149 N.E. 746 | Ill. | 1925
Henrietta Shoup died testate in October, 1924, owning at the time of her death 240 acres of land in Peoria county. She left surviving a husband, Abraham Shoup, a son, Joseph, and descendants of a deceased daughter. By her will she gave all her estate, except a $2000 legacy to the grandchildren, to her son, Joseph. No provision was made for the husband and he was not mentioned in the will. In 1923 *180 the Statute of Descent was so amended as to give the surviving husband or wife, where there was a surviving child or children or descendants, an absolute estate of one-third of the land which the deceased spouse owned at the time of death. Abraham Shoup, the surviving husband, filed what purported to be his election to waive dower in the real estate of his deceased wife and to take in lieu thereof a one-third interest in the land absolutely. After filing said paper he filed the bill in this case for partition. No personal estate seems to be involved by this litigation. The husband by his bill claims to be the owner of an undivided one-third in fee of the land as surviving husband of the testatrix and that the son is the owner of an undivided two-thirds. The circuit court sustained a demurrer to and dismissed the bill for want of equity, from which decree the husband has prosecuted this appeal.
Paragraph 4 of section 1 of the Statute of Descent provides that where there is a surviving widow or husband and a child or children or descendants of a child of the intestate, the surviving widow or husband shall receive as his or her absolute estate one-third of the personal property of the intestate and also one-third of the real estate as his or her absolute property in lieu of dower, in which such surviving widow or husband shall waive the right of dower. That statute applies only to intestate estates. The owner of property may dispose of it by will contrary to the Statute of Descent.
Appellant contends that as no provision was made in the will of the testatrix for him the estate should be treated and considered, so far as his rights are concerned, just the same as if there had been no will, and that he is entitled to one-third of his deceased wife's real estate in fee simple in lieu of dower. The fee having been disposed of by will the testatrix's husband took no estate in her lands under the Statute of Descent, for that statute applies only to intestate estates. It is true she made no provision for appellant, *181 but by her will she deprived him of the right to take any estate under the Statute of Descent. Any right he has to an estate in his wife's land as surviving husband must be found in the chapter of our statute on dower. Section 1 of that act entitles the surviving husband or wife to dower in the one-third part of the deceased's lands, and that interest he could not be deprived of by will unless the will made some provision for him which would bar his right to dower unless he renounced the benefits made for him in the manner provided by section 10 of the Dower act.
Appellant contends that he having filed a renunciation of his right to an estate of dower and elected to take an estate under the Statute of Descent he is now entitled to one-third of the land in fee, the same as if his wife had died intestate. This is a misapprehension. A husband or wife cannot by will deprive the survivor, without his or her consent, of the legal claim which the statute gives to him or her as surviving husband or wife. (In re Taylor's Will,
Appellant places much reliance upon the expression in theTaylor case that as the will made no provision for the widow, as to her the estate was intestate to the extent of her legal claims, and cites Saunders v. Saunders,
By an amendment in 1925 to section 10 of the Dower act it is provided that where a renunciation is filed under that section by a surviving husband or wife he or she shall receive as his or her absolute estate, in lieu of dower, one-third of the real estate, in which he or she shall waive his or her right of dower. As that section only applies to testate estates when the will makes provision for the husband or wife, it is not claimed appellant can receive any benefit under the amendment. The will did not deprive appellant of any right in his wife's estate conferred by the Dower act, but it could, and did, deprive him of any estate under the Statute of Descent. The fee in the land was disposed of by the will, subject to appellant's rights under the Dower act.
The decree is affirmed.
Decree affirmed.
Mr. JUSTICE DUNCAN, dissenting. *183