Christy v. Marmon

Mr. Chief Justice Hagruder delivered the opinion of the court: It is contended by plaintiffs in error, that the widow is cut off by the ante-nuptial agreement from claiming any interest in the estate of her husband as his heir. The third clause of section 1 of the act in regard to the descent of property provides that, “when there is a widow or surviving husband, and no child or children or descendants of a child or children of the intestate, then (after the payment of all just debts) one-half of the real estate and the whole of the personal estate shall descend to such widow or surviving husband as an absolute estate forever, and the other half of the real estate shall descend as in other cases, where there is no child or children or descendants of a child or children.” (1 Starr & Cur. Stat. p. 879). If there had been no ante-nuptial agreement in this case, the defendant in error would not only have taken all the personal property, left after the payment of the just debts, and one-half of the real property, as heir of her deceased husband, but she would also have been entitled to dower in the other half of the real property inherited by the children and other descendants of the intestate’s deceased brothers. The ante-nuptial agreement here undoubtedly bars the widow of her dower, but it does not bar her of her inheritance as an heir-at-law of the intestate. What she takes as heir of her husband is entirely separate and distinct from her right of dower. There is no language in the agreement, which recites that the provisions therein made are to be in satisfaction of her inheritance as heir. The annuity of $500.00 she is to receive as dower,' and not in lieu of her share in the estate as heir of her husband. Where a party, in anticipation of marriage, conveyed to his intended wife certain real estate, which was declared to be a jointure in full recompense and satisfaction for dower, or any claim of dower on her part, the latter joining in the execution of the same to evince her assent to the provisions thereof, and after the marriage the husband died intestate, leaving no child or children, or descendants of any child; it was held, that such an ante-nuptial contract did not bar the widow from claiming as heir of her husband, and that, under the statute, she took as such heir one-half of the real and all the personal estate of her deceased husband, left after the payment of his debts. (Sutherland v. Sutherland, 69 Ill. 481). So, here, notwithstanding the execution of the ante-nuptial agreement of September 24, 1884, the defendant in error, as heir of her husband, is entitled-to one-half of the real estate, and the whole of the personal estate left after the payment of all the debts. That agreement does not bar her from recovering as such heir one-half of the realty, and all the personalty remaining after the debts are paid. In so holding, the decree of the court below was correct. But we think, that the decree was erroneous in charging the payment of the annuity of $500.00 exclusively upon the half of the land inherited by the collateral heirs of the deceased intestate, or upon the proceeds of the sale of their half of the land, and relieving that part of the estate, inherited by the widow as heir of her husband, from the payment of any portion of such annuity. The contract reads as follows: “The said party of the second part is to receive as dower from the estate of the said William P. Marmon the sum of five hundred dollars annually, each and every year from said, estate, during her natural life and remaining my widow.” The annuity is to be paid “from the estate,” that is to say, from the whole estate, and not from one-half of it, or from one-half of so much of it as is real property. The words, “from the estate,” or “from said estate,” are repeated as if to give emphasis to the idea, that the annuity was to be a charge upon the whole estate. The whole estate consisted, not only of the half of the realty inherited by those heirs.of William P. Marmon who were his nephews and nieces, etc., but also of the half of the realty and the portion of the personal property inherited by his wife, who was also an heir. It is true that, under the contract, the widow is to receive the annuity from the estate “as dower.” But, if the annuity is to be received as dower, or for dower, or in the place and stead of dower, it does not therefore follow, that such annuity must be raised entirely and exclusively from that part of the estate, to which dower would attach if there were no ante-nuptial agreement, particularly when the provision is, that the annuity is to be received from the whole estate. A bond, conditioned for the payment of money after the obligor’s death, made to a woman in contemplation of the obligor’s marrying her, and intended for her benefit if she should survive, is not released by their marriage. (Milburn v. Ewart, 5 T. R. 381; D. & E. 196). A stipulation in a marriage contract, to the effect that, in case the wife should survive the husband, she should receive from the estate of the husband a certain sum, is valid; and such an instrument creates a legal liability in favor of the wife, and she may bring suit bn the same after the decease of her husband against his representatives. (Vogel v. Vogel’s Admr. 22 Mo. 161). By the terms of the present contract, the deceased was to marry defendant in error in consideration that she should receive the annuity of 5B500.00 from his estate as her dower; and herein the present case differs from Jordan v. Clark, 81 Ill. 465, where “the money was not given in consideration” for the marriage. There is no proof in the record to show how much personal property was left after the payment of all the debts. The court should have directed proof to be taken upon this subject. The amount of the personal property, left after payment of debts and belonging to defendant in error as heir, and the one-half of the realty inherited by her as heir, are chargeable with the payment of their proportion of the annuity, as between the widow and the other heirs. Proof also should have been taken of the amount of rents and profits collected by the widow up to the date of the decree. These also should have been added to the estate chargeable with the payment of the annuity. The widow was not entitled to appropriate such rents and profits as damages for delay in the assignment of her dower, and in satisfaction thereof prior to the date of the decree, because the ante-nuptial agreement was in the nature of an equitable jointure, and barred her right of dower in the real estate of the deceased intestate, and also 'her widow’s award, though it was no bar to her estate of homestead. (Barth v. Lines, 118 Ill. 374; Spencer v. Boardman, id. 553; McGee v. McGee, 91 id. 548; McMahill v. McMahill, 105 id. 596). One of the defendants below, whose name is joined as one of the plaintiffs in error, moves to dismiss the writ of error ujdoh the ground that his name has been so used without his authority. . The joining of his name as one of the plaintiffs in error was allowable under the statute and under the decisions of this court. (Practice act, chap. 110, sec. 70; 2 Starr & Cur. Stat. p. 1834; McIntyre v. Sholty, 139 Ill. 171; Moore v. Capps, 4 Gilm. 315). The motion, is accordingly overruled. For the reasons above stated the decree of the circuit court is reversed and the cause is remanded to that court for further proceedings in accordance with the views herein expressed. * „ 7 , 7 7 Reversed and remanded.