CHAPTER VII.

WILLS AND LETTERS OF ADMINISTRATION.

[Sidenote: Who may make wills.]

[Sidenote: Of what property]

Any person of full age and sound mind may dispose, by will, of all his property except what is sufficient to pay his debts, or what is allowed as a homestead, or otherwise given by law as privileged property to his wife and family. [Sec.3522.] The validity of a will depends upon the mental capacity of a testator and the fact that he was uninfluenced in making the disposition of his property. If it appears that the testator was incapable of exercising discretion and sound judgment and of fully realizing the effect and consequences of the will, though he may not be absolutely insane, he will not be in such mental condition that he can make a legal will. If he is of weak mind and it appears that he was imposed upon or unduly influenced, such facts will invalidate the will. A testator having testamentary capacity may dispose of his property in any manner, and to any person he may choose, and may deprive his heirs of any share in his estate, without any explanation or any express declaration of disinheritance. The fact that a will is unjust and unreasonable, in the absence of proof of undue influence, or insufficient capacity, will not render the will void.

[Sidenote: Subsequent property.]

Property to be subsequently acquired may be devised when the intention is clear and explicit. [Sec.3523.] If the intention to convey property acquired after the execution of the will is apparent or may be inferred from a fair construction of the language used, it will be sufficient, although the intention may not be directly expressed.

[Sidenote: Verbal wills.]

Personal property to the value of three hundred dollars may be bequeathed by a verbal will, if witnessed by two competent witnesses. [Sec.3524.]

[Sidenote: Soldier or mariner.]

A soldier in actual service, or a mariner at sea, may dispose of all his personal estate by a will so made and witnessed. [Sec.3525.]

[Sidenote: In writing. Witnessed. Signed.]

All other wills, to be valid, must be in writing, witnessed by two competent witnesses and signed by the testator, or by some other person in his presence and by his express direction. [Sec.3526.] It is necessary that the witnesses shall subscribe the will, but not that they shall have any knowledge of its contents, nor that they shall see the testator sign it. It is sufficient if the signature is adopted or acknowledged in their presence. If a will is made with the intention of disposing of real property it must be executed according to the requirements of the laws of the state where the real property is situated.

[Sidenote: Interest of witness.]

No subscribing witness to any will can derive any benefit therefrom, unless there be two disinterested and competent witnesses to the same. [Sec.3527.] But if, without a will, he would be entitled to any portion of the testator's estate, he may still receive such portion to the extent in value of the amount devised. [Sec.3528.]

[Sidenote: Revocation.]

Wills can be revoked in whole or in part, only by being canceled or destroyed by the act or direction of the testator with the intention of so revoking them, or by the execution of subsequent wills. [Sec.3529.] The birth of a child after the execution of a will but before the death of the testator, operates as a revocation of the will, and the birth and recognition of an illegitimate child has the same effect. Declarations of the testator to the effect that he intended to revoke the will, will not be sufficient to prove a cancellation.

[Sidenote: Cancellation.]

When done by cancellation, the revocation must be witnessed in the same manner as the making of a new will. [Sec.3530.]

[Sidenote: Executors.]

If no executors are named in the will, one or more may be appointed to carry it into effect. [Sec.3532.]

[Sidenote: Posthumous children.]

Posthumous children unprovided for by the father's will, shall inherit the same interest as though no will had been made. [Sec.3534.]

[Sidenote: Heirs of a devisee.]

If a devisee die before the testator, his heirs shall inherit the amount so devised to him unless from the terms of the will a contrary intent is manifest. [Sec.3537.] The word heir in this section does not include the widow of the testator, and she cannot inherit from a child to whom property has been devised by his father, but who has died before the father.

[Sidenote: Married women.]

A married woman may act as executor independent of her husband. [Sec.3545.]

[Sidenote: Minors.]

If a minor under eighteen years of age is appointed executor, there is a temporary vacancy as to him until he reaches that age. [Sec.3546.]

[Sidenote: Administration. Who entitled. Order.]

In other cases where an executor is not appointed by will, administration shall be granted:

1. To the wife of the deceased;

2. To his next of kin;

3. To his creditors;

4. To any other person whom the court may select. [Sec.3555.]

[Sidenote: Classes united.]

Individuals belonging to the same or different classes, may be united as administrators whenever such course is deemed expedient. [Sec.3556.]

[Sidenote: Time allowed.]

To each of the above classes in succession a period of twenty days, commencing with the burial of the deceased, is allowed within which to apply for administration upon the estate. [Sec.3557.]



CHAPTER VIII.

SETTLEMENT OF THE ESTATE—DESCENT AND DISTRIBUTION OF PROPERTY.

[Sidenote: Exempt personal property.]

When the deceased leaves a widow, all the personal property which, in his hands as head of the family, would be exempt from execution, after being inventoried and appraised, shall be set apart to her as her property in her own right, and be exempt in her hands as in the hands of the decedent. [Sec.3575.] This provision secures an advantage to the wife which does not exist in favor of the husband. Upon the death of the wife all personal property belonging to her, whether exempt or not, passes to her administrator to be distributed by him among her heirs. A widow is not entitled to pension money, although the same was exempt in the hands of her husband, the exemption being for the benefit of the pensioner as such, and not as head of a family.

[Sidenote: Life insurance.]

