(dissenting).. — -As I understand, the majority opinion holds that the widow is not required to take the dwelling house which is situated upon the ' two-hundred and forty-four-acre tract of land; but that she is required to tqke her distributive share out of the tvyo *10hundred and forty-four acres, thus relieving the one hundred and fifty-nine acres of any burden; and that by reason of the warranty deeds executed by the testator, his. wife not joining therein, the grantees therein should not be held to contribute toward her distributive share taken out of the two hundred and forty-four acres. This conclusion is reached against the widow’s consent, and is bottomed, if I understand the case correctly, largely upon the deeds executed by the testator to Ella J. Cochran, and Wm. I. Eice. I can not agree to this conclusion.
Section 3270 of the Code provides: “Any person of full age and sound mind may dispose by will of all his property, subject to the rights of homestead and exemp'tion created by law, and the distributive share in his estate given by law to the surviving spouse, except sufficient to pay his debt's and expenses of administration.” Section 3376 of the Code Supplement reads as follows: “The survivor’s share can not be affected by any will of the spouse, unless consent thereto is given within six months after a copy thereof has been served upon the survivor by the other parties interested in the estate.” Section 3366 of the Code reads: “One-third in value of all the legal or equitable estates in real property possessed by the husband at any time during marriage, which have not been sold on execution or other judicial sale, and to which the wife had made no relinquishment of her right, shall be set apart as her property in fee simple, if she survive him.” Section 33-67 provides: “The distributive share of the survivor shall be set off -so as to include the ordinary dwelling house given by law to the homestead, or so much thereof as will be equal to the share allotted to her by the last section, unless she prefers a different arrangement; but no such arrangement shall be permitted unless there be sufficient property remaining to pay the debts- of the decedents.” Section 3369 provides: “The survivor’s share may be set off by the mutual consent of 'all parties *11in interest, or by referees appointed' by the court or the judge thereof, the application therefor to be made in writing, after twenty days from the death of the intestate and within ten years, which application must describe the land in which the share is claimed, and pray the appointment of referees to set it off.” Section 3375 provides: “If the referees report that the property or any part of it can not be readily divided, the court may order the whole sold and one-third of the proceeds paid over to the survivor, but no sale shall be made if any one interested gives security to the satisfaction of the court, conditioned to pay the survivor the -appraised value of the share, with eight percent interest on the same, within such reasonable time as it may fix, not exceeding one year.” Section 3378 reads as follows: “Subject to the rights and charges hereinbefore provided, the remaining estate of which the decedent dies seized shall, in the absence of a will, descend in equal shares to his children.” And section 3279-a of ■the Code Supplement reads as follows: “All claims which it becomes necessary to satisfy, and all amounts necessary to be paid from the estate of a testator in disregard of or in opposition to the provisions of a will, shall be taken ratably from the interests of heirs, devisees, and legatees.”
I think it clear from these sections that the widow is entitled to her distributive share in all real property possessed by the husband and at any time during the marriage and to which she had made no relinquishment of her right, and that the same should be set apart to her in fee simple; and it is also clear that no one can by will dispose of the right of homestead or distributive share given by law to the surviving. spouse. The widow has the right to take the homestead in lieu of dower, and may have her distributive share so set off as to include the dwelling house, unless she prefers a different arrangement. Her share may be set off by mutual consent or by referees appointed by the court, and a sale rather than a partition *12in kind may be ordered. Primarily it is for the widow to say whether she will take homestead or distributive share, and, if the latter, how she will have it set apart to her — that is to say, whether it shall be a part of each of several tracts, - or out of one or more separate tracts, and whether it shall include the dwelling house. Unless her wishes be arbitrary or opposed to section 3367, they should be respected for the reason that neither the husband, his grantees, nor his heirs can deprive her. of her distributive share, or in any manner limit her rights or privileges. I think this has been held in all our oases. See O'Ferrall v. Simplot, 4 Iowa, 381; Montgomery v. Horn, 46 Iowa, 285; Jones v. Jones, 47 Iowa, 337; Corriell v. Bronson, 6 Iowa, 471. It will be noticed in each of these that the survivor’s wishes were made controlling. It is clear to my mind that the widow has her right of dower or distributive share in each of the several parcels of land owned by her husband at any time during marriage to which she has made no relinquishment, and that, generally speaking, she has the right to say how it shall be set aside. If she does not take from each tract, then the statute (Code Supp., section 3279a) says in effect that the overplus taken from any other shall be ratably taken from the interests of the heirs, devisees, and legatees. In my opinion the widow had the right at her election to take her distributive share from, the- one hundred and fifty-nine acres, one-third in value thereof properly marked out by metes and bounds, and one-third in value of the two hundred and forty-four acres set off to her by metes and bounds, so as not to include the homestead if she so elected. The majority do not seem to entertain this opinion and this is the first point of difference between us.
