Evans, J.
This is an action for the partition of real estate formerly belonging to Wm. H. H. Rice. It was [3]*3brought by his widow, Emily M. Rice, and her son, A. L. Rice; but she has died since the case was decided in the district court, and her son and administrator, A. L. Rice, has been substituted as plaintiff. In 1889 Wm. H. H. Rice made a will, by the terms of which he devised to his wife, Emily M. Rice, one-third of all the real estate of which he might died seised in lieu of her statutory share therein. In the seventh clause of said will he bequeathed to his daughter, Mrs. Ella J. Cochran, eighty acres of land “free from any lien or indebtedness whatever,” and by the eighth clause of said will he bequeathed to his son Wm. I. Rice another eighty acres of land “free from any lien or incumbrance whatever.” Both of these tracts of land were specifically described, and together they constituted the tract spoken of in the record as the one hundred and fifty-nine acres lying south of the east and west road.” At the time the will was made, and at the time of the testator’s death, he also owned what was known as the “homestead farm,” consisting of two hundred and forty-four acres just north of the road in question, and separated from the one-hundred-and-fiffy-nineacre tract by such road. The tenth clause of the will was as follows: “I hereby give and bequeath all the rest .and residue of my estate, both real and personal not heretofore bequeathed, to my said children, Mrs. Ella J. Cochran, Wm. I. Rice, and Abraham L. Rice, in equal shares, hereby intending to vest in my last-named children share and share alike, all the rest and residue of my estate in .fee simple absolutely not heretofore conveyed to my legatee.” Ella J. Cochran and Wm. I. Rice were children by a former wife, while Abraham L. Rice was his son by his then wife, Emily M. Rice. In the twelfth clause of the will this was said: “My beloved son Abraham L. Rice being the only son of my wife Emily M. Rice and the heir to the estate by me hereby bequeathed to her is the reason why I make no further provision for him [4]*4than I have in this my last will and testament.” No change was ever made in this will, but on the 19th of March, 1900, the testator executed and delivered to Ella J. Cochran and Wm. I. Nice separate warranty deeds, conveying to each of them the specific land that was bequeathed to them by the seventh and eighth clauses of his will. On the same day that these two conveyances were made, Ella J. Cochran and her husband conveyed by warranty deed to Wm. I. Nice the eighty that had just been conveyed to her by her father. In December, 1892, Wm. H. II. Nice executed and delivered to Wm. I. Nice a writing wherein he referred to his will of 1889 and the bequest of the eighty acres therein described to Wm. I. Nice, and agreed that, in case the purpose of his will was not so carried out as to give Wm. I. Nice the eighty devised to him, the value of the improvements placed thereon by said son was to be a claim against his estate, and it was further said therein: “But if said W.- I. Nice receive said land by bequest as contemplated and intended and provided in my said will then this agreement shall become void and of no effect either in law or equity.” The wife, Emily M. Nice, did not join in the deeds from her husband to Ella J. Cochran and Wm. I. Nice; and it is conceded that she retained her statutory interest in the land at the time suit was brought, she having declined to take under the will. The widow’s share in the two tracts named were set apart from the two-hundred and forty-four-acre tract and included the buildings, and, by taking her interest in the one-hundred and fifty-nine-acre tract from the two-hundred and forty-four-acre tract, two-thirds of the residue of which was given to A. L. and W. .1. Nice and Mrs. Cochran by the will, A. L. Nice was compelled to contribute to the satisfaction of the widow’s interest in the one-hundred and fifty-nine-acre tract.
The appellants claim that the widow had the right to take her statutory interest in the one-hundred and fifty-[5]*5nine-acre tract from that tract, and that the same should be set apart to her without reference to her interest in the land north of the road; but, if that is not done, that her share of the one hundred and fifty-nine acres should be charged against only the interests of Wm. I. Nice and Ella J. Cochran in the two-hundred and forty-four-acre tract.