The avails of any life insurance or any other sum of money made payable by any mutual aid or benevolent society upon the death of a member of such society, are not subject to the debts of the deceased, except by special contract or arrangement, but shall in other respects, be disposed of like other property left by the deceased. [Sec.3576.] A policy of insurance on the life of an individual, in the absence of an agreement or assignment to the contrary shall inure to the separate use of the husband or wife and children of said individual, independently of his or her creditors. And the avails of all policies of insurance on the life of an individual payable to his surviving widow, shall be exempt from liabilities for all debts of such beneficiary contracted prior to the death of the deceased, provided that in any case the total exemption for the benefit of any one person shall not exceed the sum of five thousand dollars. [Sec.1756, Sup.] The contract between the assured and the insurance company, cannot be changed in any particular without the consent of the company, and a testator cannot, by will, change the beneficiary named in the policy unless it is expressly so provided in the contract. Where a policy is made payable to the assured or his legal representatives, the proceeds of the policy will pass to the administrator of his estate, and will be paid to the wife and children, but no part can be distributed to other heirs. If the assured leaves a wife or husband and no children, the entire proceeds of the policy will go to the wife or husband, and after they have passed into the hands of the beneficiary, they will not be subject to execution for the payment of his or her debts, provided they do not exceed the sum of five thousand dollars.

A wife is not her husband's "legal heir" and the entire proceeds of a policy or certificate of insurance made payable to the assured or his "legal heirs" will go to the children of the deceased.

[Sidenote: Allowance to widow and children.]

The court shall if necessary, set off to the widow and children under fifteen years of age, of the decedent, or to either, sufficient of the property of such kind as it shall deem appropriate to support them for twelve months from the time of his death. [Sec.3579.] The allowance to the widow takes priority over all other claims against the estate, and should be paid immediately. If the widow and children have no other means of support the allowance may be made though the estate is insolvent. It is no part of the dower interest, but is a separate and distinct right which may be made in addition to dower, or even in cases where by contract made before marriage, all rights to dower and inheritance have been relinquished. Real estate may be sold if necessary, where the personal property is not sufficient to provide for the allowance to the widow and children, and the widow may claim the allowance although there are no children, and she may have property of her own, if the income of such property is not sufficient for her support.

[Sidenote: Expenses of funeral.]

As soon as the executors are possessed of sufficient means, over and above the expenses of administration, they shall pay off the charges of the last sickness and funeral of deceased. [Sec.3622.]

[Sidenote: Allowance.]

They shall, in the next place, pay any allowance which may be made by the court for the maintenance of the widow and minor children. [Sec.3623.]

After the funeral expenses and the allowance to the widow and children have been paid, the claims against the estate will be discharged in the order provided by law, after which, the balance of the property, devised by will after all expenses of administration have been paid, will be distributed to the different legatees.

[Sidenote: Descent and distribution. Personal property.]

The personal property of the deceased, not necessary for the payment of debts, nor otherwise disposed of as hereinbefore provided, shall be distributed to the same persons and in the same proportions as though it were real estate. [Sec.3640.] A husband cannot, by will, deprive his wife of her share in his personal estate, after his death, but he may dispose of it during his lifetime in any manner he may choose.

[Sidenote: Payment.]

The distributive shares shall be paid over as fast as the executors can properly do so. [Sec.3641.]

[Sidenote: In kind.]

The property itself shall be distributed in kind whenever that can be done satisfactorily and equitably. In other cases the court may direct the property to be sold, and the proceeds to be distributed. [Sec.3641.]

[Sidenote: Partial distribution.]

When the circumstances of the family require it, the court, in addition to what is hereinbefore set apart for their use, may direct a partial distribution of the money or effects on hand. [Sec.3643.]

[Sidenote: Share of husband or wife.]

[Sidenote: Dower and curtesy.]

One-third in value of all the legal or equitable estates in real property, possessed by the husband at any time during the marriage, which have not been sold on execution or other judicial sale, and to which the wife has made no relinquishment of her right, shall be set apart as her property in fee-simple, if she survive him. The same share of the real estate of a deceased wife shall be set apart to the surviving husband. All provisions made in this chapter in regard to the widow of a deceased husband, shall be applicable to the surviving husband of a deceased wife. The estates of dower and curtesy are hereby abolished. [Sec.3644] While the estate of dower is abolished by statute, and a wife takes her distributive share of the property in its stead, yet this distributive share is still commonly designated by the term "dower." The dower interest of the wife is not subject to the debts of her husband. A wife may release her right of dower in real property by joining in a joint deed with her husband, although the deed may contain no express relinquishment of dower. Contracts between husband and wife, though for a legal and valuable consideration, or with a view to separation are invalid, the interest of either during the lifetime of both, being merely contingent and inchoate, but an agreement previous to marriage by which each waives all right in the other's estate, or by which the wife relinquishes her right of dower, is valid. A woman can claim no dower in her husband's estate, after his death, if she has procured a divorce from him while living and the divorce is in force at the time of his death. Where the provisions of a will gives the wife a certain interest in the estate, she may always elect whether she will take her dower interest or under the will.

[Sidenote: Homestead.]

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. [Sec.3645.] If the distributive share of either husband or wife is set out to the survivor from the homestead, it will still retain its homestead character, and will be exempt from execution for the payment of debts.

[Sidenote: Widow of alien.]

The widow of a non-resident alien shall be entitled to the same rights in the property of her husband, as a resident, except as against a purchaser from the decedent. [Sec.3646.] The term "non-resident alien" does not refer to one who resides out of the United States, but to non-residents of the state, who may reside in other states; the purpose of the statute being to encourage the purchase of lands within the state from non-resident owners, and to protect purchasers of such real estate from claims for dower or distributive share therein.

[Sidenote: How set off.]

The share thus allotted to her may be set off by the mutual consent of all parties interested, when such consent can be obtained, or it may be set off by referees appointed by the court. [Sec.3647.]

