66 Iowa 286 | Iowa | 1885
The questions presented are as to the interest which Perry acquired as the husband of Mary L., and as to the power of the court to set out to him one-third of the real estate of which she died seized, including the dwelling-house, and subject the same to the payment of his debts. Perry, upon the death of his wife, became entitled to occupy the whole homestead as survivor and head of the family during his life. Code, § 2007. lie might, to be sure, elect to take instead thereof one-third of the whole real estate, and have the same set out to him in fee-simple as his distributive share. Code, § § 2008, 2441, 2443, 2444. Perry did not elect to take a distributive share. lie simply continued to occupy the homestead as survivor and head of the family. While so occupying, in the absence of an election to take a distributive share, it is not competent for a court to dispose of his right of occupancy by
We have already said in substance that it is no proper answer to Perry’s position to say that what he obtained is more valuable than a right of occupancy as survivor. Rut we will add that there are other defendants, children and heirs of Mary L. Perry. It cannot be said that they are not prejudiced. Nor, indeed, can it be said that Perry himself was not prejudiced. His mere right of occupancy was not property which could be sold upon execution. Butterfield v. Wicks, above cited. It was to him, probably, under the circumstances, more valuable than property which could be made the subject of sale.
On the plaintiff’s appeal the decree must be affirmed, and on- the defendants’, reversed.