Woodward, J.
— The leading points in this case have been settled by that of Claussen v. Le Franz, 1 Iowa, 228, which was very much like the present one in its main and essential features. The widow of Burmeister appropriated certain funds of the estate, consisting principally or entire[144]*144ly of .money belonging to the deceased, to the completion of certain contracts for the purchase of real property, which were outstanding at the death of her husband, and took the title in her own name. Afterwards she married LeEranz, and claimed the property as her own, as she was entitled by law to a portion of the estate, which portion, she urged, was applied to these payments. It was determined that she hold the title thus acquired in trust for the heirs at law, to be treated and disposed of as the law directs.
The widow of a deceased cannot thus settle the estate of her husband — make distribution and appropriation as to her seems right — and take titles to herself, and make the property her own. She becomes an executor de son tort. It is true, that she is entitled to a share in personal property, with the children, and this becomes her own absolutely. And a certain description of property is not to be accounted assets for the payment of debts, but remains for the benefit of herself and the family, until disposed of according to law. It has not been decided what rights exist under this provision, nor does the present case call for a close examination of this question, but it seems clear that she does not become the absolute owner of the property thus appropriated. So much was recognized as the law, in the cases of Wilmington, Adm’r v. Sutton, post, and in Wilmington, Adm’r, v. Goff, at the present term of this court.
But it is immaterial what may be the rights of the widow in this respect, and a discussion of them is not of place, because whatever they may be, she is not the proper judge. She cannot assume to decide them, and administer the estate. This must be done in the manner, and by the tribunal, directed by the law. The law requires all this property to be inventoried, that the court, representing the law, and all interested, may know what there is, and what is due to each, and make the proper distribution, and hold the proper persons accountable. Any other [145]*145mode of proceeding would leave the minor and the absent to the mercy of others. Although a widow, or ah heir, is entitled to a definite portion, and though this may be well determined, yet neither can put his hand into the purse of the deceased, and judge and administer for himself. Still less, may she talce that which belongs to herself and others jointly, and which, at her death, would belong to others entirely, and invest it, and call the proceeds exclusively her own.
The only circumstance in this ease, which may possibly cause it to differ in principle from that of Claussen v. La-Franz, supra, or which seems to present any difficulty, is that the two heirs, Mary and Sarah, the wives of the grantors, join in the deeds of their husbands. Apprehensions have been entertained by members of the legal profession, that trouble might arise from the too frequent practice of joining the wife with the husband in the body of a deed, when the conveyance is of his land, and she intends only to release the right of dower, instead of causing her to appear only in that part technically termed the “ in testimonium” The latter is certainly the safer, and therefore the better practice, especially as it much more truly expresses the real intent. The former mode — her joining in the body- — has led to serious questions: such as whether she is bound by the covenants, and whether she is barred of a subsequently acquired title. Courts have held that she is not bound by the covenants, and perhaps, also, that she is not barred of an after acquired title. Rut how do they come at such conclusion % The form of the deed is such as, in the case of other persons, carries all the grant- or’s right, and bars the future. They must either look upon the release of dower in the conclusion of the deed, as sufficient evidence of the intent, or else they look beyond the deed, to inquire whether the land conveyed belonged to the husband or the wife, and in the former case, treat it as only a release of dower. In strictness, neither of these courses is consistent with the rules of law, but [146]*146courts have been led to their adoption by the hardness of the case.
Under the practice alluded to, it is not an idle quesúon. TIow do we know whether a conveyance signed by a feme covert, with her husband, is her deed or his; that is, whether he or she is the principal grantor in it, and whether she is to be held bound. The answer to this must be found in one of the methods above referred to. This question, and the answer to it, have a bearing upon the deeds of conveyance in the present case. Here we are aided, however, more than is the case sometimes. There is the relinquishment of dower, which is wholly superfluous, if the wife is making a conveyance of a substantial interest. But, besides this, the deeds are presented accompanied by much explanatory matter, which shows that it was the husband’s interest and title which was purchased, and that the consideration was the original one existing between him and the deceased, and no new one moving the wife. So that, if courts have heretofore been correct in the manner of arriving at the conclusion, that a given deed was that of the husband, and that the wife intended only to release her jwssibility of dower, much more aré we justified in declaring, in the present instance, that the deeds were those of the husbands, and that the wives relinquished the dower right only.
But if this manner of viewing the subject is not entirely correct, there is another which, in our opinion, must settle it for this case. Admitting that the deeds are the deeds of the wives, as well as of the husbands, such relations and facts are disclosed respecting them, as take away their binding force in equity: First. There is the leading thought, before expressed, that the widow cannot thus assxime to settle the estate, and invest its means in realty for her sole use. Her very act of purchasing with those means, though she purchases from the heir himself, situated as these were, was a purchase to their use and benefit. Their ancestor, from whom they inherit, had as yet but an equity, the legal title being in their husbands, and this equitable title was to be changed into the legal. Had they [147]*147not released tbeir dower, by executing the deeds, they would, in law at least, have held a third by dower, and then a fourth of the remainder by inheritance, and thus injustice would have been done to the other heirs.
