[Sidenote: How set off.]

The share thus allotted to her may be set off by the mutual consent of all parties interested, when such consent can be obtained, or it may be set off by referees appointed by the court. [--3647.]

[Sidenote: Application]

The application for such measurement by referees, may be made any time after twenty days and within ten years after the death of the husband, and must specify the particular tracts of land in which she claims her share, and ask the appointment of referees. [--3648.]

[Sidenote: Widow's share not affected by will.]

The widow's share cannot be affected by any will of her husband, unless she consents thereto within six months after notice to her of the provisions of the will by the other parties interested in the estate, which consent shall be entered on the proper records of the district court. [--3656.] This provision applies equally to the husband's rights under the will of the wife, and it applies to wills made before marriage, as well as to those executed after marriage. Where there is no express provision in the will that a devise to the wife is in lieu of dower, she will take her distributive share of the estate in addition to the property devised to her by will, unless the allowance of dower would be inconsistent with other provisions of the will. The devise of a life estate to a wife will not defeat her right to her distributive share in the real estate owned by the husband at the time of his death.

[Sidenote: Descent. To children.]

Subject to the rights and charges hereinbefore contemplated, the remaining estate of which the decedent died, shall, in the absence of other arrangements by will, descend in equal shares to his children.

[--3657.]

[Sidenote: Share of deceased child.]

If any one of his children be dead, the heirs of such child shall inherit his share in accordance with the rules herein prescribed in the same manner as though such child had outlived his parents. [--3658.] The mother of a child which dies while both of its parents are living cannot, upon the death of its father, claim any share in his estate, as heir of such child.

[Sidenote: Wife and parents.]

If the intestate leave no issue, the one-half of his estate shall go to his parents and the other half to his wife; if he leaves no wife, the portion which would have gone to her, shall go to his parents, [--3659.]

The one-third which the wife takes as her distributive share is all that may be held exempt from debts. The additional share of the estate which she takes in case there are no children, is subject to claims by creditors of the husband.

[Sidenote: Surviving parents.]

If one of his parents be dead, the portion which would have gone to such deceased parent, shall go to the surviving parent, including the portion which would have gone to the intestate's wife had she been living.

[--3660.]

[Sidenote: Heirs of parents.]

If both parents be dead, then the portion which would have fallen to their share, by the above rules shall be disposed of in the same manner as if they had outlived the intestate and died in the possession and ownership of the portion thus falling to their share, and so on through ascending ancestors and their issue. [--3661.]

[Sidenote: Wife and her heirs.]

If heirs are not thus found, the portion uninherited shall go to the wife of the intestate, or to her heirs if dead, according to like rules; and if he has had more than one wife who either died or survived in lawful wedlock, it shall be equally divided between the one who is living and the heirs of those who are dead, or between the heirs of all, if all are dead, such heirs taking by right of representation. [--3662.]

[Sidenote: Advancement.]

Property given by an intestate by way of advancement to an heir, shall be considered part of the estate so far as regards the division and distribution thereof, and shall be taken by such heir, towards his share of the estate at what it would now be worth if in the condition in which it was given to him. But if such advancement exceeds the amount to which he would be ent.i.tled, he cannot be required to refund any portion thereof. [--3663.] A gift to an heir by way of advancement, cannot be considered as any part of the estate for the purpose of increasing the distributive share of the widow, but is to be estimated as part of such heir's share of the property, after the allowance to the wife of her interest.

[Sidenote: Where there are no heirs.]

If there be property remaining uninherited, it shall escheat to the state. [--3665.]

[Sidenote: Illegitimate children. Inherit from mother.]

Illegitimate children inherit from the mother and the mother from the children. [--3670.] A child born at any time during lawful wedlock is presumed by the law to be legitimate, but where questions of inheritance are involved, this presumption may be overcome by proof to the contrary.

[Sidenote: Inherit from father.]

They shall inherit from the father whenever the paternity is proven during the life of the father, or they have been recognized by him as his children, but such recognition must have been general and notorious or else in writing. [--3671.] The recognition in writing need not be a formal avowal. Any writing, as by letter or otherwise, is sufficient.

For the purposes of inheritance an illegitimate child stands on exactly the same footing as if it were legitimate after it has been recognized by the father, and the birth and recognition of such child revoke a will in the same manner as the birth of a legitimate child, subsequent to the execution of the will.

[Sidenote: Father inherits from child.]

Under such circ.u.mstances, if the recognition of relationship has been mutual, the father may inherit from his illegitimate children. [--3672.]

CHAPTER IX.

HOMESTEAD AND EXEMPTIONS.

[Sidenote: Homestead exempt.]

