118 Ill. 553 | Ill. | 1886
delivered the opinion of the Court:
This was a cause originating in the county court of Stark county, on petition of Edwin B. Boardman, administrator of the estate of Isaac P. Spencer, deceased, to sell real estate to pay debts. Gertrude K. Spencer was the widow. The amount of the widow’s award was $1500, and she had received in property, at its appraised value, $1330.75 of that award. The petition set out facts showing a deficiency of personal property to pay debts, of about $10,000. It prayed the setting apart of the widow’s dower and homestead, and the sale of the residue of the real, estate to pay said deficiency. The heirs came in, and set up, by answer, that the widow was not entitled to homestead or dower, or widow’s award, by reason of an ante-nuptial contract entered into by her. The county court, upon trial, found that the widow was entitled to homestead, but not to dower or widow’s award, and ordered a sale. Erom the order of the county court, Gertrude K. Spencer, the widow, appealed to the circuit court, and in that court filed her answer, by leave of court, whereby she admitted the necessity of the sale to pay debts, admitted that she was entitled to dower and homestead, and requested that her dower interest be sold, and that a gross sum be allowed to her in lieu thereof. The circuit court affirmed, substantially, the order of the county court,. and from the judgment of the circuit court the widow appeals to this court.
No ante-nuptial contract was produced, and the question first to be considered is, whether one'was made, as alleged.
Isaac P. Spencer, deceased, at the time of his marriage to appellant, in July, 1876; was a widower, sixty-four years of age, having children by his former marriage, who were all of age. Mr. North, an attorney, testifies, that a week or ten days before this second marriage, Mr. Spencer came to him, informed him that he was about to contract.a second marriage, and wished him to draw up an ante-nuptial contract. Mr. North did so, in accordance with directions from Spencer, and handed the writing to the latter, which he took away without signing. Mr. North testifies distinctly to the contents of this writing; -that by it Spencer and his intended wife mutually agreed to join in any conveyances that might be necessary to convey the real estate of either of them, and she agreed to accept $2000 in lieu of any dower interest in his property which he had or might acquire, and in lieu of her homestead rights and widow’s award; that the $2000 was to be paid within one year after his death; that Spencer agreed to waive and release any claim or right in her property which might result from the marriage. The witness Boardman, the administrator, testifies, that in a conversation with appellant he told her the heirs claimed there was such a marriage contract as that above stated, and she said she did sign a paper; that she signed it just as she was going on the floor to be married; that she didn’t read the paper, didn’t know what was in it, and that it had been destroyed by mutual consent. Mr. Bogart, a notary public, testified, that in January, 1881, he drew up, at the request of Mr. Spencer and his wife, a note and mortgage for $3000, running from the former to the latter, due in six years after date,—the mortgage securing the payment of the note on real estate; that the consideration of the note and mortgage was fully stated by Mr. and Mrs. Spencer to him; that it was stated an ante-nuptial contract had been executed between them, whereby Mrs. Spencer was to receive $2000 within a year after her husband’s death, and that this $2000 was to be in lieu of all her widow’s rights in the estate of her husband; that the note and mortgage were given to secure the payment of this $2000, and $1000 additional. The witness states that he asked for the contract, in order to draw the mortgage, and Mrs. Spencer said it was with her attorney, where she used to reside,—that she didn’t want to keep it in the house.
Objection is taken to the admission of Mr. North’s testimony, as being to a transaction with Spencer alone, in the absence of appellant, and should not affect her. In connection with the subsequent testimony which appears, we regard it as admissible. We do not feel prepared to say that the court below was not warranted in finding, from the evidence, that the ante-nuptial contract was made as alleged, and that it was still in force. The evidence tending to show the contract was in the possession of appellant, parol evidence of its contents was properly admitted, it being stipulated that notice was given to produce the contract; and besides, the answer of the heirs apprised appellant that the contract was relied upon in resistance of her claim, and that evidence of it would be given.
There is objection to the exclusion of testimony of appellant, which was offered, as to what occurred between her husband, Mr. Bogart, and herself, concerning the execution of the $3000 mortgage, and what was said about the ante-nuptial contract, on the ground that Bogart was an agent of Mr. Spencer, and that she, under the statute, might testify to the same conversation or transaction of the deceased that his agent testified to. Bogart was not the agent of the deceased. He was but a scrivener employed by the deceased to draw the mortgage and take its acknowledgment.
The point is made, that the court improperly granted the relief it did, upon answer,—that there should have been a cross-petition filed. We perceive no error in this regard. The question presented, under the petition and answers, was the amount of the indebtedness, and how much real estate was required to be sold,—the widow making claim she should be paid a sum in gross for dower,—and there was substantially but a determination of that question. The order finds that the widow was not entitled to award; that she wrongfully received the $1330.75, part thereof, and that that amount should be applied toward the payment of appellant’s $3000 note and mortgage, and she was restrained by the order from transferring the note, so as to prevent the $1330.75 being applied as a credit.
It -is urged that the widow’s award was wrongfully taken away. As respects dower, this court has, in a number of eases, decided that it will be barred by such an ante-nuptial contract. Phelps v. Phelps, 72 Ill. 545; Jordan v. Clark, 81 id. 465; McGee v. McGee, 91 id. 548; McMahill v. McMahill, 105 id. 596. And in McMahill v. McMahill we held that the widow’s award was equally waived and barred by such an ante-nuptial contract. There were here no children of the second marriage. Under”the authority of the case last cited, the order was correct in declaring the widow’s award to be waived and barred by the ante-nuptial contract.
It is said the order granted relief beyond the power of the court, in its restraining part. The order, in this respect, was no more than was necessary to make effective the adjudication which had been made, that the $1330.75 should be applied as a credit upon the note. Somewhat of equitable jurisdiction we have held the county court to possess in the making of settlement of the estates of decedents, and we regard this restraining order as well enough made in this case.
The judgment of the circuit court will be affirmed.
Judgment affirmed.