#### E. A. Milner *et*al., Appellants, v. M. J. Davis, Executor, *et al.*

1 Will: election: sale op homestead. Where the husband, who is made the sole legatee and executor of the 'will of his deceased wife, completes a sale of her homestead pursuant to a contract made by the wife and the order of court, the same does not constitute an election to take under the will so as to preclude him from electing to take the proceeds of the sale and use the same in the purchase of a new homestead.

2 Homestead: DIVERSION op PROCEEDS. The fact that a purchaser of the homestead belonging to the wife under a contract of sale made by her, deposits a portion of the purchase price in a bank to the credit of the husband, who is sole legatee under her will, through an arrangement with the husband to complete the sale, does not constitute a diversion of the fund prior to settlement of the estate so as to deprive it of its homestead character.

*Appeal from Pottawattamie District Court.*— Hon. O. D. Wheelee, Judge.

Saturday, April 11, 1903.

The plaintiffs are the owners of a judgment against the defendant M. j. Davis, who was the husband of Margaret A. Davis, deceased, and is now the executor of her estate. Margaret A. Davis was for many years prior to her death the owner of ten acres of land, which was occupied by herself and her husband, M. J. Davis, as -their homestead. Shortly before she died, she sold this land to Daniel E. Preston for $850. She died, however, before a conveyance thereof was made to him. Mrs. Davis left a will, making her husband her sole legatee and the executor of her estate. Before the wall was probated, M. J. *232Davis entered into a written contract with Preston whereby he agreed to complete the sale made by his wife, by qualifying as executor, and by procuring an order from the court for the conveyance of the land to him. It was also agreed that the balance of the purchase price thereof should be deposited in a bank to the credit of Davis as such executor, to be paid over to him upon the delivery of a deed for the land. The deposit was made as agreed, and the deed executed and approved October 22, 1900. This action was commenced in July, 1900, to subject the money in the bank to the payment of the plaintiffs’ judgment against M. J. Davis. On the 4th day of September following, Davis filed a written election to take a home stead right, rather than under the will of his deceased wife. There was a judgment denying the claim of the plaintiffs, and they *appeal.*

Affirmed.

*Fremont Benjamin*for appellants.

*Turner ds Oullison*for appellee.

SheewiN, J.

Two propositions are urged by the appellants : First, that there was an election by Davis 'to take under the will; and, second, that the deposit of the purchase i. m: elec-homestead, money in the bank was a loan to the bank, and consequently a diversion of it to a use other-than for-the purchase of a new homestead. The election relied upon is the contract with Preston to complete the sale already made by Mrs. Davis, and the subsequent compliance with that agreement. The rule is firmly .established that an election must be of record, and that it is sufficient if it discloses an act or declaration plainly indicating an intention to take under the will. *Craig v.*Conover, 80 Iowa, 358; *In re Estate of*Franke, 97 Iowa, 704; *In fe Estate of Froctor,*103 Iowa, 232. Before her death Mrs. Davis had sold this land to Preston, and a part of the purchase price had been paid to her, and her sick*233ness and death alone prevented the completion oí the transaction. The defendant had agreed to this sale, and its purpose was, as stated by him,, to secure a home in town. It was perfectly proper, then, for him .to agree to complete it as soon as it could be done through legal channels, and we see nothing in the contract itself which even points towards an election on his part. He did nothing more than to agree to qualify as executor, and as such to procure the necessary order for a conveyance of the land according to the terms of the sale made by his wife. True, when he made, the contract he had not been appointed by the court because the will had not then been probated, but the purchaser wanted immediate possession of the land, and the contract was so drawn that all interests would be fully protected in case of a failure on his part as executor to carry out its terms. Every act which he agreed to do was to be done as executor under the direction of the court, and every act which he did in closing the sale was so done.

The deposit of the money in the bank under this arrangement was not a diversion of the fund. Davis could not make a deed which would be accepted by the grantee a. Homestead: proceeds. until an order of court therefor could be obtained, and that could not be done until sometime in October following. All that could be done then was to make a deposit which would be paid to Davis as executor when he could furnish a deed, and until that time he had no right to or claim upon the money. Furthermore, his only right to the money was as executor. The estate had not been settled, and he certainly could not appropriate any part thereof to his individual use until the debts and the expenses of administration were paid. We think there had been no diversion of the money deposited by Preston when the defendant filed his formal election as herein stated. This disposes of the points argued, and the judgment is apeibheb.