Robinson, J.
The material facts alleged in the petition and admitted by the demurrer, are substantially as follows: Charles A. Hay died, intestate, on the thirteenth day of November, 1888, owning the southwest quarter of the southwest quarter of section 8, and the northwest quarter of section 17, all in township 86 north, of range 36 west, in Sac county, containing two hundred acres. The land was subject to a mortgage for one thousand six hundred and fifty dollars, and a commission mortgage for 1 per cent, of that sum. The decedent left a widow and four minor children, who are his only heirs, the eldest of whom was fourteen, and the youngest six years of age, when the petition was filed, in August, 1894. The land was occupied by Hay and his family as a homestead, and, when he died, the title thereto vested in his widow and children. The widow was appointed administratrix of his estate, and, after settling it, was discharged, in April, 1891. Afterwards, at a time not shown, she married W. B. R. Stephens, and gave to him a deed for one-third of the land. She and her children occupied the land as a homestead after the death of Hay, until her marriage to Stephens, and since that event she and her husband have occupied it as a homestead, and the children of Hay have lived with them. The plaintiffs are W. B. R. Stephens and his wife, and the defendants are the four children of Hay. The petition alleges, that W. B. R. Stephens is the owner of an undivided one-third of the land; that each defendant is the owner of an undivided one-sixth of it; and that the plaintiff, Jennie Stephens, has a contingent interest in it as a homestead, because of the right therein of [39] her husband. The petition asks that the respective shares of the parties to the action, in the land, be settled; that it be partitioned, so far as is practicable; and that so much of it as cannot be partitioned be sold, and the proceeds of the sale be divided; and that the costs of the action be taxed to the parties to it. The first ground of the demurrer is stated as follows: “(1) Said petition states facts which avoid a cause of action, in this: Because it states the title to the land described in said petition, to have been in C. A. Hay, deceased, at the time of his death, and that it was his homestead, and was so occupied by him at the time of his death, and that it was the homestead of his wife and children after his death, and that it is their homestead at this time; that the petition does not show that the widow has ever elected to take her distributive share in the real estate described in the petition; that the petition shows on its face that W. B. R. Stephens has no title in, and to, the real estate set out in the petition, or any part thereof, and therefore, cannot maintain the action; that the petition shows that Jennie Stephens has elected to occupy the homestead for life.” This ground presents the controlling questions in the case, although the general equitable ground of demurrer is also set out.
The land in question comprises two hundred acres, but the petition refers to it as though all of it were used as a homestead. The reference is somewhat ambiguous, and it is quite probable that the pleader did not intend to say that all of it was occupied as the statutory homestead. But in view of the conclusions we reach, the intention of the pleader in that respect is not material.
Sections 2007 and 2008 of the Code are as follows:
“2007. Upon the death of either husband or wife, the survivor may continue to possess and occupy the [40] whole homestead until it is otherwise disposed of according to law.”
“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.”
It is not definitely stated that the conveyance from the widow of Hay, to her present husband, was of an undivided one-third of the land, but the averments of the petition as a whole, warrant the conclusion that it was, and, for the purposes of this appeal, it will be so considered.
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Robinson, J.
