180 N.E. 410 | Ill. | 1932
Lead Opinion
Appellee, Harry W. Stubblefield, as executor of the last will and testament of his wife, Laura E. Stubblefield, filed a petition in the county court of Greene county to sell real estate to pay debts, alleging that he was entitled to homestead in one piece of real estate and dower in all of the real estate. The defendants were defaulted, except John H. Bassham, a brother of the testatrix, who filed an answer, in which he denied that the husband was entitled to either homestead or dower. The First National Bank of *21 Greenfield, a creditor, was granted leave to intervene and it adopted the answer of Bassham. The decree found that the husband did not renounce under the will, provided for the sale of the real estate to pay debts, and found that the husband was entitled to a homestead of $1000 in the premises where he and his wife lived at the time of her death and that he had consented in writing to the sale of his homestead, but that he was not entitled to dower. An appeal was prosecuted by the First National Bank on the ground that the husband was not entitled to a homestead, and the husband assigned cross-errors on the refusal to decree him dower.
Laura E. Stubblefield died testate in Greene county on November 17, 1928, leaving surviving her husband, Harry W. Stubblefield, a brother, John H. Bassham, and a sister, Eva Stock. She owned three pieces of real estate in Greenfield. One of them was lot 130 in the original plat of Greenfield, on which there was a garage. The second was the premises where she resided with her husband at the time of her death. The third consisted of three lots, on which there was a small house and barn. In the first clause of her will she directed that her debts and funeral expenses be paid. In the second clause, after the payment of debts and funeral expenses, she devised for life to her husband lot 130, on which the garage was located, with the remainder in fee to Norman L. Howard. In the third clause she devised to her sister, Eva Stock, the three lots in Greenfield for life in trust for a son, Buryl B. Stock, with the remainder in fee to the husband of the testatrix. By the fourth clause all of the residue of the estate went to the husband in fee and he was appointed executor. The petition to sell real estate set up these facts, and alleged that the claims allowed against the estate amounted to $10,843.24, that the debts exceeded the personal estate in the sum of about $742.83, and that the husband of the testatrix was entitled to a homestead of $1000 in the premises where he and his wife lived *22 at the time of her death. The petition prayed that the court determine whether the second and third clauses of the will barred the dower rights of the husband.
The first question is whether the husband, by accepting the provisions of the will and not renouncing thereunder, was entitled to dower. Section I of the Dower act (Smith's Stat. 1931, p. 1122,) provides that the surviving husband or wife shall be endowed of the third part of all the lands whereof the deceased husband or wife was seized of an estate of inheritance at any time during the marriage unless the same shall have been relinquished in legal form. Section 10 provides that any devise of land, or estate therein, or any other provision made by the will of a deceased husband or wife for a surviving husband or wife, shall, unless otherwise expressed in the will, bar the dower and other rights of such survivor given by section I thereof, unless such survivor shall elect to, and does, renounce the benefit of such devise or other provision, in which case he or she shall be entitled to such dower or other right as thereinbefore defined. Section II provides that anyone entitled to an election under either of the two preceding sections shall be deemed to have elected to take such jointure, devise or other provision unless within one year after letters testamentary or of administration are issued, he or she shall deliver or transmit to the county court of the proper county a written renunciation of such jointure, devise or other provision.
In Warren v. Warren,
The next question is whether appellee was entitled to a homestead. Section I of chapter 52 (Smith's Stat. 1931, p. 1483,) provides that every householder having a family shall be entitled to an estate of homestead to the extent in value of $1000 in the land and buildings thereon occupied by him or her as a residence, and such homestead, and all rights and title therein, shall be exempt from attachment, judgment, levy or execution and sale for the payment *24 of his debts or other purposes, and from the law of conveyance, descent and devise, except as thereinafter provided. Section 2 provides that such exemption shall continue after the death of such homesteader for the benefit of the husband or wife surviving, so long as he or she continues to occupy such homestead and of the children until the youngest child becomes twenty-one years of age.
In Elmore v. Carter,
In Carr v. Carr,
In Koelling v. Foster,
The appellee took the homestead in fee under the fourth clause of the will and did not take a homestead under the statute, and the decree was in error in so finding.
The decree is reversed and the cause remanded, with directions to enter a decree of sale of the real estate to pay debts, which sale shall be free of homestead and dower of the appellee.
Addendum
The foregoing opinion reported by Mr. Commissioner Partlow is hereby adopted as the opinion of the court, and judgment is entered in accordance therewith.
Reversed and remanded, with directions.
Mr. JUSTICE JONES took no part in this decision. *26