53 Iowa 14 | Iowa | 1881
“ 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, which has not been sold on execution, or any other judicial sale, and to which the wife has made no*16 relinquishment of her right, shall be set apart as her property in fee simple, if she survive him. The same share of real estate of a deceased wife shall be set apart to the surviving husband * * * *
“ 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.”
There would be no difficulty whatever in determining the question if the deceased wife left issue surviving her. In that case the husband’s whole interest in the estate would have been one-third, as jnovided in section 2440, and section 2008 provides in plain and explicit terms that the survivor may elect to retain the homestead for life in lieu of such share. But where there is no surviving issue, there are other sections of the statute which seem to us to have an important bearing upon the question. After providing the manner in which the distributive share or “ widow’s share shall be set off to her, and that such share shall not be affected by any will of her husband, unless she consents thereto, section 2453 provides as follows: “ Subject to the rights and charges hereinafter contemplated, the remaining estate of which the decedent died seized shall, in the absence of other arrangements by will, descend in equal shares to his children.” Sec. 2455. “ If the intestate leave no issue, the one-half of his estate shall go to his parents and the other half to his wife.” * * * *. In Burns v. Keas, 21 Iowa, 257, it was held that upon the death of the wife, without issue, the husband is entitled to but one-half of her entire estate, for dower and as heir at law. That case arose under section 2495 of the Revision of 1860, which was identical with section 2455 of the Code. The effect of the rule is that in determining the share of the husband under section 2455 the one-third or distributive share, or dower interest, must first be taken out, and to that must be added
It seems to us to be clear that when the husband in this case elected to hold the property as a homestead he gave up and surrendei’ed the one-third of the estate to which he was entitled under section 2440, and no more; and that when lie abandoned the homestead his right to the one-sixth of the property Remained, and that he could lawfully convey the same, and invest his gz’antee with a good title thereto. The judgment of the court below will be modified accordingly.
Modified and Affirmed.