Smith v. Zuckmeyer
| Citation | 53 Iowa 14,3 N.W. 782 |
| Parties | B. F. SMITH, APPELLEE, v. JACOB ZUCKMEYER, APPELLANT. |
| Decision Date | 15 December 1879 |
| Court | United States State Supreme Court of Iowa |
OPINION TEXT STARTS HERE
Appeal from Winneshiek circuit court.
Sarah B. Eaton was the owner in fee of certain real estate in the city of Decorah, less than one-half acre in extent. She died intestate, and without issue, on the twenty-first day of February, 1876, leaving her husband and her two sisters as her heirs. Her father and mother were dead, and she never had any other sisters, nor any brother. For 10 years before her death she and her husband, H. H. Eaton, used and occupied the said premises as their homestead. After her death the said H. H. Eaton continued to occupy the said real estate as a homestead, and under a claim of homestead right therein as against the creditors of his wife, his own creditors, and all other persons, he elected to retain the said homestead for life.
On the thirty-first day of March, 1877, he executed and delivered to the defendant herein a quitclaim deed for said premises, and at that time abandoned the same as a homestead. On the thirtieth day of March, 1878, the two surviving sisters of Sarah B. Eaton executed and delivered to the plaintiff herein a quitclaim deed for said premises. The cause was submitted to the court below upon the foregoing agreed facts, and the question to be determined was the right of the respective parties in the said real estate. The court determined that the plaintiff was the owner in fee, and the defendant appeals.Willett & Willett for appellant.
E. E. Cooley for appellee.
It is provided by section 2008 of the Code that * * *”
H. H. Eaton, the surviving husband, elected to retain the homestead in lieu of his distributive share. Having thus elected, his distributive share, whatever that may have been, was relinquished. He could not have both. Butterfield v. Wicks, 44 Iowa, 310;Meyer v. Meyer, 23 Iowa, 359.
In Butterfield v. Wicks, it was held that such occupancy of the homestead was a mere personal right, which could not be the subject of a mortgage, because, upon a foreclosure of the mortgage and eviction of the mortgagor, the homestead right would cease, and the property would pass unencumbered to the heir. For the same reason a conveyance by and a surrender of the possession would confer no valuable right. The homestead right would cease by abandonment. See Smith v. Eaton, June Term, 1879, 50 Iowa, 488.
What is the distributive share which was thus surrendered for the homestead, is the question to be determined. Its definition is found in the following sections of the Code:
“2440. One-third in value of all the legal or equitable estates in real property, possessed by the husband at any time during the marriage, which has not been sold on execution, or any other judicial sale, and to which the wife has made no relinquishment of her right, shall be set apart as her property in fee simple if she survive him. The same share of real estate of a deceased wife shall be set apart to the surviving husband. * * * *
2441. The distributive share of the widow shall be so set off as to include the ordinary dwelling-house given by law to the homestead, or so much thereof as will be equal to the share allotted to her by the last section, unless she prefers a different arrangement.”
There would be no difficulty whatever in determining the question if the deceased wife left issue surviving her. In that case the husband's whole interest in the estate would have been one-third, as provided in section 2440; and section 2008 provides, in plain and explicit terms, that the survivor may elect to retain the homestead for life in lieu of such share. But where there is no surviving issue, there are other sections of the statute which seem to us to have an important bearing upon the question.
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