[Sidenote: Application]

The application for such measurement by referees, may be made any time after twenty days and within ten years after the death of the husband, and must specify the particular tracts of land in which she claims her share, and ask the appointment of referees. [Sec.3648.]

[Sidenote: Widow's share not affected by will.]

The widow's share cannot be affected by any will of her husband, unless she consents thereto within six months after notice to her of the provisions of the will by the other parties interested in the estate, which consent shall be entered on the proper records of the district court. [Sec.3656.] This provision applies equally to the husband's rights under the will of the wife, and it applies to wills made before marriage, as well as to those executed after marriage. Where there is no express provision in the will that a devise to the wife is in lieu of dower, she will take her distributive share of the estate in addition to the property devised to her by will, unless the allowance of dower would be inconsistent with other provisions of the will. The devise of a life estate to a wife will not defeat her right to her distributive share in the real estate owned by the husband at the time of his death.

[Sidenote: Descent. To children.]

Subject to the rights and charges hereinbefore contemplated, the remaining estate of which the decedent died, shall, in the absence of other arrangements by will, descend in equal shares to his children. [Sec.3657.]

[Sidenote: Share of deceased child.]

If any one of his children be dead, the heirs of such child shall inherit his share in accordance with the rules herein prescribed in the same manner as though such child had outlived his parents. [Sec.3658.] The mother of a child which dies while both of its parents are living cannot, upon the death of its father, claim any share in his estate, as heir of such child.

[Sidenote: Wife and parents.]

If the intestate leave no issue, the one-half of his estate shall go to his parents and the other half to his wife; if he leaves no wife, the portion which would have gone to her, shall go to his parents, [Sec.3659.] The one-third which the wife takes as her distributive share is all that may be held exempt from debts. The additional share of the estate which she takes in case there are no children, is subject to claims by creditors of the husband.

[Sidenote: Surviving parents.]

If one of his parents be dead, the portion which would have gone to such deceased parent, shall go to the surviving parent, including the portion which would have gone to the intestate's wife had she been living. [Sec.3660.]

[Sidenote: Heirs of parents.]

If both parents be dead, then the portion which would have fallen to their share, by the above rules shall be disposed of in the same manner as if they had outlived the intestate and died in the possession and ownership of the portion thus falling to their share, and so on through ascending ancestors and their issue. [Sec.3661.]

[Sidenote: Wife and her heirs.]

If heirs are not thus found, the portion uninherited shall go to the wife of the intestate, or to her heirs if dead, according to like rules; and if he has had more than one wife who either died or survived in lawful wedlock, it shall be equally divided between the one who is living and the heirs of those who are dead, or between the heirs of all, if all are dead, such heirs taking by right of representation. [Sec.3662.]

[Sidenote: Advancement.]

Property given by an intestate by way of advancement to an heir, shall be considered part of the estate so far as regards the division and distribution thereof, and shall be taken by such heir, towards his share of the estate at what it would now be worth if in the condition in which it was given to him. But if such advancement exceeds the amount to which he would be entitled, he cannot be required to refund any portion thereof. [Sec.3663.] A gift to an heir by way of advancement, cannot be considered as any part of the estate for the purpose of increasing the distributive share of the widow, but is to be estimated as part of such heir's share of the property, after the allowance to the wife of her interest.

[Sidenote: Where there are no heirs.]

If there be property remaining uninherited, it shall escheat to the state. [Sec.3665.]

[Sidenote: Illegitimate children. Inherit from mother.]

Illegitimate children inherit from the mother and the mother from the children. [Sec.3670.] A child born at any time during lawful wedlock is presumed by the law to be legitimate, but where questions of inheritance are involved, this presumption may be overcome by proof to the contrary.

[Sidenote: Inherit from father.]

They shall inherit from the father whenever the paternity is proven during the life of the father, or they have been recognized by him as his children, but such recognition must have been general and notorious or else in writing. [Sec.3671.] The recognition in writing need not be a formal avowal. Any writing, as by letter or otherwise, is sufficient. For the purposes of inheritance an illegitimate child stands on exactly the same footing as if it were legitimate after it has been recognized by the father, and the birth and recognition of such child revoke a will in the same manner as the birth of a legitimate child, subsequent to the execution of the will.

[Sidenote: Father inherits from child.]

Under such circumstances, if the recognition of relationship has been mutual, the father may inherit from his illegitimate children. [Sec.3672.]



CHAPTER IX.

HOMESTEAD AND EXEMPTIONS.

[Sidenote: Homestead exempt.]

Where there is no special declaration of the statute to the contrary, the homestead of every family, whether owned by the husband or wife is exempt from judicial sale, [Sec.3163.] A homestead right may exist in property purchased under a bond for a deed, if payments have been made and the purchaser is in possession. Actual occupancy is necessary to invest property with the homestead character, but as the exemption right is for the benefit of the whole family and not alone of the owner, the fact that the head of the family is absent, and may even have acquired property and residence in another state with the intention of removing his family there, will not divest the homestead of its exemption right, so long as the family continues to occupy it. And the fact that the husband has abandoned the homestead will not affect the homestead right, so long as the wife and family remain in occupancy.

