148 Iowa 104 | Iowa | 1910
In November, 1908, T. M. Stuart, Jr., administrator of the estate of Erank E. Orockei*, deceased, filed in the district court a petition in which it was alleged that the estate of Erank E. Crocker was insolvent; that claims amounting to the sum of $809,323 had been filed and allowed and that there were still other claims against said estate aggregating the sum of '$350,000. The petition alleged the death of Crocker on the 31st day of October, 1907, and that he died seised of certain real estate; that Mrs. Minnie E. Crocker, his widow, became the absolute owner of the undivided one-third interest therein by operation of law, and the children of the deceased above named became by operation of law the owners of the remaining undivided two-thirds interest in said real estate, subject only to the rights of the creditors of the deceased. The petition thus filed was an application for authority to sell real estate for the payment
Now, therefore, this certifies that the said Minnie E. Crocker, wife of said Frank B. Crocker, hereby elects to claim, take and receive the one-third interest or share in all the real estate of which deceased died seised, including the one-third interest or share in said homestead property. She claims that said homestead property is exempt from the payment of any and all debts against said estate, and in view of her election to take the one-third interest or share therein, the remaining two-thirds interest or share therein will pass to the five children of the deceased. That, as the creditors of said estate are not interested in said homestead property, there is no necessity of partitioning or dividing the same between her and said children at. this time; and as it would be very difficult if not impossible to sell said property at this time for its full value, she does not desire that any order be made in relation thereto, but desires to preserve and protect her one-third share therein, and for this purpose files herein this statement of her election.
In' a cross-bill Mrs. Crocker asked that her interest in all the lands of which her husband died seised be established, and that a partition of said lands be made by a sale thereof, but she therein made no claim to the homestead, nor did she mention it. The children of Mrs. Crocker, some of 'whom were adults, were made parties defendant by the plaintiffs herein. They all answered independently of the answer and cross-bill of their mother, alleging that, because of their mother’s election to take her one-third distributive share of all of the real estate, the other two-thirds interest or share in the homestead property passed to them under the law, exempt from the debts of the father, On th§ trial Mrs. Crocker claimed
After the decree above referred to had been entered and an appeal taken therefrom, Mrs. Crocker filed in the original action a petition denominated a second or amended petition, in which she alleged that:
Said Frank R. Crocker, deceased, on or about the 29th day of October, 1907, with the intent and expectation of committing suicide, executed to his wife Minnie E. Crocker, a deed to his homestead property . . . that immediately after the execution of said deed said Frank R. Crocker placed the same in an envelope and delivered the same to one Emma Powell, with directions to deliver the same to his wife, the said Minnie E. Crocker; that at that time the said Minnie E. Crocker was absent from home and in the state of Illinois, and that said Frank R. Crocker did not expect that she would return home for a few days; that knowing, that his wife was absent from the state of Iowa, and that she would not return for a few days and until after the 31st day of October, 1907, he did not expect or intend that said deed would be delivered to her during his lifetime, but he did expect and intend that said deed would be delivered to her after his death.
It was further alleged that at that time the said Frank R. Crocker was:
The cashier of the First National Bank of Chariton, Iowa, and said bank had, through his mismanagement, become hopelessly insolvent, and he was expecting that a government examiner of banks would appear in Chariton on the 31st day of October, 1907, to examine said bank, and knowing that the said bank was bankrupt, he expected that said condition of said bank would become known on the 31st day of October, 1907; that in view of this fact
That the envelope containing said deed was delivered to Minnie E. Crocker by said Emma Powell on the 2d day of November, 1907; that thereafter said papers with others were delivered to Guilford Crocker, a son of the deceased, who was soon afterwards appointed administrator of deceased. It was still further alleged that Mrs. Crocker paid no attention to the papers or property of her deceased husband, leaving all of her business connected therewith in the hands of her son, Guilford Crocker, and her attorney, T. M. Stuart; that the said Stuart had no knowledge of the existence of said deed until after the former decree was entered in the case; that he was at one time advised by Guilford Crocker that he had found among the papers of his father delivered to him by said Emma Powell a deed conveying to his mother a parcel of real estate adjoining the homestead property, but that said Stuart, laboring under the impression that said deed simply included the Pepper property, informed. said Guilford Crocker that he thought it void because of the insolvency of his faither when it was made. The prayer of the amended petition was that the former decree be so changed as to establish her individual ownership of the homestead property under said deed, and also to establish her right to a one-third interest in all of the other real estate belonging to said estate. The administrator, Stuart, and Jamison, the receiver of the bank, demurred to the petition as amended on the following grounds, among others:
(2) Said petition shows that the widow elected to take her distributive share, and that the matter as to whether or not, such distributive share should include the homestead in question, has been fully adjudicated; (3) that said petition shows that said widow and children claimed in a former proceeding in this court that when
That the petition shows that Crocker was insolvent at the time the deed to his wife was made, and that said deed was made with the intention and expectation of committing suicide, and was without consideration, and included the homestead with other property, and the said deed was therefore fraudulent and void; that the deed was void under the circumstances of its execution because .the law provides that the distributive share shall be so set off as to include the dwelling house given by law to the homestead, and such conveyance would prejudice the rights of the creditors of the estate; that said petition shows that there was no legal delivery of the deed; that the ¿facts pleaded did not entitle the plaintiff to relief. The demurrer was sustained generally, and the widow and children electing to stand upon their petition judgment was entered dismissing the same, and they appeal. The appeals were submitted together.
