| Ill. | Dec 22, 1904
delivered the opinion of the court:
The first ground of reversal insisted upon by counsel for appellant is, that the court erred in refusing to estimate the value of the homestead and the interest of Marie Strelow conveyed by said trust deed, upon the value of the premises at the time of the execution of the quit-claim deed by Johann Mech to his then wife. They state their proposition on this point as follows: “When Mech died seized of the fee to the extent of $1000, which had not passed by reason of the defective deed made by him, that fee was encumbered by his homestead estate. But the homestead estate has been abandoned and become extinguished, so that it is no longer in existence. The question as to the proportionate shares of the fee owned by the several parties interested therein at the present time must be determined by ascertaining the total value of the fee at the time of the conveyance by Mech, in 1893. As an interest in the fee to the extent of $1000 remained in him, if the property was then worth $3500, he was the owner'of 10/35 and Mrs. Mech (now Strelow) of the remainder, or 25/35. Such would continue to be their respective proportionate interests, no matter whether the property subsequently increased or diminished in value. The decree appealed from, by confusing the homestead with the fee, has maintained an arbitrary value of- $1000 on the fee left by Mech, regardless of the depreciation in the value of the property since, leaving the surplus above $1000, or 25/35 °f the whole property, to bear the whole burden of depreciation in value to $1500.”
We are of the opinion that the position is wholly untenable. It is not correct to say that the $1000 fee was encumbered by a homestead estate. The homestead itself was an estate in the premises “to the extent in value of $1000.” That is, the lot and buildings thereon owned by Johann Mech and occupied by him as a householder having a family, as his residence, exceeding in value $1000, he was entitled to so much of said lot and buildings as would amount in value to $1000. The part of the lot of land exempted as a homestead might be much or little, but such part, by the terms of the statute, must have been to the extent in value of $1000. That exemption continued after the death of Johann Mech for the benefit of his wife and children so long as they continued to occupy the same or until the youngest child should become twenty-one years of age. That homestead right could only be released in the mode provided for in section 4 of the Homestead Exemption act, and whenever the premises, including the homestead, are sold or attempted to be conveyed without complying with that section, or whenever said premises are sold upon execution, the person having the homestead is entitled to an estate to be set off or allotted to him to the extent in value of $1000, if the premises exceed in value that amount.
An attempt by the husband to convey the homestead without his wife joining in the execution of the deed, if the premises exceed in value $1000, as we have frequently held, conveys only the excess over and above the homestead of $1000 in value. The title to the homestead to the extent in value of $1000 in fee remains in him, and upon his death, and the abandonment of the same by the widow and children, descends to his heirs-at-law, and may be partitioned by them as in cases of any other inherited estate. The deed purporting to convey the premises being ineffectual except as to the excess, does not convey any definite or ascertained amount or quantity of the premises, but simply so much, if any, as exceeds in value the sum of $1000, and that excess can only be ascertained when an attempt is made to set off or allot the homestead estate. The question was presented in the case of Anderson v. Smith, 159 Ill. 93" date_filed="1895-11-22" court="Ill." case_name="Anderson v. Smith">159 Ill. 93. There, by the assignment of cross-errors the appellees sought to question the correctness of the decision of thé circuit court “in fixing the quantity of land, which they were entitled to, (i. e., the homestead,) by the value then instead of when the father died,” but we held that the commissioners were properly directed to set off the homestead on an estimate of the present value. This rule can work no hardship to either party. When Johann Mech made his deed to his wife, she, or those claiming under her, had the right to have the homestead then set off to her, and, of course, the value of the respective parties would then have been determined by the value of the whole premises. ,(Hotchkiss v. Brooks, 93 Ill. 386" date_filed="1879-09-15" court="Ill." case_name="Hotchkiss v. Brooks">93 Ill. 386; Cutler v. Cutler, 188 id. 285.) On the other hand, the householder, or those claiming under him, could have maintained a suit for partition at any time after the execution of that deed. (Anderson v. Smith, supra; Gray v. Schofield, 175 Ill. 36" date_filed="1898-10-24" court="Ill." case_name="Gray v. Schofield">175 Ill. 36.) Both parties, however, having been contented to hold those interests in common, they could only be determined in value by the value of the whole premises at the time the partition was sought. A moment’s reflection will, we, think, show the impracticability of any other rule. To sustain the contention of appellant it would be necessary to hold in every case that the value of the premises at the date of the conveyance was the basis upon which the division should be made. In this case, on the estimated value by appellant’s counsel, the widow would get 25/35 and the heirs 10/35. No matter whether the value of the property increased or diminished, under that contention the relative shares of the respective parties would remain absolutely fixed. If they increased in value, the estate of the heirs, when set off, would amount, in value, to more than $1000, whereas the statute is that they shall have a “homestead to the extent in value of $1000.” If, on the other hand, as is claimed in this case, the property has decreased in value, their homestead estate would be less than that amount in value. The law is well settled that where the premises do not exceed in value the sum of $1000, a deed to the homestead not signed by the wife is a nullity and no title passes to the grantee, but where they do exceed in value that amount, the effect of the 'deed is to convey the excess over $1000, and no more. (Anderson v. Smith, supra; Despain v. Wagner, 163 id. 598; Kitterlin v. Milwaukee Mechanic’s Ins. Co. 134 id. 647; Barrows v. Barrows, 138 id. 649.) That excess is only so much as remains after setting off the homestead estate. The court below determined the interests of the-parties on this theory, in doing which there was no error.
