Carter v. Stookey

| Ill. | Jun 15, 1878

Mr. Justice Dickey

delivered the opinion of the Court:

The first point made is, that the assessment of the value of the dower is higher than warranted by the weight of the testimony. The question of fact in dispute on that subject was as to the rental value of certain premises. Many witnesses testified on this subject, and gave opinions widely varying from each other, and in addition certain facts were proved, and among others that a certain portion of the property was, in fact, rented to a responsible tenant for $700 a year. So far as we can perceive from this record, the verdict of the jury is not so palpably against the teachings of the testimony as to make it apparent to us that the circuit court erred in refusing to set aside the verdict on that ground.

On the trial, defendant offered to prove what the insurance of the property would be worth a year. The court refused to permit evidence on that subject to be given to the jury, and in this it is insisted the court was in error.

Where property is of such character that insurance of it is necessary and proper as a prudent business transaction, it has been held by this court that the amount necessary for such insurance should be deducted from the rental value of the property in determining the value of the widow’s dower. This assessed value, once adjudged, can not be modified by the increase or decrease of the rental value of the property, even if destroyed by fire. Donoghue v. City of Chicago, 57 Ill. 235" date_filed="1870-09-15" court="Ill." case_name="Donoghue v. City of Chicago">57 Ill. 235.

The proof offered on this subject should have been admitted. It was error to exclude it.

Lastly, it is insisted that the decree is erroneous because it requires the full payment of the dower before the expiration of the year. It was held in Scammon v. Campbell, 75 Ill. 223" date_filed="1874-09-15" court="Ill." case_name="Scammon v. Campbell">75 Ill. 223, that this was error.

For these errors the decree must be reversed, and the cause remanded for a new trial, and further proceedings in accordance with the views expressed in this opinion.

Decree reversed.