signme'nt from a porestatef the At common law it was the general rule that the widow was entitled to have her dower assigned in the several parcels in which she held the same, and the only exception to this rule was made in specific instances when the husband died seised; and in O'Ferrall v. Simplot, 4 Iowa, 381, we held that, when the husband had conveyed one of several parcels to which dower attached, the widow could not be compelled to take from one parcel alone. The decision in that case rests largely upon the thought that the widow should not be .required to take.in such way as to endanger her interest, and such is undoubtedly the law; but in subsequent cases this court held that the widow’s interest might be assigned in one tract,. when it could be done without injury to such interest. Montgomery v. Horn, 46 Iowa, 286; Jones v. Jones, 47 Iowa, 338. It is true that in both of the cases just referred to the husband died seised of the several tracts; but, as the statute (Code, section 3366) provides that “one-third in value” shall be set apart to the widow, we see no reason why the interest in several tracts may not be assigned from so much of one or more tracts as will in fact constitute one-third in value of the whole. If this can be done without in any way diminishing the estate of the widow, she surely can not complain.
[6]*62. Wills: satisfaction of devise by subsequent conveyance: assignment of dower. [5]*5II. That Ella J. Cochran and W. I. Nice acquired title to the land described in the seventh and eighth-clauses of the will by conveyance, and not through the ■will, can not be questioned. The execution of the deeds [6]*6satisfaction of the will, and thereafter there constituted a was no property to pass under said clauses. Hall v. Hall, 132 Iowa, 664; In re Will of Miller, 128 Iowa, 612; Davis v. Close, 104 Iowa, 261. This is in accord with the contention of appellants, and is conceded We are therefore relieved of the necessity paragraphs seven and eight of the will. We see no way, however, to avoid giving effect to these conveyances strictly in accord with their terms". They were warranty deeds with full covenants. So far as the estate itself and the beneficiaries of the will are concerned, these deeds carried to the grantees The full and complete title to the tracts therein described. Only the widow can ignore them. And she is in no position to do so if her “one-third in value” can be set apart without prejudice to her in the remaining real estate owned by the decedent at the time of his death. The devisees of the will can stand in no better position than the testator himself occupied after making such conveyances. If the warranty deeds were complete and binding as to him, they are clearly so as to his devisees. It is argued that the remedy of grantees would be an action for damages for breach of covenants, and that they could recover therein only nominal damages, because the deeds were executed as a gift of the land. But the grantees are not bound to resort to an action for damages.
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Evans, J.
This is an action for the partition of real estate formerly belonging to Wm. H. H. Rice. It was [3]*3brought by his widow, Emily M. Rice, and her son, A. L. Rice; but she has died since the case was decided in the district court, and her son and administrator, A. L. Rice, has been substituted as plaintiff. In 1889 Wm. H. H. Rice made a will, by the terms of which he devised to his wife, Emily M. Rice, one-third of all the real estate of which he might died seised in lieu of her statutory share therein. In the seventh clause of said will he bequeathed to his daughter, Mrs. Ella J. Cochran, eighty acres of land “free from any lien or indebtedness whatever,” and by the eighth clause of said will he bequeathed to his son Wm. I. Rice another eighty acres of land “free from any lien or incumbrance whatever.” Both of these tracts of land were specifically described, and together they constituted the tract spoken of in the record as the one hundred and fifty-nine acres lying south of the east and west road.” At the time the will was made, and at the time of the testator’s death, he also owned what was known as the “homestead farm,” consisting of two hundred and forty-four acres just north of the road in question, and separated from the one-hundred-and-fiffy-nineacre tract by such road. The tenth clause of the will was as follows: “I hereby give and bequeath all the rest .and residue of my estate, both real and personal not heretofore bequeathed, to my said children, Mrs. Ella J. Cochran, Wm. I. Rice, and Abraham L. Rice, in equal shares, hereby intending to vest in my last-named children share and share alike, all the rest and residue of my estate in .fee simple absolutely not heretofore conveyed to my legatee.” Ella J. Cochran and Wm. I. Rice were children by a former wife, while Abraham L. Rice was his son by his then wife, Emily M. Rice. In the twelfth clause of the will this was said: “My beloved son Abraham L. Rice being the only son of my wife Emily M. Rice and the heir to the estate by me hereby bequeathed to her is the reason why I make no further provision for him [4]*4than I have in this my last will and testament.” No change was ever made in this will, but on the 19th of March, 1900, the testator executed and delivered to Ella J. Cochran and Wm. I. Nice separate warranty deeds, conveying to each of them the specific land that was bequeathed to them by the seventh and eighth clauses of his will. On the same day that these two conveyances were made, Ella J. Cochran and her husband conveyed by warranty deed to Wm. I. Nice the eighty that had just been conveyed to her by her father. In December, 1892, Wm. H. II. Nice executed and delivered to Wm. I. Nice a writing wherein he referred to his will of 1889 and the bequest of the eighty acres therein described to Wm. I. Nice, and agreed that, in case the purpose of his will was not so carried out as to give Wm. I. Nice the eighty devised to him, the value of the improvements placed thereon by said son was to be a claim against his estate, and it was further said therein: “But if said W.- I. Nice receive said land by bequest as contemplated and intended and provided in my said will then this agreement shall become void and of no effect either in law or equity.” The wife, Emily M. Nice, did not join in the deeds from her husband to Ella J. Cochran and Wm. I. Nice; and it is conceded that she retained her statutory interest in the land at the time suit was brought, she having declined to take under the will. The widow’s share in the two tracts named were set apart from the two-hundred and forty-four-acre tract and included the buildings, and, by taking her interest in the one-hundred and fifty-nine-acre tract from the two-hundred and forty-four-acre tract, two-thirds of the residue of which was given to A. L. and W. .1. Nice and Mrs. Cochran by the will, A. L. Nice was compelled to contribute to the satisfaction of the widow’s interest in the one-hundred and fifty-nine-acre tract.
