Linton v. Crosby
| Citation | 9 N.W. 311,56 Iowa 386 |
| Parties | LINTON v. CROSBY, EX'R. |
| Decision Date | 16 June 1881 |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Clayton circuit court.
The defendant is the executor of John Linton and the plaintiff is the widow of the latter. They were married in 1861, and lived and cohabited together as husband and wife in her house at Gameville until the year 1868, when they separated, and have since then lived apart. There was no issue, and Dr. Linton died in 1878. After the separation the plaintiff supported herself from her separate property, and Dr. Linton lodged in his office and was a boarder in the family of others. Previous to his death Dr. Linton disposed of all his property by will to persons other than the plaintiff. The latter, claiming Dr. Linton, at his death, was the head of a family and the owner of certain personal property which was exempt from execution, presented her petition to the circuit court asking the executor be directed to deliver to her said property or the proceeds thereof, on the ground the title to the same upon the death of Dr. Linton vested in her. The relief asked was denied, and the plaintiff appeals.D. S. Wilson and Murdock & Larkin, for appellant.
L. O. Hatch and Jas. O. Crosby, for appellee.
For the purposes of this case it must be conceded if Dr. Linton, at the time he died, was the head of a family the property in controversy, or some of it, was exempt from execution during his life-time. It is provided by statute “if the debtor is a resident of this state, and is the head of a family,” certain personal property named in the statute shall be exempt from execution. Revision, § 3305; Code, § 3072. “When the deceased leaves a widow, all personal property which in his hands as the head of a family would be exempt from execution, * * shall be set apart as her property in her own right, and be exempt as in the hands of the decedent.” Code, § 237. Counsel for appellant has called our attention to several cases determined by this court relating to the homestead and its exemption, the argument being, as we understand, that under Revision, § 2277, it was the homestead of “every head of a family” that was exempted from judicial sale, and, therefore, as the same language is used in Code, § 3072, the definition or meaning of “the head of the family,” as applied to homestead exemptions, should be followed in construing the section of the Code under consideration. We are not preparedto assent to this proposition. Both the Revision, § 2278, and Code, § 1989, provide that a “widow or widower, though without children, shall be deemed the head of a family while continuing to occupy the house used as such [home] at the time of the death of the husband or wife.” This statute, creating as it does special heads of families, must necessarily have an important bearing in construing the homestead exemption.
That whatever construction may have been given to the statute exempting the homestead from judicial sale, is not applicable or should not control the statute exempting personal property, is well illustrated by Van Doran v. Marden, 48 Iowa, 186. In that case certain personal property was exempt from execution in the hands of the plaintiff's first husband, and the title thereto vested in the plaintiff, as his widow, but it was held not to be exempt after her second marriage, on the ground she was not the head of a family. Now if she had continued to occupy the homestead after the death of her first husband, it could not have been sold at judicial sale, because of her second marriage. Revision, § 2295; Code, § 2007.
We have been called upon several times to construe the statute under consideration. See Whalen v. Campbell, 11 Iowa, 226;Ellsworth v. Ellsworth, 33 Iowa, 164;Scholes v. Murray Iron Works, 44 Iowa, 190:Tyson v. Reynolds, 52 Iowa, 431; and Arnold v. Waltz, 33 Iowa, 706. But little aid, however, can be derived from these cases, because the facts upon which they are based are materially...
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