150 N.E. 690 | Ill. | 1926
This is an appeal from a decree of the circuit court of Kane county dismissing the bill of appellant for partition of real estate.
The material facts are, that Alice Kirchner died testate in March, 1923, owning three small parcels of real estate in Kane county. Her will, which was executed in March, 1919, was admitted to probate. She left Charles Kirchner, her husband, but no child or descendants of a child surviving. The will directs the payment of the debts of testatrix, *238 $100 to the executor, if there was sufficient personal estate to pay that sum, for masses, and then reads: "My nephew, Thomas H. Morrison, and his wife, have been taking care of my husband in my absence and I feel that from this time both my husband and myself will depend more and more upon the care of said Thomas H. Morrison and his wife, and feeling confident that my trust in them is well placed and that in case my husband should survive me that my said nephew will see that he is taken care of, I therefore give, devise and bequeath all of my estate, after the payment of debts, to my nephew, Thomas H. Morrison, to him, his heirs and assigns forever." Morrison was nominated executor without bond. On May 15, 1923, Charles Kirchner, the surviving husband, filed a renunciation of the will and an election to take, in lieu of dower and his legal share of the estate, one-half of all the real and personal estate remaining after the payment of debts. The renunciation and election were made under section 12 of the Dower act. The surviving husband then filed a bill for partition, in which he alleged all claims, the $100 legacy and costs had been paid and that he was seized of the undivided one-half of the real estate. The answer denied plaintiff had any interest in the real estate, and set up as defense that after the marriage of Alice and Charles Kirchner, the husband for a valuable consideration executed and delivered to his wife a release of every right, title, interest, claim and demand in all property then owned by her or which she might thereafter acquire, and which rights Charles acquired upon his marriage to Alice, specifically releasing the right of dower or homestead and all right to inherit from Alice. While the bill was pending, and before a hearing, the complainant died testate, leaving no widow or child or descendants of a child. By his last will he gave all his property and estate to Alice Kellett and appointed her executrix. She was by order of the circuit court substituted as complainant in the bill. She has prosecuted *239 this appeal from the decree of the circuit court dismissing the bill at the conclusion of the hearing.
The errors assigned are: (1) The court erred in dismissing the bill for want of equity; (2) the court erred in not decreeing partition as prayed in the bill; (3) the court erred in holding Charles Kirchner had no title or interest in the property; (4) the court erred in not holding Kirchner, at the time of his death, was seized of an undivided one-half interest in the property; (5) the court erred in dismissing the bill and in refusing to grant any relief thereunder.
The post-nuptial contract relied upon in the answer has been lost, and after proof of its loss and diligent search for it, R.A. Milroy, an attorney, testified for appellee that in the summer or fall of 1916 Alice Kirchner and her husband came together to witness' office and advised with him about preparing an instrument releasing the right of each in the property of the other as husband or wife. Witness told them he would have to look the matter up and requested them to call again in a couple of days. He drew the contract and they returned in a day or two and executed it. Witness took their acknowledgment to it. He testified it fully and completely extinguished the present interest in the property of either and both of the parties, and provided that it would extinguish, and did extinguish, any future possible interest either of them would otherwise have in the property of the other. He gave the contract to Mrs. Kirchner and told her to have it recorded. She told witness at the time that she had either paid a mortgage on a lot owned by Kirchner or had taken up a contract entered into by him to purchase it, and said if Kirchner wanted to dispose of his property she wanted him to extinguish his interest, present and future, in her property. Witness understood Kirchner wanted to dispose of his property to Morrison. Witness' testimony was heard over the objection of appellant. *240
The appellee, Morrison, testified Mrs. Kirchner showed him the contract in the fall of 1916, in the presence of her husband. He was afterwards appointed conservator for Mrs. Kirchner, and testified that she obtained her papers from the bank later and exhibited to him the contract twice afterwards. Witness testified to two conversations with Mrs. Kirchner about the contract, but after her death it could not be found. His testimony also was objected to by appellant but was heard subject to objection.
Part, at least, of the last witness' testimony was incompetent, but we do not regard the question as of much importance. Appellant argues the question of the competency of the testimony of both Milroy and Morrison, but has assigned no error which preserves the question for review. Colbert v.Rings,
It is further contended by appellant that the testimony of the witness Milroy was not sufficient to prove the contents of the lost post-nuptial agreement, and that his testimony was merely a conclusion as to the legal effect of the contract; that the law requires the terms of it to be proven. Its legal effect is a question of law. He testified the contract released all dower and homestead rights of the husband in the wife's property. "The document, as I drew it, fully and completely extinguished the present interest in the property of either of the parties and both of the parties, and it provided that it would extinguish, and did extinguish, any future possible interest in the property of either of them." We do not understand that to be the witness' conclusion as to the legal effect of the instrument but that, in substance, such were the terms of the contract. The witness was not required to state from memory the language, verbatim, of the contract. That, in most instances, would be an impossibility and practically exclude oral evidence to establish the contents of a lost instrument. (Perry v. Burton,
Appellant contends that if the proof established the execution of the post-nuptial contract and its contents the will. and contract cannot both stand; that appellee by accepting the benefits of the will cannot now be heard to insist upon the enforcement of the post-nuptial contract. The contract was made about three years before the will was executed and about six years before the testatrix died. No reference is made in the will to the contract. The provision made in the will for the care of testatrix's husband was one a court of equity would enforce, and unless renounced would bar his statutory rights as husband. Warren v. Warren,
Appellant contends that the provisions in the will for the benefit of the husband of testatrix were an offer to purchase his statutory rights for the benefit of the estate; that the devisee of the testatrix is precluded from making any claim to the estate inconsistent with the legal effect and full operation of the will, and the will must be considered the same as if there were no post-nuptial contract. It is argued that the devisee, by accepting the provisions of the will, ratified every provision of it, and cannot now rely upon the post-nuptial contract to defeat the husband's renunciation and election. It is true, and has been so decided many times, that a person cannot accept a benefit given by a will and claim the statutory rights he would have been entitled to had there been no will. Where there is a right of election the acceptance of the provisions of the will is a ratification of it, and the person so accepting cannot set up any other right or claim to the estate. (Gorham v. *242 Dodge,
Appellant contends that by acceptance of the provisions of the will by appellee the contract must be disregarded and the husband's renunciation and right under section 12 of the Dower act sustained. We cannot agree that such a result must follow. Appellant refers to several decisions, the most important, we believe, being Alward v. Woodard,
In Parker v. Gray,
We do not think because testatrix made provision in the will for the care of her husband she abrogated and canceled the contract, nor that appellee, by claiming the benefits of the will, is precluded from insisting upon the validity of the agreement. He was not a party to the contract, *244 but as heir-at-law and a devisee it was for his benefit and he was interested in it. He took title under the will subject to the burdens imposed by it, and had a right to insist upon the contract as a bar to any statutory claim of the husband to a share in his deceased wife's estate.
We are of opinion the decree was correct, and it is affirmed.
Decree affirmed.