First Nat. Bank of What Cheer v. Willie

• Decision Date: 24 October 1901
• Citation: 87 N.W. 734,115 Iowa 77
• Parties: FIRST NATIONAL BANK OF WHAT CHEER v. GEORGE WILLIE et al., Appellant. J. L. MITCHELL v. GEORGE WILLIE et al., Appellant
• Court: Iowa Supreme Court

87 N.W. 734

115 Iowa 77

FIRST NATIONAL BANK OF WHAT CHEER v. GEORGE WILLIE et al., Appellant.

J. L. MITCHELL v. GEORGE WILLIE et al., Appellant

Supreme Court of Iowa, Des Moines

October 24, 1901

Appeal from Keokuk District Court.--HON. A. R. DEWEY, Judge.

THESE are actions on promissory notes, in each of which the plaintiff sued out a writ of attachment, and garnished the executor of the estate of defendant's father for the share of the estate to which defendant was entitled by will. The court overruled a motion to discharge the garnishee based on the ground that the fund in the hands of the executor consisted of the proceeds of the homestead belonging to the father at the time of his death, and that defendant's share thereof was therefore exempt from his debts, and sustained a motion for judgment against the garnishee, from which ruling defendant appeals.

Affirmed.

Bolton McCoy & Bolton for appellant.

C. M Brown for appellee.

OPINION

MCCLAIN, J.

Code section 2985, provides that on the death of the owner of the homestead the surviving husband or wife according to the rules of descent, unless in lieu of a distributive share of the real estate of the deceased; "but if there be no survivor, the homestead descends to the issue of either husband or wife according to the rules of descent, unless otherwise directed by will, and is to be held by such issue exempt from any antecedent debts of their parents or their own, except those of the owner thereof contracted prior to its acquisition." Under this section it has been held that, even though the survivor retains the homestead for life, the heirs inherit the remainder free from debts (Johnson v. Gaylord, 41 Iowa 362), and that where, in making distribution of the homestead, sale thereof is necessary, the proceeds pass to the heirs exempt from their debts. Kite v. Kite, 79 Iowa 491, 44 N.W. 716. In Reifenstahl v. Osborne, 66 Iowa 567, 24 N.W. 42, it was held that a conveyance of the homestead by husband and wife to their son, with reservation to occupy during life, did not entitle him to hold the remainder exempt from his own debts; and while it is said in that case, approving a suggestion in Moninger v. Ramsey, 48 Iowa 368, that if the property passes by will to the same persons and in the same proportions as if the owner of the homestead died intestate the shares of the devisees will be exempt from their debts, as in case of intestate succession, yet it is held that, even if the conveyance with...