183 Iowa 851 | Iowa | 1918
James D. Guthrie died testate, January 22, 1916. He was the head of a family, and held title to a forty-acre tract of land which he had occupied as a homestead for
The proceedings are somewhat out of the ordinary, but the court seems to have had jurisdiction of the parties and of the property in question, and there is no apparent reason for not disposing of the case on its merits.
The point made is ruled against the appellants by the decision in Swisher v. Swisher, 157 Iowa 55, 64. Counsel rely on Rice v. Burkhart, 130 Iowa 520, and Voris v. West, 180 Iowa 138; but these cases are not parallel with the case before us, either in fact or in principle. In each of those cases, the heir or devisee of the homestead was claiming exemption therefor from liability for his own debts, and its exemption from liability for the debts of his ancestor was in no manner involved or considered. In the Voris case, it was held that the privilege of exemption of the homestead from liability for the debts of the heir or devisee does not exist where the deceased owner of the homestead leaves a surviving spouse; and in the Rice case, it was also held that there was not such right in the lieir or devisee when he takes by purchase, and not by descent. In the Swisher case, we for the first time had occasion to consider whether the homestead exemption which is provided for the owner and his family against liability for his debts is lost simply because, instead of leaving it at his death as intestate property, he devises it to some or all of the members of his family, for whose protection the exemption is expressly provided. After a somewhat extended examination of the statute, we answered the inquiry in the negative; and we see no good reason for now holding otherwise. The homestead right is carefully guarded by the express provision which makes it applicable in all cases “where there is no special declaration of statute to the contrary.” Code Section 2972. There is a special declaration in Code Section 2986 which provides for the removal or extinction of the exemption when the ancestor dies intestate and there is no surviving spouse or issue; but the statute will be searched in vain for any express
“The owner of a homestead has power, under the statute, to convey, by deed, and pass a good title to the property. * * yye see n0 reason why he may not do practically the same thing by will, because his creditors are prejudiced in one state of the case no more than the other; in fact, they are not wronged in either; but, in both, the object of the law, which is to secure to every housekeeper with a family, the certain and uninterrupted enjoyment of a homestead, is accomplished.” Myers’ Guardian v. Myers’ Admr., 89 Ky. 442, 446. See Pendergest v. Heekin, 94 Ky. 384.
The same rule is affirmed in Eckstein v. Radl, 72 Minn. 95. Again, the statute provides that, subject only to the rights of a surviving spouse, the owner of a homestead may devise it by will, like other real estate. Code Section 2987. In other words, subject to the right of the surviving spouse (which is a right of occupancy only), the owner of the homestead may devise it to whom he pleases, just as, with the consent of the spouse, he may sell and convey it or give it away
“The whole' trend of legislation on the subject of the descent of the homestead free from debts is indicative of a policy that creditors of the deceased shall have no recourse to the homestead, unless the debtor leaves no spouse or children, and either makes no devise thereof, or clearly indicates an intention to make a devise thereof subject to the claims of his creditors.” Larson v. Curran, 121 Minn. 104 (140 N. W. 337).
In Wisconsin, the statute is perhaps a little moré explicit on the subject than is ours; but the court there, speaking generally upon the course of modern legislation upon homestead rights, says:
“The spirit and policy of all the legislation upon the subject plainly are to exempt the homestead and its proceeds absolutely from the mere personal debts of the owner. If the owner disposes of it by will, it descends to the devisee free from the incumbrance of all judgments and claims against the testator; and if he dies intestate, it descends to*856 his widow or heirs.” Johnson v. Harrison, 41 Wis. 381, 385.
In the case of Cross v. Benson, 68 Kan. 495, the husband, EL O. Cross, owning a homestead, died, testate, devising the property to his widow, who elected to take under the will. Later, the widow died testate, devising the homestead to one Newman; and thereafter, creditors of H. C. ’Cross sought to subject the homestead to the payment of their claims. In that state, the homestead exemption right is fixed by a constitutional provision, which declares that the homestead (describing its limits) shall be exempt from forced sale under legal process, and shall not be alienated without the joint consent of husband and Avife. Certain exceptions to the application of this provision are made, but are not here material. The creditors, in support of their claim, argued, as is argued here, that the exemption ceased with the death of Cross; also that the taking of title by the widow under the Avill, instead of under the statute of descent, operated to abrogate the homestead right. Refusing to so hold, the court says :
“The homestead privilege was no more disturbed than it would have been had II. C. Cross deeded the lots to his wife in his lifetime, and while she was occupying them as a homestead. She continued in the enjoyment of precisely the same right to immunity from the loss of her hearthstone at the suit of her husband’s creditors as before his death.”
We applied the same principle in the Swisher case.
' Considerable confusion in thought and argument on this subject has groAvn out of a failure to discriminate between a loss or abandonment of the homestead right by a surviving spouse, and a loss of the homestead exemption from liability for the debts, of the deceased oAvner. Nearly all of the homestead cases coming before the courts have involved questions of descent and distribution, rather than questions of exemption. They have involved the effect of election by the surviving spouse between homestead and dower; between homestead rights and rights under the will of the deceased spouse; also, contests between the survivor and the heirs
The judgment below was right, and it is- — Affirmed.