Johnson v. Gaylord

Beck J. —

The demurrer was sustained on the ground that the abandonment of the homestead by the appellants terminated all the rights they before held to the property under the homestead law; that is, when it was no longer occupied as a homestead, it became liable to the debts of the estate, as other assets. Two questions other than those arising upon the decision of the court sustaining the demurrer on this ground are presented for our consideration. "We are to inquire into the effect of the abandonment of the homestead by the widow after the decease of the husband, in whom the title was vested. The rights of the parties accrued prior to the Code. The provisions of the Eevision must prevail in the case. The sections to be construed are as follows:

“2277.- "Where there is no special declaration of the statute to the contrary, the homestead of evei-y head of a family is exempt from judicial sale.”

(Under Sec. 2281, it may be sold upon mortgage, executed by the husband and wife thereon.)

“2295. Upon the death of either husband or wife, the survivor may continue to possess and occupy the whole homestead, until it is otherwise disposed of according to law.”

“2296. If there is no such survivor, the homestead descends to the issue of either husband or wife, according to the general rules of descent, unless otherwise directed by will, and is to be held by such issue exempt from the antecedent debts of the parents, or their own.”

“2297. -If there is no such survivor or issue, the homestead is liable to be sold for the payment of any debts to which it might at that time be subjected, if it had never been held as a homestead.”

It is next important to state certain constructions of these statutes and decisions made by the court upon questions involved. It is .held in Burns v. Keas, 21 Iowa, 257, that, upon the death of the party owning the homestead, it descends to the heirs, subject to the right of occupancjr of the surviving spouse. See Cotton v. Wood, 25 Iowa, 44; Nicholas v. Purczell, 21 Iowa, 265; Size v. Size, 24 Iowa, 580; Stewart v. Brand, 23 Iowa, 478.

If upon the death of the husband, in whom the title of the homestead is vested, the wife abandons its occupancy, it ceases “to have that character, and she will be deemed to have waived or forfeited her right thereto as a homestead.” Upon such abandonment she becomes a tenant in common with the heirs of her deceased husband, to the extent of her dower interest in the property. Orman v. Orman, 26 Iowa, 361.

The wife has not such an interest in the husband’s property that she will be authorized by a court of equity to sell it, and invest the proceeds in another homestead, unless the heir be made a party to such proceeding, as one having an interest in the property by descent. Palmer v. Blair, 25 Iowa, 230.

i. homestead: right oí widowin. From the statutes and cases cited, it clearly appears that the right of the surviving widow is no higher or greater than that of occupancy. The title vests in the heirs by - r . A descent, subject ox course to this occupancy. It is understood, too, that dower may be assigned in the homestead, and to this extent the survivor will hold an interest therein, as a tenant in common with the heirs.

2.--: of by'wfdow!* 3.-: the lien-s. Now, if there be no survivor to claim the homestead, the heir takes it free from the debts of the deceased owner. In such a case there is no homestead right existing, on account of the prior death of both the husband and wife. The law contemplates that, upon the termination of the homestead right in such a manner, the heir takes the property freé from the debts of his ancestor. Now it is not provided that, upon the termination of the homestead right in another way, by abandonment, it is held subject to the debts. In the absence of such a provision, we must conclude it was the legislative intention that when it comes into the hands of the heir, it should be free from debts. This intention, we think, is clearly expressed by section 2277, which declares that the homestead shall be exempt from judicial sale, except where there b% a special declaration of the statute to the contrary, and by § 2297, which provides that it may be sold for debts, if there be no surviving husband or wife, and no issue of the owner. It would be strange indeed if the legislature should preserve to the heirs, free from debts, the homestead, where the wife did not survive the husband, 'and yet hold it liable for debts, if the wife terminated her right thereto by abandonment. No reason can be assigned for such a provision, and to our minds the sections of the statute under consideration will bear no such construction. The policy of the law, as is well expressed in the various provisions cited, is to protect the homestead from the debts of the deceased owner, whether it be in possession of a surviving widow, or descends to the heirs, free from the homestead claim and interest of such survivor. There is no provision m the statute requiring the property to be occupied by the heir as a homestead, in order to protect it in his hands from the debts of the estate. From these views, it follows that the Circuit Court erred in sustaining the demurrer to the petition filed by appellants.

Reversed.