiff one hundred and seventy-four acres of land, which included the homestead; decreed that she should pay $2,852 of the incumbrance; awarded to each of the defendants something over two hundred acres of land, and found that they should each pay $4,074 of the incumbrance, 'it also found that the homestead should not be charged with any portion of the incumbrance. Plaintiff appeals from that part of the decree denying the claim of advancement, and defendant Edna Bissell from that part apportioning the incumbrance against the several.allotments of land.
Referring first to plaintiff’s appeal, we find the law as to what constitutes an advancement to a child very well settled, and the only difficulty is in its application. An
With these rules settled, we now go to the evidence, and find that W, G. Bissell brought action against his first wife for divorce, which he abandoned. He then induced'his
II. As to the apportionment of the incumbrance, which amounted at the time of the trial to practically $11,000, and which was evidenced by a mortgage signed by
That part of the decree charging the remainder of the land assigned to the plaintiff with its proportion of the mortgage incumbrance is not complained of by plaintiff or defendants, and need not be considered.
It is contended that by this apportionment the widow received more than one-third in value of the real estate of which her husband died seised. This is perhaps true, but it results from the nature of the property awarded to her. As said in Mock v. Watson, 41 Iowa, 241, “The interest of the wife is not, as that of the heirs, made subject to the rights of others and to charges against the(estate.” The case seems to be ruled by Wilson v.. Hardesty, and other like cases. The widow did not, by executing tire mortgage, relinquish her homestead rights except, in so far as might be necessary to pay the remainder of the mortgage, after exhausting the- other property included therein. See, also, In re Lund's Estate, 107 Iowa, 264.
The decree is in all respects correct, and it is aeeiRMED.