The material facts alleged in the petition and admitted by the demurrer, are substantially as follows: Charles A. Hay died, intestate, on the thirteenth day of November, 1888, owning the southwest quarter of the southwest quarter of section 8, and the northwest quarter of section 17, all in township 86 north, of range 36 west, in Sac county, containing two hundred acres. The land was subject to a mortgage for one thousand six hundred and fifty dollars, and a commission mortgage for 1 per cent, of that sum. The decedent left a widow and four minor children, who are his only heirs, the eldest of whom was fourteen, and the youngest six years of age, when the petition was filed, in August, 1894. The land was occupied by Hay and his family as a homestead, and, when he died, the title thereto vested in his widow and children. The widow was appointed administratrix of his estate, and, after settling it, was discharged, in April, 1891. Afterwards, at a time not shown, she married W. B. R. Stephens, and gave to him a deed for one-third of the land. She and her children occupied the land as a homestead after the death of Hay, until her marriage to Stephens, and since that event she and her husband have occupied it as a homestead, and the children of Hay have lived with them. The plaintiffs are W. B. R. Stephens and his wife, and the defendants are the four children of Hay. The petition alleges, that W. B. R. Stephens is the owner of an undivided one-third of the land; that each defendant is the owner of an undivided one-sixth of it; and that the plaintiff, Jennie Stephens, has a contingent interest in it as a homestead, because of the right therein of [39] her husband. The petition asks that the respective shares of the parties to the action, in the land, be settled; that it be partitioned, so far as is practicable; and that so much of it as cannot be partitioned be sold, and the proceeds of the sale be divided; and that the costs of the action be taxed to the parties to it. The first ground of the demurrer is stated as follows: “(1) Said petition states facts which avoid a cause of action, in this: Because it states the title to the land described in said petition, to have been in C. A. Hay, deceased, at the time of his death, and that it was his homestead, and was so occupied by him at the time of his death, and that it was the homestead of his wife and children after his death, and that it is their homestead at this time; that the petition does not show that the widow has ever elected to take her distributive share in the real estate described in the petition; that the petition shows on its face that W. B. R. Stephens has no title in, and to, the real estate set out in the petition, or any part thereof, and therefore, cannot maintain the action; that the petition shows that Jennie Stephens has elected to occupy the homestead for life.” This ground presents the controlling questions in the case, although the general equitable ground of demurrer is also set out.
The land in question comprises two hundred acres, but the petition refers to it as though all of it were used as a homestead. The reference is somewhat ambiguous, and it is quite probable that the pleader did not intend to say that all of it was occupied as the statutory homestead. But in view of the conclusions we reach, the intention of the pleader in that respect is not material.
Sections 2007 and 2008 of the Code are as follows:
“2007. Upon the death of either husband or wife, the survivor may continue to possess and occupy the [40] whole homestead until it is otherwise disposed of according to law.”
“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.”
It is not definitely stated that the conveyance from the widow of Hay, to her present husband, was of an undivided one-third of the land, but the averments of the petition as a whole, warrant the conclusion that it was, and, for the purposes of this appeal, it will be so considered.
It was said in Egbert v. Egbert, 85 Iowa, 534 (52 N. W. Rep. 478), that it is the primary right of the survivor to take a distributive share- in the estate of the deceased spouse; and in Wilcox v. Wilcox, 89 Iowa, 393 (56 N. W. Rep. 517), it was said that “in the Egbert Case, as well as others, the thought is prominent that the right to a distributive share is primary; that the election should be as to the homestead; and that a right to a distributive share is only defeated when a homestead election is made; but, of course, there may be an act indicating an election to take the distributive share, and that is what is meant when the term is used, and not that such an election is necessary to secure it.” A rule of general application is that when the survivor has occupied the homestead for a reasonable time, without indicating an intention to take a distributive share of the estate of the deceased spouse, the presumption arises that there has been an election to retain- the homestead for life. Egbert v. Egbert, supra. But what- occupation of the homestead will authorize such a presumption, will depend on all the facts in the case, and, when the presumption arises, it may be rebutted. Cases arising [41] under the provisions of law in question, were reviewed in Wilcox v. Wilcox, supra; and it was held, in effect, that continued occupation of the homestead by the survivor, would not prevent the making of a contract in regard to the distributive share,"which would defeat the homestead right. In that case it appeared that the surviving widow and seven children occupied the homestead and other land from the death of her husband until the action