Page:North Dakota Reports (vol. 2).pdf/290

 clear and explicit to the contrary. Section 5784, following in the same chapter with the sections specifying what shall be set apart for the use of the family, says: “ When personal property is set apart for the use of the family in accordance with the provisions of this chapter, if the decedent left a widow or surviving husband and no minor child, such property is the property of the widow or surviving husband.” We quote so much of the section as covers this case, and there can be uo doubt of its meaning. The ruling of the court upon the disposition of the personal property was clearly right. The respondent contends that, upon the death of the husband, his widow surviving him, and he being seized in fee of the land then occupied by himself and his family as a homestead, and dying intestate, the fee to the homestead goes to his heirs at law, under the statute of descent; but that the homestead right, incuding the right to possession, whether the husband died testate or intestate, survives, and passes to his widow, to be enjoyed by her so long as she continues to occupy the premises as a homestead. Appellant takes issue upon the last proposition, and claims that the homestead right of the widow, including the possession and usufruct, ceases and determines at the final settlement and distribution of the estate. The decision of the issue involves a construction of that portion of the statute heretofore quoted, which reads: “Upon the death of either husband or wife the survivor may continue to possess and occupy the whole homestead until it is otherwise disposed of according to law.” This language which we are called upon to construe was taken from the statutes of Iowa, where it appears in the exact form we find it in our law. Code Iowa, § 2007. The context, however, was + somewhat changed to conform to our different policy. In Iowa, the next following section (2008) provides that “ 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.” The distributive share thus spoken of is one-third in value of all the legal or equitable estate possessed by the deceased at any time during marriage,