In re McClain's Estate
| Decision Date | 15 October 1935 |
| Docket Number | 43078. |
| Parties | In re McCLAIN'S ESTATE. |
| Court | Iowa Supreme Court |
Appeal from District Court, Jefferson County; R. W. Smith, Judge.
In the course of the administration of the estate of Mary C McClain, the executor filed an application for authority to sell all of the real estate owned by testator at the time of her death, including the home in which she lived at the time of her death, for the purpose of paying debts of the estate. A daughter, Julia May Neibert, filed objections to the sale of the residence property on the ground that under the will of testator she was the devisee of said property and said property was the homestead of testator and passed to her under the will free of the debts of the testator. The trial court found that the property was not the homestead of Mary C. McClain at the time of her death and ordered its sale to pay debts. From this order Julia May Neibert, the devisee of the property under the will of her mother, Mary C. McClain appeals to this court.
Reversed.
Ralph H. Munro, of Fairfield, for appellant.
Thoma & Thoma and Simmons & Simmons, all of Fairfield, for appellee.
In the early part of the year 1890, Mary C. McClain and her husband and three minor children lived on a farm of 205 acres in Jefferson county, Iowa. The title to the farm was in Mary C McClain. On May 3d of that year, her husband was killed accidentally. She continued to reside with the children on the farm until the fall of that year, when a public sale was held, and the personal property on the farm sold. She purchased, in the fall of 1890, a residence property in Fairfield, known in this record as the Barnes house, for which she paid the sum of $2,000, and at that time moved into this home with her three minor children. She continued to reside in this home until the year 1904, when she purchased a vacant lot in the town of Fairfield for $1,000 and built thereon a home costing $4,200. This property is known in this record as the Gilham house, and is the property over which this controversy was waged. About the same time she sold the 205-acre farm for $8,800 and used from the proceeds of the sale enough to finance the purchase of the lot and the erection of the new home.
When the new home was completed, Mary C. McClain with her minor child, Julia May McClain, aged sixteen, began the occupancy of the same as their home, the two older children having reached maturity and taken up their residences elsewhere. Mary C. McClain and the daughter, Julia May, continued to live in this property until the death of Mary C. McClain. In the meantime, however, in the year 1918, Julia May McClain married one W. H. Neibert, who came to live in the home of his wife's mother, and he and his wife continued to reside with Mary C. McClain in her home until her death, and are still residing there. Was this residence property, thus occupied by them, the homestead of Mary C. McClain at the time of her death as claimed by Julia May Neibert, appellant herein? Upon the answer to that question depends the issue in this case.
I. It should be noted at the outset that the controversy here arose in probate; that the appeal is from the order of the court authorizing the executor to sell real estate for the purpose of paying debts over the objection that a part of the property was the homestead of the deceased. Such an application is triable by ordinary proceedings without a jury. The findings of the trial court, therefore, have the force and effect of a verdict of a jury. We are at liberty to disturb them only in the event that they are contrary to law or are not supported by substantial evidence. Murphy v. Callan, 199 Iowa, 216, 199 N.W. 981.The evidentiary facts, however, are not in dispute. There is no conflict in the evidence. The questions which arise are, therefore, chiefly questions of law. Unless it can be said that the findings of the trial court as to the facts are not sustained by substantial evidence or that the conclusions of law are erroneous, there can be no reversal. No other errors are assigned.
II. Appellant contends that Mary C. McClain and her husband had acquired a homestead right in 40 acres of the 205-acre farm which they occupied in 1890; that upon the death of Mr. McClain, her husband, she acquired the right to the continuance of that homestead during her lifetime under section 10145 of Code 1931, and that such right was not in any way dependent upon her having children or supporting a family, but that it arose solely from the fact that she was the surviving spouse. With this much of the argument we are disposed to agree. Difficulty arises, however, when an attempt is made to take the next step. Appellant contends that she had the right to exchange this homestead for another homestead, and that when she sold the farm and out of the proceeds acquired the residence property now in controversy, she but used the proceeds of one homestead to acquire another, and that the one she thus acquired was held by her under the provisions of section 10154, Code 1931, the same way as the one which she sold, to the extent that the value of the new does not exceed the value of the old. The difficulty with this argument is that it assumes that she had a homestead in the farm at the time it was sold and it ignores the fact that she had left the farm with her minor children, acquired a home in Fairfield, and lived there for some fourteen years before she sold the farm and invested the proceeds in a new home. Did she continue to hold a homestead right in the farm during the fourteen years that elapsed after she left the farm and moved into Fairfield and purchased and occupied a home there? Removal from the homestead property with no intention to return to it operates as an abandonment of the homestead. Davis v. Kelley, 14 Iowa, 523.It seems to be the settled rule that where the homestead property is physically abandoned and a new home purchased and occupied, that such showing constitutes a prima facie case and the burden then of going forward with proof is upon the person claiming that the homestead right was not lost to show that there was an intention to return. Davis v. Kelley, 14 Iowa, 523; Des Moines Marble & M. Co. v. McConn, 210 Iowa, 266, 227 N.W. 521.There is not a single circumstance in this record to suggest that there was ever a purpose to return to the farm at the time Mrs. McClain and her children moved therefrom. The circumstances tend to establish a contrary intent, and we are satisfied that Mrs. McClain had, by 1904, lost, by abandonment, any homestead right which she may have had in the farm in 1890, when she moved therefrom. Since she had no homestead interest in the farm, the investment of the proceeds of the farm in another home did not by reason of that fact vest the new home with the characteristics of a homestead. Moreover, there is a total absence of evidence as to what portion of the total sale price of the farm was represented by the value of the claimed homestead therein. The finding of the trial court that there was a failure to show that this property was purchased with the proceeds of a former homestead which Mrs. McClain was entitled to hold alone as surviving spouse is amply sustained by the evidence.
III. Appellant further argues, however, that at the time Mrs McClain moved into and commenced to make her home in the property now in controversy, she had with her a minor daughter, appellant herein, who was then sixteen years of age, and who was dependent upon her for support, and that, by reason of that fact, she acquired a homestead interest in this property entirely independent of the source from which the money came for its purchase, and that such homestead right continued until her death. It is well settled in this state that a widow or widower with children may acquire a homestead. ...
To continue reading
Request your trial