162 Iowa 176 | Iowa | 1913
The land in question, consisting of sixty acres, was, on January 3, 1877, conveyed by Bernhart Hettiek and wife to plaintiff, and on the 16th day of April, 1877, plaintiff conveyed the same to his wife Mary, for the ex
There is no evidence tending to show either a resulting or a constructive trust, and plaintiff’s claim to the entire property by reason of his having the beneficial ownership thereof must be denied. Hoon v. Hoon, 126 Iowa, 391; Hemstreet v. Wheeler, 100 Iowa, 290; Hays v. Marsh, 123 Iowa, 81; Byers v. McEniry, 117 Iowa, 499; Luckhart v. Luckhart, 120 Iowa, 248; McClenahan v. Stevenson, 118 Iowa, 106; Byerly v. Sherman, 126 Iowa, 447; Tiffany v. Tiffany, 103 Iowa, 133; McCrum v. McCrum, 127 Iowa, 540.
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 iá 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 debts of their parents or their own.
Under these sections it has frequently been held that, if the survivor occupy the homestead for more than ten years without taking any steps to have the distributive share set aside, the presumption of an eletcion to take a homestead
There is no testimony here to rebut the presumption, aside from the merest inference, and, as said in the Huit case, supra: . . Where, . . . as in this case, the widow, without any other right to do so, has claimed and enjoyed exclusive occupancy for seventeen years, we think the presumption . . . must be considered as practically controlling.” So that plaintiff has, at most, nothing but a life estate in the land. What are his rights, then, to reimbursement for repairs or improvements upon the land?
Some other issues were in the case, which are not referred to in this opinion, as appellant makes no complaint of the findings thereon. The only doubtful proposition, if there b'e any, is the election of the plaintiff to take a life estate in the homestead in lieu of his distributive share; but even this seems
The decree of the district court seems to be correct, and it is Affirmed.