87 Iowa 513 | Iowa | 1893
Por the present, at least, let us limit our consideration to the question whether there has been such a homestead election as to defeat a distributive share in behalf of the widow, without reference to the provisions
Code, section 2008, provides that “setting oif of the distributive share of the wife in the real estate of her husband shall be a disposal of the homestead.” In Burdick v. Kent, 52 Iowa, 583, it is held that the wife is entitled to occupy the homestead even after she has filed her application to have her distributive share set off to her; that the election to take the distributive share does not defeat the right of homestead occupancy, but that it continues until the distributive share is set off, following the language of the statute that “the setting off "* * shall be a disposal of the homestead.” Hence the mere fact of occupancy of the homestead could not defeat the widow’s right to her distributive share. See also Darrah v. Cunningham, 72
These conclusions require an order to the executor to make distribution of the estate on the basis that the estate of the widow is entitled to one-third of the real estate of her deceased husband, and the cause is remanded to the district court, where such an order will be entered. Revebsed.