McGlothlen v. Hite

1. Dower: mortgage: homestead. The homestead of a decedent, set apart to his widow as a part of her distributive share of his estate, is not subject in her hands to a mortgage executed by herself and her husband during his lifetime upon that and other property, unless the other property covered thereby is insufficient for its payment. Following Wilson v. Hardesty, 48 Iowa, 515. 2. -■: --■. Where the widow’s distributive share, however, includes other property covered by the mortgage, in addition to the homestead, such property is primarily liable for the mortgageclebt, of which it must, as between the widow and the heirs, bear its proportionate share. Beck, J., dissenting.

Appeal from Polk Gwouii Cowrt. Action by plaintiff as widow of J. D. McGlothlen, deceased, intestate, to obtain an assignment of her distributive share in the land belonging to his estate. The heirs of the intestate and administrator are made defendants. The land in question consists of section twenty-seven, in township seventy-eight, range twenty-three west. The north-west one-fourth of the southwest one-fourth was occupied by the plaintiff as her homestead. The" whole section was covered by a mortgage executed by the plaintiff and her husband, and given to secure the sum of $7,000. The property mortgaged is worth about $15,000. The court set out to plaintiff, as her distributive share, the homestead forty acres, and about one hundred and thirty-five acres in addition, the same being supposed to be one-third in value of the entire section, estimated as if there was no incumbrance. The court ordered (as the parties seem to assume, though the decree'ls’^rirtrfcfev.obscure), that the homestead forty acres shouldjiat-he liable for the payment of 1mv~T7art of the mortgage unless the remainder of the mortgaged property should prove insufficient, and that the plaintiff should be entitled to the land set off to her outside of the homestead as part of her distributive share, upon paying such proportion, of the mortgage as the value_jhLher share, exclusive of the homesteacTH^re fa> the value of the whole section exclusive of the homestead. . TETplaintiff excepted to the order in that it did not provide that the mortgaged property, exclusive of her distributive share, should, as between her and the heirs, be deemed primarily liable, and her distributive-share secondarily liable, and she further excepted to the order'in that it did not fix a specific sum to be paid by her if her distributive share, exclusive of the homestead, was to be held primarily liable. The defendants excepted to the order in that it provided that the homestead forty acres should, as between her and the heirs, be deemed secondarily liable. Both plaintiff and defendants appeal.