Dalton v. Dalton
| Decision Date | 22 November 1916 |
| Docket Number | 31089 |
| Citation | 159 N.W. 992,178 Iowa 508 |
| Parties | JOHN DALTON et al., Appellants, v. MARGARET DALTON et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Cherokee District Court.--WM. HUTCHINSON, Judge.
THIS is an action in equity, brought by appellants, who are heirs of James Dalton, deceased, for the purpose of partitioning 384 acres of land in Cherokee County and a residence lot in Le Mars, in Plymouth County, Iowa. Defendant, Margaret Dalton is the widow of deceased, and the other defendant is a minor heir. Separate answers were filed. Plaintiff interposed a demurrer to the answer of the widow, which was overruled, and plaintiffs appeal.
Affirmed.
Molyneux & Maher, for appellants.
T. M Zink, for appellees.
The petition alleges that the widow is entitled to one third of all the property, and that the minor defendant and each of the plaintiffs are entitled to an undivided two twenty-sevenths of the estate. Partition is asked of all the property.
The answer of the widow avers that she is the surviving widow of deceased; that, at the time of his death, she and her said husband, with their minor child, Helen, were living in the residence property in Le Mars, Iowa, and that the same was then their homestead; and that she and her minor child have, since the decease of said James Dalton, continued to reside on said lot as their homestead; that said lot is encumbered by a mortgage, with an unpaid balance of $ 2,000 and interest; that said mortgage encumbrance was not placed on said lot by the deceased, James Dalton, but was an encumbrance thereon, and its payment was assumed by deceased when he purchased the lot; that defendant never joined in the execution of said mortgage. It is alleged, also, that funds of the estate of deceased, together with the other real estate belonging to said estate, are ample to pay the debts of deceased without resorting to said homestead; that her distributive share in the real and personal property of deceased has never been set off to her, and that she has never released her dower interest in the real estate of her husband; that, under Section 3367 of the Code, she is entitled to have her distributive share set off to her so as to include the dwelling house on the lot before referred to. She prays that the said residence be not sold, but that it be set apart to her as a part of her distributive share, and that referees be appointed to appraise the same and the reasonable value of the interest which deceased had in said lot over and above the said mortgage encumbrance thereon, and prays that, with respect to the balance of the real estate described in the petition, she joins in plaintiff's prayer for a partition thereof, and she claims so much of said other real estate as, added to the reasonable value of the interest of deceased in the said lot, over and above the mortgage encumbrance thereon, may be equal to her one-third distributive share in the real estate of deceased.
We do not understand appellants to seriously contend that the distributive share of the widow may not be set off so as to include the dwelling house. Section 3367 clearly so provides. The real contention is as to the $ 2,000 encumbrance. It is thought that the question has not heretofore been presented in precisely this form. They contend that to compel the two-thirds interest in the estate to pay a mortgage against the homestead would reduce the interests of the heirs, or, as they put it, enhance the value of the widow's share to more than one third of the husband's estate. This...
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