| Ill. | Nov 20, 1883
Lead Opinion
delivered the opinion of the Court:
Viewed in the light of the preceding statement and the arguments of counsel, this case, so far as its legal aspects are concerned, is brought within a very narrow compass. Although it is conceded the petitioner, if examined as a witness, would swear that at the time of the execution of the ante-nuptial agreement she was not aware that a widow, under the laws of this State, was entitled to what is known as the “widow’s award,” yet, waiving the question of the competency of such testimony, it is to be noted the agreement itself, which she must be presumed to have understood, in the absence of any claim in the petition to the contrary, expressly provides the $12,000 was “to be in lieu of all her claims, whether as his ividow, heir, or otherwise, of whatsoever nature or kind, and in lieu of dower or widow’s portion. ” The expression, “widow’s portion, ” in this connection, evidently means substantially the same thing as widow’s award. So, conceding she did not know what the law of this State was in the respect mentioned, yet she did know that by the agreement she relinquished and waived all right and claim to such a provision out of her intended husband’s estate, whether the laws of this State gave it to her or not, and in that view it is difficult to perceive what difference it makes whether she did or did. not know what the law was on that subject. There is no claim, or foundation for the claim, there was any unfairness or overreaching on the part of the deceased, or any one else, by which she was induced to enter into said agreement; and in view of the fact she had no estate whatever of her own, with an infant daughter to be maintained, and the further fact the deceased at that time must have been well up in years, we are unable to say the agreement was not fair, and even liberal, on his part. But in the absence of any claim of fraud or overreaching, this is a matter of little, if any, importance. The vital inquiry is : First, what was the intention of the parties with respect to such claims as appellee would, as heir, widow, or otherwise, have against his estate if no agreement were made between them ? Did they intend, in the event she survived him, she should receive anything out of or from his estate in addition to or in excess of the $12,000, after its payment by his legal representatives, as in the agreement provided? Second, what is the legal effect of said agreement with respect to any such claims after the payment of that sum by the executors ?
As to the intention of the parties we think there is no room for doubt. It would be difficult to conceive of terms more appropriate and effective to express a clear and unequivocal purpose and intention on the part of both the contracting parties, that the payment of the $12,000 to the widow by the decedent’s legal representatives should operate as a complete discharge and satisfaction of all claims whatsoever, including the one in question, she would, as his widow, heir, or otherwise, have against his estate. From this conclusion the answer to the second inquiry follows as a matter of course, provided such an agreement is obligatory and enforeible under the laws of this State, and upon this question the decision of the ease hinges.
As the question has been ably and fairly argued by counsel on both sides, we have been relieved of much labor which its consideration would otherwise have cost us. It will therefore he unnecessary to enter upon a general review of the authorities for the purpose of expressing our own views, as it is believed most, if not all, the cases having a direct bearing on the question have been cited and commented on in one or the other, or both, the briefs of counsel.
While it is not claimed in precisely so many terms, yet the inexorable logic of appellee’s position is, that the surviving widow, having a family, is wholly powerless to do anything by way of execution or performance of an ante-nuptial contract, which gives to the wife a specific sum of money out of her husband’s estate in lieu of the award which the statute gives to her as his widow, that will be a bar, or defeat the right to such award,—or, in other words, the claim is, that in such case, upon the death of her husband, she may go to' his executors and collect from them, as was done in this case, the amount which they were bound to pay her under the ante-nuptial contract in lieu of the award, and then turn round and compel them to pay the award also. If such a position as this can be maintained it is certainly an anomaly in the law. It is a rule of general application in the law of contracts, that a contract between parties sui juris must be mutual,—that is, if either is bound, both will be bound. Now, suppose the widow’s award and dower in this case had turned out to be worth less than the $12,000, and the executors for this reason had declined to perform the agreement on their part, and she now, instead of seeking to have her award allotted to her, were prosecuting a suit on the agreement to recover the $12,-000, is it not manifest she would be entitled to recover ? And yet we are unable to perceive on what principle this could be so unless she were also bound by the agreement. The result of the decisions of this court, as we understand them, go to this extent, but no-further: A widow having a family, consisting. in part of the decedent’s children, is entitled to the widow’s award, notwithstanding there is an outstanding ante-nuptial executory contract, by which she has agreed to accept a certain sum of money, or something else in lieu of it. In other words, under the circumstances stated, so long as the contract remains executory she may repudiate it; but when, without fraud or imposition, she deliberately accepts from her husband’s legal representatives that which, by the terms of the contract, she was to receive in lieu of the award, the right to repudiate the contract at once ceases, and under such circumstances she is estopped from setting up a claim to the award itself,—and this is clearly right, upon the plainest principles of natural as well as legal justice.
