Blair v. Wilson

Rothrock, J.

l dowbe • interest1?!1 husband. I. In Metteer v. Wiley, 34 Iowa, 214, and in Potter v. Worley, ante, 66, it was held that where a liusband devised his real estate to his widow during her natural life, such devise was not inconsistent the dower right of the widow, in the land devised. So in the case at bar, the acceptance by the wife of the conveyance of a life estate in eighty acres of land is not inconsistent with her right to dower in the whole premises.

But it is claimed in behalf of appellees that the widow elected to take the homestead in lieu of dower. It is true, shS remained in possession not only of the homestead, but of all the land during her life. But such possession in no manner evinced an election to take the homestead in lieu of dower. If her possession be claimed to have been under the life estate conveyance, it being for eighty acres, it cannot be said that by such possession she evinced an election to take the homestead, because the possession was not limited to the homestead. As the life estate in the eighty acres was not inconsistent with the right of dower, such right accrued at once upon the death of the husband. The legal title to one-third of the real estate vested immediately in the widow, and descended to her heirs, unless she was in some manner divested of it during her lifetime. Potter v. Worley, supra. It is said that she elected to take the homestead in lieu of the one-third in fee simple, and that such election was evinced by her occupancy of the homer stead. But we have seen that her possession was not inconsistent with her right to one-third in fee. In Butterfield v. Wicks, 44 Iowa, 310, it is held that the surviving husband or wife cannot enjoy at the same time both dower and homestead, in the real estate of the decedent, and that continued occupancy of the property as a homestead will be regarded as an election to hold it as such. But in that case the only property left by the decedent was a homestead, and it was averred in the petition that the survivor occupied and possessed the property as his homestead from the death of his wife up to the commencement of the suit, a period of about ten years. The rights of the Irusband in that case were determined upon a demurrer to the petition. In the case at bar there Was no such exclusive possession of the homestead forty acres.

We think the defendant is entitled to one-third of the dower or distributive share of the widow.

Reversed.