Southwick v. Strong, 42512.

• Decision Date: 23 June 1934
• Docket Number: No. 42512.,42512.
• Citation: 255 N.W. 523,218 Iowa 435
• Parties: SOUTHWICK et al. v. STRONG et al.
• Court: Iowa Supreme Court

218 Iowa 435

255 N.W. 523

SOUTHWICK et al.

v.STRONG et al.

No. 42512.

Supreme Court of Iowa.

June 23, 1934.

Appeal from District Court, Marshall County; B. O. Tankersley, Judge.

Appellant interveners sought to enforce their demands against the estate of a decedent against the homestead of the decedent which passed under the laws of descent and distribution to the widow and children of the decedent. The trial court dismissed the petitions of intervention. Interveners appeal.

Affirmed.

W. T. Bennett, of Marshalltown, for appellants.

Roy L. Pell, of Marshalltown, for appellees.

CLAUSSEN, Chief Justice.

S. R. Strong died owning about 38 acres of land in Marshall county. He was 92 years of age at the time of his death. He died intestate leaving a widow and a number of adult children surviving him. Administration was not taken out on his estate. This action was begun for the purpose of partitioning the land. In due time the widow was allotted a part of the land, including that part upon which the buildings were situated, as her distributive share of her husband's estate, the shares of the surviving children in the remainder of the land were established, and such remainder was sold. Before the proceeds of the sale of the land were distributed, interveners filed separate petitions of intervention asking that claims for medical services rendered by them to decedent be established as liens against the land. The trial court found the land to have been decedent's homestead and dismissed the petitions of interveners. Interveners appeal. No complaint is made of any of the proceedings except the action of the trial court in finding that the property was the decedent's homestead and in dismissing interveners' petitions.

The appeal raises two questions: First, Was the real property decedent's homestead? and, second, Was the property exempt from interveners' demands in the hands of the widow and children?

[1] I. The record reveals that the decedent had lived upon and farmed the land in question until four or five years before his death. The tract embraced less than 40 acres of land, and was, at one time, decedent's homestead. Shortly before leaving the farm he sustained fractures of one or more ribs. These fractures required frequent medical attention. In order that he might be closer to his doctor, he and his wife, whom he had married in 1923, moved to town and occupied a house belonging to his wife's son. He left his live stock and implements upon the farm in care of a son, to whom he rented the land. The record establishes without dispute that at the time the decedent moved off the land he intended to return to it as soon as he recovered from his injury, and that he never abandoned such intention. In this situation the land did not lose its homestead character. Maguire v. Hanson, 105 Iowa, 215, 74 N. W. 776;Schaffner v. Campbell, 198 Iowa, 43, 199 N. W. 334;Rand Lumber Co. v. Atkins, 116 Iowa, 242, 89 N. W. 1104;Boot v. Brewster, 75 Iowa, 631, 36 N. W. 649, 9 Am. St. Rep. 515.

[2] II. The widow was entitled to take one-third in value of the tract of land in question as her dower or distributive share. Code, § 11990. She was entitled to have her share set off so as to embrace the buildings. Code, § 11992. Such share passed to her free from...