Robinson, J.
In September, 1891, Jane Coulson, a resident of Clay county, died intestate. Her husband anld ten children, the youngest of whom was more than twenty-one years of age, survived her. An administrator of her estate was appointed, who commenced this proceeding,for an order authorizing the sale of a tract of one hundred and sixty acres of land ini Clay county, for the payment of debts against the estate, on the ground that the personal property was not sufficient for that purpose. Notice of the application was served on the husband, children, and one John R. Lemon, all of whom appeared and joined in an answer to the application. . It appears that the tract in question comprised all the land of which Mrs. Coulson died seised, and that it included the homestead of herself and her husband. After her death her children conveyed their interest in the land to her [698] husband, he sold, and conveyed the land to the appellant, and she conveyed it to Lemon. The husband continued to occupy the homestead for about a month after the death of hisl wife. Since that time it hasi not been occupied as a place of residence by the husband, by any of the heirs, nor by any of their grantees. The answer filed alleged! that the husband had elected to take his ■ distributive share of the land under the statute, in lieu of his right to occupy the homestead; that neither the homestead nor any distributive share in the land had been admeasured, nor in any manner apportioned; that the husband was entitled to an undivided one-third of the land, which could not be subjected to the payment of the debts of the decedent; that the homestead descended to the children free from liability for such debts, and discharged of all claims by the father; that the children became seised of the remainder of the land, subject only to the debts of .the decedent; and that by the conveyances alleged all the interests thus acquired vested in Lemon. The answer asked that the homestead and one-third part of the land, not to include the homestead, be ascertained, and) not sold, but set apart for Lemon, and, if the remainder of the land should be sold, that so much of the proceeds as should remain after the payment of debts and costs be paid to him. The court ordered the sale of the entire tract of land, and it was sold, accordingly, for the sum of two thousand four hundred dollars. The value of the homestead was seven hundred dollars. In February, 1893, the administrator made his report of the sale, and submitted with it, for approval, a deed to the purchaser. The report and deed were approved without objection on the part of any one. Thereafter, two motions were filed by Lemon, the husband of the decedent, and her children. The first one asked that one-third of the gross proceeds of the sale be paid to Lemon. The [699] other asked that the value of the homestead be also paid to him. Objections to the motions were filed by the administrator. The court sustained the first motion, and ordered the payment of eight hundred dollars to Lemon, but overruled the second one. Lemon afterward assigned his interest in the estate to lone Coulson, and she appeals from so much of the order of the district court as denied the application for the payment of the value of the homestead to Lemon.
1 The question we are required to determine may be stated as follows: When the owner of a homestead and of other real estate dies intestate, leaving a surviving husband or wife, and issue, and the survivor abandons the. homestead, and elects to take of the real estate the distributive share, as provided by law, may that share be so taken as not to include the homestead, and the homestead be permitted to descend to the issue of the deceased spouse free from ail liability for the debts of the decedent?
Sections 2007 and 2008 of the Code are as follows:
“Sec. 2007. Upon the death of either husband or wife, the survivor may continue to possess and occupy the whole homestead until it is otherwise disposed of according to law.
“Sec. 2008. The setting off of the distributive share of the husband 'or wife in the real estate of the deceased, shall be such a disposal of the homestead as is contemplated in the preceding section.. But the survivor may elect to retain the homestead for life in lieu of such share in the real estate of the deceased, but if there be no such survivor the homestead descends to the issue of either husband or wife according to the rules of descent, unless otherwise directed by will, and is to be held by such issue exempt from any antecedent debts of their parents or their own.”
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Robinson, J.
In September, 1891, Jane Coulson, a resident of Clay county, died intestate. Her husband anld ten children, the youngest of whom was more than twenty-one years of age, survived her. An administrator of her estate was appointed, who commenced this proceeding,for an order authorizing the sale of a tract of one hundred and sixty acres of land ini Clay county, for the payment of debts against the estate, on the ground that the personal property was not sufficient for that purpose. Notice of the application was served on the husband, children, and one John R. Lemon, all of whom appeared and joined in an answer to the application. . It appears that the tract in question comprised all the land of which Mrs. Coulson died seised, and that it included the homestead of herself and her husband. After her death her children conveyed their interest in the land to her [698] husband, he sold, and conveyed the land to the appellant, and she conveyed it to Lemon. The husband continued to occupy the homestead for about a month after the death of hisl wife. Since that time it hasi not been occupied as a place of residence by the husband, by any of the heirs, nor by any of their grantees. The answer filed alleged! that the husband had elected to take his ■ distributive share of the land under the statute, in lieu of his right to occupy the homestead; that neither the homestead nor any distributive share in the land had been admeasured, nor in any manner apportioned; that the husband was entitled to an undivided one-third of the land, which could not be subjected to the payment of the debts of the decedent; that the homestead descended to the children free from liability for such debts, and discharged of all claims by the father; that the children became seised of the remainder of the land, subject only to the debts of .the decedent; and that by the conveyances alleged all the interests thus acquired vested in Lemon. The answer asked that the homestead and one-third part of the land, not to include the homestead, be ascertained, and) not sold, but set apart for Lemon, and, if the remainder of the land should be sold, that so much of the proceeds as should remain after the payment of debts and costs be paid to him. The court ordered the sale of the entire tract of land, and it was sold, accordingly, for the sum of two thousand four hundred dollars. The value of the homestead was seven hundred dollars. In February, 1893, the administrator made his report of the sale, and submitted with it, for approval, a deed to the purchaser. The report and deed were approved without objection on the part of any one. Thereafter, two motions were filed by Lemon, the husband of the decedent, and her children. The first one asked that one-third of the gross proceeds of the sale be paid to Lemon. The [699] other asked that the value of the homestead be also paid to him. Objections to the motions were filed by the administrator. The court sustained the first motion, and ordered the payment of eight hundred dollars to Lemon, but overruled the second one. Lemon afterward assigned his interest in the estate to lone Coulson, and she appeals from so much of the order of the district court as denied the application for the payment of the value of the homestead to Lemon.
