Carling v. Peebles

Mr. Justice Hand delivered' the opinion of the court: It is clear Sarah E. Carling was entitled to dower in all of the real estate of which her husband, William Carling, Sr., died seized unless she was barred of such right, in whole or in part, by the payment to her of said sum of $600 and the execution and delivery to her husband of said instrument in writing. It is conceded that at the common law the husband could not contract with the wife for the release of her dower in his real estate, in whole or in part, as was attempted to be done in this case, and the sole question presented for decision is, since the passage of the act of 1874 in relation to husband and wife can the wife release to the husband her dower,-in whole or in part, in his real estate ? That act declares: “Contracts may be made and liabilities incurred by a wife, and the same enforced against her, to the same extent and in the same manner as if she were unmarried.” Hurd’s Stat. 1903, chap. 68, sec. 6. In Luttrell v. Boggs, 168 Ill. 361, the husband released to his wife, for a valuable consideration, all his right, title and interest in her property, including his contingent right of dower and his -interest as heir, which release, in a contest between the husband and the children of the wife by a former husband, she having died intestate, was sustained. The court, on page 363, said: “The statute of 1874, in relation to husband and wife, has removed the common law disability of married women to contract, or that of husband and wife to contract with each other,,except so far as is provided in the act itself.” And in Crum v. Sawyer, 132 Ill. 443, where a contract had been entered into between a husband and wife whereby the husband released his contingent interest in his wife’s lands, it was held that the husband may, for a valuable and adequate consideration, -enter into a contract with his wife to release and relinquish all his rights and interests, of every kind and nature, including his contingent right of dower in her real estate, and that such a contract, if fairly made, is binding upon him. And in Hieser v. Sutter, 195 Ill. 378, the wife, in consideration of the conveyance to her of a farm, released all right to and interest in the real and personal property of which her husband should die seized or possessed. On a bill filed by her against the heirs of her deceased husband to recover dower in subsequently acquired real estate the release was sustained. On page 381 the court said: “The statute of 1874 permits husband and wife to contract with each other, except in so far as it is provided otherwise by statute. In Hamilton v. Hamilton, 89 Ill. 349, in construing this statute we say (p. 351) : ‘There is nothing in all this which forbids her to contract with her husband, and the words are general, and broad enough to sanction such contracts.’ And in Luttrell v. Boggs, 168 Ill. 361, in commenting upon the case of Thomas v. Mueller, 106 Ill. 36, it is said: ‘Under existing legislation all restrictions upon the power of husband and wife to contract with each other, except so far as they are expressly retained, are removed.’ ” It is, however, urged, that the instrument executed by the wife in this case is invalid because it is not acknowledged by the wife in accordance with the provisions of section 17 of the Conveyance act. (Hurd’s Stat. 1903, chap. 30.) That act was passed prior to 1874, and section 17 thereof does not apply, in express terms, to a conveyance from a wife to her husband; and the release in the Sutter case was not acknowledged by the wife. The wife was competent to contract, and there is no evidence of fraud, duress or undue influence, and it is admitted she received the money and executed the instrument in writing hereinbefore referred to. Here the land in which the widow claimed dower by her consent was converted into money, and we are of the opinion the contract entered into between Sarah E. Carling and her husband, William Carling, Sr., was valid, and the amount received by her from her husband to apply upon her dower should have been deducted from the amount which she would otherwise have received as dower in the premises ordered sold by the decree of the county court. The judgment of the county court will therefore be reversed and the cause remanded to that court, with directions to enter an order in accordance with the views herein expressed. Reversed and remanded.