37 Ill. 301 | Ill. | 1865
delivered the opinion of the court:
Anthony Scheuster died in 1861, leaving his widow, Sally Scheuster, now Sally Deltzer, appellant herein, and his two minor children, Otto and Edward, appellees. By his will he devised a certain lot in Henry, Illinois, to his widow, and certain other lots to his children. The personal property was valued at $151.50, by the appraisers. The County Court allowed $740.50 to the widow as her separate estate. She qualified as executrix of the will, and having taken a part of the personal property at its valuation, to apply on her allowance, then procured an order from the County Court for the sale of that portion of the real estate devised to the children, to raise a fund for the payment of her allowance and of a small amount of indebtedness found against the estate. The children filed their bill in chancery to enjoin the executrix from making this sale, and on the hearing, the court made the injunction perpetual. The executrix has brought the record to this court.
We have no doubt that the complainants in this bill were entitled to some relief against the order of the County Court, but not to the extent allowed. The 50th section of the statute of Wills provides, as plainly as language is capable of doing, that “ the right of the widow to her separate property shall, in no case, be affected by her renouncing, or failing to renounce, the benefit of the provisions made for her in the will of her husband or otherwise, as provided in chapter thirty; four of the Revised Statutes.” In the face of this explicit provision, it is impossible to say that the appellant lost her right to the separate property allowed to her, because she did not renounce the provisions of the will in her favor. Section 10, of chapter 34, of the Revised Statutes must be construed to apply to other “personal estate” than that set apart to her under the 48th section of the chapter of Wills.
In the ease at bar, the appellant, as settled in the case of Cruce v. Cruce, 21 Ill., 46, is entitled to be regarded as a creditor to the extent of her separate allowance, and to have the real estate sold’ for its payment. It would, however, be obviously inequitable to require, as the County Court did, by its decree, that the fund should be raised exclusively from the real estate devised to the children. The debts or claims against the estate are a common burden, and in equity, must be borne by all the property devised by the deceased. To permit the widow to hold the lots devised to her by the will, and to sell those devised to the children for the payment of her statutory allowance, would be to permit her wholly to defeat the purposes of the testator. If she claims benefits from his will, she must respect those designed to be bestowed upon others. It is enough to say, however, that here is a common fund in the hands of different parties, liable to a common burden, and the burden must be equally borne. Equality, here, is equity. The court below will ascertain the comparative value of the real estate within its jurisdiction devised to the widow, and that devised to the children, and apportion the indebtedness of the estate, including the widow’s allowance, according to the respective values of the property devised. The homestead, however, which, as we understand the record, was devised to the children but is occupied by the widow, will not be considered in the valuation, or subjected to the sale.
We are also of opinion that the appellant, acting as executrix, did not fairly disclose to the appraisers, all the personal property belonging to her husband. We allude especially to the liquors in the cellar, and which were taken by her at their valuation.' The Circuit Court will therefore determine, by reference to the master, or by hearing testimony, the value of the property which came to the hands of the executrix and was appropriated by her at its valuation, and charge her with the actual value thereof. The court will also take an account of the rents and profits received by her on the property belonging to the children, allowing her such credits against these rents and profits as she may be entitled to, growing out of the expenses of the children.
Decree reversed.