1 The question we are required to determine may be stated as follows: When the owner of a homestead and of other real estate dies intestate, leaving a surviving husband or wife, and issue, and the survivor abandons the. homestead, and elects to take of the real estate the distributive share, as provided by law, may that share be so taken as not to include the homestead, and the homestead be permitted to descend to the issue of the deceased spouse free from ail liability for the debts of the decedent?
Sections 2007 and 2008 of the Code are as follows:
“Sec. 2007. Upon the death of either husband or wife, the survivor may continue to possess and occupy the whole homestead until it is otherwise disposed of according to law.
“Sec. 2008. The setting off of the distributive share of the husband 'or wife in the real estate of the deceased, shall be such a disposal of the homestead as is contemplated in the preceding section.. But the survivor may elect to retain the homestead for life in lieu of such share in the real estate of the deceased, but if there be no such survivor the homestead descends to the issue of either husband or wife according to the rules of descent, unless otherwise directed by will, and is to be held by such issue exempt from any antecedent debts of their parents or their own.”
[701] 2 [700] It appears that there were tax, mortgage, and judgment liens on the land sold, to the amount of more than one thousand dollars. Those liens do not include all the claims against the estate. Therefore, if the relief demanded by the appellant be granted, the portion of the estate remaining at the disposal of the administrator will not be sufficient to pay the debts of the estate. It is the theory of the appellant that the right of the husband to occupy the homestead during his lifetime was possessory only, and that the title in fee to. the homestead descended to the children, .subject only to the possessory right of the husband, and that when he abandoned that right the title of the children was free from all incumbrance. There is no. doubt that, when the distributive share of the husband is set apart in other property than the homestead, his right in that is at an end. Burdick v. Kent, 52 Iowa, 585 (3 N. W. Rep. 643). It was. held in Johnson v. Gaylord, 41 Iowa, 362, that, when the sur-¡ vivor terminates, his right to the homestead by abandonment, this homestead character is not terminated, but-the homestead descends to the children free from the debts of the deceased owner. . That decision was based upon section 2296 of the Revision of 1860. An amendment was incorporated in section 2008 of the Code,, which includes section 2296 of the Revision of 1860, but it was designed to determine what should be such a disposal of the homestead as would terminate thle right of the survivor to possess and occupy it. Hornbeck v. Brown, 91 Iowa, 316 (59 N. W. Rep. 33). The amendment does not affect the character of the homestead when it descends to the children of the deceased owner. In Kite v. Kite, 79 Iowa, 491 (44 N. W. Rep. 716), it was held that the widow of the deceased owner of a homestead was entitled to one-third of his real estate, that she could not be compelled by creditors of his children to accept her share [701] exclusively from the proceeds of the homestead, and that the interest of the children in such homestead was exempt from seizure for the payment of their debts. Section 2441 of the Code provides that “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. But no' different arrangement shall be permitted where it would have the effect of prejudicing the rights of creditors.” It was said of this provision, in Mock v. Watson, 41 Iowa, 246, that it did not make the right of the widow subordinate to that of creditors; and that rule was applied to creditors of the children in Kite v. Kite, supra. The right of a surviving husband is made, in that respect, by, section 2440 of the Code, the same as that of a surviving wife. It is settled, also, that the homestead is exempt, in the hands of the children, even though they do not occupy it, and they may sell it, and the proceeds may also be exempt. The decisions to which we have referred authorize the conclusion that the surviving husband or wife may elect to take a distributive share of the real estate of the deceased spouse, which shall not include the homestead which was owned by the decedent; that creditors cannot prevent such an apportionment; and that when it is made the homestead will descend to the issue of the decedent, and retain its exempt character in their hands. Applying this conclusion to the facts in this case, it follows that the husband was entitled to one-third of the proceeds of the real estate in question, or eight hundred dollars; that the children of the deceased wife, or their assignee, was entitled to the value of the homestead, or to seven hundred dollars, and that the remainder only should have [702] been placed under the control of the executor. The judgment of the district court is reversed.