The majority say, as I'understand it, that she must take her share out of the two-hundred and fortv-four-acre tract; that she will not be compelled to take- the dwelling *13house, hut that nothing shall he taken from the one 'hundred and fifty-nine acres: and that in no event shall the grantees of the one hundred and fifty-nine acres by deed from the testator alone be made to contribute to the share of which the devisees under the tenth clause of the will are deprived by reason of the widow’s taking her dower out of the two-hundred and forty-four-acre tract. In other words, the devisees under the tenth clause of the will are made to bear the entire burden of the distributive share. Here again I am constrained to register my dissent. If the widow is compelled without her consent -to take her distributive share out of the two hundred and forty-four acres, it seems to me that all the other legatees, heirs, and devisees should be compelled to bear their proportion ratably out of the property received by them. This is the language of the statute as I understand it. The effect of the opinion of the majority is'to make Abraham L. Rice bear almost the entire burden of the widow’s distributive share. I do not think this was testator’s intent, and, if it were, such a rule is contrary to the express language of the statute. I find nothing in the twelfth clause of the will which justifies the conclusion of the majority. The testator knew that he could not dispose of, or in any manner limit his widow’s distributive share, and he did not attempt in any manner to do so. In fact, he recognized his wife’s right to her one-third in the will itself. The conclusion of the majority is bottomed wholly upon the conveyances made by the testator to his children, Ella J. Cochran and. William I. Rice, of property which he had theretofore devised them by will. These conveyances were signed by the testator alone, his wife not joining therein, and were purely voluntary. No consideration was paid therefor, and the grantees obtained nothing more than they would have received under the will. These conveyances did nothing more than satisfy or adeem the devises already made to them in the will. Hall v. Hall, 132 Iowa, 664. *14And the grantees are not entitled to any greater rights thereunder in so far as the widow is concerned than if they had taken under the will. In neither case was the widow’s distributive share in any manner affected. Moreover, while these conveyances may have been by warranty deed, nothing was paid for said deeds and no action may be maintained against the estate or the heirs on account of the warranty. Knadler v. Sharp, 36 Iowa, 234; Richards v. Homestead Co., 44 Iowa, 304. Even if the covenants of warranty were enforceable, I do not see how they can be worked out in this proceeding for a partition. If recovery may be had thereon, it must be of damages, and for this the personal estate of the deceased is liable, and claims should be made against the estate therefor. So worked out, each and all the heirs will bear their just and equitable proportion thereof. The conclusion of the majority makes the heavy part of the contribution to be borne by A. L. Nice, who takes under the tenth paragraph of the will. This, I think,' is not only inequitable; but contrary to law. I do not think these warranty deeds cut any figure in the case; but, if they do, the majority has made them do a service which the law does not warrant. See, as sustaining these conclusions, Morey v. Morey, 113 Iowa, 152; McGuire v. Luckey, 129 Iowa, 559. In my opinion the decree of the district court is wrong in the particulars above mentioned, and the majority opinion is also erroneous in the respects above set forth. I think the widow should be permitted to take her share out of both the one hundred and fifty-nine and the two-hundred and forty-four-acre tracts, and that she should not be compelled’ to take the. dwelling house on the two hundred and forty-four acres. If this be done, there will be no need for any accountings If, however, she should elect to take all out of the two hundred and forty-four acres, the amounts taken in disregard of the will should be appor*15tioned ratably out of the interests of all the heirs, devisees, and legatees.
I would not only reverse^ but I wpuld go to the extent indicated in this dissent.