Another consideration worthy of thought, is the absurdity of the transaction, if they are held to have conveyed their whole interest. The consideration paid was the original one between the husbands and the deceased, and now the'money of the wife is paid to the husband to obtain a title for a third person ; or, if you please, their own money is paid them, to obtain their title — they are bought out by their own funds. They loose their personal property or money, as an independent means, separate from their husbands, and they loose their lands also. The nature of the transaction is such, as to override the considerations drawn from the form of a deed.
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Woodward, J.
— The leading points in this case have been settled by that of Claussen v. Le Franz, 1 Iowa, 228, which was very much like the present one in its main and essential features. The widow of Burmeister appropriated certain funds of the estate, consisting principally or entire[144]*144ly of .money belonging to the deceased, to the completion of certain contracts for the purchase of real property, which were outstanding at the death of her husband, and took the title in her own name. Afterwards she married LeEranz, and claimed the property as her own, as she was entitled by law to a portion of the estate, which portion, she urged, was applied to these payments. It was determined that she hold the title thus acquired in trust for the heirs at law, to be treated and disposed of as the law directs.
The widow of a deceased cannot thus settle the estate of her husband — make distribution and appropriation as to her seems right — and take titles to herself, and make the property her own. She becomes an executor de son tort. It is true, that she is entitled to a share in personal property, with the children, and this becomes her own absolutely. And a certain description of property is not to be accounted assets for the payment of debts, but remains for the benefit of herself and the family, until disposed of according to law. It has not been decided what rights exist under this provision, nor does the present case call for a close examination of this question, but it seems clear that she does not become the absolute owner of the property thus appropriated. So much was recognized as the law, in the cases of Wilmington, Adm’r v. Sutton, post, and in Wilmington, Adm’r, v. Goff, at the present term of this court.
But it is immaterial what may be the rights of the widow in this respect, and a discussion of them is not of place, because whatever they may be, she is not the proper judge. She cannot assume to decide them, and administer the estate. This must be done in the manner, and by the tribunal, directed by the law. The law requires all this property to be inventoried, that the court, representing the law, and all interested, may know what there is, and what is due to each, and make the proper distribution, and hold the proper persons accountable. Any other [145]*145mode of proceeding would leave the minor and the absent to the mercy of others. Although a widow, or ah heir, is entitled to a definite portion, and though this may be well determined, yet neither can put his hand into the purse of the deceased, and judge and administer for himself. Still less, may she talce that which belongs to herself and others jointly, and which, at her death, would belong to others entirely, and invest it, and call the proceeds exclusively her own.
The only circumstance in this ease, which may possibly cause it to differ in principle from that of Claussen v. La-Franz, supra, or which seems to present any difficulty, is that the two heirs, Mary and Sarah, the wives of the grantors, join in the deeds of their husbands. Apprehensions have been entertained by members of the legal profession, that trouble might arise from the too frequent practice of joining the wife with the husband in the body of a deed, when the conveyance is of his land, and she intends only to release the right of dower, instead of causing her to appear only in that part technically termed the “ in testimonium” The latter is certainly the safer, and therefore the better practice, especially as it much more truly expresses the real intent. The former mode — her joining in the body- — has led to serious questions: such as whether she is bound by the covenants, and whether she is barred of a subsequently acquired title. Courts have held that she is not bound by the covenants, and perhaps, also, that she is not barred of an after acquired title. Rut how do they come at such conclusion % The form of the deed is such as, in the case of other persons, carries all the grant- or’s right, and bars the future. They must either look upon the release of dower in the conclusion of the deed, as sufficient evidence of the intent, or else they look beyond the deed, to inquire whether the land conveyed belonged to the husband or the wife, and in the former case, treat it as only a release of dower. In strictness, neither of these courses is consistent with the rules of law, but [146]*146courts have been led to their adoption by the hardness of the case.
Under the practice alluded to, it is not an idle quesúon. TIow do we know whether a conveyance signed by a feme covert, with her husband, is her deed or his; that is, whether he or she is the principal grantor in it, and whether she is to be held bound. The answer to this must be found in one of the methods above referred to. This question, and the answer to it, have a bearing upon the deeds of conveyance in the present case. Here we are aided, however, more than is the case sometimes. There is the relinquishment of dower, which is wholly superfluous, if the wife is making a conveyance of a substantial interest. But, besides this, the deeds are presented accompanied by much explanatory matter, which shows that it was the husband’s interest and title which was purchased, and that the consideration was the original one existing between him and the deceased, and no new one moving the wife. So that, if courts have heretofore been correct in the manner of arriving at the conclusion, that a given deed was that of the husband, and that the wife intended only to release her jwssibility of dower, much more aré we justified in declaring, in the present instance, that the deeds were those of the husbands, and that the wives relinquished the dower right only.
But if this manner of viewing the subject is not entirely correct, there is another which, in our opinion, must settle it for this case. Admitting that the deeds are the deeds of the wives, as well as of the husbands, such relations and facts are disclosed respecting them, as take away their binding force in equity: First. There is the leading thought, before expressed, that the widow cannot thus assxime to settle the estate, and invest its means in realty for her sole use. Her very act of purchasing with those means, though she purchases from the heir himself, situated as these were, was a purchase to their use and benefit. Their ancestor, from whom they inherit, had as yet but an equity, the legal title being in their husbands, and this equitable title was to be changed into the legal. Had they [147]*147not released tbeir dower, by executing the deeds, they would, in law at least, have held a third by dower, and then a fourth of the remainder by inheritance, and thus injustice would have been done to the other heirs.
