Thomas Dodds died seized of certain real estate, leaving a widow, the defendant, and his mother, but neither issue'nor father surviving him. The real estate consisted of certain lands, and three lots in Mount Pleasant constituting his homestead which remained in occupancy of the widow. The mother of Dodds conveyed her interest in the real estate to plaintiffs, who bring this action to partition the same.
Decided 1868-01-27
Beck, J.
¶11. homestead: partition of. — I. The plaintiffs insist, that the court erred in refusing to partition the homestead, claiming that, as the grantees of the mother of Thomas Dodds, they are entitled to one half thereof, and that their interest therein, as in the other property, should be set apart. This court has held, in a like case, that the homestead in possession of the surviving husband or wife cannot be partitioned among the heirs of the deceased, but that its occupancy, as a homestead, may be retained by the survivor without interference by the heirs of the deceased party. Nicholas v. Purczell, 21 Iowa, 266; Burns v. Keas, id. 258.
¶2The rulings in these cases are consistent with the true construction of the statute securing the right of homestead to the surviving husband or wife, and are therefore followed and affirmed in this ease.
¶32. Descent: from husband dying without issue. II. Defendant’s counsel admit that she is entitled to onty one-half of the real estate other than the homestead, and that plaintiffs are entitled to other one-half; and thus, so far as the *313decree of the District Court provides otherwise, it is erroneous, and should be modified. See Meyer v. Meyer, 23 Iowa, 360. Such is, therefore, the judgment of this court; and the cause is reversed and remanded with directions that the decree of the District Court be modified aceord“gly'