was commenced. About six years after his death, the widow executed a mortgage on an undivided' one-third of the land, for the consideration of one thousand two hundred dollars; and nine months later she executed a second mortgage, for a consideration of about one thousand five hundred dollars.' Ten months after the execution of the second mortgage, she filed a petition in the proper court, asking that one-third of the land be set off to her as her distributive share, and a decree to that effect was rendered. The decree was afterwards set aside, however, and her petition was then withdrawn. The mortgages were foreclosed, the mortgaged share of the land was sold, and sheriff’s deeds therefor executed. The action referred to was then brought for the partition of the land, and it was sought to have awarded to the widow the right to occupy the homestead for life. But this court held that her acts constituted an express election to take a distributive share of the estate in lieu of the homestead for life, from which she could not recede, and that her occupancy of the homestead was only during the time her distributive share was being set off. The rule of that case is applicable in this. The petition does not show how long the widow of Hay occupied the homestead before she executed the deed to Stephens, but it was certainly less than six years. Nothing but the fact of occupancy is shown which tends to indicate an election to take the [42] homestead for life in lieu of a distributive share in the real estate; and whether that occupation was brief, or whether it was continued for nearly six years before the conveyance to Stephens was made, does not appear. There is no inconsistency between the occupation of the premises by the plaintiffs and the defendants, which is shown, and the claim now made that the widow of Hay took a distributive share of his estate. It was natural and to be expected that she and the children would occupy the homestead together after the death of husband and father; and, while that occupation by the widow may have authorized the presumption that she had elected to take the homestead for life, yet her act in executing an irrevocable deed for an undivided one-third of the land to Stephens was evidence of a very satisfactory character that she intended to take a distributive share in the estate, That evidence was corroborated in the most solemn manner by her act in coming into court, and joining her present husband in declaring that she •acquired from her former husband one-third of the land in question, that she conveyed that interest to her co-plaintiff, and that he is now entitled to it. If these declarations are true, the fact that she and her grantee and the children occupy the entire premises as a homestead is immaterial to any question raised by the demurrer.
The appellees, to support the decision of the district court, rely chiefly upon two cases, the first of which is McDonald v. McDonald, 76 Iowa, 137 (40 N. W. Rep. 126). But the rule announced in that case was considered, and its operation restricted in Egbert v. Egbert, supra. See, also, Wilcox v. Wilcox, supra. The second case upon which the appellees rely is that of Zwick v. Johns, 89 Iowa, 550 (56 N. W. Rep. 665). It appears in that case, that the widow filed in the proper court, a petition asking to have her distributive [43] share in the estate of her deceased husband set off to her, but that she changed her mind, abandoned the proceedings, and determined to occupy the homestead in lieu of taking her distributive share. She • contracted a second marriage, and, with her second husband, executed a quitclaim deed for their interest in the land, to secure a debt, and at the same time they executed a mortgage on her unassigned dower interest, to secure the payment of a note. In the spring of the next year, she leased the land for a term of two years, acting for herself, and as guardian, in so doing. The family then disposed of its personal property, except the bedding, and left the state, but with the intention of returning at the termination of the lease. This court found, notwithstanding the acts indicating an intention on the part of the widow of the decedent to take a distributive share in his estate, in lieu of her homestead right, that she had elected to take the latter, because of her long continued occupation of the homestead, and her declaration of an intention to retain the homestead in lieu of a distributive share in the estate, continuously made after she dismissed the proceedings commenced to obtain such share. That case involved material and controlling facts not shown to have existed in this.
It is to be remembered that in this case the occupation of the homestead by the widow was not continued so long as to bring the case within the statute of limitations, as in Conn v. Conn, 58 Iowa, 748 (18 N. W. Rep. 51). Section 2444 of the Code permits an application by a widow, to have her distributive share in the estate of her deceased husband set off, to be made at any time after twenty days, and within ten years after his death. No unequivocal act or declaration of an election to retain the homestead, is shown in this case, and, if there has been unnecessary delay by the widow, in making known her intention to [44] claim her distributive share, it is not shown that anyone will be prejudiced by it’. Nor is it shown that the conduct of the widow has been at any time inconsistent with the claim she and the appellant now make. We conclude that the demurrer should have been overruled, and the judgment of the district court is therefore reversed.