The homestead right may belong to one of several tenants in common of undivided property, or in a leasehold interest. It may attach to portions of a building—as where rooms or floors in a building are used for homestead purposes and the rest of the building is not so used. Where part of a building is owned or occupied by a family as a home, and the other part is used for a different purpose, that part used as a home may be exempt, while the other portion may be sold under execution. The exemption right may be lost by the execution of a mortgage or contract expressly making the homestead liable, in which both husband and wife join; or it may be forfeited when the homestead is used as a saloon or for any other purpose in violation of the prohibitory liquor law, with the knowledge and consent of the owner, and this is true even though such unlawful use is without the consent of the wife of the owner. In such case it is subject to judgment obtained because of such illegal use. [Sec.2419.] If the homestead is sold, the proceeds are exempt only when invested in the purchase of another homestead, but the exemption does not follow the proceeds out of the state, and where the homestead was sold and the proceeds invested in a homestead in another state, and this was afterwards sold and the proceeds again invested in a homestead in this state, it was held that the homestead exemption did not attach to the second homestead in Iowa. Removal from the homestead without intention of returning will be sufficient to forfeit the homestead right, but the length of time of absence, in itself, will not constitute abandonment, so long as the intention to return exists.

[Sidenote: Family defined.]

A widow or widower, though without children, shall be deemed a family while continuing to occupy the house used as such at the time of the death of the husband or wife. [Sec.3164.]

[Sidenote: Conveyance or incumbrance.]

A conveyance or incumbrance by the owner is of no validity unless the husband and wife, if the owner is married, concur in, and sign the joint instrument. [Sec.3165.] Any conveyance or contract, such as a mortgage, lease, assignment of contract of purchase, or any act in any manner affecting the title or right of occupancy of the homestead by either party, will be absolutely void, unless concurred in by the other. If the consent of the wife is fraudulently obtained by the husband, the conveyance or incumbrance will be valid, unless it appears that the purchaser or mortgagee had knowledge of the fraud. A mortgage given for the purchase money will be valid though given alone by the party taking the legal title.

[Sidenote: Liable for taxes.]

The homestead is liable for taxes accruing thereon, and if platted as hereinafter directed, is liable only for such taxes and subject to mechanics' liens for work, labor, or material, done or furnished exclusively for the improvement of the same, and the whole or a sufficient portion thereof may be sold to pay the same. [Sec.3166.] All the taxes against the owner of the homestead become liens thereon, unless it is platted as directed by statute.

[Sidenote: Liable for debts.]

The homestead may be sold on execution for debts contracted prior to the purchase thereof, but it shall not in such case be sold except to supply the deficiency remaining after exhausting the other property of the debtor liable to execution. [Sec.3167.] Debts contracted after the acquisition of the property, but before it has acquired the homestead character by actual occupancy, may be enforced against the property. A judgment upon a debt contracted prior to the purchase of the homestead, although such judgment is not rendered until after the property has acquired the homestead character, is a lien upon the homestead.

[Sidenote: Debts created by written contract.]

The homestead may be sold for debts created by written contract, executed by the persons having the power to convey and expressly stipulating that the homestead is liable therefor, but it shall not in such case be sold except to supply the deficiency remaining after exhausting the other property pledged for the payment of the debt in the same written contract. [Sec.3168.] Any written contract other than a mortgage or other conveyance, will be sufficient to render the homestead liable for debts, provided it contains the necessary stipulations, and is signed by the proper parties.

[Sidenote: What constitutes.]

The homestead must embrace the house used as a home by the owner thereof, and if he has two or more houses thus used by him at different times and places, he may select which he will retain as his homestead. [Sec.3159.] The husband may select his homestead and make the same his home without the consent of his wife, and the absence of the wife will not affect its homestead character. The fact that the husband is the legal head of the family invests him with the power of establishing his home wherever he may choose, with or without the assent of his wife. Use is essential to give property a homestead character, and an intention to occupy is not sufficient in the absence of actual residence.

[Sidenote: Embraces what.]

It may contain one or more lots or tracts of land with the buildings thereon and other appurtenances, subject to the limitations contained in the next section, but must in no case embrace different lots or tracts, unless they are contiguous, or unless they are habitually and in good faith used as a part of the same homestead. [Sec.3170.]

[Sidenote: Extent.]

If within a town plat it must not exceed one-half an acre in extent, and if not within a town plat, it must not embrace in the aggregate more than forty acres. But if, when thus limited, in either case, its value is less than five hundred dollars, it may be enlarged until it reaches that amount. [Sec.3171.]

[Sidenote: Dwelling appurtenances.]

It must not embrace more than one dwelling house, or any other buildings except as such are properly appurtenant to the homestead; but a shop or other building situated thereon, and really used and occupied by the owner in the prosecution of his own ordinary business, and not exceeding three hundred dollars in value, may be deemed appurtenant to such homestead. [Sec.3172.]

[Sidenote: Selecting. Platting.]

The owner or the husband or wife, may select the homestead and cause it to be marked out, platted, and recorded as provided in the next section. A failure in this respect does not leave the homestead liable, but the officer having an execution against the property of such defendant, may cause the homestead to be marked off, platted and recorded and may add the expense thence arising to the amount embraced in the execution. [Sec.3173.]

[Sidenote: Description. Recording.]

The homestead shall be marked off by fixed and visible monuments, and in giving the description thereof, the direction and distance of the starting point from some corner of the dwelling-house shall be stated. The description and plat shall then be recorded by the recorder in a book to be called the "homestead book," which shall be provided with a proper index. [Sec.3174.]

[Sidenote: Changes.]

The owner may from time to time change the limits of the homestead by changing the metes and bounds, as well as the record of the plat and description, or may change it entirely, but such changes shall not prejudice conveyances or liens made or created previously thereto, and no change of the entire homestead made without the concurrence of the husband or wife, shall affect his or her right or those of the children. [Sec.3175.]

[Sidenote: New homestead exempt.]

The new homestead, to the extent in value of the old, is exempt from execution in all cases where the old or former homestead would have been exempt, but in no other, nor in any greater degree. [Sec.3176.]

[Sidenote: Survivor to occupy.]

