(Dissenting). Charles Hay died, intestate, November IB, 1888. After his death, his widow continued to use and occupy the homestead, as such, until the commencement of this suit. Administration was granted on the estate of the deceased, February 27, 1889, and the administrator was discharged in April, 1891. The widow made her conveyance to plaintiff, March 6, 1894, more than five years after the death of her husband, and four years after the appointment of the administrator. No explanation is given for the continued use and occupancy of the homestead by the widow, and no reason is offered why it should not be treated as an election to take the homestead in lieu of dower. According to the majority opinion, this unexplained occupancy does not create even a prima facie case of an election; and, under the -rule adopted therein, there is no reason why the surviving widow may not have both homestead and distributive share; indeed, I think this is exactly what the opinion holds. All she need do is to convey the interest which might be set aside to her, in timely and proper proceedings, to her second hus< band, if she have'one; and, she may then continue to use and occupy the premises as a homestead during her natural life. Or, to state it differently, she may use and occupy the homestead for any length- of time without being held to an election, and may at any time make a conveyance to a third person, which will carry an undivided one-third interest *45in the land. The other heirs are helpless, for the grantee of the widow is not bound to have the widow’s share set aside. He may bring partition at any time until the statute of limitation bars him of relief, and, as the other heirs are tenants in common, the statute would not begin to run until there was an ouster. No election is presumed from the occupancy, and she cannot be compelled to take her distributive share. The opinion certainly holds that occupancy is no evidence of an election, and that the widow is not barred of her distributive share, no matter what she does, until the lapse of ten years' from the death • of her husband, and that she is not then barred because of her possession of the property, but by reason of the statute (Code, section 2444).
I do not concur in any of these propositions. We have repeatedly held that the widow cannot have both homestead and distributive share, and that an election once made to take either the one or the other, is binding and conclusive. Butterfield v. Wicks, 44 Iowa, 310; Meyer v. Meyer, 23 Iowa, 359; Briggs v. Briggs,45 Iowa, 318; Stevens v. Stevens, 50 Iowa, 491; McDonald v. McDonald, 76 Iowa, 137 (40 N. W. Rep. 126); Zwick v. Johns, 89 Iowa, 550 (56 N. W. Rep. 665); and other cases following these. The cases of Holbrook v. Perry, 66 Iowa, 286 (23 N. W. Rep. 671), and Darrah v. Cunningham, 72 Iowa, 123 (33 N. W. Rep. 445), are, also, closely in point on this proposition. We have freqently and uniformly held that the continued occupancy of the premises by the surviving husband, or wife, will be regarded as an election to hold the property as a homestead, and that the making of a will or conveyance of, or mortgage upon the undivided one-third interest of the property, by the survivor, does not amount to an election which will control as against the inference to be derived from the continued use of the property. Darrah v. Cunningham, supra; *46Burdick v. Kent, 52 Iowa, 583 (3 N. W. Rep. 643); Bradshaw v. Hurst, 57 Iowa, 745 (11 N. W. Rep. 672); Mobley v. Mobley, 73 Iowa, 654 (35 N. W. Rep. 691); Zwick v. Johns and McDonald v. McDonald, supra. In the Mobley Case the facts were that the husband died July 5, 1886, seized of eighty acres of land. The widow continued to use and occupy the homestead forty up to the time of her death, December 25, 1886. She did not ask that her distributive share be set aside, but, prior to. her death, made a will in which she devised all of her real estate to a daughter, under which state of facts we held that the daughter took nothing under the will of her mother, because her mother had elected to take the homestead in lieu of her distributive share. There was no reason for saying this, except for the occupancy by the widow for the period of five months; yet in the case at bar the majority hold that occupancy for nearly six years creates no presumption even of an election. In the Zwick Case the husband died May 28, 1882, seized of eighty acres of land. The widow continued to use and occupy the homestead until the fall of 1883, when she married Prinkey. After that she continued to use the property as a homestead until early in -the year 1888. Mrs. Prinkey died in 1888. A creditor of the Prinkeys recovered judgment against them, and sold an undivided one-third of the eighty acres in satisfaction thereof. The action was brought by a guardian of the minor children of Smith, the deceased, to restrain the purchaser at the execution sale from taking possession under the deed. It appeared in evidence, that in 1884, the widow filed a petitiou, asking to have her distributive share set aside, but that she afterward changed her mind, and abandoned the same. In August, 1887, she and her husband quit-claimed all their rig[it and title in the land, to one Groff, the deed being made, however, to *47secure a debt; and at the same time "they executed a mortgage on the unassigned dower interest of Mrs. Prinkey, in the eighty acres, to the same party, to secure the payment of a note. In 1888, the widow leased the land to one Smith, for a term of years, and, just before she died, she promised to give a mortgage on her interest in the lands, to a creditor. Under such a state of facts, we held there was an election on the part of the widow to take the homestead, and that the execution of the deeds, mortgages, and leases, did not defeat it, or change the rule. In that case, We said, in considering the question as to what would constitute an election to take the homestead: “This rule is, that when, under all the circumstances, the survivor has occupied the homestead for a reasonable time, in which to make an election under the statute, and has failed to have the