I respectfully dissent.
This case is a follow-up of McMinimee v. McMinimee, 238 Iowa 1286, 30 N.W.2d 106. At the time the former case was before us, the probate proceedings were still pending in the probate court. While the majority opinion therein conceded that the antenuptial agreement constituted a waiver by Myrtle McMinimee, surviving spouse, of all rights under section 636.5 (dower), section 636.7 (dower to embrace homestead), section 636.21 (dower right unaffected by will), and section 561.12 (life possession in lieu of dower), it held that irrespective of the above waivers, section 561.11 was applicable. It granted to the surviving spouse the right to possess and occupy the whole homestead "until it is otherwise disposed of according to law." It was my judgment then, and still is, that the surviving spouse likewise waived under section 561.11. See dissenting opinion filed therein at page 1300.
The present case presents the question of the construction of the term "otherwise disposed of according to law." More *Page 1116 than a year has elapsed since the estate was opened. All matters pertaining thereto have been determined by the probate court and the estate closed. Under the laws of descent and as conceded in the former hearing, the real estate descends to the heirs of A.C. McMinimee the same as though no surviving spouse existed, except as section 561.11 is applicable. Appellants here ask that title be quieted in them and that they be granted a writ of possession to the homestead property. The trial court refused such writ and the majority opinion affirms the same.
In my judgment the writ should be granted. While a situation similar to the one at bar has not been before this court, section561.11 has been passed upon many times. A review of these cases conclusively shows that this section grants but a temporary right. In Cunningham v. Gamble, 57 Iowa 46, 47, 10 N.W. 278, 279, we said: "In our opinion, the law contemplates that the survivor shall have a reasonable time to make the election."; Egbert v. Egbert, 85 Iowa 525, 533, 52 N.W. 478, 479: "She had the right to occupy it for a reasonable time in which to make an election whether to retain such possession for life or take a distributive share."; Meyer v. Meyer, 23 Iowa 359, 370, 92 Am. Dec. 432, 434: "The right of occupancy and possession confers no title to the property."; Voris v. West, 180 Iowa 138, 143, 162 N.W. 836, 837: "`The homestead passed to the widow, and she was entitled to use and occupy the same at least for one year'", quoting from In re Estate of Ring, 132 Iowa 216, 109 N.W. 710.
In Wadle v. Boston Market Co., 195 Iowa 46, 50, 191 N.W. 528, 530, we say:
"Section 2985 * * * is a manifest attempt to protect the survivor against encroachment upon his homestead rightstemporarily, and until it be otherwise disposed of, either by a setting apart of his distributive share, or perhaps by his election to occupy the homestead for life." (Italics added.)
In Fraizer v. Fraizer, 201 Iowa 1311, 1315, 207 N.W. 772, 774, it is said "* * * the same rule should be applied to the statutory right of the widow to the temporary occupancy of the homestead." (Italics added.) In Crouse v. Crouse, 219 Iowa 736, 742, 259 N.W. 443, 446, we said: *Page 1117
"This right of the widow to occupy the homestead until some disposition is made thereof is obviously intended as a provision for the protection of the family during the time the estate is being administered and the distributive share set apart. * * * It has been called a temporary right * * * and is said to expire after a reasonable time. * * * Normally, one would hardly expect occupancy to continue under it over a period of years."
Section 561.11, Code of 1946, states, upon the question of what may be a disposal, "* * * but the setting off of the distributive share * * * shall be such a disposal of the homestead as is herein contemplated." This of course is precluded by the antenuptial agreement. In Nicholas v. Purczell, 21 Iowa 265, 267, 89 Am. Dec. 572, 573, speaking of the term "until it is otherwise disposed of" we said:
"That language may refer to cases where the homestead is liable for an antecedent debt * * * or to cases where the title of the owner is less than a fee, and terminates under conditions annexed to the title * * * or to cases of alienation, by the parties having right to convey, or other cases not needful to mention."
In the former opinion various methods are suggested as a possible "disposal thereof." Nowhere is cited a statement which is deemed to be an inclusive meaning of the term.
Under the majority opinion we have this situation: 1. A homestead property which by the laws of descent belong to appellants herein. 2. It is not subject to any prior estate or interest involving title. 3. A surviving spouse who has precluded herself from any estate or interest therein, so far as title is concerned. 4. All matters pertaining to the probate of the estate are finished and the estate closed. 5. The widow occupies the homestead, rent free. (In re Estate of Baker, 164 Iowa 305, 145 N.W. 898.) 6. She is not responsible for the taxes, insurance, and upkeep, as those items are incidental to an estate, be it fee, life or years. 7. The owners are attempting to gain that which is rightfully and legally theirs. Must they allow the premises to be sold for taxes or wait for a *Page 1118 voluntary abandonment by the widow, or her death in order to enjoy their inheritance? That in substance is the effect of the majority opinion.
In my judgment where no rights of dower or life estate in lieu thereof are involved, the closing of the probate proceedings constitutes a "disposal of the homestead" within the meaning of section 561.11, and the judgment in the instant case should be reversed.
BLISS and GARFIELD, JJ., join in this dissent.