Zakroczymski v. Zakroczymski

Mr. Justice Dunn delivers 1 the opinion of the court: Teofila Zakroczymski died leaving her husband and three sons her heirs and leavini an estate of several thousand dollars, consisting wholly -f personal property, which she bequeathed by her will to hi r three sons in equal parts, making no mention of her hush md. The executor filed in the probate court of Cook cour :y his final report showing distribution of the estate to the three sons. The husband claiming to be entitled to one-t lird of the estate after the payment of debts objected to the report, his objection was sustained, and the executor was directed to reform his report by deducting from the items paid to the sons an amount equal to one-third of the estate and pay that amount to the husband. On appeal to the circuit court the same order was made. A part of the estate consisted of a note for $2000, inventoried as unsecured and desperate, which the executor had delivered to the sons as a part of the estate, and the effect of the order of the court was to charge him with its amount as cash. The Appellate Court on appeal agreed with the circuit court on the main question but found that it was error to charge the executor with this worthless note, and for this error, only, reversed the judgment and remanded the cause to the circuit court, with directions to require the executor to collect the note, if possible, and then distribute the proceeds, one-third to the surviving husband and two-thirds in accordance with the provisions of the will. The executor having obtained a certificate of importance, has appealed to this court. The question for decision is whether a surviving husband is barred from all interest in the estate of his wife whose will makes no provision for him, where the estate consists of personal property, only. The descent of property is regulated wholly by statute. Before July 1, 1872, a husband took no interest, by reason of his wife’s death, in her property, real or personal, where she left children surviving. A widow, however, was entitled to a life estate in one-third of her husband’s lands if he died intestate, which was called dower, and one-third of his personal estate after the payment of debts. The statute on wills authorized the husband to dispose of all his property, real and personal, by will, but this right was limited by section 10 of the Dower act, which provided: “Every devise of land, or any estate therein, by will, shall bar her dower in lands, or of her share in personal estate, unless otherwise expressed in the will; but she may elect whether she will take such de ise or bequest, or whether she will renounce the benefit ol such devise or bequest, and take her dower in the lands, a: d her share in the personal estate of her husband.” If tl e will made any devise of land to her it barred her inten st in both the real and personal estate if she accepted th< provision, but she had the privilege to elect whether she w> uld take the provision made in the will or her dower and on -third of the personal property. In this condition of the aw a case arose in which a testator in 1867 made a will ontaining this declaration: "Second.—It is my will that r y wife, Margaret N. Taylor, shall have and take of tb property of which I may die possessed, only so much tl' :reof as by the law of the land she may be entitled to, s íe being possessed of considerable property in her own : ight. I therefore make no bequest or devise to her.” Tl e wife claimed dower and one-third the personal estate, 1 it the objection was made that the estate was not intestate and the Statute of Descent applied only to cases of infests :y; that she could not renounce the will and elect to talc her dower in the land and one-third of the personalty, as fi. e statute only provided for a widow doing so where her 1 usband’s will had made a devise of land, or some estate therein, to his wife. The court, construing the statute, h -,ld that “where a husband makes a will but makes no dei !se or bequest to his wife, his estate as to her is intestate to the extent of her legal claims, and that under our law i is not in the power of the husband so to dispose of his est. te as to deprive his widow of the third of the personal pr -perty remaining after the payment of his debts, and tha- there is one-third of the realty beyond his disposal by wi" unless a devise or bequest to the wife be made therein whic 1 she is willing to and does accept.” (In re Taylor’s Will, 55 Ill. 252.) This construction of the statute has been fob wed by the courts in later decisions and has been universa ly regarded as the settled law of this State. Laurence v. Balch, 195 Ill. 626; Richardson v. Trubey, 240 id. 476; Bennett v. Bennett, 282 id. 266. In 1872 the act in regard to the descent of property was passed, which gave the husband and wife for the first time the same rights of inheritance. The Dower act was not amended and the husband’s estate of curtesy in the wife’s land and her dower in his land were not affected. In 1874 the Dower act was amended, the husband’s estate of curtesy was abolished and the same right of dower was given to the husband and wife in the lands of the other. Section 10 was re-enacted with some changes not material to the question here and appears in the Revised Statutes of 1874 as follows: “Any devise of land, or any estate therein, or any other provision made by the will of a deceased husband or wife for a surviving wife or husband, shall, unless otherwise expressed in the will, bar the dower of such survivor in the lands of the deceased, unless such survivor shall elect to and does renounce the benefit of such devise or other provision, in which case he or she shall be entitled to dower in the lands and to one-third of the personal estate after the payment of all debts.” The omission of the words “or of her share in personal estate” is immaterial, because it was only in the case of intestate estates that section 43 of the Statute of Wills, which declared the rule of distribution of intestate estates, provided that a widow should receive one-third of the personal estate, and both before and after 1872 it was only by the last clause in section 10 of the Dower act that a widow was entitled to take her share in the personal estate where the estate was testate. Where the legislature has re-enacted in substantially the same words a law which has been judicially construed, it will be presumed that the provision was re-enacted in view of the meaning which has been given to it by the court. (Kelley v. Northern Trust Co. 190 Ill. 401; McGann v. People, 194 id. 526; Spiehs v. Insull, 278 id. 184; People v. Stewart, 281 id. 365.) Section 10 of the act must the refore be regarded as having the meaning which had be< n perviously given to it by the construction in the Taylor case. The decision of the court in that case at the time i was rendered had no application to the rights of a si wiving husband, but since the change made by the statut of 1872 in regard to the descent of property and the dc vver of the husband in his wife’s real estate the situation is exactly the same in the case of the husband as in that )f the wife, and that decision is applicable to the case o the former as well as to that of the latter. No cross-error is assigned a to the action of the court in regard to the uncollected not :. The judgment of the Appel! ite Court will be affirmed. Judgment affirmed.