distributive share set apart, or otherwise made an election, the presumption of an election from such occupancy arises. Such presumption will then prevail, unless overcome by proof showing election to the contrary.” In that case the occupancy was for not quite six years. Five years after the death of the husband, she made a mortgage of her undivided one-third interest. In the case at. bar the occupancy was for the same length of time, and the widow made a deed instead of a mortgage, nearly six years after her husband's death. In the one case, we hold there was an election to take the homestead, by reason of the occupancy; and, in the other, that the occupancy of the homestead is no evidence whatever, and that the making of the deed was an election to take distributive share, although the widow remained in the possession of the homestead, even after the making of the deed. Why this distinction between the making of a mortgage and a deed, I cannot understand. In the McDonald Case, in 76 Iowa, 137 (40 N. W. Rep. 126), the widow made a mortgage of her undivided *48one-third interest in the lands, within three years of the death of her husband; yet she continued to use and occupy the homestead for the period of five years. We there held that the making of the mortgage was not an°election, but that her possession -for the term of five years was, and we confined her interest to a homestead for life. In that case, five years’ occupancy overcame a mortgage of an undivided one-third interest, made within three years of the death of her husband. In this case we hold that a deed made six years after the death of the husband, overcomes the presumption of an election, and that no inference can be drawn from the fact. of possession alone. In the Darrah Case, the wife died in 1884, seized of fifty-eight acres of land. The husband continued to occupy the homestead for the period of sixteen months. Fifteen months after the death of his wife, he made a will, in which he declared that he had not intended to take the homestead, but that he intended and desired to own and possess one-third in value of his wife’s land. The will also- directed the executors to sell his one-third interest in the land. The husband said repeatedly, after the death of his wife, that he intended to take one-third of her real estate. It was held in that case, as I understand it, that the husband took the homestead, and not the distributive share. No other reason can be given for the conclusion reached. The case of Bradshaw v. Hurst, is along the same line. So also is the Burdick-Kent Case. In the Butterfield-Wiclcs Case, we said that the occupancy of the property by the husband, as a homestead, may well be regarded as an election to hold it as a homestead, and not a part of it merely as dower; and it was further held that the husband in that case, from occupancy alone, had elected to take the homestead in lieu of distributive share, although he had made a mortgage upon his dower interest within two years *49from the death of. his wife. In the case of Egbert v. Egbert, 85 Iowa, 525 (52 N. W. Rep. 478), we applied the rule of the McDonald Case, Mr. Justice Given writing the opinion, and we there said: “The language of that opinion, as applied to the facts of that and like cases, is correct. * * * She [Mrs. Egbert], 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,”— citing Cunningham v. Gamble, 57 Iowa, 46 (10 N. W. Rep. 278), and Thomas v, Thomas, 73 Iowa, 657 (35 N. W. Rep. 693). Continuing, the court says: “When the survivor has occupied after a reasonable time, without having the distributive share set apart, or otherwise making an election, the presumption of an election from the occupancy, arises.”
I need not specifically refer to the other authorities I have cited. They are all in line with those quoted from, and it is apparent, that the rule I contend for, has been the law of this state for more than twenty-five years. It is a rule of property, and ought not to be disturbed at this late date, except for imperious necessity. The case of Wilcox v. Wilcox, relied upon by the majority, is not in conflict with the opinions I have quoted. It is fully explained in the case of Zwick v. Johns, and I need not take up the space needed to distinguish the case. The earliest, as well as the latest decision of this court, is with me, and, if there is any conflict in our authorities, it can all be reconciled by returning to the plain and reasonable rule announced in Thomas v. Thomas, 73 Iowa, 657 (35 N. W. Rep. 693).
To state it briefly, I would say that the primary right of the survivor is, perhaps, the distributive share, but that, after the expiration of the year for the filing of claims, the survivor, if he continues to occupy the premises, is put to an election as to which he will take, *50homestead or distributive share, and, if he remains in the possession and occupancy of the homestead for more than a reasonable time in which to make such election, after the expiration of the year for filing claims, such occupancy will be regarded as an election, which will conclude him; that an election once made is conclusive, at least until set aside by proper proceedings; and that, when his rights once become fixed, he cannot change them to the prejudice of the other heirs or the creditors. If the survivor should not remain in the possession or use of the premises, or should not continue therein for more than the reasonable time to make an election, then the primary right to take the distributive share, passes the one-third in value to the survivor. It also follows that an unequivocal election, to take the distributive share made at a proper time, will be binding upon the survivor. These rules are equitable, reasonable, and just, and I think, should be adhered to and definitely announced. I am firmly convinced that the decree of the lower court was right, and I think that it ought to be affirmed. If it is to be reversed, we ought to squarely overrule the cases I have cited, and not leave the profession in doubt as to what the rule is in such cases.
I am authorized to say that Mr. Justice Kinne concurs in this dissent.