188 Iowa 690 | Iowa | 1920
There is little, if any, controversy as to the law of the case, although each side cites authorities where, under the facts.of the cases cited, it was held either, that there had or had not been an election. We have a case which is largely a question of fact, whether J. B. Barber, the surviving husband, took his distributive share, or whether he had elected to occupy the premises under his homestead right. It is conceded that the right to a distributive share is the primary right of a surviving spouse, and that the burden is upon plaintiff to show an election to take homestead for life, in lieu of such share.
Plaintiff alleged that the property was owned by Rose Barber, who died intestate, August 16, 1913, leaving a husband, J. B. Barber, surviving, and the plaintiff, as her only
Bose Barber acquired the property in 1888. The title to the entire property was in her. She and her husband resided on the premises 30 years or more, and did not reside elsewhere or occupy any other home during that time. She died in this property. After her death, J. B. Barber continued to occupy some portion of the larger dwelling, and collected rent for the entire premises, until his death, and died therein. After the death of his wife, he occupied no other premises. After J. B. Barber married the defendant, they together occupied a part of the dwelling, and continued to collect rent for all the premises that he did not occupy, until he died. When Bose Barber acquired the property, there was but one house on it, a single house; but she and her husband occupied it as their homestead. Later, that house was changed into a double house, and since the change, one half has been rented to people, for the purpose of having an income from it. There is also a small house on the lots, which was moved from the farm, and rented for the purpose of income. There is a barn, situated partly on each lot, and a shed, on the back part of the property, which were used by J. B. Barber for his horse, tools, kindling, etc. A witness testifies that the west side of the larger house comes right to the edge of the next lot, and that the east side is built almost to the lot line.
“A good many of the outbuildings is either on one side or the other of the center, and there are apple trees planted
The east part of the larger house is ari*anged for one family, and the west .part for another family. There was a stairway leading to the attic, which went, through one of the sleeping rooms of one of the tenants. The tenant had half the attic, and J. B. Barber went to the attic as he liked. At the time Bose Barber died, she and her husband were, and had been, living in the east side of the larger house, and the tenant in the west side. About two months after she died, another tenant moved into the east part of the house, and lived there two and a half years, and then lived on the west side one year. During a part of this time, J. B. reserved one room to live in, and also a room upstairs, to store his things in; and, while occupying the one room reserved, he used the tenant’s kitchen, to get hard water, and the cistern, to get soft water. While this tenant occupied the west side, J. B. Barber and' the defendant occupied the east side of the house. While J. B. was thus occupying the premises, he repeatedly stated to different ones that it was Ms home, and that he intended to live there as long as he lived. To one, he said repeatedly that he wanted to keep his home. To another tenant and his wife, he said “that it had always been his home since he bought the place, and always wanted to make it his home as long as he lived; he wanted to make it his home, and use a part of it, at least. He said he would always make it his home.” To another witness, he stated, “This is my home, just as long as I live.” To another: “That it was his home, and he was not going to break it up. He calculated to make that his home until his death. He wanted to live there until he died.” To
On the other hand, there is evidence that Mr. Barber claimed to other witnesses that he owned a one-third interest; tb others, he appears to have claimed to own the entire property. As said, he collected the rents for the entire property, after his wife died. In 1915, and again in February, 1917, Mr. Barber listed the property in question with the assessor as his property, and made affidavit thereto, and taxable as such, and that it was assessed to
It is contended by plaintiff that the construction of the double house on the west part of the lot was such that it could not be divided, as neither side contained a complete dwelling property, but each was dependent upon the whole, there being but one stairway up and down, and a distributive share in this property could not be set off, so as to constitute a residence property not depending upon the remain
Appellant relies largely on Bosworth v. Blaine, 170 Iowa 296; but we think it may be readily distinguished, when we consider the different state of facts. In that case, the surviving spouse was seeking to claim a homestead right, in order to avoid a judgment, wherein it was sought to hold his distributive share;- and, against his claim and testimony that he was claiming a homestead, it was held that he had not made such an election. It was shown that he had never unequivocally asserted a homestead right in the land, but, on the other hand, he had an arrangement with his children by which he received the rent, which was applied, in part, for his support, and the balance on a mortgage on the land; that he had mortgaged his undivided one third of the land; that he had repeatedly made efforts to sell the land. The instant case may also be distinguished from the. case of Joslin v. Beam, 187 Iowa 1090. In that case, the possession of the survivor was referable to a prior deed, giving the right of possession. It is true, as contended, that continued occupancy of the premises as a homestead is not conclusive of an election to take the homestead. Gray v. Wright, 142 Iowa 225, 227; Joslin v. Beam, supra. We said, in the Cray case, that, ordinarily, an election to take the homestead right is evidenced by the continued occupancy of the premises as a homestead. In the instant case, there are circumstances, in addition to the occupancy, which, as we have said, show an election. We think the finding and de