Because I do not agree with the majority opinion that the appeal should be dismissed or that the trial court was necessarily right, I dissent.
I am unwilling to believe that the devisees were "parties" to the proceeding below within the meaning of section 12837, Code of 1939. They were not named as such and I do not feel that the single publication notice made them parties. The proceedings are quite out of the ordinary. The situation seems to me to be strikingly analogous to the hearing on a final report of an executor. If the executrix had, in her final report, stated that she was of the opinion the real estate was exempt and prayed for an order so holding and her discharge, surely a claimant objector could have appealed to this court by merely serving the executrix.
Upon the question of the merits of the case the majority feel the trial court was right. Section 10155, Code of 1939, provides:
"The homestead may be sold to satisfy debts of each of the following classes: * * * 4. If there is no survivor or issue, for the payment of any debts to which it might at that time be subjected if it had never been held as a homestead."
There was no survivor or issue in this case. True, we have in previous cases intimated that this statute only applied in case the owner of the homestead died intestate. In re Estate of Guthrie, 183 Iowa 851, 167 N.W. 604; Long v. Northup, 225 Iowa 132, 279 N.W. 104, 116 A.L.R. 1475. But in both cases the decedent left issue, although in the Long case the devise was not to the issue. I see no warrant for holding the above statute applies only to the case of intestacy. I would overrule the motion to dismiss.
I am authorized to state that Justice MILLER joins in this dissent. *Page 201