We are aware that general expressions are to be found in some of the cases, particularly that of Phelps v. Phelps, 72 Ill. 545" date_filed="1874-06-15" court="Ill." case_name="Phelps v. Phelps">72 Ill. 545, which seem to go further than we have stated; but these expressions are to be limited by the actual facts in the cases in which they were made. The only thing actually decided by the Phelps case is, that the award of a widow having a family, consisting in part of a minor child of the deceased, is not barred by an unexecuted ante-nuptial contract, and this is in strict conformity with the rule as laid down in the other cases in this, court bearing upon the question. Brenner v. Gauch, 85 Ill. 368" date_filed="1877-06-15" court="Ill." case_name="Brenner v. Gauch">85 Ill. 368; Cowdrey v. Hitchcock, 103 id. 272.
The expressions just alluded to, upon a casual consideration, may be supposed to sanction the view that the children of the deceased, being members of the widow’s family, have some vested interest in her award, or that it is, in some sense, trust property, held by her for the common benefit of the family, particularly the children of the deceased, and that on this ground she is unable to dispose of it. These expressions, properly understood, do not warrant any such conclusion. They were directed to the policy of the law, or the motives which led to its adoption, and were not intended to be understood as defining or limiting vested rights under it. The language of the statute giving the right, negatives such a hypothesis in the very strongest possible terms. It expressly declares the statutory articles shall be allowed to the widow “as her sole and exclusive property forever. ” When this right once accrues to her by the death of her husband, it is well settled she may exchange the specific articles of property awarded to her by the statute, or she may release her right to them altogether. (Telford v. Boggs, 63 Ill. 498" date_filed="1872-06-15" court="Ill." case_name="Telford v. Boggs">63 Ill. 498; Simmons v. Johnson, 47 id. 350.) These cases, as well as the very words of the statute, clearly show she has the same dominion and power of disposition over her award that any other absolute owner has over his property. Such being the case, upon what principle can it be said that after having acquired a vested interest in her award, as she does immediately upon the death of her husband, she may deliberately accept an equivalent for it, as fixed by her ante-nuptial contract, and yet not be bound by her acceptance ? No one, we presume, will question her right to sell or otherwise dispose of any or all of the articles of property she takes under the statute, in such manner as she may think proper, and that in the absence of fraud or imposition of any kind she will, like other persons sui juris, be bound by her contracts. Now, suppose some one other than her husband’s executors had gone to appellee and offered her the $12,000 for her entire interest in the estate, and she had accepted it, as she did from them, all will concede, we presume, that in the absence of fraud, mistake or imposition of any kind, she would have been bound by her acceptance,—and yet, on principle, there is manifestly no difference between the two cases.
It is well settled that in determining the amount of the widow’s award, without regard to whether there are children of the deceased or not, all who constituted members of the family at the time of his death, including servants and adults, are to be taken into the account. (Strawn v. Strawn, 53 Ill. 263" date_filed="1870-01-15" court="Ill." case_name="Strawn v. Strawn">53 Ill. 263.) Yet it does not necessarily follow, where there are no such children, the widow would be absolutely bound, as in any other case, by an executory ante-nuptial contract, when fairly entered into; but inasmuch as we hold she is bound by such an agreement, where it has, in good faith, been fully executed by the husband’s legal representatives, whether there be such children or not, that question becomes unimportant in this case, and it is therefore unnecessary to discuss it. However that question may be, from an examination of the cases to which our attention has been called, and of all that occur to us relating to this subject, it will be found that in every case where it has been held the widow was not bound by the ante-nuptial agreement, the widow’s family consisted in part of a child, or children, of the deceased husband, and that the agreement was unexecuted by his legal representatives. So far the matter has come in actual judgment, and is authoritatively settled, but no farther. On the other hand, the cases already cited fully establish that where such an agreement has, in good faith, been fully performed by the husband’s legal representatives, the widow will be concluded by it, whether there be any such children or not.
The judgment of the Appellate Court is reversed, and the cause remanded, with directions to' reverse the order of the circuit court and dismiss the petition.
Judgment reversed.
Dissenting Opinion
dissenting:
I regard the decision in this case as repugnant to Phelps v. Phelps, 72 Ill. 545, and subsequent cases based upon it. As I understand that case, it holds that the claim of the widow to specific articles of personal property is not the subject of contract or ante-nuptial agreement. It is there held that such a contract is forbidden by the policy of our statutes, and the opinion of the majority of the court, in this case, holds it is the subject of ante-nuptial contract, and virtually overrules the decision in that case. Whilst I dissented in that case, I am, after such a length of time, unwilling to overrule or impair the force of that decision. I therefore dissent to the decision of the majority of the court in this case.
Mr. Justice Scott, also dissenting.