The appellants claim that the widow had the right to take her statutory interest in the one-hundred and fifty-[5]*5nine-acre tract from that tract, and that the same should be set apart to her without reference to her interest in the land north of the road; but, if that is not done, that her share of the one hundred and fifty-nine acres should be charged against only the interests of Wm. I. Nice and Ella J. Cochran in the two-hundred and forty-four-acre tract.
signme'nt from a porestatef the At common law it was the general rule that the widow was entitled to have her dower assigned in the several parcels in which she held the same, and the only exception to this rule was made in specific instances when the husband died seised; and in O'Ferrall v. Simplot, 4 Iowa, 381, we held that, when the husband had conveyed one of several parcels to which dower attached, the widow could not be compelled to take from one parcel alone. The decision in that case rests largely upon the thought that the widow should not be .required to take.in such way as to endanger her interest, and such is undoubtedly the law; but in subsequent cases this court held that the widow’s interest might be assigned in one tract,. when it could be done without injury to such interest. Montgomery v. Horn, 46 Iowa, 286; Jones v. Jones, 47 Iowa, 338. It is true that in both of the cases just referred to the husband died seised of the several tracts; but, as the statute (Code, section 3366) provides that “one-third in value” shall be set apart to the widow, we see no reason why the interest in several tracts may not be assigned from so much of one or more tracts as will in fact constitute one-third in value of the whole. If this can be done without in any way diminishing the estate of the widow, she surely can not complain.
[6]*62. Wills: satisfaction of devise by subsequent conveyance: assignment of dower. [5]*5II. That Ella J. Cochran and W. I. Nice acquired title to the land described in the seventh and eighth-clauses of the will by conveyance, and not through the ■will, can not be questioned. The execution of the deeds [6]*6satisfaction of the will, and thereafter there constituted a was no property to pass under said clauses. Hall v. Hall, 132 Iowa, 664; In re Will of Miller, 128 Iowa, 612; Davis v. Close, 104 Iowa, 261. This is in accord with the contention of appellants, and is conceded We are therefore relieved of the necessity paragraphs seven and eight of the will. We see no way, however, to avoid giving effect to these conveyances strictly in accord with their terms". They were warranty deeds with full covenants. So far as the estate itself and the beneficiaries of the will are concerned, these deeds carried to the grantees The full and complete title to the tracts therein described. Only the widow can ignore them. And she is in no position to do so if her “one-third in value” can be set apart without prejudice to her in the remaining real estate owned by the decedent at the time of his death. The devisees of the will can stand in no better position than the testator himself occupied after making such conveyances. If the warranty deeds were complete and binding as to him, they are clearly so as to his devisees. It is argued that the remedy of grantees would be an action for damages for breach of covenants, and that they could recover therein only nominal damages, because the deeds were executed as a gift of the land. But the grantees are not bound to resort to an action for damages. We see no ground for holding that they may not maintain their possession and ownership under their deeds and in accordance with the terms thereof, subject only to the contingency that the widow might resort to the conveyed lands if necessary to the protection of her rights. Surely, if the grantees were purchasers for value, equity would protect them in their purchase to the extent that it would require the widow to take her one-third value in the remaining lands if it could be done without prejudice to her. We see no logical way by appellees, of construing [7]*7of escape from applying the same rule, even though the conveyances were intended by the grantor as completed gifts. Even then the form of the conveyance must be considered as evincing the intent of the testator that the widow’s share should be taken in the remaining lands, if possible. The devisees of the estate are in no position to ignore the deeds-. We must hold, therefore, that the grantees in the deeds in question as between them and their grantor, and as between them and his estate and its beneficiaries, took full title in accord with the terms of the instruments. It being made to appear, also, that the widow can take her share out of the remaining lands without prejudice to her, it follows- that she must be required to do so. This was the result reached by the trial court at this point, although reached by a different course.
