Meyer v. Meyer , 23 Iowa 359 ( 1867 )

Dillon, J.

I. Of all statutes, none should be plainer, more exact and certain in meaning, than those regulating the distribution and descent of property. It may be quite confidently affirmed, that of all existing statutes in this State, none are, in many material respects, more obscure and uncertain than those which undertake to define what becomes of, and who is entitled to, a man’s property upon his death. In illustration of this remark, we may refer to the embarrassing questions which have arisen under the act respecting aliens. Rev. ch. 100, art. 6; Perczell v. Sindt, 21 Iowa, 540; Stemple v. Herminghouse, 3 G. Greene, 408; Krogan v. Kinney, 15 Iowa, 242; Rheim v. Robbins, 20 Id. 45; Greenfield v. Stanforth, 21 Id. 595. And also, under the act of March 15, 1858, prescribing the descent of property. Rev. ch. 100, art. 7; Norris v. McGaffick, 21 Iowa, 201.

And now this record presents two similar questions of equal difficulty, and that is left to judicial construction which should be unmistakably defined by legislative words.

Perceiving that unless the statutes, in this respect, are revised, many other questions of great doubt will arise, we limit our decision strictly to the case in hand, with reference to which the subsequent observations are to be taken.

i. homestead : widow cannot enjoy boa. The plaintiff having had, at her own instance, the only dwelling-house and the fifteen and sixty-three hundreths acres of land set off to her in fee as dower, can she have assigned, or set apart to her, in additjon this, twenty-four and thirty-seven hundreths acres, or, enough with her dower to make forty acres, the amount to which the husband would have been entitled as a homestead ? We think not.

The homestead right now claimed by the wife is based upon chapter ninety-eight of the Bevision. The legal title to all the land was in the testator, John Meyer.

Now the statute (Bev. § 2298) is express, that, “subject to the rights of the surviving husband or wife, as declared by law, the homestead may be devised, like other real estate of the testator.”

The testator did devise it to his sons. This he could do, but this- disposition must be subject to the rights of the plaintiff, his surviving wife. What are those rights ?

As to homestead, those rights are defined by section 2295 of the Bevision, which enacts, that, “ upon the death of either husband or wife, the survivor may continue td possess and occupy the whole homestead until it is otherwise disposed of according to law.” This gives to the survivor the right “ to possess- and occupy,” but does not confer title.

Bor the argument, it may be admitted, that, if dower had never been assigned to the plaintiff, or if she refused to have it assigned, she might, as the head of the family, have continued to occupy the house used as a home at the time of her husband’s death (Bev., §§ 2278, 2295), and forty acres of land in connection with the house, as long as she should see proper, and against the wishes of the heirs or devisees of the husband.

But, while thus “possessing and occupying,” in her character as the surviving head of the family, she could not alien or dispose of the land. The land has been disposed of by the will .of the husband; and this disposition the statute, as we have before seen, allows him to make. Bev. § 2298. Now, it is plain, that the statute, in reference to the occupancy and disposition of homesteads, contemplates a house used as a home.

Under other provisions of the statute (ch. 151, Laws 1862, p. 573; Eev. § 2126, et seq.), the widow has proceeded to have her dower assigned to her, so as to include the dwelling-house and enough of the land to equal the amount in value to which she was entitled.

This she now owns in fee. She may dispose of it as she pleases. If she continued to occupy it as a home — as her home — it would doubtless have impressed upon it the homestead character and be exempt as such. Eev. §§ 2295-2297; act April 8, 1862, Laws 1862, p. 117, § 2.

The fee simple title thus acquired by the plaintiff, supersedes or takes the place of the possessory right which she would otherwise have had as the surviving wife.

We see no warrant in the law for annexing to this fee simple title, a homestead right in other land.

The title to this twenty-four and thirty-seven hundredths acres, under the will, is in the sons. If a homestead right were allowed therein to the widow, the title would not be in her. It would still be in the sons, subject to the homestead right. So that we should have this result: the house and the fifteen and sixty-three hundredths would belong in fee simple to the wife; the twenty-four and thirty-seven hundredths acres would belong to the devisees, with a right in the wife to occupy it as a homestead or as part of her homestead. Such a result we do not believe was contemplated by the legislature.

Again, aside from these argumentative considerations against the claim of the plaintiff, the language of section two, of the act of April 8, 1862, above referred to, and of section 2126 of the Eevision, seems also to be against it.

