Thе cause before us arose as a result of a petition filed in the Probate Division of the Circuit Court of LaSalle County for appointment of appraisers and fixing and allowance of a widow’s award to Emma E. Cullen as the surviving spouse of the deceased, Benedict T. Cullen. Just before the marriage of the parties in 1959, the petitioner and decedent had executed a premarital agreement which contained the following provisions:
“2. The party of the second part expressly agrees that in case she shall survive the party of the first part, she will make no claim to any part of his estate as surviving widow, and the party of the seсond part hereby expressly waives and relinquishes all right of dower and homestead in and to the real estate of which the party of the first part may die seized and possessed and hereby waives and relinquishesall rights in and to any real or personal estate of the party of the first part, as surviving widow, heir-at-law, or otherwise. It is еxpressly agreed that this provision shall apply not only to real and personal property owned by the party of the first part on the date of this agreement but to any real or personal property hereafter acquired by the party of the first part.”
“3. It is expressly hereby declared that the parties to this agreement intend, by this agreement, to provide that all property of the party of the first part, real or personal, whether now owned by him or hereafter acquired by him, shall, at his death, descend to his heirs at law (exclusive of the party of the second part), legatees or devisees as though said marriage had not tаken place, and that the party of the second part shall take no share of the estate of the party of the first part unless it shall be expressly so provided in his last will and testament, and then only to the extent so provided in said instrument.”
The decedent left a last will and testament in which he stated that his Executors should pay his dеbts, funeral expenses and taxes, and that all the rest, residue and remainder of his property was to go to his children. The will also contains the following recital:
“I have heretofore entered into a pre-nuptial agreement with my present wife, Emma E. Cullen, which in substance provides that neither of us shall share in or make any сlaim to any part of the estate of the other unless some share shall be expressly provided in the last will and testament of either of us and then only to the extent so provided in said instrument, and I hereby expressly omit any provision for my said wife in this will.”
On appeal in this court, Petitioner contends that she is entitled to the surviving spouse’s award and that the premarital agreement does not waive her right to this award for the following reasons:
1. She contends that the statute relating to surviving spouse’s award allows the award to the surviving spouse unless it has been expressly waived by such surviving spouse. In support of this contention it is pointed out that there is no express language which in so many words contains a waiver of the spouse’s award, in the premarital agreement.
2. Appellant contends that if the court should conclude that the statute does not require an express waiver of the award in order to bar it, the premarital agreement should be interpreted as not being sufficiently broad to constitute a waiver on the part of the widow of her right to the award by implication.
While there is no exact precedent on the particular issue before us, the courts of this state have considered and deаlt with a number of closely related problems. It has been established fundamentally in this state that where there is no fraud or concealment, and where there are no minor children of the decedent, the right to a surviving spouse’s award may be barred by a fair antenuptial agreement (Kroell v. Kroell, 219 Ill 105,
In Pavlicek v. Roessler, supra, where the parties were of mature years (as is true in the instant case) and there was no child born of the marriage of decedent and the surviving widow, the court pointed out that the contract provided for a release by the intended wife of all her right and interest of any kind or nature whatsoever and especially her contingent right to dower and homestead, in her intended husband’s real estate and that she would not sue for, claim or demand any right of dower оr other interest whatsoever in the real estate of her intended husband. It also contained a recital that she released and relinquished to her intended husband, all right, title and claim to any distributive share or portion of his personal estate with the same language that she would not sue for, claim or demand any distributive share or intеrest to which she might be entitled as surviving widow or wife of the intended husband in or to any of the personal estate of which he might die possessed. The court pointed out that where the
An illustration of the type of case in whiсh the court determined that the language was not sufficiently broad to constitute a waiver of widow’s award is Yockey v. Marion, 269 Ill 342,
Since most of the basic decisions to which we have referred were determined prior to 1939, a consideration of the language of the Probate Act of 1939 becomes pertinent to determination of the issue before us. In that Act (Ill Rev Stats 1963, c 3, § 182) it is provided expressly as follows: “The surviving spouse is entitled to the award unless the will of the decedent exprеssly provides that the provisions thereof for the surviving spouse are in lieu of the award and the surviving spouse
In support of the. contention that specific language is required to bar the widow’s award, Appellant cites the casеs of In re Estate of Guttman, 349 Ill App 58,
“Rose Blair does hereby forever waive and release any and all rights which she, as the wife or widow of Samuel Guttman, might otherwise have either as dower in the real estate of Samuel Guttman, or by virtue of any statutory provision made for her benefit in lieu of dower, or might have to a distributive share in any personal property of Samuel Guttman, under any statutes now or hereafter in force and effect.”
The court in that case pointed out that the same rule of construction applies to antenuptial agreements as to wills, as shown in the case of Pavlicek v. Roessler, supra. It is also observed by the court that the widow’s award is a statutory allowance and where it is neither released in terms nor by language sufficiently broad to include it,
An editorial observation on this subject is contained in James Illinois Probate Law and Practice at Seсtion 182.1 (Pages 315 and 316) where it is stated as follows:
“Section 182 of the Probate Act provides that the surviving spouse is entitled to her award unless the will of the decedent expressly provides that the provisions thereof for the surviving spouse are in lieuof the award and she does not renounce the will. It will be observed that the section uses the words ‘expressly provides.’ In the author’s judgment these words do not require that the will must necessarily use the term ‘surviving spouse’s award’ in order to bar the surviving spouse from receiving an award, but rather contemplates that there must be sufficiently clear language in the will to evidence an intention ... to deprive the surviving spouse of the аward . . .”
The author there concludes that the use of the words “widow’s award” or “surviving spouse’s award” is not required where the language indicates an intention to bar the award. In the antenuptial agreement which we have under consideration, it is expressly provided that if the widow shall survive “she will make no claim to any part of his estate as surviving widow . . . and hereby waives and relinquishes all right in and to any real or personal estate of the party of the first part as surviving widow, heir at law, or otherwise.” The agreement also provides:
“It is expressly hereby declared that the parties to this agreement intend, by this agreement, to provide that all property of thе party of the first part, real or personal, whether now owned by him or hereafter acquired by him, shall, at his death, descend to his heirs at law (exclusive of the party of the second part), legatees or devisees as though said marriage had not taken place, and that the party of the second part shall takе no share of the estate of the party of the first part unless it shall be expressly so provided in his last will and testament and then only to the extent so provided in said instrument.”
It is apparent from such language that it was the intention of the parties that the surviving widow would in fact “make no claim” to any part of decedent’s estate
The precedents in this state indicate that language of the character we have before us would clearly act as a bar to a surviving spouse’s award prior to the Probate Act of 1939 referrеd to. The language of such Act is not of such character as to require the use of the words “widow’s award” or “surviving spouse’s award” in order to bar the claim for widow’s award if it is obvious from the broad language used in the antenuptial agreement that it was actually the intention of the parties to bar a widow’s award or surviving spouse’s аward. The language of the antenuptial agreement in the case before us expressly and in simple terms states that petitioner would make no claim as surviving widow and that she waives and relinquishes all rights as surviving widow and that the beneficiaries of the decedent’s will would receive his property as though the marriage had never tаken place. To hold that the language of such agreement did not sufficiently express the intention of the parties to bar the widow’s award would be a distortion of the language and ordinary rules of construction as well as a departure from the precedents heretofore determined in this state.
Affirmed.