56 Iowa 386 | Iowa | 1881
“ Where the deceased leaves a widow all personal property which, in his hands as the head of the family, would be exempt from execution * * * shall be set apart as her property in her own right and be exempt as in the hands of the decedent.” Code, § 2371.
Counsel for appellant has called our attention to several cases determined by this court relating to the homestead and its exemption; the argument being as we understand that under Eev., § 2277, it was the homestead of “ every head of
We have been called upon several times to construe the statute under consideration. See Whalen v. Cadman, 11 Iowa, 226; Ellsworth v. Ellsworth, 33 Id., 164; Scholes v. Murray Iron Works Co., 44 Id., 190; Tyson v. Reynolds, 52 Id., 131; and Arnold v. Waltz, 53 Id., 706. But little aid, however, can be derived from these cases, because the facts upon which they are based are materially different from those in the case at bar.
Counsel for appellant seem to rely largely on Ellsworth v. Ellsworth, just cited. The facts in that casé were the husband and wife were living together at the death of the former
The question in the case before us may be thus stated: When a husband and wife have lived separate and apart for seven years preceding his death, and he neither contributed nor was asked to contribute to her support, and during said time he lodged in his office and boarded in the family of others, was he at the time he died the head of a family within the meaning and intent of the statute ? A family is “ the collective body of persons who live in a house under one head or manager.” Beck, C. J., in Tyson v. Reynolds. A person may be the head of a family although he has never been married. Wright, J., in Whalen v. Cadman, before cited. The converse of this proposition may also, we think, be true. In the absence of a statute so providing it is difficult to see why a person boarding in the family of others and lodging in his office for seven years can at the expiration of that time be regarded as a family, or the head of one. It is true a person may be a boarder and yet the head of a family. But in order to constitute him such the boarding must be regarded as of a temporary character. It may be if Dr. Linton had contributed to the support of his wife, he, under the statute, was the head of a family. The mere fact he was liable for her support should not, we think, make him the head of a family. No family relation as generally understood existed between himself and wife. The policy and intent of the statute is to exempt certain property because the support of a family, great or small, is cast upon the head thereof. Such family must have an actual existence, as distinguished from one that exists theoretically only.
It may also be if the separation was of a temporary char
Affirmed.