Upon the death of either husband or wife, the survivor may continue to possess and occupy the whole homestead until it is disposed of according to law. [Sec.3182.] The survivor may elect to retain the homestead in lieu of his or her distributive stare of the estate, but in such case the interest is not one which confers any title to the property which can be conveyed or which will descend to heirs or be subject to the lieu of a judgment, but it is merely a life interest which may be terminated whenever the survivor ceases to use and occupy the homestead as such. Whenever the survivor elects to retain the homestead during life in lieu of dower, it cannot be changed for another homestead, and the right will be lost by abandonment.

[Sidenote: Election to retain. Descent. Exemption.]

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. [Sec.3183.]

[Sidenote: When sold.]

If there is no such survivor or issue the homestead is liable to be sold for the payment of any debts to which it might at that time be subjected, if it had never been held as a homestead. [Sec.3184.]

[Sidenote: Devise.]

Subject to the rights of the surviving husband or wife, as declared by law, the homestead may be devised like other real estate of the testator. [Sec.3185.] The homestead will remain exempt in the hands of the heirs because of the homestead right of the ancestors, although the property is not occupied as a homestead by such heirs.

[Sidenote: Exemptions. To head of family.]

If a debtor is a resident of this state, and is the head of a family, he may hold exempt from execution the following property: All wearing apparel of himself and family kept for actual use and suitable to their condition, and the trunks or other receptacles necessary to contain the same; one musket or rifle and shot-gun; all private libraries, family bibles, portraits, pictures, musical instruments, and paintings, not kept for the purpose of sale; a seat or pew occupied by the debtor or his family in any house of public worship; an interest in a public or private burying ground, not exceeding one acre for any defendant; two cows and calf; one horse, unless a horse is exempt as hereinafter provided; fifty sheep and the wool therefrom and the materials manufactured from such wool; six stands of bees; five hogs, and all pigs under six months; the necessary food for all animals exempt from execution, for six months; all flax raised by the defendant on not exceeding one acre of ground and the manufactures therefrom; one bedstead and the necessary bedding for every two in the family; all cloth manufactured by the defendant, not exceeding one hundred yards in quantity; household and kitchen furniture, not exceeding two hundred dollars in value; all spinning-wheels and looms, one sewing machine and other instruments of domestic labor kept for actual use; the necessary provisions and fuel for the use of the family for six months; the proper tools, instruments or books of the debtor, if a farmer, mechanic, surveyor, clergyman, lawyer, physician, teacher or professor; the horse or the team consisting of not more than two horses or mules, or two yoke of cattle, and the wagon or other vehicle with the proper harness or tackle, by the use of which the debtor, if a physician, public officer, farmer, teamster, or other laborer habitually earns his living; and to the debtor, if a printer, there shall also be exempt a printing press and a newspaper office connected therewith, not to exceed in all the value of twelve hundred dollars. Any person entitled to any of the exemptions mentioned in this section does not waive his rights thereto by failing to designate or select such exempt property or by failing to object to a levy thereon, unless failing or refusing so to do when required to make such designation or selection by the officers about to levy. [Sec.4297.] The husband and not the wife is recognized by law as the "head of the family," but upon the death of the husband the wife becomes the head of the family and as such is entitled to these exemptions.

[Sidenote: Life Insurance.]

All life insurance is exempt from the debts of the assured and from those of his widow contracted prior to his death, provided such exemption does not exceed the sum of five thousand dollars. [Sec.1756 Sup.]

[Sidenote: Family defined.]

The word "family," as used in section 4297, does not include strangers or boarders lodging with the family. [Sec.4298.]

[Sidenote: Perpetual earnings.]

The earnings of such debtor for his personal services, or those of his family, at any time within ninety days next preceding the levy, are also exempt from execution and attachment. [Sec.4299.]

[Sidenote: Unmarried persons. Non-residents.]

There shall be exempt to an unmarried man not the head of a family, and to non-residents their ordinary wearing apparel and trunk necessary to contain the same. [Sec.4300.]

[Sidenote: Persons starting to leave the state.]

When the debtor, if the head of a family, has started to leave this state, he shall have exempt only the ordinary wearing apparel of himself and family, and such other property, in addition, as he may select, in all not exceeding seventy-five dollars in value; which property shall be selected by the debtor and appraised; but any person coming into this state with the intention of remaining shall be considered a resident. [Sec.4801.]

[Sidenote: Purchase money.]

None of the exemptions prescribed in this chapter shall be allowed against an execution issued for the purchase money of property claimed to be exempt, and on which such execution is levied. [Sec.4302.]

[Sidenote: Absconding debtor.]

Where a debtor absconds and leaves his family, such property shall be exempt in the hands of the wife and children, or either of them. [Sec.4303.]

[Sidenote: Sewing machine.]

If the debtor is a seamstress, one sewing-machine shall be exempt from execution and attachment. [Sec.4304.]

[Sidenote: Pension money.]

All money received by any person, resident of the state, as a pension from the United States government; whether the same shall be in the actual possession of such pensioner, or deposited, loaned, or invested by him, shall be exempt from execution or attachment, or seizure by or under any legal process whatever, whether such pensioner shall be the head of a family or not. [Sec.4305.]

[Sidenote: Homestead.]

The homestead of every such pensioner, whether the head of a family or not, purchased and paid for with any such pension money, or the proceeds or accumulations of such pension money, shall also be exempt as is now provided by law of this state in relation to homesteads; and such exemption shall also apply to debts of such pensioner contracted prior to the purchase of such homestead. [Sec.4306.]

[Sidenote: Damages.]

Where a wrongful act produces death, and the deceased leaves a husband, wife, child or parent, the damages shall not be liable for the payment of debts. [Sec.3731.]



CHAPTER X.