Thus if the property is insusceptible of division and is ordered to be sold, the widow’s interest, though the property sold be a, homestead, is limited to one-third- of the proceeds. And with this money it is enacted that she “may procure a homestead which shall be exempt from liability for all debts, past or prospective, from which the former homestead would have been exempt in her hands.”

So by section 2426 of the Revision, she may have assigned to her as dower “ the ordinary dwelling-house and the land given by law to the husband, as a homestead, or so muoh thereof [not the whole forty acres necessarily, but so much thereof] as will be equal to the share allotted to her by the last section [that is the one-third in value], unless she prefers a different arrangement.”

The fair implication, if not the plain language, of these provisions, is against the right of a widow to claim part of what was her husband’s homestead, including the house, as her own in fee as dower, and the residue in the capacity of surviving wife of the former owner.

In other words these provisions of the statute tend very clearly to show that the legislature did not intend that the wife should enjoy at the same time, both dower and homestead in the same land. If both had been intended, then it would have been provided that if the land were sold, there should be paid to the widow the value of both, i. e. one-third of the proceeds as the value of her dower, and also the value of her possessory homestead right. But the statute gives only the value of the dower interest. This was so under the Code of 1851 (§§ 1404-1406). Tt was likewise so under the act of 1853 (Rev. 2478), which limited the widow to one-third of the yearly rent, making no allowance for the value of any homstead right in the land sold. And the act of 1862 substantially and almost literally restored sections 1404,1405 and 1406, of the Code of 1851.

Inasmuch as, if the whole land in the case at bar had been ordered to be sold, the widow would have received only the one-third part, and would have received nothing for her supposed homestead right, this tends very strongly to show that she has no homestead right. For why should she be entitled to more if the land is not sold than if it is %

We have very carefully examined all the legislation on this snbjeet, and feel quite satisfied, that the legislature did not intend to give the widow a homestead in land, in addition to the dower, after the latter has been set off to her.

%_dispositionof. This view accords with the special provisions of the homestead act before referred to (§§ 2295-2298). She may “ occupy the whole homestead until it is otherwise disposed of according to law.” It is otherwise disposed of according to law if it is, upon her application for dower, ordered to be sold, because not susceptible of division, and it is thus sold and one-third of the proceeds paid to her, with which she may buy a new home.

If this is so, why is it not also “ otherwise disposed of according to law ” if it is set apart to her in fee as dower, upon her application ? After that she occupies her own homestead, not her husband’s, so to speak.

This view is also consistent with the language of sections 2296, 2297 and 2298. Whether the twenty-four and thirty-seven hundredths acres will not be held by the 6ons “exempt from antecedent debts of their father or their own,” we need not decide.

3. — compuieion of widow to accept. Nor need we decide, if the widow had not applied for dower and Had it set off to her, whether she could have been compelled by the sons to elect to take , .... dower, or have it assigned to her and give up the homestead right contemplated by section 2295 of the He vision. For aught decided herein,, it may well be that the widow would have the right as against the creditors, heirs, or devisees of the husband to say, “I am satisfied •with my homestead right,” and hold as a homestead the entire forty acres so long as she continues to occupy it as her home.

But if she proceeds for dower and has dower set apart to her so as to include the dwelling-house and land adjoining, this deprives her of the homestead right which she previously had in the land by reason of being the survivor, as contemplated by section 2295 of the Revision. In such cases the dower excludes or supersedes the other. Whether the dower right and the homestead right are cumulative, after dower assigned, provided dower be assigned in the non-homestead portion of the estate, we need not determine positively, though if the foregoing views are correct they may lead to the conclusion that the legislature did not in any case intend to give the widow the lion’s shai’e, by allowing her, in addition to exemptions and her distributive share, to retain the old homestead as such, in addition to dower in fee, after the assignment of the latter. What we decide is, that the plaintiff, having preferred to take her dower, as she did, cannot claim the twenty-four and thirty-seven hundredths acres as against the devisees. We are aware of the objections that may be made to this view. But the difficulties surrounding any other view are, it seems to us, much greater.

It may be thought that the case of Nicholas v. Pursell (21 Iowa, 265) is not entirely consistent with the foregoing views. It may be proper to observe, respecting that case, that it differs from this, as it involved no question of dower, or as to the effect of an assignment thereof. The relative nature of the dower and homestead rights was not discussed in that case, nor how far the taking of dower would affect the otherwise existing homestead right. The question mainly considered in that ease was, whether the widow living in and upon the homestead left by her husband, could, at the instance of her heirs, be compelled to submit to a partition of the homestead; and the court held that she could not.

