29 Ill. 116 | Ill. | 1862
This was a petition for the assignment of dower. A demurrer was interposed which was sustained by the court, and the bill was dismissed. The petitioner alleges that she was legally married to the testator in the year 1816, and that he died about the 28th of December, 1859, leaving a will which was duly proved, and admitted to record, a copy of which is filed as an exhibit. The material portions of which are as follows:
“ Item Second. I desire that the sale of my personal estate take place in June next, or as soon thereafter as practicable, and the proceeds thereof, after paying all just demands upon me, to be divided equally between my former wife, Mary, now in Ohio, my wife, Susan H., and the children of both equally, to wit: Simeon, Mary Ann, William, and Eliza Ann, by my wife Mary; and Ann, Mary Jane and John Levi, by my wife Susan H. -
“ Third. I wish my son Simeon to remain in possession of and occupy the farm on which he lives, viz., S. W. of 32, 10 17., 5 E., free of charge, so long as it may be agreéable to my wife Susan TL, such possession not to extend beyond the time when my youngest child, John Levi, shall become of age. If my wife, Susan H., shall desire to sell said farm previously, she is at liberty to do so, but when sold, the proceeds thereof shall be divided equally among all my heirs above named, to wit, my former wife Mary, my present wife Susan H., and the children of both.
“Item Fourth. All my other real estate I leave at the disposal of my wife Susan H., to be sold by her whenever she shall deem proper, not extending this discretion, however, beyond the time of my youngest child, John Levi, becoming of age, the proceeds of such sale or sales to be divided equally between my heirs, as specified in items 2nd and 3rd.”
These provisions involve the question, whether the bequests made to appellant, bar her right of dower in the premises described in the petition. The tenth section of the dower act (Seates’ Comp. 152) contains this provision: “ Every devise of land, or any estate therein, by will, shall bar her dower in lands, or her share in personal 'estate, unless otherwise expressed in the will; but she may elect whether she will take such devise or bequest, or whether she will renounce the benefit of such devise or bequest, and take her dower in the lands, and her share in the personal estate of her husband.” After a careful examination of our statutes, no other provision is found on this subject. It will, however, be perceived, that the fortieth section of the Statute of Wills, in the revision of 1833, provided, that a widow should be barred of her dower, in the estate of her deceased husband, in all cases where any provision should be made for her, in his will. That provision is not limited to a devise of real estate. But in the revision of 1845, this section is omitted from the Statute of Wills, and the tenth section of the present dower act is first inserted in that chapter.
It will be perceived, that the enactment, as it now stands, is more limited' in its scope, than was the former provision. The present provision limits the bar, to a devise of land, or some interest therein, whilst the former provision extended it to any provision which was made for the widow, by her husband’s will. This change in the language is so marked, that we must conclude, that it was" from design, and not accident. Again, the provision as it now stands, is found in the dower act, and was inserted at a time when the law on that subject was undergoing a complete revision. The General Assembly then had the whole subject under consideration, and were engaged in reducing all the enactments on the subject of dower into one law. They must, therefore, have made this change deliberately, and for the purpose of remedying inconveniences, if not evils, under the former law. There can be no reasonable doubt, that it was the design of the legislature, in adopting the present enactment, to bar the widow of her dower, only when the husband has made a devise to her of land or some interest therein, with her express or implied assent. If, however, money or property were bequeathed to her, upon the express condition that it was to be in bar of dower, and should be accepted, it may be that it would have that effect. The mere bequest of personal estate, without such a provision, would not produce that result.
It then remains to determine, whether, by the provisions of this will, land, or any interest therein, was devised to appellant. A devise of lands must necessarily pass an estate in them, to the devisee. And an interest in lands, is manifestly something which may be enjoyed in connection with the land itself. A life or other estate would be an interest in land, but a devise of land, would transfer the title or all of the interest in it. An interest in land embraces something more than a lien upon it, as a security‘for money. A lien is not the subject of enjoyment in the land, whilst an interest in it is of that character. A power of sale to raise a fund is not an interest in land; it is only a security. A judgment of a court of record is a lien, but it confers no interest in the land, until a sale is had, and the time for redemption has expired.
In equity, a bequest of money to be converted into land, is considered and treated as real estate, and descends to the heir. And land required to be reduced to money, is regarded as personal property, and the court will compel its sale, and it passes to the personal representatives, or distributees. Then whatever amount of money appellant is entitled to receive on a sale of real estate, must be régarded as personalty, and not as land, or an interest in land. By the will, appellant acquires no right to the land; no right to its possession, control over it, or power of sale. The will simply gives her money, when the land is sold and converted into money. She takes under the will neither a present or future, nor an absolute or a contingent estate in the lands of her husband.
In the case of Baker v. Capenbarger, 15 Ill. 103, it was held, that a devise of land to be sold, and the money to be distributed among legatees, was a bequest of money, and not a devise of lands. It was also held, that the legatees had no such estate in the premises, as they could convey, or which could be sold on execution. It was likewise held, that by the election of all the legatees, they might take the land itself, instead of the money, but such a change could only be made by the concurrent action of all the legatees; as each has a separate right to insist upon the bequest, as made by the will, the claim of no one of them, to have a sale and receive his share of the money, can be defeated, except by the election of all the legatees. In any point of view in which this case can be considered, it cannot be held, that the bequest to appellant barred her right of dower in the lands of her husband, and which has not been relinquished by her, in the mode prescribed by the statute.
The decree of the court below is reversed, and the cause remanded, with leave to the appellees to answer the bill.
Decree reversed.
