41 Iowa 362 | Iowa | 1875
The demurrer was sustained on the ground that the abandonment of the homestead by the appellants terminated all the rights they before held to the property under the homestead law; that is, when it was no longer occupied as a homestead, it became liable to the debts of the estate, as other assets. Two questions other than those arising upon the decision of the court sustaining the demurrer on this ground are presented for our consideration. "We are to inquire into the effect of the abandonment of the homestead by the widow after the decease of the husband, in whom the title was vested. The rights of the parties accrued prior to the Code. The provisions of the Eevision must prevail in the case. The sections to be construed are as follows:
“2277.- "Where there is no special declaration of the statute to the contrary, the homestead of evei-y head of a family is exempt from judicial sale.”
(Under Sec. 2281, it may be sold upon mortgage, executed by the husband and wife thereon.)
“2295. Upon the death of either husband or wife, the survivor may continue to possess and occupy the whole homestead, until it is otherwise disposed of according to law.”
“2296. If there is no such survivor, the homestead descends to the issue of either husband or wife, according to the general rules of descent, unless otherwise directed by will, and is to be held by such issue exempt from the antecedent debts of the parents, or their own.”
“2297. -If there is no such survivor or issue, the homestead is liable to be sold for the payment of any debts to which it*366 might at that time be subjected, if it had never been held as a homestead.”
It is next important to state certain constructions of these statutes and decisions made by the court upon questions involved. It is .held in Burns v. Keas, 21 Iowa, 257, that, upon the death of the party owning the homestead, it descends to the heirs, subject to the right of occupancjr of the surviving spouse. See Cotton v. Wood, 25 Iowa, 44; Nicholas v. Purczell, 21 Iowa, 265; Size v. Size, 24 Iowa, 580; Stewart v. Brand, 23 Iowa, 478.
If upon the death of the husband, in whom the title of the homestead is vested, the wife abandons its occupancy, it ceases “to have that character, and she will be deemed to have waived or forfeited her right thereto as a homestead.” Upon such abandonment she becomes a tenant in common with the heirs of her deceased husband, to the extent of her dower interest in the property. Orman v. Orman, 26 Iowa, 361.
The wife has not such an interest in the husband’s property that she will be authorized by a court of equity to sell it, and invest the proceeds in another homestead, unless the heir be made a party to such proceeding, as one having an interest in the property by descent. Palmer v. Blair, 25 Iowa, 230.
Reversed.