CRIMINAL LAW-ILLEGITIMATE CHILDREN.

[Sidenote: Rape.]

If any person ravish or carnally know any female of the age of thirteen years or more, by force and against her will, or carnally know and abuse any female child under the age of thirteen years, he shall be punished by imprisonment in the penitentiary for life or any term of years. [Sec.5160.]

[Sidenote: Intent to commit rape.]

If any person assault a female with intent to commit a rape he shall be punished by imprisonment in the penitentiary not exceeding twenty years. [Sec.5172.]

[Sidenote: Compelling to marry.]

If any person take any woman unlawfully and against her will, and by force, menace or duress, compel her to marry him, or to be defiled, he shall be fined not exceeding one thousand dollars and imprisoned in the penitentiary not exceeding ten years. [Sec.5161.]

[Sidenote: Carnal knowledge.]

If any person have carnal knowledge of any female by administering to her any substance, or by any other means producing such stupor or such imbecility of mind or weakness of body as to prevent effectual resistance, or have such carnal knowledge of an idiot or female naturally of such imbecility of mind or weakness of body, as to prevent effectual resistance, he shall upon conviction, be punished as provided in the section relating to ravishment. [Sec.5162.]

[Sidenote: Producing miscarriage of pregnant woman.]

If any person with intent to produce the miscarriage of any pregnant woman, wilfully administer to her any drug or substance whatever, or, with such intent, use any instrument or any means whatever, unless such miscarriage shall be necessary to save her life, he shall be imprisoned in the state prison for a term not exceeding five years, and be fined in a sum not exceeding one thousand dollars. [Sec.5163.]

[Sidenote: Enticing female child for prostitution.]

If any person take or entice away any unmarried female, under eighteen years of age, from her father, mother, guardian, or other person having the legal charge of her person, for the purpose of prostitution, he shall upon conviction be punished by imprisonment in the penitentiary for not more than three years, or by fine of not more than one thousand dollars and imprisonment in the county jail not more than one year. [Sec.5164.]

[Sidenote: Enticing away child.]

If any person maliciously, forcibly or fraudulently lead, take, decoy, or entice away any child under the age of fourteen years, with the intent to detain or conceal such child from its parent, guardian, or any other person having the lawful charge of such child, he shall be punished by imprisonment in the penitentiary not more than ten years, or by a fine not exceeding one thousand dollars or by both such fine and imprisonment. [Sec.5165.]

[Sidenote: Seduction.]

If any person seduce and debauch any unmarried woman of previously chaste character, he shall be punished by imprisonment in the penitentiary not more than five years, or by fine not exceeding one thousand dollars and imprisonment in the county jail not exceeding one year. [Sec.5166.]

[Sidenote: Marriage a bar.]

If, before judgment upon an indictment, the defendant marry the woman thus seduced, it is a bar to any further prosecution for the offense. [Sec.5167.] An offer, by the defendant, to marry the woman, will not be a bar to a prosecution for seduction, as nothing but actual marriage will constitute such bar.

[Sidenote: Adultery.]

Every person who commits the crime of adultery shall be punished by imprisonment in the penitentiary not more than three years, or by a fine not exceeding three hundred dollars and imprisonment in the county jail not exceeding one year; and when the crime is committed between parties, only one of whom is married, both are guilty of adultery and shall be punished accordingly. No prosecution for adultery can be commenced but on complaint of the husband or wife. [Sec.5317.]

[Sidenote: Evidence in cases of rape or seduction.]

The defendant in a prosecution for a rape, or for an assault with intent to commit a rape, or for enticing or taking away an unmarried female of previously chaste character, for the purpose of prostitution, or aiding or assisting therein, or for seducing or debauching any unmarried woman of previously chaste character, cannot be convicted upon the testimony of the person injured, unless she be corroborated by other evidence tending to connect the defendant with the commission of the offense. [Sec.5958, as amended by act of the Twenty-fifth General Assembly.] The corroboration required by this section need not be by evidence of witnesses to the act, but may be wholly by circumstances and facts which tend to connect the accused with the commission of the crime.

[Sidenote: Bigamy.]

If any person who has a former husband or wife living, marry another person, or continue to cohabit with such second husband or wife in this state, he or she, except in cases mentioned in the following section, is guilty of bigamy, and shall be punished by imprisonment in the penitentiary not more than five years, or by fine not exceeding five hundred dollars and imprisonment in the county jail not more than one year. [Sec.5318.]

[Sidenote: Exceptions.]

The provisions of the preceding section do not extend to any person whose husband or wife has continuously remained beyond seas, or who has voluntarily withdrawn from the other and remained absent for the space of three years together, the party marrying again, not knowing the other to be living within that time; nor to any person who has been legally divorced from the bonds of matrimony. [Sec.5319.]

[Sidenote: Knowingly marrying husband or wife.]

Every unmarried person who knowingly marries the husband or wife of another, when such husband or wife is guilty of bigamy thereby, shall be imprisoned in the penitentiary not exceeding three years, or by fine of not more than three hundred dollars and imprisonment in the county jail not exceeding one year. [Sec.5320.]

[Sidenote: Lewdness.]

If any man or woman not being married to each other lewdly and viciously associate and cohabit together, or if any man or woman, married or unmarried, is guilty of gross lewdness and designedly make an open and indecent, or obscene exposure of his or her person, or the person of another, every such person shall be punished by imprisonment in the county jail not exceeding six months, or by fine not exceeding two hundred dollars. [Sec.5321.]

[Sidenote: Keeping house of ill-fame.]

If any person keep a house of ill-fame, resorted to for the purpose of prostitution or lewdness, such person shall be punished by imprisonment in the penitentiary not less than six months nor more than five years. [Sec.5322.]

