262 N.W. 666 | Iowa | 1935
In the early part of the year 1890, Mary C. McClain and her husband and three minor children lived on a farm of 205 acres in Jefferson county, Iowa. The title to the farm was in Mary C. McClain. On May 3d of that year, her husband was killed accidentally. She continued to reside with *640 the children on the farm until the fall of that year, when a public sale was held, and the personal property on the farm sold. She purchased, in the fall of 1890, a residence property in Fairfield, known in this record as the Barnes house, for which she paid the sum of $2,000, and at that time moved into this home with her three minor children. She continued to reside in this home until the year 1904, when she purchased a vacant lot in the town of Fairfield for $1,000 and built thereon a home costing $4,200. This property is known in this record as the Gilham house, and is the property over which this controversy was waged. About the same time she sold the 205-acre farm for $8,800 and used from the proceeds of the sale enough to finance the purchase of the lot and the erection of the new home.
When the new home was completed, Mary C. McClain with her minor child, Julia May McClain, aged sixteen, began the occupancy of the same as their home, the two older children having reached maturity and taken up their residences elsewhere. Mary C. McClain and the daughter, Julia May, continued to live in this property until the death of Mary C. McClain. In the meantime, however, in the year 1918, Julia May McClain married one W.H. Neibert, who came to live in the home of his wife's mother, and he and his wife continued to reside with Mary C. McClain in her home until her death, and are still residing there. Was this residence property, thus occupied by them, the homestead of Mary C. McClain at the time of her death as claimed by Julia May Neibert, appellant herein? Upon the answer to that question depends the issue in this case.
[1] I. It should be noted at the outset that the controversy here arose in probate; that the appeal is from the order of the court authorizing the executor to sell real estate for the purpose of paying debts over the objection that a part of the property was the homestead of the deceased. Such an application is triable by ordinary proceedings without a jury. The findings of the trial court, therefore, have the force and effect of a verdict of a jury. We are at liberty to disturb them only in the event that they are contrary to law or are not supported by substantial evidence. Murphy v. Callan,
[2] II. Appellant contends that Mary C. McClain and her husband had acquired a homestead right in 40 acres of the 205-acre farm which they occupied in 1890; that upon the death of Mr. McClain, her husband, she acquired the right to continuance of that homestead during her lifetime under section 10145 of Code 1931, and that such right was not in any way dependent upon her having children or supporting a family, but that it arose solely from the fact that she was the surviving spouse. With this much of the argument we are disposed to agree. Difficulty arises, however, when an attempt is made to take the next step. Appellant contends that she had the right to exchange this homestead for another homestead, and that when she sold the farm and out of the proceeds acquired the residence property now in controversy, she but used the proceeds of one homestead to acquire another, and that the one she thus acquired was held by her under the provisions of section 10154, Code 1931, the same way as the one which she sold, to the extent that the value of the new does not exceed the value of the old. The difficulty with this argument is that it assumes that she had a homestead in the farm at the time it was sold and it ignores the fact that she had left the farm with her minor children, acquired a home in Fairfield, and lived there for some fourteen years before she sold the farm and invested the proceeds in a new home. Did she continue to hold a homestead right in the farm during the fourteen years that elapsed after she left the farm and moved into Fairfield and purchased and occupied a home there? Removal from the homestead property with no intention to return to it operates as an abandonment of the homestead. Davis v. Kelley,
[3] III. Appellant further argues, however, that at the time Mrs. McClain moved into and commenced to make her home in the property now in controversy, she had with her a minor daughter, appellant herein, who was then sixteen years of age, and who was dependent upon her for support, and that, by reason of that fact, she acquired a homestead interest in this property entirely independent of the source from which the money came for its purchase, and that such homestead right continued until her death. It is well settled in this state that a widow or widower with children may acquire a homestead. Solnar v. Solnar,
The trial court concluded, as a matter of law, that it was immaterial whether or not this property was the homestead of Mrs. McClain prior to her daughter's marriage, and that the burden was upon the daughter, Julia May Neibert, who asserted the homestead character of this property, to prove that it was the homestead of Mrs. McClain at the time of her death, and the court found, on the facts, that the evidence was insufficient to establish that proposition. *643
The showing is not very clear as to how the daughter and her husband and the mother, Mrs. McClain, managed the household after the daughter's marriage, nor the circumstances under which they lived together in this home. The daughter testified that after her marriage her husband moved in, and that they lived with her mother. The inference pretty clearly is that they lived as one family. The record is also rather obscure as to the circumstances of the daughter and her husband. It does appear that the husband was employed or in business for himself all of the time, but the amount of his income is not disclosed. At the time of the trial he was operating a suburban grocery store and owned some vacant lots in an addition to Fairfield and held some tax certificates. Neither the value of the vacant lots nor the amount or value of the tax certificates is shown. He filed a claim against Mrs. McClain's estate for something over $1,000 for groceries. This claim had not been allowed and was in dispute. The fact, however, that said claim is made, and that there is a controversy over it tends strongly to indicate that these people lived together as one family. It also appears that the daughter, Julia May Neibert, owned the building in which her husband operated a suburban grocery store and a residence property adjacent thereto, subject to a mortgage, the amount of which is not shown, and also held some notes of her mother, Mrs. McClain. But neither the value of these holdings nor the income therefrom is shown.
