| Ill. | Apr 5, 1889
delivered the opinion of the Court:
On the 9th of February, 1887, defendant in error filed her bill in chancery, against plaintiff in error, in the Coles circuit court, for the assignment of dower, and on the 15th of May, 1888, obtained a decree for one-third part of the premises described in her bill, as and for her dower, and the sum of $45 as damages for the non-assignment thereof, with an order that in default of payment of said damages within twenty days, execution should issue for the same. By the same decree commissioners were appointed to assign the dower. From that decree this writ of error is prosecuted, and a reversal insisted upon, because, as is said, defendant in error has no dower rights in the premises, and because, on the issues, the court below could not legally assess damages and order execution therefor.
The material facts are admitted. Defendant in error and William B. Galbreath were married June 1, 1885. He died October 1 thereafter, leaving her surviving him, and also his parents and several collateral relatives, but no lineal descendants. During the marriage the husband was seized in fee, and owned at the time of his death, real estate situated in doles county, a part of which is described in this bill. Defendant in error and A. J. Fryer, Esq., were duly appointed administrators of his estate, and in June, 1886, obtained from the county court of said county a decree to sell real estate to pay debts theretofore probated and allowed against the same. In pursuance of this decree, the lands involved in this suit were sold to plaintiff in error, and an administrator’s deed executed therefor without relinquishment of the widow’s dower. Plaintiff in error went into possession, and held the same, en-j oying the rents and profits from and after the filing of this bill, to the rendition of said decree. Other lands of said estate remained, after the payment of all debts, of the value of $8000, out of which the widow received as heir some $3000.
It is first insisted, on behalf of plaintiff in error, that inasmuch as the deceased husband left no child or children, or descendants thereof, and by the statute' of this State in such case, after the payment of his debts, one-half of his real estate and the whole of his personalty descended to his widow as an absolute estate forever, she is entitled to no dower in this land, —or, more succinctly stated, the proposition sought to he maintained is, that the widow of a husband dying intestate without lineal descendants, is not, under our statute, entitled to dower in any of the lands of which her husband was seized during the marriage. Under the statute of 1845, it was often held that the widow of a husband so dying was entitled to dower in the half of the real estate of which he was seized during the marriage which she did not inherit, and these decisions must be accepted as decisive of the question here raised, unless it shall appear that the legislature intended to adopt a different rule by the statute of 1872, now in force. The two statutes are not materially different, except that the 46th section of the statute of 1845, entitled “Wills,” (which defined the rights of a widow when there was no child or children,) contained the clause, “saving to the widow, in all cases, her dower, as provided by law,” whereas the present Statute of Descents (to which the foregoing subject is transferred) is silent as to dower. The omission, “saving to the widow,” etc., in the statute of 1872, it is contended, shows an intention on the part of the General Assembly to change the law of dower in such cases as it existed under the former statute. The Dower act passed in 1874, now in force, provides that a surviving wife shall be endowed of the third part of all the lands whereof the deceased husband was seized of an estate of inheritance at any time during the marriage, unless the same shall have been relinquished in legal form. If it could be said that this statute, and the Statute of Descents passed in 1872, are in conflict, the Dower act, being the latest expression of the legislative will, would control, and give the widow the same dower rights which she had under the statute of 1845. There is, however, no conflict in these statutes. As before said, the Statute of Descents is silent on the subject of dower. The Dower act expressly gives the widow dower in all the lands whereof the husband was seized, etc., and hence, by giving effect to the language of both statutes, the dower right attaches to the half not descending to the widow, as clearly as though the clause in the 46th section of the Statute of Wills of 1845 had been retained.
As no difficulty was found in giving practical effect to the statute of 1845, none, we apprehend, will be encountered in carrying out the construction here given to the present law. Under both statutes, upon the death of the husband, dower in the wife becomes consummate, in all cases when the husband dies intestate, and the question as to what class of heirs he leaves, or in fact whether he leaves heirs or not, is of no consequence. If the fee is disposed of to others, either by the •Statute of Descents or by sale to raise assets to pay debts, this dower right continues to exist, and can only be divested by the voluntary act of the widow. If she becomes the owner of the land in fee, or any part of it, her dower, as in other cases where a greater and lesser estate meet in the same person, is merged in the fee, and, of course, can not be asserted.
To hold, as is contended, that because, under the third clause of section 1 of the Statute of Descents, a widow may become the owner in fee of one-half, or, under the sixth clause, of the entire estate, therefore, whether she does in fact become such owner or not, she shall, in such case, have no right of dower, would in many cases deprive her of all means of support from the real estate of her deceased husband. However much real property he might die seized of, if all should be required to pay -debts the .widow would receive nothing. The debts of the husband may, and often do, in such cases, defeat the wife’s claim to any portion of the real estate in fee, but they can not affect her right of dower. Of that right she can only be deprived by her own voluntary relinquishment in legal form. We hold that the decisions made under the statute of 1845 are equally applicable to the present law, and are decisive of appellee’s right to dower in the lands in question.
It is said, however, that inasmuch as the widow in this case joined with her co-administrator in making a sale and executing an administrator’s deed for these premises without mating any claim, or giving any.notice of a claim, to dower therein, she should now be estopped from asserting such right, even though it did exist. Section 46, chapter 41, entitled “Dower,” provides: “No person who sells and conveys lands by order of court, for the payment of debts, shall be deemed to have relinquished, by reason of such conveyance, any right of dower which he or she may have in such lands, unless his or her relinquishment is specified in the deed or conveyance.” It is not pretended that any statements were made by the widow, or any acts done by her, calculated to deceive or mislead plaintiff in error, and he must therefore be held to have purchased subject to all the legal rights of defendant in error.
The damages allowed were one-third of the rental value of the premises for one year, less taxes paid by plaintiff in error. We do not understand counsel for plaintiff in error to contend that defendant in error is not entitled to damages for the non-assignment of dower from the time the bill was filed, (which in law is a sufficient demand,) if she is lawfully entitled to dower, nor that the amount allowed by the court is not equitable and just. The error complained of is the allowance of damages, none being claimed in the bill. Correct practice would no doubt have required complainant below to have amended her bill so as to claim damages, and make it conform to the evidence, but inasmuch as both parties introduced evidence on the hearing as to the rental value, without objection, and plaintiff in error showed the taxes paid by him, all of which testimony was introduced on the question of damages, and was competent for no other purpose, we think that the parties voluntarily submitted that issue to the court. The objection that no claim for such damages was made in the bill, being urged for the first time in this court, comes too late.
Decree affirmed.