1. Homestead:conveyance ’ by insolvent owner: rights of creditors. Frank R. Crocker had the absolute right to deed the homestead to his wife, no matter what his indebtedness or motive. No creditors had a lien thereon, and it not being subject to the payment of .. . . * . a Ins debts, he might sell it or give it away 7 ° 0 . if he wanted to, and no creditor can complain of such action. Dettmer v. Behrens, 106 Iowa, 585, and
2. Same: deliveryo There can be no serious question as to the sufficiency of the delivery of the deed in question if the averments of the pleadings are true, and for 'the purposes of this case they must be so considered. If Crocker made the deed after he had fully made up his mind to kill himself before the return of his wife, and gave the deed to Miss Powell with directions that it be given to Mrs. Crocker upon her return home, such acts would constitute a good delivery. Foreman v. Archer, 130 Iowa, 49, and cases cited therein.
This ease does not, however, fall within the general rule relating to the election of remedies or estoppel. Here, the original suit was brought in the interests of the creditors alone, and Mrs. Oroekpr and her children were made defendants. In neither her answer nor her cross-bill did Mrs. Crocker make any claim to tbe homestead as a part of her distributive share under the statute. Nor did she make any other claim to it. Under the law she was entitled to her distributive share in all of the realty, and there was no possible way under the statute whereby she could avoid taking such share so as to include at least one-third of the value of the homestead. Mrs. Crocker’s position at all times was that she was not bound to take her share so that it would include the dwelling house used as a homestead. She never has in our judgment elected to pursue any remedy. She has at all times been a defendant except as she in her cross-bill alleged her interest in the land substantially as it had been declared by the plaintiffs. Instead of claiming the homestead in the original proceedings, she was trying to escape having it set apart to her, and in now claiming to own it by virtue of a conveyance, she is not pursuing an inconsistent, remedy. The most that may be said is that she has discovered an additional reason why she should not be compelled to take her distributive share so as to include the homestead, and in doing this she is doing no more than the law authorizes her to do. The children were claiming an interest in the homestead, it is true, but this they had a perfect right to do, and Mrs. Crocker’s rights can not be affected by their action. Code, section 3620, provides that inconsistent defenses may be pleaded, and we are of the opinion that under that statute Mrs. , Crocker would háve the right to resist the claim of
In the Coulson ease it was also held, following our
The Legislature has the undoubted power to fix the homestead rights and to say what the distributive share of the surviving spouse shall be and from what lands or property it shall be set apart. If, therefore, section 3367 requires such share to be so set off as to include the dwelling house given by law to the homestead the election of the survivor to take his distributive share and a decree in conformity therewith would vest the survivor with a fee title to the homestead, and the heirs would have no right therein.
We do not see how the intent of the lawmakers could have been made clearer, and it is equally as clear to us that the particular language was not used without a purpose. In the report of the Code Commissioners no change in the old section was made; the change was made by the Legislature, which is significant. On the proposition involved in this branch of the case the trial court was clearly right, and its judgment will therefore be affirmed.
While one ground of the demurrer to the second petition was that there was an adjudication in the first trial,
On the first appeal the judgment is affirmed, and on the second appeal the judgment is reversed.
Affirmed on first appeal, and reversed on second appeal.