It may be conceded that this showing was insufficient standing alone and without reference to the fact that Mrs. McClain had previously acquired a homestead in this property to compel a finding that the property was the homestead of Mrs. McClain at the time of her death.
The trial court fell into error, however, in its conclusion, as a matter of law, that the previous homestead character of this property was immaterial and that the burden was upon Mrs. Neibert to prove that this property was the homestead of Mrs. McClain at the time of her death without reference to its previous homestead character. The ordinary presumption of a continuance of a condition once shown to exist would seem to require us to hold that once it is shown that the homestead character attached to a home because of the residence therein of a mother and daughter, that such homestead character is presumed to continue, at least as long as the mother and daughter *644 continue to reside in that home. Such conclusion would also seem to be demanded by the very spirit and purpose of the homestead exemption statutes (Code 1931, § 10135 et seq.) and the rule repeatedly recognized by this court that such statutes must be liberally construed in favor of the exemption in order to accomplish their economic, sociological, and humanitarian purposes. The purpose is to provide a margin of safety to the family, not alone for the benefit of the family, but for the public welfare and social benefit which accrues to the state by having families secure in their homes. There may be just as much reason, if not more, why the homestead character of this property should be recognized after the daughter married and took her husband into the home as there was before.
[4] The general rule is that a homestead once acquired is presumed to continue. This court has recognized the difference between the evidence necessary to show the establishment of a homestead and the evidence necessary to show the continuance of one previously established. For example, proof of an intention to occupy property as a home, no matter how definite and conclusive, is insufficient to give that property the homestead character, but once the homestead character has attached, the owner may remove therefrom and the homestead character is preserved as long as he has an intention to return. In other words, intention to occupy in the future, while insufficient to establish a homestead originally, is sufficient to continue a homestead previously established.
The authorities recognize a presumption in favor of the continuance of the homestead. In Bradshaw v. Hurst,
"The burden under the issue was on the plaintiff to show an abandonment of the homestead." In 29 Corpus Juris at page 961, the rule is stated thus:
"All presumptions are in favor of preservation and retention of the homestead. When property has been impressed with the homestead character it will be presumed to continue so until its use as such has been shown to have terminated."
So strong is this presumption that the majority of courts hold that where the homestead character has attached to property it can be lost only by waiver or abandonment by the owner. 29 Corpus Juris, 951. They hold that where the homestead character *645
has attached by reason of the residence therein of an unmarried owner and members of the owner's family, that it will be held to continue even though the other members of the family leave the home and the owner resides there alone; in other words, that the presumption of continuance in such a case is conclusive and not rebuttable as long as the owner lives in the home. 13 R.C.L. 666 and 667; Notes, 13 L.R.A. 743; 4 L.R.A. (N.S.) 379; 12 Ann. Cas. 717. This court has followed the minority rule in holding that it may be shown that a homestead acquired by an unmarried person has lost its homestead character by proof that the members of the family have left the home and the owner is residing there alone. Fullerton v. Sherrill,
In view of this presumption of the continuance of the homestead, can it be said that the evidence here would support a finding that the homestead character of the property had been lost? In the case of Sheehy v. Scott, 128 Iowa, 551, 104 N.W. 1139, 4 L.R.A. (N.S.) 365, we held that a widow with a son forty years of age might acquire a homestead where it appeared that the son, although earning some wages, was improvident and irresponsible and to some extent dependent on his mother. In Tyson v. Reynolds,
It follows that under the record in this case, this property in controversy was the homestead of Mary C. McClain at the time of her death, and that the conclusions and findings of the trial court are contrary to law and without support in the evidence, and that, on that account, the order herein directing the executor to sell the property in which testator lived at the time of her death to pay debts of her estate, must be, and it is hereby, reversed. — Reversed.
KINTZINGER, C.J., and ALBERT, ANDERSON, DONEGAN, PARSONS, HAMILTON, and MITCHELL, JJ., concur.