Another consideration worthy of thought, is the absurdity of the transaction, if they are held to have conveyed their whole interest. The consideration paid was the original one between the husbands and the deceased, and now the'money of the wife is paid to the husband to obtain a title for a third person ; or, if you please, their own money is paid them, to obtain their title — they are bought out by their own funds. They loose their personal property or money, as an independent means, separate from their husbands, and they loose their lands also. The nature of the transaction is such, as to override the considerations drawn from the form of a deed. There is something nearly approaching to fraud, and tainting the deeds; or, at least, the transaction convinces a court of equity, that it was the intention of all to place the legal title in the widow, in trust for those concerned. It was impossible, therefore, in our opinion, for the widow to gain a title to herself, by paying their own means to the heirs or their husbands, and this supercedes any consideration arising from the deeds ; and, secondly, the intent is made manifest through the whole transaction, that the deeds were made to place in the representatives of Andrew Eickel, that title for which he had contracted.
Some points remain to be spoken of. The respondents claim the benefit of an answer sworn to, and uncontroverted by testimony. In what has been said, the answer, in effect, receives this force. There is no necessity for making any question in relation to this, for the opinion proceeds upon the facts there stated: one of which is, that the widow purchases with funds raised from the property of the estate, upon which the cause hinges. But we cannot give the answer the effect of conclusive evidence, in relation to the intent of the grantors in making the deeds. This averment of the answer is new matter of the defendants, and not responsive to the petition, and there [148]*148may be, besides, an objection arising from the nature of the case. We look to the facts and circumstances, and believe these are sufficient to warrant the conclusion drawn from them.
In connection with this subject of the force of the answer as evidence, we may remark further, that it is immaterial whether the husbands held the title as security for debts owing to them from Andrew Bickel, as complainants allege, or whether he purchased the lands of them, and held their bonds, and they were not to convey until payment was made. It amounts to the same thing, in substance, whether the widow paid off an incumbrance, or paid the purchase money. It was the completion of the contract of her husband, and of the ancestor of these heirs.
It is not correct to suppose, as the respondents urge, that the complainants are asking that their conveyance be set aside and cancelled. To do this, would destroy their own case, or at least would throw inequality and injustice into the cause, and disturb the equity of their case. They need that their deeds be supported — for this is requisite — in order to place the title in such position that all may obtain their proper interest under them. The respondent’s counsel have labored to show, that the wives were capable of making the deeds; that the deed of a married woman is valid; and that no farther certificate of acknowledgment is requisite than in other cases. We do not perceive that any difficulty arises in the case, in this respect, and therefore give no time to its consideration.
One thing farther remains. The respondent, Eva, claims that, “admitting that all the property sold belonged to the estate, still a portion of the money paid, was from her own earnings, and another portion from rent of the homestead; and that if she did not become owner of the lands in proportion as she furnished the purchase money, she at least .succeeded to the rights of a mortgagee, to the extent of her own money used to remove the incumbrances, and has a right to demand judgment, ■ before she is divested of all title to the lands.” We should be inclined to regard this [149]*149claim, if the respondent showed, in her answer, any money in fact contributed from own earnings. But she shows that she realized from the assets of the estate, all that she paid to acquire the title to the land. Her statement exhibits the following: She realized the sum of §599, all of which was from the personal property of the deceased, except $42, for the rent of the homestead. Deducting this, she had $557, from which she paid expenses of last sickness and of the funeral, amounting to $51. Allowing this to her, it leaves $506. She paid for the title — to the one, $250, and to the other, $150, being $400 in all, which being taken from the $506, leaves her $106, over and above the payments to secure the title. In all this, there is no money claimed, as of her earnings, nor is there anything which can be counted as her own, save the rent of the homestead, even admitting that this was her’s.
But her position is, that one share of the personalty of the deceased was her own, by the provisions of the law, and that she is entitled to a credit for this. One answer to this claim might be, that after the payments made for the title, and the expenses for last sickness and funeral, there still remained in her hands, a sum more than equal to her share of one-fifth, making the estimate on the sum total produced by the sale of the personalty. Another position is, that she should be credited for that portion of the property which would have remained in her possession as the head of the family, for the use of herself and the family. It has before been intimated, that it is not correct to assume this to be her property, absolutely,
But the answer to both these claims, more pertinent in such a case as the present, is, that when she has assumed to administer the estate, without the law, and has made' herself an executor de son tort, she cannot take credit for that which, under a regular administration, would have been her own. A portion would have been hers, individually ; but either she has it, in the surplus of funds above what she has paid for the title, or she has so mingled it with that which belongs to the heirs, in the purchase or [150]*150release of the title, that she can have no lien for it upon the real estate, but must rest upon her interest or rights in the realty.
Therefore, the judgment of the district court is affirmed.