Without adopting all the reasoning and illustrations of the learned judge below, we think his conclusion is correct, and his judgment upon this branch of the ease is affirmed.

4. exemetion: threshing-machine. II. The threshing machine was used by the husband to thresh his own grain, and that of other people for hire. Under section 2361, plaintiff claims that this , , , is not assets to be administered, because, as she asserts, it is property which, under sections 3304 and 3305 of the Revision, is exempt from execution. Whether it is thus exempt is the only question made. It is claimed to be exempted under the language, “the proper tools or implements of a farmer.” Taking these last sections together, we are of opinion that they intended to exempt only the ordinary and usual tools of husbandry, and do not extend to a threshing machine owned by a farmer to thresh his own grain, and that of others for hire.

This opinion rests upon the nature of the machine and the obvious purpose of the exemption law. Rev. §§ 3304-3309. The machine is complicated and expensive. Judges and legislators must be taken to be conversant with the common facts of every day life. Such a machine cannot be operated with less than from six to ten horses. It also requires a large force of men. It costs several hundreds of dollars to purchase one. Not one farmer in twenty — perhaps not one in a hundred — owns a machine of this character.' The farmer, in general, does not find such a machine a profitable investment. It is cheaper to hire than to own. In consequence of these facts, threshing machines are operated almost exclusively by persons who buy and own them on purpose to thresh grain for others for hire. In a few instances two or more farmers club together and buy one in common. Yery rarely does a farmer buy such a machine for his own use alone. If he owns one, it is generally with a view to “job” or thresh for others. And such would seem to have been the purpose for which the testator owned the machine in question. A few machines do all the threshing for a township, and threshing grain may be said to be a business by itself. In view of these facts the exemption law was passed. In view of these facts the law should be construed. The law makes no extravagant exemptions. It is intended for the poor rather than the rich. Its design is to enable the debtor and his family to live, by shielding from the creditor the ordinary and usual means of acquiring a livelihood.

The exemption is of necessary articles, tools, instruments, etc., and not articles and things merely convenient. Thus it exempts a team of two horses, but a team of two horses cannot operate such, a machine. That such a machine is not a necessary implement of husbandry is apparent from the fact, that most farmers neither own nor care to own one.

These circumstances distinguish a threshing machine from a plow, reaper, mower, binder or fanning mill, and the latter may well be exempt and not the former. It might be very convenient for a farmer to own a small portable mill, run by steam, to grind the grain into flour, after it is threshed, but would it be exempt from execution ? Why may it not be if a threshing machine be held to be exempt? Before concluding, it may be observed, that under a statute similar in its objects and not essentially .dissimilar in its language, a threshing machine has been recently held in- New York not to be exempt. Ford v. Johnson, 34 Barb. 364.

All the members of the court concur in the above conclusion, but a portion of the court do not wish to be bound if a case should arise in which a threshing machine was claimed by a farmer who owned and needed it for actual use, and did not keep and own it for the purpose of gain.

s. executor: apart ttfthe* widow. III. Plaintiff claims, that the property left with her conformably to section 2361 of the Revision, is not subject distribution, but is hers, or, at least, that she has the right to dispose of it and use proceeds for her support and that of the family.

This section has several times been under consideration in this court. Wilmington v. Sutton, 6 Iowa, 44; Id. 137; Gaskell v. Case, 18 Id. 147; Paup v. Sylvester, 22 Id. 371. It affords • another illustration of the obscurity of the law regulating the disposition of decedents’ property. The cases above referred to settle, that property left with the widow is not hers in her own right to dispose of as she pleases.

It is to remain with her. She may use and enjoy it. We would not say that she might not dispose of fattened hogs, or otherwise prevent waste.

So far as she claims that the articles set apart to her under section 2361 are absolutely hers, or that she has the absolute right to sell and receive the proceeds for her o\7n use, we are of opinion that the District Court properly decided against her.

How long the property shall remain with the widowed head of the family ; whether if she remains and is such head of a family, she can insist upon the retention of the property beyond the time when • the general personal property of the deceased is distributed under section 2422 of the Revision, is a question which upon the record does not require a decision. See Paup v. Sylvester, supra.

Affirmed.