151 Iowa 441 | Iowa | 1911
On November SO, 1909, the plaintiff instituted this action to recover a money judgment against O. C. Feil for grain sold and delivered and on the same day in aid of his said suit caused a writ of attachment to issue and be levied upon certain real estate owned by Feil. On February 14, 1910, and before said action had been brought to trial or any judgment rendered therein, said defendant O. O. Feil died intestate, seised of the legal title to said .real estate and leaving Pauline Feil, his widow, and Wilhelmine Feil and Mollie Feil, his children and only heirs at law. George E. May was appointed and qualified as administrator of the estate, and on August 10, 1911, was substituted as defendant in this action. Thereafter the widow, who had been granted an allowance of $300 tinder the statute for her year’s support, filed a petition of intervention alleging the facts as hereinbefore recited. She further alleged that the deceased left no personal estate from which her widow’s allowance could be paid, and that the same must be paid, if at all, out of the proceeds of the attached real 'estate, which is also incumbered by a prior mortgage. Upon the facts pleaded the intervener takes the position that her right to a widow’s share in the property and to the payment of her allowance from said property is in no manner affected or diminished by reason of the levy of said attachment, and she asks the court for an order or .judgment establishing, and protecting her said rights as superior to the lien if any created by said levy.
For still more obvious reasons a mere attachment on a claim against the husband alone and not confirmed by judgment should be held ineffective to destroy or impair the rights guaranteed to the wife. A mere lien constitutes no property or interest in the land itself.' At most it creates or confers a right to subject such property to the claim of the lienholders to the exclusion of subsequent adverse interests. Ind. Dist. v. Werner, 43 Iowa, 643; Rodgers v. Bonner, 45 N. Y. 379. Because the death of the debtor occurred after the levy of the attachment, it does not necessarily follow that the right of the widow in the land is subsequent or inferior to the lien of the attachment. Her rights attach from the date of the coexistence of her marriage and her husband’s seisin. True, the right remains inchoate during his lifetime, but its preservation until it shall ripen into. a more perfect title upon the husband’s death has been safeguarded by the statute, and it can not be taken from her by her husband’s creditors, save upon her own relinquishment or by judicial