" In Butterfield v. Wicks, it was held that such occupancy of the homestead was a mere personal right, which could not be the subject of a mortgage, because, upon a foreclosure of the mortgage and eviction of the mortgagor, the homestead right would cease, and the property would pass unencumbered to the heir. For the same reason a conveyance by and a surrender of the possession would confer no valuable right. The homestead right would cease by abandonment. See Smith v. Eaton, Term, 1879. What is the distributive share which was thus surrendered for the homestead, is the question to be determined. Its definition is found in the following sections of the Code: "2440. 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 has not been sold on execution, or any 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 real estate of a deceased wife shall be set apart to the surviving husband. "2441. 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.' In There would be no difficulty whatever in determining the question if the deceased wife left issue surviving her. that case the husband's whole interest in the estate would have been one-third, as provided in section 2440; and section 2008 provides, in plain and explicit terms, that the survivor may elect to retain the homestead for life in lieu of such share. But where there is no surviving issue, there are other sections of the statute which seem to us to have an important bearing upon the question. After providing the manner in which the distributive share or "widow's share" shall be set off to her, and that such share shall not be affected by any will of her husband, unless she consents thereto, section 2453 provides as follows: "Subject to the rights and charges hereinbefore contemplated, the remaining estate of which the decedent died seized shall, in the absence of other arrangements, by will, descend in equal shares to his children." Section 2455: "If the intestate leave no issue the one-half of his estate shall go to his parents and the other half to his wife." * * * * In Burns v. Kear, 21 Iowa, 257, it was held that, upon the death of the wife without issue, the husband is entitled to but one-half of her entire estate for dower and as heir at law. That case arose under section 2495 of the Revision of 1860, which was identical with section 2455 of the Code.. The effect of the rule is that, in determining the share of the husband under section 2455, the one-third or distributive share, or dower interest, must first be taken out, and to that must be added such a fraction of the residue as would make one-half, which would be one-sixth. It would seem that, the "distributive share," or "widow's share," is plainly described in sections 2440 and 2441 as the one-third. But, if this were not enough, the other provisions of the statute indicate that one-third is such share. The widow holds the one-third exempt from the debts of the husband. Mook v. Watson, 41 Iowa, 244; Kendall v. Kendall, 42 Iowa, 464. Her right to one-third cannot be affected by any will of the husband, Code, § 2452. It shall be so set off as to include the ordinary dwelling-house, unless she prefers a different arrangement, but no such arrangement shall be permitted to the prejudice of creditors. Section 2441. It attaches to all real estate of the husband, possessed at any time during marriage, which has not been sold on execution or any other judicial sale, and to which she has made no relinquishment of her right. Section 2440. These and other characteristics of the "widow's share" are applicable to the one-third of the estate, and no more. All excepting this one-third the husband can alien, dispose of by will, and it is liable for his debts, and the debts of the wife, without being set off and assigned to her. Whatever is inherited over and above one-third is taken and held as an heir at law, under section 2455. It seems to us to be clear that, when the husband in this case elected to hold the property as a homestead, he gave up and surrendered the one-third of the estate to which he was entitled under section 2440, and no more; and that when he abandoned the homestead his right to the one-sixth of the property remained, and that he could lawfully convey the same, and invest his grantee with a good title thereto, The judgment of the court below will be modified accordingly. THE CEDAR RAPIDS & MISSOURI RIVER R. Co. and another, Appellants, vs. BENJAMIN HERRING, Appellee. THE SAME VS. CATHERINE WOOSTER. THE SAME vs. JOHN T. LAKE. THE SAME VS. LEWIS IDDINGS. THE SAME vs. ELIZA W. BROOKS. THE SAME vs. W. T. BoYD. THE SAME Vs. DAVID GREENSTREET. Filed December 15, 1879. The C. R. & M. R. R. Co. is entitled, under the act of congress of June 2, 1861, not to the same quantity of land for the construction of the modified line therein mentioned as was granted for the original line for which such modified line was a substitute, but only to the same number of acres per mile of road as was provided for in the original grant and is not entitled to lands for the construction of the Lyons branch nor until completed for the Onawa branch.