Cunningham v. Gamble

Adams, Ch. J. l home«onYreasonable time. It was held in Butterfield v. Wicks, 44 Iowa, 313, that the occupancy of the homestead may be regarded as an election to hold it as a homestead, and as a waiver of the right of one-third of the entjre real estate in fee-simple, as a distributive share. While this ruling is doubtless correct, occupancy is not necessarily to be regarded as evidence of such election. If it were so, the survivor left in possession of the homestead, but desiring not to waive his or her right to the distributive share, would need to make an election to take such share instantaneously upon the death of the decedent. In our opinion, the law contemplates that the survivor shall have a reasonable time to make the election. The averment of the answer, therefore, that the plaintiff has made no election may be considered true, notwithstanding the answer admits the occupancy. 2.-: products and income. We have then to determine what are the rights of the" survivor during the reasonable time allowed to make the election. In our opinion, they differ in no respect from the rights oi the survivor after election to hold the homestead, except in regard to the tenure by which the rights are enjoyed. There must, we think, be accorded the same fulness of enjoyment before as afterward. Any other rule would give the survivor the right to but a partial enjoyment, while [48] others would have a right to a partial enjoyment also. And we cannot think that the law contemplates such a division. The right of others being subject to be terminated at any time by the election of the survivor to hold the homestead, would be of no especial value. We think that the survivor, during the reasonable time that he or she may occupy the homestead prior to election should be allowed to receive the products and income generally. It is true that if the survivor is allowed to receive the products and income of the homestead before election, and then elect to take his or her distributive share, he or she might gain something by deferring the election. But no great abuse of this kind could be practiced. Any unreasonable deferment would be held to evince an election to hold the homestead and to waive all right to a distributive share 3 _._. rule applied. Having reached the conclusion that the’survivor’s mode and extent of enjoyment prior to election are the same as after. election to hold the homestead, we come to inquire what is the extent of the survivor’s enjoyment of the homestead after election to hold. The language of the statute is that “ the survivor may continue to possess and occupy the whole homestead.” A like statute was construed in Floyd v. Mozier, 1 Iowa, 518, as giving the surviving widow the same rights to the rents and profits of the homestead as the husband had when living. She was held to be “the owner during life of such homestead,” and entitled to the rents and profits, “ to use as the head of the family,” It was also held that while the children, if there are any, may have certain interest in the rents, it is not a direct, certain, and legal interest, and she alone can maintain an action for the rents. Whether she alone could execute such lease of the premises as would give the lessee a right to open and work a new mine we need not determine. The mine in question was already opened, and was so furnished as to be in a workable condition at the time of the plaintiff’s husband’s death. That the plaintiff occupying as surviving widow may take the rents [49] of such a mine for family support, we have no doubt. Her right certainly could not be deemed less than those of a tenant for life. That such a tenant is entitled to the rents and profits of an opened mine has been repeatedly held. Billings v. Taylor, 10 Pick, 460; Moore v. Rollins, 45 Me., 498; Coats v. Cheever, 1 Cow. 460; Hoby v. Hoby, 1 Vern., 218; Stoughton v. Leigh, 1 Faust, 402. The objection that the working of such a mine is a partial destruction of the inheritance is not deemed valid. On the other hand the working of such a mine is considered a mere mode of enjoyment of the premises. The defendant cites C. & S. W. R. R. Co. v. Swing, 38 Iowa, 182; and Harkness v. Burton, 39 Iowa, 101, but in our opinion those cases are not applicable. We think that the court did not err in sustaining the demurrer to the answer, and the judgment must be Affirmed.