85 Iowa 525 | Iowa | 1892
The questions presented arise out of the following facts: Elmer Egbert died October 26, 1886, seized of a certain farm worth about twenty thousand dollars, and certain lots, with a dwelling-house thereon, in the town of Monona,, worth seven hundred dollars. Eor many years prior to April, 1886, Mr. Egbert and his family had resided on the farm. In March, 1886, he purchased the house and lots, and moved thereto in April, having rented the farm to his son for one year. Mr. and Mrs. Egbert, with their
“I, Elmer Egbert, do make this my last will and testament: First. I direct (that all my just debts be paid as soon as may be done without inconvenience to my family, or the sale of my real estate. Second. It is my will that my house and home in the village of New Monona, Clayton county, Iowa, shall be the home of my family under the supervision and control of rqy wife, Anna Egbert, and all members of my family who shall desire shall enjoy its benefit without charge or payment of board. Third. I direct and empower my executor to manage and control my real estate as I might do if living. Fourth. The rents of my lands shall be turned over to my wife for the maintenance and education of my family at such times and in such amounts as she shall deem necessary; and I direct my executor to loan any residue of said rents to the time of- the final division of my estate. Fifth. My executor shall receive twelve and a half per cent, for the performance of the duties required of him under the will. Sixth. I appoint my son, David Egbert, executor. Seventh. I direct my executor to sell and convert into money all cattle, grain and hay of which I may die possessed. Eighth. It is my will that the furniture, bedding, library and piano, and all household goods, be exempted from sale or inventory, but remain for the use of the family. Ninth. It is my will that the span of horses, buggy, lumber wagon, harness, binder, mower, rakes, plows, and all farming imple*531 ments become the property of my son, David Egbert, on paying to my estate the sum of three hundred dollars within one year after my decease.”
About two weeks before her death Mrs. Egbert executed her last will, as follows:
”1 give and devise to my daughter Carrie and to my son Benjamin the pianoforte and household and kitchen furniture contained in and about the house wherein I now live. Second. I give to my three children all the residue of my property of which I may die seized.” At the same time she signed and gave to the executor a notice in writing, as follows: “To David Egbert, and to whom it may concern: Take notice, that I will claim my distributive share of the estate of my late husband, Elmer Egbert, deceased, of Monona, Clayton county, Iowa, as given me by statute of Iowa, and govern yourself accordingly.
“Anna Egbeet.”
At the time of Mr. Egbert’s death Mrs. Egbert was in such poor health as to be unable to attend the funeral. She continued to decline from that time until her death, and was not during that time in a condition to have been removed to another house.
I. The only question involved in this case .is whether Anna Egbert, at the time of her death, owned
It is not clear what Mr. Egbert’s intentions were as to this future home when he moved to Monona; but, as no question is made on that subject, we conclude that the house and lots were the homestead of the family at the time of his death. The only question is, whether Mrs. Egbert must be deemed to have elected to take that homestead for life in lieu of her distributive share in the real estate, because of having occupied it as she did. It is not a question of abandonment of the homestead, but simply whether, under the facts, she will be held to have elected to take the homestead. Several cases are cited wherein it was held that continual occupation of the homestead, in the absence of an election to take a distributive share, would be deemed an election to take the homestead. The facts in those cases are widely different from the facts in this. In most of them the occupation was for a longtime, and accompanied by acts indicating such an election. The theory of those cases is that the facts justified the inference of an election to take the homestead. Mobley v. Mobley, 73 Iowa, 654, is most nearly in line with the facts of this case. In that the husband died July 5, 1886. The widow occupied the homestead until her death, December 25, 1886, having in the meantime leased the homestead for the term of her life, thus unmistakably indicating an election to take the homestead. McDonald v. McDonald, 76 Iowa, 137, is relied upon by the appellant. It is there said that the logical deduction to be drawn from the cases referred to “is that when the surviving husband or wife continues to occupy
II. Under the statute Mrs. Egbert became vested, upon the death of her husband, with the right to
The decree of the district court is affirmed.