Where there is no special declaration of the statute to the contrary, the homestead of every family, whether owned by the husband or wife is exempt from judicial sale, [--3163.] A homestead right may exist in property purchased under a bond for a deed, if payments have been made and the purchaser is in possession. Actual occupancy is necessary to invest property with the homestead character, but as the exemption right is for the benefit of the whole family and not alone of the owner, the fact that the head of the family is absent, and may even have acquired property and residence in another state with the intention of removing his family there, will not divest the homestead of its exemption right, so long as the family continues to occupy it. And the fact that the husband has abandoned the homestead will not affect the homestead right, so long as the wife and family remain in occupancy.

The homestead right may belong to one of several tenants in common of undivided property, or in a leasehold interest. It may attach to portions of a building--as where rooms or floors in a building are used for homestead purposes and the rest of the building is not so used.

Where part of a building is owned or occupied by a family as a home, and the other part is used for a different purpose, that part used as a home may be exempt, while the other portion may be sold under execution. The exemption right may be lost by the execution of a mortgage or contract expressly making the homestead liable, in which both husband and wife join; or it may be forfeited when the homestead is used as a saloon or for any other purpose in violation of the prohibitory liquor law, with the knowledge and consent of the owner, and this is true even though such unlawful use is without the consent of the wife of the owner. In such case it is subject to judgment obtained because of such illegal use. [--2419.] If the homestead is sold, the proceeds are exempt only when invested in the purchase of another homestead, but the exemption does not follow the proceeds out of the state, and where the homestead was sold and the proceeds invested in a homestead in another state, and this was afterwards sold and the proceeds again invested in a homestead in this state, it was held that the homestead exemption did not attach to the second homestead in Iowa. Removal from the homestead without intention of returning will be sufficient to forfeit the homestead right, but the length of time of absence, in itself, will not const.i.tute abandonment, so long as the intention to return exists.

[Sidenote: Family defined.]

A widow or widower, though without children, shall be deemed a family while continuing to occupy the house used as such at the time of the death of the husband or wife. [--3164.]

[Sidenote: Conveyance or inc.u.mbrance.]

A conveyance or inc.u.mbrance by the owner is of no validity unless the husband and wife, if the owner is married, concur in, and sign the joint instrument. [--3165.] Any conveyance or contract, such as a mortgage, lease, a.s.signment of contract of purchase, or any act in any manner affecting the t.i.tle or right of occupancy of the homestead by either party, will be absolutely void, unless concurred in by the other. If the consent of the wife is fraudulently obtained by the husband, the conveyance or inc.u.mbrance will be valid, unless it appears that the purchaser or mortgagee had knowledge of the fraud. A mortgage given for the purchase money will be valid though given alone by the party taking the legal t.i.tle.

[Sidenote: Liable for taxes.]

The homestead is liable for taxes accruing thereon, and if platted as hereinafter directed, is liable only for such taxes and subject to mechanics' liens for work, labor, or material, done or furnished exclusively for the improvement of the same, and the whole or a sufficient portion thereof may be sold to pay the same. [--3166.] All the taxes against the owner of the homestead become liens thereon, unless it is platted as directed by statute.

[Sidenote: Liable for debts.]

The homestead may be sold on execution for debts contracted prior to the purchase thereof, but it shall not in such case be sold except to supply the deficiency remaining after exhausting the other property of the debtor liable to execution. [--3167.] Debts contracted after the acquisition of the property, but before it has acquired the homestead character by actual occupancy, may be enforced against the property. A judgment upon a debt contracted prior to the purchase of the homestead, although such judgment is not rendered until after the property has acquired the homestead character, is a lien upon the homestead.

[Sidenote: Debts created by written contract.]

The homestead may be sold for debts created by written contract, executed by the persons having the power to convey and expressly stipulating that the homestead is liable therefor, but it shall not in such case be sold except to supply the deficiency remaining after exhausting the other property pledged for the payment of the debt in the same written contract. [--3168.] Any written contract other than a mortgage or other conveyance, will be sufficient to render the homestead liable for debts, provided it contains the necessary stipulations, and is signed by the proper parties.

[Sidenote: What const.i.tutes.]

The homestead must embrace the house used as a home by the owner thereof, and if he has two or more houses thus used by him at different times and places, he may select which he will retain as his homestead.

[--3159.] The husband may select his homestead and make the same his home without the consent of his wife, and the absence of the wife will not affect its homestead character. The fact that the husband is the legal head of the family invests him with the power of establishing his home wherever he may choose, with or without the a.s.sent of his wife. Use is essential to give property a homestead character, and an intention to occupy is not sufficient in the absence of actual residence.