135 Ill. 448 | Ill. | 1890
delivered the opinion of the Court:
The matter of the decree.of February 17,1868, allowing to Maria P. Storey, the defendant in error herein, for her alimony and maintenance, the-sum of $2000 per annum, “for so long as she may he and remain sole and unmarried,” was before this court at a former term, and it was held that the annual allowance of $2000, to be paid according to the provisions of that decree, did not terminate with the life of the husband, but was binding upon his estate after his death, and should be continued to her so long as she lives and remains sole and unmarried. (Storey v. Storey et al. 125 Ill. 608.) In the present proceeding for the assignment to her of dower in the same land and premises upon which said annuity was made a lien and charge, various points are made by plaintiffs in error, such as the sufficiency of the proof to establish the death of Wilbur F. Storey; the competency of the evidence which was introduced to show the seizin by him, during the coverture, of the premises in which dower is claimed; the rendering of a decree against plaintiffs in error, jointly, for damages for detention of dower, and the entering of any decree whatever against Hansen, one of the plaintiffs in error, for damages for the non-assignment of dower, which are merely ancillary to the paramount question at issue,' and which, in the view which we take of that question, we may forbear considering.
In this State, the right of a wife to be endowed of a third part of all the' lands whereof her deceased husband was seized of an estate of inheritance at any time during the marriage, is a statutory as well as a common law right. Being a clear statutory and legal right, it continues, unless she voluntarily relinquishes it, or it is barred for one of the causes prescribed by the statute, or she is, by some rule of law or equity, precluded or estopped from asserting it. In Gilbert v. Reynolds et al. 51 Ill. 513, it was held that a widow may, by her laches, estop herself from claiming dower. In Collins v. Woods et al. 63 Ill. 285, and Allen v. Allen et al. 112 id. 323, it was held that acts and conduct sufficient to constitute an equitable estoppel would bar the right. In Hoppin v. Hoppin, 96 Ill. 265, it was held that her covenant of warranty against all incumbrances would operate to prevent her from afterwards setting up a claim to dower. In Torrey v. Minor et al. 1 S. & M. Ch. 489, it was held that a covenant of the ancestor of the widow barred her claim to dower. And in Skinner et al. Exrs. v. Newberry, 51 Ill. 203, where moneys were due the testator, at his decease, upon executory contracts for the sale and conveyance of real estate, it was said that the widow, “by claiming her share of the purchase money, cuts off her rights of dower in the lands sold.”
The divorce of 1868 was granted for the fault and misconduct of the husband, and it was expressly found by the decree that defendant in error was without fault in the premises. So, as matter of course, under our statute, (Dower act, sec. 14,) the mere entry of the decree for divorce had no effect to deprive her of her inchoate right of dower. But the decree for divorce was followed by a further decree, wherein it was adjudged and decreed that the defendant in the divorce suit pay or cause to be paid, to and for the use of defendant in error, for so long as she may be and remain sole and unmarried, the sum of $2000 per annum, payable in quarterly installments, of $500 each, and further ordered and decreed that the sums of money so allowed her, and for her use, should be a lien and a charge upon the premises which are described in the decree, and in which she is now seeking to get dower.
Dower is the provision which the law makes for a wife out of the lands and tenements of her husband, for her support and maintenance after his death. Alimony is that allowance which is made to a woman, on a decree of divorce, for her support out of the estate of her husband. It is the equivalent of the obligation implied in every marriage contract—that the husband shall furnish his wife a suitable support and maintenance. (Stillman v. Stillman, 99 Ill. 196.) By the English law, alimony was but an allowance during the joint lives of the husband and wife, and it could not be ordered for the term of the wife’s life, because it is a maintenance to her, while the husband’s duty to maintain her ceases at his death. (See Lennahan v. O'Keefe et al. 107 Ill. 620, and authorities there cited.) It was said in that case, that under our statute the power of the court to allow alimony is broader than it was in England, and also said, that the court may, under exceptional circumstances, make an allowance for alimony, once for all, of a sum in gross, or may decree real estate absolutely to the complainant. But no allowance of the character of either of those above indicated was made in the decree of 1868, and the provision therein made for the alimony, maintenance and use of the divorced wife, was an annuity of $2000 for so long as she may be and remain sole and unmarried, and such annuity was amply secured by making it a lien and a charge upon real estate. The annuity in question is an annuity for life, since it can be determined only by the voluntary act of the annuitant. 4 Coke, 3a; Hamilton v. Buckwalter, 2 Yeates, 389.
At the time that the decree was entered for $2000 per annum, defendant in error had two rights, and two only, as against the defendant in the divorce suit, or his property. One was against him, personally, for support and maintenance during their joint lives, and which, if she did not sooner decease, would necessarily terminate with his life; and the other was an inchoate right, to become consummate at his death, to be endowed of the third part of all the lands whereof he had been seized of an estate of inheritance during the coverture. At the same time, the only legal duty which was imposed upon said defendant was one which was correlative to the first of the above mentioned rights, and was the duty to support and maintain her during the joint lives of' both. There was no legal duty incumbent upon him that was responsive to the other of said rights of defendant in error, but in place thereof the law itself both gave to her such right, and secured the same to her, but out of his estate, not to take effect, however, until after his decease.
The decree which was entered by the court was responsive to both of these rights of defendant in error, and gave to her the full measure of all that she could lawfully or justly or equitably claim in satisfaction of either and both of the rights with which she was invested. The decree did not in express terms provide that dower should be barred, but such was its evident intention, and the provisions of the bond, trust deed and other instruments in evidence indicate that it was so understood by both of the parties to the suit, and by the court.It was, as appears upon its face, a consent decree, and it ordered and adjudged that the defendant “pay, or cause to be paid, to and for the use of the said complainant, for so long as she may be and remain sole and unmarried, the sum of $2000 per annum, ” etc., and further ordered and decreed “that said sums of money shall be, and they are hereby declared to be, a lien and a charge upon the following premises and lands,” etc. The moneys are decreed to be paid “to and for the use of the complainant,” and the annuity is extended during the term of her life, and is made a lien and a charge upon the real estate of the defendant, thereby giving her a life estate therein. As matter of fact, the allowance made not only furnished her with alimony proper, but with a full and liberal equivalent for dower. The installments of the annuity that have accrued since the death of the husband, and those that may hereafter become due, were and are based upon no right vested in defendant in error or duty incumbent upon her divorced husband, unless they were and are predicated upon her right of dower. It must be presumed, under the circumstances of the case, that the allowance of $2000 a year for the time intervening the death of said husband and her own death, was in lieu of dower. The decree for support and maintenance was a consent decree, and as such to be regarded as a contract between the parties to the suit. Defendant in error having taken support and maintenance, and still continuing to claim and take support and maintenance, under the contract, and which was and is a charge upon the real estate here in question, she is estopped from also claiming dower in the same land. The contract and her conduct amount to a waiver of dower.
It is a well settled principle, acknowledged at law as well, as in equity, that a wife can not have both dower and what is given in lieu of dower. (Birmingham v. Kirwan, 2 Sch. & L. 444; Parham v. Parham et al. 6 Humph. 287; Warfield v. Castleman, 5 T. B. Mon. 517.) In Lennahan v. O'Keefe et al. 107 Ill. 620, this court said, “that it would require an extraordinary case to justify the postponement of creditors and heirs to the payment of both dower and alimony, currently, during the life of the divorced wife, and that in very many cases such an order would be equivalent to an entire appropriation of the husband’s estate.”
The.decree is reversed and the cause remanded, with direc- ■ tions to dismiss the petition at the costs of the petitioner..
Decree reversed.