[Sidenote: Houses of ill-fame.]

Houses of ill-fame kept for the purpose of prostitution and lewdness, gambling houses, or houses where drunkenness, quarreling, fighting or breaches of the peace are carried on or permitted, to the disturbance of others, are nuisances, and may be abated and punished as provided in this chapter. [Sec.5472.]

[Sidenote: Lease rendered void.]

When the lessee of a dwelling house is convicted of keeping the same as a house of ill-fame, the lease or contract for letting such house is, at the option of the lessor, void, and such lessor may thereupon have the like remedy to secure possession as against a tenant holding over after the expiration of his term. [Sec.5323.]

[Sidenote: Leasing house for such purpose.]

If any person let any house, knowing that the lessee intends to use it as a place of resort for the purpose of prostitution or lewdness, or knowingly permit such lessee to use the same for such purpose, he shall be punished by fine not exceeding three hundred dollars, or imprisoned in the county jail not exceeding six months. [Sec.5324.]

[Sidenote: Enticing to house of ill-fame.]

If any person entice back into a life of shame any person who has heretofore been guilty of the crime of prostitution, or who shall inveigle or entice any female, before reputed virtuous, to a house of ill-fame, or knowingly conceal or assist or abet in concealing such female, so deluded or enticed for the purpose of prostitution or lewdness, he shall be punished by imprisonment in the penitentiary not less than three nor more than ten years. [Sec.5325.]

[Sidenote: Penalty for prostitution.]

If any person, for the purpose of prostitution or lewdness resorts to, uses, occupies or inhabits any house of ill-fame, or place kept for such purpose, or if any person be found at any hotel, boarding house, cigar store or other place, leading a life of prostitution and lewdness, such person shall be punished by imprisonment in the penitentiary not more than five years. [Sec.5326.]

[Sidenote: Incest.]

If any person marry his father's sister, mother's sister, father's widow, wife's mother, daughter, son's widow, sister, son's daughter, daughter's daughter, son's son's widow, daughter's son's widow, brother's daughter, or sister's daughter, or, if any woman marry her father's brother, mother's brother, mother's husband, husband's father, son, husband's son, daughter's husband, brother, son's son, daughter's son, son's daughter's husband, daughter's daughter's husband, brother's son, or sister's son; or if any person, being within the degrees of consanguinity or affinity in which marriages are prohibited by this section, carnally know each other, they shall be deemed guilty of incest, and shall be punished by imprisonment in the state penitentiary for a term not exceeding ten years and not less than one year. [Sec.5351.]

[Sidenote: Illegitimate children. Complaint.]

When any woman residing in any county in the state is delivered of a bastard child, or is pregnant with a child, which, if born alive, will be a bastard, complaint may be made in writing by any person to the district court of the county where she resides, stating that fact, and charging the proper person with being the father thereof. [Sec.6113.]

[Sidenote: Judgment.]

If the accused be found guilty, he shall be charged with the maintenance of the child in such sum or sums and in such manner as the court shall direct, and with the costs of the suit. [Sec.6119.]

[Sidenote: Marriage of parents.]

Illegitimate children become legitimate by the subsequent marriage of their parents. [Sec.3391.]



CHAPTER XI.

MISCELLANEOUS PROVISIONS.

[Sidenote: Action for damages under prohibitory liquor law.]

Every wife, child, parent, guardian, employer or other person who shall be injured in person or property or means of support, by any intoxicated person, or in consequence of the intoxication habitual or otherwise, of any person, shall have a right of action in his or her name, against any person, who shall, by selling intoxicating liquors, cause the intoxication of such person, for all damages actually sustained, as well as exemplary damages; and a married woman shall have the same right to bring suits, prosecute and control the same, and the amount recovered, as if a single woman, and all damages recovered by a minor under this action, shall be paid to such minor, or his parent, guardian, or next friend, as the court shall direct, and all suits for damages under this section shall be by civil action in any court having jurisdiction thereof. [Sec.2418.] Under this section a woman is entitled to recover for the death of her husband, or for personal injuries to him, or to herself caused by intoxication. She may recover damages for mental anguish, shame, or suffering, resulting from injuries to the person, and for injuries to, or loss of property, and means of support.

[Sidenote: Parties in action for seduction.]

An unmarried female may prosecute as plaintiff, an action for her own seduction and recover such damages as may be found in her favor. [Sec.3760.] In a civil action for damages it is not necessary that an unmarried woman be of previously chaste character to enable her to recover for loss of health, physical suffering, etc., but without that she cannot recover for loss of character.

[Sidenote: For injury or death of minor child.]

A father, or in case of his death, or imprisonment, or desertion of his family, the mother may prosecute as plaintiff, an action for the expenses and actual loss of service resulting from the injury or death of a minor child. [Sec.3761.]

[Sidenote: Married women]

A married woman may, in all cases, sue and be sued without joining her husband with her, to the same extent as if she were unmarried, and an attachment or judgment in such action shall be enforced by or against her as if she were a single woman. [Sec.3667.]

[Sidenote: Defense.]

If husband or wife are sued together, the wife may defend for her own right; and if either neglect to defend, the other may defend for that one also. [Sec.3768.]

[Sidenote: When husband or wife deserts family.]

When a husband has deserted his family, the wife may prosecute or defend in his name any action which he might have prosecuted or defended, and shall have the same powers and rights therein as he might have had; and under like circumstances the same right shall apply to the husband upon the desertion of the wife. [Sec.3769.]

[Sidenote: Evidence. Husband and wife.]

