McMinimee v. McMinimee

• Decision Date: 02 August 1948
• Docket Number: 47300.
• Citation: 33 N.W.2d 495,239 Iowa 1111
• Parties: McMINIMEE v. McMINIMEE et al.
• Court: Iowa Supreme Court

33 N.W.2d 495

239 Iowa 1111

McMINIMEE v. McMINIMEE et al.

No. 47300.

Supreme Court of Iowa

August 2, 1948

Rehearing Denied Sept. 24, 1948.

L V. Gilchrist, of Denison, for appellants.

Floyd E. Page, of Denison, for appellee.

WENNERSTRUM Justice

A prior appeal involving an earlier phase of litigation between the parties in the present appeal has received the consideration of this court. McMinimee v. McMinimee, Iowa, 30 N.W.2d 106 112. In that opinion we held that the plaintiff, the appellee in this present appeal, as widow of A. C. McMinimee, was entitled 'to possess and occupy the homestead' under section 561.11, 1946 code, until it was 'otherwise disposed of according to law.' The original decree, which had awarded her a life estate, was ordered modified in that respect and as so modified was to stand affirmed.

The facts upon which that decision was based are sufficiently stated therein. Because our decision in this case is largely dependent upon the same evidence as therein disclosed we do not deem it necessary to again set it out. Our opinion in the former case remanded the cause for the purpose of enabling the trial court to determine what was exempt property and to modify the decree in accordance with our holding.

However after the procedendo from this court was filed in the district court the defendants, who were the appellants on the first appeal, as they are in this one, filed an amendment to their original answer and cross-petition and alleged the sole right of Myrtle McMinimee, the plaintiff appellee in the present action, was the use and occupancy of the home under the provisions of section 561.11 of the 1946 Code of Iowa and that her right to said real estate had been adjudicated by this court to arise only under provisions of this last referred to statute. It is further alleged that the final report of the estate of A. C. McMinimee had been approved and his estate closed on December 14, 1946; that Myrtle McMinimee had no right to occupy and no right to retain the homestead for life in lieu of dower or distributive share under the provisions of section 561.12 of the 1946 Code of Iowa; that twelve months had elapsed since the estate had been fully administered and closed and that over thirty days had elapsed since the right to the life use of the home property had been adjudicated against her by the opinion of this court. It is further alleged that the wife had no right to longer remain in use of said property or to longer occupy said premises. In subsequent divisions of their answer and by way of cross-petition the appellants stated that they are the owners in fee simple of the property in question; that they are the sole heirs at law of A. C. McMinimee; that under the antenuptial contract which was evidenced by the written agreement confirming same the appellee wife acquired neither the right of dower nor the distributive share of decedent's estate and that her only right in the homestead was a temporary one to continue to possess and occupy it under the provisions of section 561.11 of the 1946 Code. In this division of the cross-petition the appellants asked that title to the property be quieted in them and that a writ of possession be issued. As a further division and as a part of the cross-petition it is alleged that the premises had been occupied by Myrtle McMinimee for a period of approximately twelve months and that the reasonable value of the use and occupancy of said premises during such period of time was the sum of $600. The defendants appellants prayed that a decree be entered in their favor for said sum. Subsequent to the filing of this amendment to answer and the cross-petition the plaintiff appellee in this action filed a reply to amendment to answer and also answer to cross-petition. Thereafter, upon the pleadings submitted in this subsequent proceeding, evidence was presented upon a trial of the issues. The trial court filed a written opinion wherein was set out the findings, rulings and orders of the court. In said opinion that court stated: 'As to the homestead the questions to be solved are: 1. Has the widow's right to possess and occupy the homestead terminated? 2. If such right has terminated, when did it do so?'

The trial court held that the right of the surviving widow under section 561.11 continues until the homestead 'is otherwise disposed of according to law.' It held that there had not been any such disposal because nothing had happened to the homestead property or to its occupancy since the death of its original owner. The trial court further held and determined that Myrtle McMinimee, the appellee in this present action, had a widow's right to occupy the homestead which had not been terminated and that it should be secure to her until such right was terminated as contemplated by code section 561.11. That court also made certain findings in connection with the claimed exempt property. Thereafter the defendants appealed from the ruling of the trial court holding that plaintiff was entitled to the right to occupy the homestead property and that said right had not been lost to her.

I. Section 561.11, 1946 Code is as follows: 'Upon the death of either husband or wife, the survivor may continue to possess and occupy the whole homestead until it is otherwise disposed of according to law, but the setting off of the distributive share of the husband or wife in the real estate of the deceased shall be such a disposal of the homestead as is herein contemplated.'

In our prior opinion in Iowa, 30 N.W.2d 106, 112, we commented as to the meaning of the phrase 'until otherwise disposed of according to law.' It was there stated that the right of occupancy might be terminated by abandonment or by the death of a survivor. In Fore v. Fore, 2 N.D. 260, 50 N.W. 12, which was referred to in our prior opinion, it was therein stated that the homestead character of the property might be lost by reason of a prior mortgage upon the homestead property, or through the nonpayment of taxes, or that it might be liable for a mechanic's lien. In Pioneer Mortgage Company v. Carter, 84 Okl. 85, 202 P. 513, the Oklahoma court stated: 'The phrase 'until it is otherwise disposed of according to law' in section 6328, Rev. Laws 1910 [58 O.S.1941 § 311], means 'It may be sold for taxes, or upon foreclosure of any mortgage thereon executed by both husband and wife, or upon execution to enforce judgment for the purchase price, or any part thereof, or the enforcement of mechanic's lien.''

We hold that under the record submitted in this present appeal there has not been such a disposition of the homestead right of the widow as is contemplated by section 561.11, 1946 Code.

II. It has been suggested that the closing of the A. C. McMinimee estate resulted in the termination of any title interest which the widow had in the homestead property. As suggested in our prior opinion the title to the property is not involved, the issue being, the right to occupy the homestead until 'it is otherwise disposed of according to law.' We do not deem it necessary or advisable to again comment upon the cases referred to in our prior opinion and from which cases excerpts are there quoted. However, see Mahaffy v. Mahaffy, 63 Iowa 55, 63, 64, 18 N.W. 685, 689; also Fraizer v. Fraizer, 201 Iowa 1311, 207 N.W. 772.

We do not feel obligated to rule upon the question raised by appellee that the issues here submitted are res judicata by virtue of our prior opinion. Suffice it to say, however, that under the definitions herein set forth there has been no disposition of the homestead rights of the widow ...