Whited v. Pearson , 87 Iowa 513 ( 1893 )

Granger, J.

1. Estates of decedents: rights of ■widow: homestead: election to take under will- — I. We are first to determine if the widow, by her acts, is limited to a homestead right in the real estate of her husband. At the outset it will be well to have clearly in mind her rights at his death. They were: First, the homestead right. If she accepted this, she could claim neither of the others. Second, a distributive share under the law, — one-third in fee. This she could take without the homestead right, but it might include, or be, the homestead. Code, section 2441. Third, the benefits conferred by the will. Unless she has elected to take the homestead right or the benefit of the will in her favor, she is entitled to the distributive share. No form of election is prescribed by the law for the homestead, and such an election may be judged from the acts or declarations of the widow.

Por the present, at least, let us limit our consideration to the question whether there has been such a homestead election as to defeat a distributive share in behalf of the widow, without reference to the provisions of the will, for such a share is an alternative right contended for by the defendant. Let us inquire what the rights^ of the widow were as to the homestead occupancy, without its amounting to an election, so as to defeat her right to the distributive share. The facts upon which her election to take the homestead is claimed are her occupancy for about ten days after the death of her husband, leaving a part of her household goods in a part of the house, renting the balance of the house till November 1 of that year, with a privilege to the tenant to further occupy it if she did not want it then, and some statements that she intended to live and make her home in the house at Atlantic. These statements appear to have been made rather in reference to occupancy under the will than under the homestead right, for the witness, speaking of the widow’s having read the will, and of her statements, said: “The way we came to talk about it, they were all talking about it; there were several of them there. She said she guessed it was all right if father made it that way.” There is no claim that she ever expressed herself as intending to take the homestead right as her interest in the real estate.

Code, section 2008, provides that “setting oif of the distributive share of the wife in the real estate of her husband shall be a disposal of the homestead.” In Burdick v. Kent, 52 Iowa, 583, it is held that the wife is entitled to occupy the homestead even after she has filed her application to have her distributive share set off to her; that the election to take the distributive share does not defeat the right of homestead occupancy, but that it continues until the distributive share is set off, following the language of the statute that “the setting off "* * shall be a disposal of the homestead.” Hence the mere fact of occupancy of the homestead could not defeat the widow’s right to her distributive share. See also Darrah v. Cunningham, 72 Iowa, 123. This seems decisive of the point under consideration. Until the homestead is disposed of, the widow may'continue to occupy it. Code, section 2007. At the time of Mrs. Whited’s death, the homestead had not been disposed of, nor had she elected to accept it. We are cited to no case not in harmony with this view. See Egbert v. Egbert, 85 Iowa, 525.

2 _:_; : - II. Having determined that the widow’s rights are not limited to a mere homestead right under the issues, we should settle the point as to whether her rights are those under the will or a distributive share; and in this respect we experience no difficulty. She had never been notified to make an election under the provisions of Code, section 2452, nor had she ever placed of record her consent to take under the will. The section is as follows: “The widow’s share can not be affected by any will of her husband, unless she consents thereto within six months after notice to her of the provisions of the will by the other parties interested in the estate, which consent shall be entered on the proper records of the district court.” There are some cases in which a consent to take under the will has been adjudged, but in no case has it been done where there was not something of record on which to base such a conclusion. In this case there is nothing of record. The claim of election is based on her acts and statements. If she were alive, they would not defeat her right to a distributive share. She died pending her right to make her election, without which the law fixes her proportion of the estate.

These conclusions require an order to the executor to make distribution of the estate on the basis that the estate of the widow is entitled to one-third of the real estate of her deceased husband, and the cause is remanded to the district court, where such an order will be entered. Revebsed.