Neither the husband nor wife shall in any case, be a witness against the other, except in a criminal prosecution for a crime committed one against the other, or in a civil action or proceeding one against the other; but they may in all civil and criminal cases, be witness for each other. [Sec.4891.] In prosecutions for adultery or bigamy the husband or wife, as the case may be, is a competent witness against the other.

[Sidenote: Communications between husband and wife.]

Neither husband nor wife can be examined in any case as to any communication made by one to the other while married, nor shall they after the marriage relation ceases, be permitted to reveal in testimony any such communication made while the marriage subsisted. [Sec.4892.]

[Sidenote: Women eligible to office.]

Women are eligible to all school offices in the state, including those of county superintendent and school director. [Sec.Sec.2828, 2829.]

No person shall be disqualified for holding the office of county recorder on account of sex. [Sec.471.]

[Sidenote: Police matrons.]

Mayors of all cities having a population of twenty-five thousand or more, are authorized, by act of the Twenty-fifth General Assembly to appoint police matrons to take charge of all women and children confined at police stations. They are to search the persons of such women and children, accompany them to court, and "give them such comfort as may be in their power." No woman is eligible to this office who is under thirty years of age. She must be of good moral character, and sound physical health. Her application must be endorsed by at least ten women of good standing and residents of the city in which such appointment is made. When appointed she shall hold office until removed by death, resignation or discharge, but she can be dismissed only after charges have been made against her conduct and such charges have been investigated. She has the right to enter work houses where women are confined, at all times. She shall be subject to the board of police or to the chief of police. Her salary shall not be less than the minimum paid to patrolmen.

[Sidenote: Right of suffrage.]

In any election hereafter held in any city, incorporated town, or school district, for the purpose of issuing any bonds for municipal or school purposes, or for the purpose of borrowing money, or for the purpose of increasing the tax levy, the right of any citizen to vote shall not be denied or abridged on account of sex, and women may vote at such elections, the same as men, under the same qualifications and restrictions. [Act of the Twenty-fifth General Assembly.]



CHAPTER XII.

CONCLUSION.

[Sidenote: Common law in Iowa.]

[Sidenote: Unmarried women. Property rights.]

[Sidenote: Married women.]

[Sidenote: Law will not protect them.]

The rules of the common law have never prevailed in all their harshness in Iowa. At the time when the young state was born, public sentiment already demanded a code more just, and, as before noted, the first law for the protection or extension of the property rights of married women, was passed in 1846. Modifications and changes have followed each other through the entire history of our state legislation, until our present law approaches a condition so nearly one of equal and exact justice between the sexes, that it might serve as a model for other states less progressive than our own. Except in the way of political disabilities our law makes no discrimination against or in favor of women. They have all the rights and privileges enjoyed by men, and are subject to the same duties and responsibilities. Before the law they are equal, but, as a matter of fact, where the law does not interfere, how is it in regard to the property rights of the wife? The unmarried woman has control of her property, if she has any, to the same extent that an unmarried man has control of his. If she accumulates money or property by an expenditure of her time and labor, it belongs to her alone. She can keep it, give it away, will it, spend it, enjoy it, with the same unquestioned right and freedom enjoyed by her brother. But a married woman possesses no such independence, notwithstanding the laws in her favor. The circumstances of her life may be such, that the law will be powerless to protect her in the enjoyment of property which by right belongs to her. The relations and respective duties of husband and wife are such that the husband usually and necessarily controls the business and the family income. The amount of that income over and above the expenditures for family expenses, he invests as he chooses. If it is his will to invest it in real estate, the law says she may have a share of it after his death. If he deposits it in a bank or purchases stocks, bonds, mortgages, or other personal property, the law again says part of it shall be hers, if she survives him, and he has not disposed of it while living, as he has a legal right to do. In either case, she cannot control a single dollar during the life of her husband, if he chooses to deprive her of that privilege. The property accumulated during the marriage may be acquired by the wise judgment, strict economy and self-denial of the wife in connection with the time and labor of the husband. It may even be obtained wholly by her efforts, even though not arising from the profits of any "separate business" recognized by the law. Her contribution to the family income may, and generally does, come into the possession of the husband and he invests it in property to which he naturally and as a matter of course takes the title. During his life he controls it. After his death one-third will belong to the wife, if there are children. If there are no children one-half will go to his heirs no matter how distant the relationship may be.

[Sidenote: Law may result in hardship and suffering.]

In cases where the joint accumulations of husband and wife are only sufficient to support the wife in comfort after the death of her husband, the law of descent as it now stands, may result in positive hardship and suffering. No matter how small the amount of property belonging to a deceased husband may be, one-half of it will descend to his heirs, if he has no children, and the wife be left with no means of support. Of course the result would be the same in the case of the husband upon the death of the wife, if she held the title to all of the common property. That this law of descent has not operated to the disadvantage of the husband, but invariably to the disadvantage of the wife, is not due to any defect in either the letter or spirit of the existing law, but is the natural and inevitable result of the custom which gives the husband the title to and the control of the joint earnings of himself and wife.

[Sidenote: Change or modification needed.]

It is difficult to suggest a remedy or to conceive of any law which would adjust and equalize the relations of husband and wife in the ownership and control of common property during the lifetime of both, but if some just and wise legislator can devise some change or modification of the present law, which will not interfere with the husband's proper and necessary position as breadwinner and manager of the business of the family partnership, and which will give to the wife control of a portion of the family income while the husband lives, and when the total amount of property held by either, is only sufficient to afford a comfortable support to the other, will after the death of the owner of the property, secure it all to husband or wife, as the case may be, he will add to the laws of the state the one requisite necessary to secure to women equal property rights with men, and a more just distribution of intestate property.

THE END