139 Iowa 621 | Iowa | 1908
Plaintiff averred that he was the owner and possesser of a certain three acres of land, and “that said land was the homestead of the father, now deceased, • and has been in the possession of the family for many years last past.” He asked and was allowed as damages depreciation in the rental value of the premises from June 16, 1905, to May 15, 1907. The jury were also instructed as follows: “Also, if you find from a preponderance of the evidence that the plaintiff and his family in their home and house suffered inconvenience and discomfort by reason of the alleged nuisance, then
Before tbe death of the father, it is clear that plaintiff was not the head of a family, although supplying part or all of the supplies. Whalen v. Cadman, 11 Iowa, 226. Presumptively the father was the head of the family before his death, and the homestead was his for the benefit of his family. TJpon his death his widow was entitled to the homestead under the provisions of sections 2973 and 2985 of the Code. There was no provision in the will for the widow in lieu of dower, and it does not appear that she has made any election to take her distributive share in lieu of dower, or that she has done anything to forfeit her right to occupy the premises until her distributive share is set aside. Upon the death of her husband she was entitled to possess and occupy the same until it was otherwise disposed of according to law.- The probate of the will did not deprive her of that right; nor does it appear that she ever knew of or assented to the contents of the will. As widow she would be deemed the head of a family and entitled to the entire property for life, should she desire to use it as a homestead. She has never sought to have her distributive share set aside; nor has plaintiff done anything to deprive her of her right either to the homestead or to her distributive share. Indeed, he does not pretend to say, even inferentially, that his mother has abandoned any of her rights. He was not certain- whether he lived with his mother, or she with him. In order to show title and right of possession in himself, it was necessary for him to prove in some manner that his mother’s rights were extinguished. He is not suing for, nor was he- allowed, damages to the reversion, but damages for certain years during which he and his mother occupied the premises in the manner before stated. Under such circumstances the mother was entitled to the rents and profits and for all
Other matters are complained of; but, as they are not likely to arise upon a retrial, they will not be considered. We are not to be understood as holding that a tenant may not recover damages for nuisance, or that one in! the rightful occupancy of real property may not do so; nor do we hold that a widow may not relinquish her homestead lights. But none of these questions are in the case as now presented.
Nor the errors pointed out, the judgment mfust be and it is, reversed.