98 Iowa 37 | Iowa | 1896
Lead Opinion
The material facts alleged in the petition and admitted by the demurrer, are substantially as follows: Charles A. Hay died, intestate, on the thirteenth day of November, 1888, owning the southwest quarter of the southwest quarter of section 8, and the northwest quarter of section 17, all in township 86 north, of range 36 west, in Sac county, containing two hundred acres. The land was subject to a mortgage for one thousand six hundred and fifty dollars, and a commission mortgage for 1 per cent, of that sum. The decedent left a widow and four minor children, who are his only heirs, the eldest of whom was fourteen, and the youngest six years of age, when the petition was filed, in August, 1894. The land was occupied by Hay and his family as a homestead, and, when he died, the title thereto vested in his widow and children. The widow was appointed administratrix of his estate, and, after settling it, was discharged, in April, 1891. Afterwards, at a time not shown, she married W. B. R. Stephens, and gave to him a deed for one-third of the land. She and her children occupied the land as a homestead after the death of Hay, until her marriage to Stephens, and since that event she and her husband have occupied it as a homestead, and the children of Hay have lived with them. The plaintiffs are W. B. R. Stephens and his wife, and the defendants are the four children of Hay. The petition alleges, that W. B. R. Stephens is the owner of an undivided one-third of the land; that each defendant is the owner of an undivided one-sixth of it; and that the plaintiff, Jennie Stephens, has a contingent interest in it as a homestead, because of the right therein of
The land in question comprises two hundred acres, but the petition refers to it as though all of it were used as a homestead. The reference is somewhat ambiguous, and it is quite probable that the pleader did not intend to say that all of it was occupied as the statutory homestead. But in view of the conclusions we reach, the intention of the pleader in that respect is not material.
Sections 2007 and 2008 of the Code are as follows:
“2007. Upon the death of either husband or wife, the survivor may continue to possess and occupy the*40 whole homestead until it is otherwise disposed of according to law.”
“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.”
It is not definitely stated that the conveyance from the widow of Hay, to her present husband, was of an undivided one-third of the land, but the averments of the petition as a whole, warrant the conclusion that it was, and, for the purposes of this appeal, it will be so considered.
It was said in Egbert v. Egbert, 85 Iowa, 534 (52 N. W. Rep. 478), that it is the primary right of the survivor to take a distributive share- in the estate of the deceased spouse; and in Wilcox v. Wilcox, 89 Iowa, 393 (56 N. W. Rep. 517), it was said that “in the Egbert Case, as well as others, the thought is prominent that the right to a distributive share is primary; that the election should be as to the homestead; and that a right to a distributive share is only defeated when a homestead election is made; but, of course, there may be an act indicating an election to take the distributive share, and that is what is meant when the term is used, and not that such an election is necessary to secure it.” A rule of general application is that when the survivor has occupied the homestead for a reasonable time, without indicating an intention to take a distributive share of the estate of the deceased spouse, the presumption arises that there has been an election to retain- the homestead for life. Egbert v. Egbert, supra. But what- occupation of the homestead will authorize such a presumption, will depend on all the facts in the case, and, when the presumption arises, it may be rebutted. Cases arising
The appellees, to support the decision of the district court, rely chiefly upon two cases, the first of which is McDonald v. McDonald, 76 Iowa, 137 (40 N. W. Rep. 126). But the rule announced in that case was considered, and its operation restricted in Egbert v. Egbert, supra. See, also, Wilcox v. Wilcox, supra. The second case upon which the appellees rely is that of Zwick v. Johns, 89 Iowa, 550 (56 N. W. Rep. 665). It appears in that case, that the widow filed in the proper court, a petition asking to have her distributive
It is to be remembered that in this case the occupation of the homestead by the widow was not continued so long as to bring the case within the statute of limitations, as in Conn v. Conn, 58 Iowa, 748 (18 N. W. Rep. 51). Section 2444 of the Code permits an application by a widow, to have her distributive share in the estate of her deceased husband set off, to be made at any time after twenty days, and within ten years after his death. No unequivocal act or declaration of an election to retain the homestead, is shown in this case, and, if there has been unnecessary delay by the widow, in making known her intention to
Dissenting Opinion
(Dissenting). Charles Hay died, intestate, November IB, 1888. After his death, his widow continued to use and occupy the homestead, as such, until the commencement of this suit. Administration was granted on the estate of the deceased, February 27, 1889, and the administrator was discharged in April, 1891. The widow made her conveyance to plaintiff, March 6, 1894, more than five years after the death of her husband, and four years after the appointment of the administrator. No explanation is given for the continued use and occupancy of the homestead by the widow, and no reason is offered why it should not be treated as an election to take the homestead in lieu of dower. According to the majority opinion, this unexplained occupancy does not create even a prima facie case of an election; and, under the -rule adopted therein, there is no reason why the surviving widow may not have both homestead and distributive share; indeed, I think this is exactly what the opinion holds. All she need do is to convey the interest which might be set aside to her, in timely and proper proceedings, to her second hus< band, if she have'one; and, she may then continue to use and occupy the premises as a homestead during her natural life. Or, to state it differently, she may use and occupy the homestead for any length- of time without being held to an election, and may at any time make a conveyance to a third person, which will carry an undivided one-third interest
I do not concur in any of these propositions. We have repeatedly held that the widow cannot have both homestead and distributive share, and that an election once made to take either the one or the other, is binding and conclusive. Butterfield v. Wicks, 44 Iowa, 310; Meyer v. Meyer, 23 Iowa, 359; Briggs v. Briggs,45 Iowa, 318; Stevens v. Stevens, 50 Iowa, 491; McDonald v. McDonald, 76 Iowa, 137 (40 N. W. Rep. 126); Zwick v. Johns, 89 Iowa, 550 (56 N. W. Rep. 665); and other cases following these. The cases of Holbrook v. Perry, 66 Iowa, 286 (23 N. W. Rep. 671), and Darrah v. Cunningham, 72 Iowa, 123 (33 N. W. Rep. 445), are, also, closely in point on this proposition. We have freqently and uniformly held that the continued occupancy of the premises by the surviving husband, or wife, will be regarded as an election to hold the property as a homestead, and that the making of a will or conveyance of, or mortgage upon the undivided one-third interest of the property, by the survivor, does not amount to an election which will control as against the inference to be derived from the continued use of the property. Darrah v. Cunningham, supra;
I need not specifically refer to the other authorities I have cited. They are all in line with those quoted from, and it is apparent, that the rule I contend for, has been the law of this state for more than twenty-five years. It is a rule of property, and ought not to be disturbed at this late date, except for imperious necessity. The case of Wilcox v. Wilcox, relied upon by the majority, is not in conflict with the opinions I have quoted. It is fully explained in the case of Zwick v. Johns, and I need not take up the space needed to distinguish the case. The earliest, as well as the latest decision of this court, is with me, and, if there is any conflict in our authorities, it can all be reconciled by returning to the plain and reasonable rule announced in Thomas v. Thomas, 73 Iowa, 657 (35 N. W. Rep. 693).
To state it briefly, I would say that the primary right of the survivor is, perhaps, the distributive share, but that, after the expiration of the year for the filing of claims, the survivor, if he continues to occupy the premises, is put to an election as to which he will take,