Rice v. Burkhart

• Decision Date: 10 May 1906
• Citation: 130 Iowa 520,107 N.W. 308
• Parties: RICE v. BURKHART ET AL.
• Court: Iowa Supreme Court

130 Iowa 520

107 N.W. 308

RICE

v.BURKHART ET AL.

Supreme Court of Iowa.

May 10, 1906.

Appeal from District Court, Benton County; Obed Caswell, Judge.

James Rice died testate in December, 1904, seised of 40 acres of land which he had occupied as a homestead. With him, had resided his son, William O. Rice, and family for many years and they continued to occupy the premises after his death. His last will and testament, which was admitted to probate, devised the homestead to this son alone though he left four other sons surviving him. The defendant Burkhart had obtained judgment against William for $43.02, and, upon the proof of the will, caused execution to be issued and levied on the land and the sheriff was about to advertise and sell the same. To the petition stating these facts and praying that the sale be enjoined, the defendants interposed a general demurrer, which was sustained. As plaintiff declined to plead over, the petition was dismissed. Plaintiff appeals. Affirmed.M. J. Tobin, for appellant.

Kirkland & White, for appellees.

LADD, J.

The plaintiff took the homestead of his deceased father under the will, though no provision was made for the four other sons, and the sole question to be determined is whether the property is exempt from the payment of his antecedent debts. The statute declares the homestead of the family exempt whether owned by husband or wife (section 2972, Code), and, following sections indicating its extent and providing for platting and changes. Section 2985 of the Code provides that: “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. The survivor may elect to retain the homestead for life in lieu of such share in 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.”

The exemption to the issue is not because of any homestead right they may have in the premises, but owing to the homestead right of the ancestor. Kite v. Kite, 79 Iowa, 491, 44 N. W. 716. Occupancy by the heirs is unnecessary. Johnson v. Gaylord, 41 Iowa, 362. Even a nonresident adult upon whom the descent is cast, takes his interest freed from any prior indebtedness. Maguire v. Kennedy, 91 Iowa, 272, 59 N. W. 36. Had the testator devised the property to all his sons so that each would have taken precisely as though no will had been executed it would have been exempt from the prior indebtedness of each. Moninger v. Ramsey, 48 Iowa, 368. But not necessarily because of the insertion of the clause “unless otherwise directed by will” for without that the rule prevails that when property is left to the testator's heirs in the same manner and proportion in which they would have taken were there...