Hayack v. Will

Mr. Chief Justice Phillips delivered the opinion of the court: It was said in Clubb v. Wise, 64 Ill. 157: “During the life of the parents the children have no vested interest. The former have the whole title, and the absolute right of disposition without the concurrence or consent of the children. The parents may release the homestead right or put an end to it by abandonment, and the children can assert no right therein adversely to the acts of the parents. Whatever concludes the latter from asserting the homestead tight, and thereby deprives them of it, must, on principle, in like manner affect their children who succeed them.” This was held under the earlier statute, but by later legislation in this State it is provided that the exemption shall continue after the death of such householder entitled to a homestead, “for the benefit of the husband or wife surviving, so long as he or she continues to occupy such homestead, and of the children until the youngest child becomes twenty-one years of age.” (Rev. Stat. 1874, chap. 52, sec. 2.) By section 4 of the same chapter it is provided: “No release, waiver or conveyance of the estate so exempted shall be valid unless the same is in writing, subscribed by said householder and his or her wife or husband, if he or she have one, and acknowledged in the same manner as conveyances of real estate are required to be acknowledged, or possession is abandoned or given pursuant to the conveyance, or, if the exemption is continued to a child or children, without the order of the court directing a release thereof.” Section 101 of the Administration act (Hurd’s Stat. 1897, p. 125, par. 100,) provides, among other things, as follows: “And may also, with the assent of the person entitled to an estate in dower, or by the curtesy, or for life or for years, or of homestead to the whole or in part of the premises, who is a party to the suit, sell such real estate with the rest. But such assent shall be in writing and signed by such person, and filed in the court wherein the said proceedings are pending. When any such estate is sold the value thereof shall be ascertained and paid over in gross, or the proper proportion of the funds invested and the income paid over to the party entitled thereto, during the continuance of the estate.” This provision is with reference to proceedings for the sale of lands to pay debts, and in construing these several sections and different statutes they are to be construed in pari materia. The husband entitled to a homestead dying and leaving a widow and children, the homestead becomes vested in the widow, who may sell, encumber or abandon the same. In case of a sale or encumbrance by such widow, with proper acknowledgment, the conveyance or lien is complete as against the children. They are not vested with a right equal to that of the widow, but their right is subordinate to hers. She dying, they become vested with the estate of homestead if under twenty-one years of age, and the last clause of section 4 of chapter 52 applies to them; or if there be no widow, but children of required age, that clause also applies. By the provisions of the Probate Court act (Starr & Curtis’ Stat. 1897, p. 528,) probate courts in counties having a population of more than seventy thousand are vested with the same powers and jurisdiction, with reference to the sale of land to pay debts, as are county courts under the Administration act. Under these various provisions of the statutes of this State the probate court of Cook county has power to enter a decree to sell land to pay debts, and, with the assent of the person entitled to an estate in dower, or for life, or for years, or of homestead in the whole or part of the premises, who is a party to the suit, may include such particular estate to be sold with the rest, where the assent is in writing, signed, etc. The widow surviving, with children also surviving, is vested with the estate of homestead, and her assent would be conclusive on the children and would bar their right to a homestead therein. An exception to this rule exists in a case where the householder leaves minor children by a former marriage, and the surviving husband or wife is only step-parent to such children. In such case, if the step-parent does not stand in loco parentis he owes no duty of support to such children, and cannot convey, release, abandon or dispose of the homestead so as to extinguish their interest. Where a sale of the homestead is had in such case, the proceeds thereof should be distributed to the surviving householder and the step-children in proportion to their respective interests. (Capek v. Kropik, 129 Ill. 509.) If a widow has no right to consent to a sale of her homestead that would defeat the right of the heirs thereto, then a widow in delicate health, with an infant child dependent on her for support, whose homestead is a small farm which she could not till or occupy or rent, would be practically deprived of the benefit of such homestead. We hold that the widow may consent to a sale of the homestead, and thereby bar the right of her children to a homestead in the land. The writer of this opinion refrains from discussing the question as to whether the interest of one tenant in common will support the right of homestead in such premises, as that question has not been argued. The judgment of the probate court of Cook county in sustaining the demurrer was error. That judgment is reversed and the cause is remanded. Reversed and remanded.