-[ED. Appeal from Monona district court. Substantially the same questions are involved in all these cases, and they were submitted in a single abstract. The actions are in equity, the object being to have determined conflicting titles to real estate. The plaintiffs claim title under the acts of congress approved May 15, 1856, and June 2, 1864, and certain legislation of the state granting lands in aid of the construction of railroads. The defendants claim to be purchasers directly from the government, or to have become entitled to the lands under the homestead acts of congress, and all claim to be the holders of patents, or to be' entitled thereto. The lands in controversy are all situate in the even-numbered sections. The district court dismissed the petition on the merits, and thereby, in effect, confirmed the title of the defendants. The plaintiffs appeal. James F. Wilson, I. N. Kidder, Joy & Wright and E. S. Bailey, for appellants. Monk & Selleck, and Platt Smith, for appellees. SEEVERS, J. The act of Congress approved May 15, 1856, granted to the state of Iowa, to aid in the construction of a railroad from Lyons City northwesterly to a point of intersection with the main line of the Iowa Central Air Line Railroad, near Maquoketa, thence along said line, as near as practicable, to the forty-second parallel, across the said state to the Missouri river, every alternate section of land designated by odd numbers, for six sections in width, on each side of said road as definitely located. If any of said lands had been disposed of by the general government there was granted in lieu thereof an equal amount, designated by oddnumbered sections, within 15 miles of the road as definitely fixed. The lands in controversy are situate within the 15mile limit. In July, 1856, the state granted said lands to the Iowa Central Air Line Company for the purpose contemplated in the act of Congress. Said company failed to construct the road, and in March, 1860, the state resumed the grant, and in a few days thereafter regranted said lands to the Cedar Rapids & Missouri River Railroad Company, by whom, it will be conceded, the road contemplated hy the act of Congress was constructed; and whatever title or right to said lands, vested in said company under said act of Congress, the state legislation aforesaid, and the construction of the road, now belongs to the plaintiffs. That the lands were granted by congress to aid in the construction of a railroad from the Mississippi to the Missouri river is undoubtedly true. Such a road, however, was not constructed in reliance on the grant, for at the time the grant to the air line company was resumed by the state a railroad had been constructed from Clinton, on the Mississippi river, some two or three miles south of Lyons City, westerly of Cedar Rapids, when the state made the grant to the plaintiff, and this fact was recognized, and the state provided that the lands were to be used for and devoted by the Cedar Rapids Railroad Company to the building of a railroad from Cedar Rapids, or Marion, to the Missouri river. This is all the state did, conceding it had the power to divert the lands, so to speak, to the construction of a railroad upon a different route from that mentioned in the act of congress. The original line in aid of which the grant was made by congress was about 345 miles in length, and the road constructed by the plaintiffs is about 75 miles shorter than this. Clearly, the state did not have the power, without the assent of congress, to grant the lands in aid of the longer to the shorter road. That is to say, under the act of congress of May 15, 1856, lands could only be drawn for the constructed road, and the state could not, by legislation, change this result. Because of this fact, and the necessity, apparent (787) or real, for modifying the line, the act of congress appproved June 2, 1864, was connected. The congressional policy, so far as this state is concerned, has been uniform in granting lands to aid in the construction of railroads. Without devi ation, we believe, such policy has been to grant a certain named and designated quantity of lands per mile of constructed road. The plaintiffs insist this policy and uniformity was departed from in the act of June, 1864, and that they are entitled, for constructing a road 271 6-10 miles long, to all the lands that had been previously granted by congress to aid in the construction of a road 345 miles in length. The material portion of said act is as follows: "That the Cedar Rapids & Missouri River Railroad Company, a corporation established under the laws of the state of Iowa, and to which the said state granted a portion of the land mentioned in the title of this act, may modify or change the location of the uncompleted portion of its line, as shown by the map thereof now on file in the general land office of the United States, so as to secure a better and more expeditious line to the Missouri river, and to a connection with the Iowa branch of the Union Pacific Railroad; and for the purpose of facilitating the more immediate construction of a line of railroads across the state of Iowa, to connect with the Iowa branch of the Union Pacific Railroad Company, aforesaid, the said Cedar Rapids & Missouri River Railroad Company is hereby authorized to connect its line by a branch with the line of the Mississippi & Missouri Railroad Company; and the said Cedar Rapids & Missouri River Railroad Company shall be entitled, for such modified line, to the same lands, and to the same amount of lands per mile, and for such connecting branch the same amount of land per mile, as originally granted to aid in the construction of its main line, subject to the conditions and forfeitures mentioned in the original grant." It will be seen the company was authorized: First, to modify its line so as to secure a better and more expeditious connection with the Iowa branch of the Union Pacific Railroad; and, second, to connect its line by a branch with the Mississippi & Missouri Railroad, for the construction of which it was entitled to receive lands. This branch has not been constructed, and no lands are claimed therefor. We are unable to discover any additional powers than the above, or that there was an additional grant of lands made |