It is next insisted that the decree of the court below is erroneous for the following reason: “The allowance of the widow’s award in favor of Marie Strelow against the estate of Mech, her former husband, constituted a lien in her favor upon the interest in said real estate left by Mech. Appellant, by obtaining judgment, filing a creditor’s bill thereon and serving the administrator of Mech’s estate, equitably garnisheed said claim of said Marie Strelow, and the court should have so found.” This position, we think, is wholly untenable. To re-call the facts bearing upon the question: The quit-claim deed was executed March 20, 1893. The husband died April 29, following. This bill for partition was filed August 5, 1903,—more than ten years after the execution of the deed and the death of the householder, during all of which time no steps were taken to administer upon the estate of Johann Mech. After the bill was filed, on August 10, 1903, Henry P. Kransz was, on his own motion, appointed administrator of that estate, and August 24, 1903, he procured a widow’s award to be allowed to Marie Strelow, and her election to take the same in money, but shortly thereafter she filed a release and waiver of her award, which the court, on her showing that her election had been obtained by misrepresentations and fraud, allowed. The administrator appealed from that order and the appeal is still pending. Manifestly, the court below could not have found that the widow’s award became a lien upon the homestead estate under this state of facts. There has been no allowance of the widow’s award. The question of its allowance is still pending and undetermined in the circuit court. But the real contention of appellant seems to be that the decree of partition should have been postponed until his creditor’s bill could be disposed of. It must be admitted that the administration upon the estate of Johann Mech was not for the purpose of settling his estate or obtaining the widow’s allowance for her benefit, but to reach the homestead estate which had descended to the heirs, for the payment of the debt due from the widow and her husband. If the widow herself had attempted to administer upon her husband’s estate more than ten years after his death, without any explanation for the delay and for the sole purpose of having her award set off and the homestead sold for its payment, she would clearly have been barred by her laches.. Even if she had taken out letters of administration promptly upon his death and made no effort to have her widow’s allowance set off until the lapse of more than seven years, she would, under the repeated decisions of this court, by analogy of the lien of judgments and the limitations for entry upon and recovery of lands, have been barred. Certainly she, having the first right to administer upon her husband’s estate, could not avoid the effect of those decisions by her unexplained delay in administering upon the estate for more than seven years. (Furlong v. Riley, 103 Ill. 628" date_filed="1882-05-12" court="Ill." case_name="Furlong v. Riley">103 Ill. 628.) If the widow could not, under the- facts of this case, obtain the allowance of her widow’s award, manifestly her creditors cannot do so. The widow’s award, under the statute, is for her benefit and that óf her family, and while it may be reached by her creditors after it has been allowed, we know of no reason or authority for holding that she can be compelled to assert her claim thereto for the benefit of her creditors, and it is equally clear that her creditors cannot assert it for her.
In addition to what we have said, the proof offered before the master of the alleged proceedings in the probate court, etc., by the administrator, is incompetent and altogether unsatisfactory. It consisted of mere hearsay evidence, and while some contention is made that counsel for the heirs waive the iiicompetency of that testimony, such contention certainly cannot be made against the infant defendants.
Further objection is made by appéllant to the allowance of a solicitor’s fee to appellees’ counsel. The decree rendered by the circuit court was in substantial conformity to the allegations of appellees’ bill. The interests of the parties were correctly set up in the bill and were so -found by the decree. No substantial defense was interposed by appellant, therefore there was no error in allowing a solicitor’s fee to the appellees’ solicitor. (Hurd’s Stat. 1903, chap. 106, sec. 40, p. 1366.)
It is also insisted that Henry P. Kransz, as administrator of the estate of Mech, was a necessary party to this partition proceeding. Kransz is made a party as trustee under the trust deed, and at the time the bill for partition was filed he was not administrator of the estate of Mech. There is nothing in the record to show that any application was made to the circuit court to make him a party after his appointment as administrator. He became administrator pending the suit, and as he was a party defendant in another capacity he has no grounds for complaint.
The decree of the circuit court will be affirmed.
Decree affirmed.