103 Iowa 489 | Iowa | 1897
The statutes relating to this issue are as follows, under the head of “Homestead,” Code 1873:
“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 aside 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.
Under the head of “Descent and Distribution:”
“Sec. 2440. One-third in value of all the legal or equitable estates in real property possessed by the husband at any time during the marriage * * * shall be set apart as her (the wife’s) property in fee simple if she survive him. * * *
*492 “Sec. 2441. The distributive share of the widow shall be so set off as to include the ordinary dwelling house given by law to the homestead, or so much thereof as will be equal to the share allotted to her by the last section, unless she prefers a different arrangement. » •» *
“Sec. 2443. The share thus allotted to her may be set off by the mutual consent of all the parties interested when such consent can be obtained. * * *
“Sec. 2444. The application for such admeasurement by referees may be made at any time after twenty days and within ten years after the death of the husband. * * *”
right in lieu of her distributive, share; and, m the absence of such an election, her primary right to an undivided one-third of the land obtains. This one-third is subject to appellees’ judgments, and the trial court correctly denied appellants the relief claimed. This case is ruled by Hornbeck v. Brown, 91 Iowa, 316. There is* no claim that the land is exempt under the provision of section 2441 of the Code. Hence the authorities cited with ref erence thereto are not in point.