Page:North Dakota Reports (vol. 2).pdf/292

 We desire now to call attention to certain further provisions of our statute. The estates of dower and curtesy are unknown to our laws (§§ 2594, 3402, Comp. Laws); nor have we any estate that corresponds therewith. The husband and the wife are heirs at law to each other’s estates, the portion which each will inherit in the estate of the other depending upon the presence or absence of certain other heirs, and may be one-third, one-half, or the whole thereof. § 3401,Id. But the entire estate of either husband or wife may be disposed of by will, " subject to the homestead rights of the survivor as declared by law. § 2466, Id. While our statute as to the rights of the surviving husband or wife seems to be largely patterned . after the Iowa statute, yet it is apparent that the differences are such that the Iowa decisions are largely inapplicable here. With us, the survivor has no “distributive share” whatever. All that goes to the survivor, aside from the personal right to possess and occupy the homestead, is taken as heir. Nor is there any provision or necessity for an election between rights as surviorsurvivor [sic] and the rights as heir. There is no intimation that both rights may not be enjoyed, and both at the same time. The only Iowa case on this point that would seem applicable to our condition is Smith v. Zuckmeyer, and that, so far as applicable, is authority for the ruling of the trial court. It is claimed, however, that a fair interpretation of this language of our statute forces the conclusion that some disposition of the homestead estate was thereby intended, aside from a voluntary disposition on the part of the survivor, and aside from possession on her part to the exclusion of the co-heir, and that such disposition would terminate her homestead right without regard to her will or wishes. More felicitious language might undoubtedly have been used to express the single thought that the survivor might continue to possess and occupy the homestead as long as she preserved its homestead character and occupied it asa home. But we think the legislature had in view also the fact that there might exist a mortgage upon the homestead property, executed by both husband and wife, or that the taxes thereon might not be paid, and the homestead become liable therefor under § 2452, Comp. Laws, or that it might be