The question has been argued whether the devise contained in the tenth clause of the will was a specific devise. The question is a debatable one, but, in the view we take of the case, we have no occasion to determine it. Even if it should be regarded as a specific devise, it could not change the effect of the warranty deeds referred to. We hold that the residue of the two hundred and forty-four acres over and above the widow’s full dower interest carved therefrom should be equally divided among the three children, and this was the finding of the trial court as above indicated.
3. Rights of widow: waiver of homestead assignment of dower: statute. III. Land was set apart to the widow upon which was situated the dwelling house given by law to the homestead. Of this complaint is made; the appellants contending that, under the provisions of section 3361 of the Code, she had the right to elect what land should be assigned to her, inasmuch as there were no- debts of the decedent. The section in question is as follows: “The distributive share of the survivor shall be set off so as to include the ordinary dwelling house given by law to [8]*8the 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 such arrangement shall be permitted unless there be sufficient property remaining to pay the debts of the decedents.” The primary intent of this section is to protect and favor tke widow to tke extent of allowing her to continue in the use and occupancy of the homestead if she so desires; but she may waive this right, and, if she does so^ the statute under consideration clearly gives her the right to take her share from a portion of the property which does not include tke dwelling house given by law to the homestead. It does not in our judgment, however, permit her to dictate absolutely the different arrangement or to arbitrarily name the particular portion that shall be set off to her regardless of tke otker interests. Ske may, of course, indicate tke arrangement that she prefers, but the final determination of the question rests with the court. Wright v. Breckenridge, 125 Iowa, 197; Edinger v. Bain, 125 Iowa, 391. There was error in compelling the widow to take a share which included the dwelling house.
4. Assignment of dower: apportionment in kind: sale of property. It is urged by appellee that it was impossible to make an equitable division in kind of the two hundred and forty-four acres without including tke dwelling house in the share of the widow. It is true -that the evidence tends to show that tke improvements in question were adapted in size to the use of -the farm of two hundred and forty-four acres. It appears, also, from the testimony that, if the widow’s full share is awarded to her .in kind outside of tke dwelling house and its appurtenances, it would only leave fifty or sixty acres with the dwelling house to be divided among the three residuary legatees. It is claimed that a division of that kind including the dwelling house would be impracticable between the three residuary devisees, because the dwelling would have to be included [9]*9in some share. Manifestly this could not be done without reducing the acreage of such share, and the buildings could not have a normal value without a reasonable acreage of land appurtenant to them. This argument appeals to us as a strong reason why none of the residuary devisees should be required to take the dwelling. It furnished, also, a reasonable ground of objection by the widow against including the same in her share, although it would involve a less degree of hardship to her than to the others. This argument does not furnish a sound reason why the widow should be compelled to take the dwelling house. It does furnish a reason why the lower court should order a sale of the tract, either in whole or in part, in lieu of a partition in kind. If a division in kind is not practicable without a sacrifice of value in the improvements, the lower court has full power to deal with the situation as it 'is, and to order a sale in whole or in part, as the best interests of the parties require. This action is in partition, and our statutes on that subject are applicable thereto. Nor the error pointed out. in requiring the widow to take the dwelling house, the decree of the trial court is reversed, and the cause is remanded, with full power to the trial court to deal with the case in harmony with this opinion, including the power to take further evidence if necessary, and to order a partition sale of the two hundred and forty-four acres if he be so advised.
Reversed and remanded.
Sherwin, I.
I can not agree with the conclusion reached by the majority in the second division of the opinion.