79 Iowa 491 | Iowa | 1890
The pleadings show the following facts: John Kite died intestate in the year 1885, seized of one hundred and twenty acres of land described in the petition, and of other real estate not specified. The defendant, Mary J. Kite, is the widow, and the other defendants and plaintiff are the heirs, of decedent. On the twenty-eighth day of August, 1886, the intervenors recovered a judgment against the plaintiff, A. L. Kite, and the defendants, Charles H. and William Kite, for the sum of $1,582-19 and costs, upon a note made before the death of John Kite. By their petition of intervention the intervenors allege that their judgment is a lien upon the interests of said judgment defendants, and ask that the referees to be appointed be ordered to pay to the clerk of the district court, to be applied on said judgment, any amount which may be due the judgment debtors from the proceeds of their interests. To the petition of intervention the widow filed her answer, alleging that she was the widow of decedent, and as such claims one-third of all the land involved in the proceeding. At the same time the judgment debtors filed their answer to intervenors’ petition, in which they alleged that forty acres of the land in question, which is described, constituted the homestead of their father, the decedent, and as such it was exempt from liability for the payment of their father’s debts, and is exempt from liability for the payment of their debts. They deny the alleged right of intervenor t<? the proceeds of a sale of their interests. To these answers the intervenors demurred. Afterwards,- and before a ruling was made on the demurrer, the court, by agreement of all the parties, rendered a decree to
I. Sections 2007 and 2008 of the Code are as follows: “Sec. 2007. 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. Sec. 2008. The setting off of the distributive share of the husband or wife in the real estate of the deceased shall be such a disposal of the homestead as is contemplated in the preceding section, but the survivor may elect to retain the homestead for life in lieu of. such share in the real estate of the deceased. But if there be no such survivor the homestead descends to the issue of either husband or wife, according to the rules of descent, unless otherwise directed by will, and is to be held by such issue exempt from any antecedent debt'of their parents or their own.” “Upon the death of the party owning the homestead, it descends to the heirs subject to the right of occupancy of the surviving spouse.” Johnson v. Gaylord, 41 Iowa, 366. See, also, cases therein cited. The heirs hold the property free from the debts of the ancestor which, in his lifetime, could not have been enforced against it. Moninger v. Ramsey, 48 Iowa, 368. They, also hold it exempt from their own debts contracted prior to the death of the ancestor, and they so hold it even though they do not take possession of and occupy it. Baker v. . Jamison, 73 Iowa, 699; Johnson v.