Canavan v. McNulty

• Decision Date: 09 February 1928
• Docket Number: No. 17192.,17192.
• Citation: 159 N.E. 782,328 Ill. 388
• Parties: CANAVAN v. McNULTY et al.
• Court: Illinois Supreme Court

328 Ill. 388

159 N.E. 782

CANAVAN

v.McNULTY et al.

No. 17192.

Supreme Court of Illinois.

Dec. 21, 1927.

Rehearing Denied Feb. 9, 1928.

Commissioners' Opinion.

Suit by Victoria Canavan against Mary McNulty, Varnum A. Parish, executor of the will of Thomas Canavan, and others. From a decree in favor of complainant, Varnum A. Parish, executor, appeals.

Affirmed.Appeal from Circuit Court, Kankakee County; A. W. De Selin, judge.

W. R. Hunter and Eva L. Minor, both of Kankakee, for appellant.

Alexius L. Granger and Claude M. Granger, both of Kankakee, for appellee.

CROW, C.

Victoria Canavan, widow of Thomas Canavan, filed her bill in chancery, praying that certain real estate therein described be partitioned, and for other relief. Thomas Canavan died April 29, 1923, leaving a will, which on September 13, 1923, was admitted to probate. Varnum A. Parish, by the first clause of the will, was ordered and empowered to sell all of testator's real estate and with the proceeds first pay all just debts and funeral expenses and then pay the following bequest:

‘(a) After payment of debts and funeral expenses out of the proceeds of the sale of real estate, I give to my wife, Victoria Canavan, one-half of the proceeds remaining.’

The second clause reads:

‘I give to wife, Victoria Canavan, all my personal estate.’

By the third clause, Parish was appointed executor of the will. The bill avers that Canavan died seized of an estate in fee simple, and unincumbered, of a large number of parcels of land, some described by quarter section and township numbers, others by metes and bounds. Lot 10 in block 43 in Associate's addition to the city of Kankakee was owned by decedent and occupied by him and complainant during his life, and at the time of his death, and after his death, by complainant as a homestead. He left surviving him no child or children nor descendants of child, but left complainant and persons named in the bill as his only heirs at law, being brother, sisters, nieces, and nephews.

On September 12, 1924, the widow filed in the office of the county court of Kankakee county her renunciation of the will in writing, as follows:

‘In the Matter of the Estate of Thomas Canavan, Deceased.

‘I, Victoria Canavan, surviving wife of Thomas Canavan, late of the county of Kankakee and state of Illinois, deceased, to hereby renounce and quit all claims to the benefit of the provisions made for me by the last will and testament of said Thomas Canavan, and I do elect to take in lieu thereof, and in lieu of dower in the estate of which the said Thomas Canavan died seized and of any share of the personal estate which I may be entitled to take with such dower absolutely, one-half of all the real and personal estate which shall remain after the payment of the just debts and claims against the estate of the said Thomas Canavan, deceased, pursuant to section twelve (12) of an act entitled ‘An act to revise the law in relation to dower,’ approved March 4, 1874, in force July 1, 1874.

Victoria Canavan.'

It is averred in the bill that complainant is entitled to a widow's award under the statute but that no appraisement of the property of decedent has been made and that the amount of her award is undetermined, but, when determined, it should be borne by all the real estate and by the interests of the several parties therein, should no other assets be available. The interests of the several parties are stated and charged to be subject to the widow's award when allotted and to the claim of one-half thereof of complainant as widow. The bill prays for the appointment of commissioners to make partition and for sale of the premises if partition cannot be made, and for an accounting of the rents and profits of the real estate since the death of the testator.

An answer was filed by the executor, admitting complainant's right to a widow's award and stating that an appraisement bill was filed in the county court in due course of administration of the estate, and that a widow's award in the sum of $2,500 was awarded to her; that defendant conferred with complainant and her attorney as to the terms of the will and the disposition of property thereunder; that during the months of June and July, 1923, after such conferences, complainant accepted the terms of the will, and with her knowledge and consent certain hay and hogs belonging to the estate were sold for the sum of $546.85, and that defendant turned the proceeds thereof over to the complainant, which she accepted and still retains; that previous to the 1st day of March, 1924, he consulted with complainant and her attorney with reference to the renting of the land of which the testator died seized, and, after such consultations, and in pursuance thereof, on February 26, 1924, he leased said land to George and Zephyr Giroux for the term of three years; that, by reason of complainant having accepted the provisions of the will as set forth, she is estopped from renouncing its terms and taking under the statute. Defendant denied that the interests are correctly set forth in the bill, but, on the contrary, stated the fact to be that under the law the fee-simple title is vested in the heirs at law of Canavan, not as owners, but as trustees, to be sold and the proceeds divided according to the terms of the will. The answer denied that complainant has any interest in or title to any of the real estate, except the estate of homestead in the property in the city of Kankakee, and that she is not entitled to have partition made of any of said real estate. The only answer of George and Zephyr Giroux as abstracted is that, on the 26th of February, 1924, they leased from Parish the farm land described in the bill for a term of three years, with the knowledge and consent of complainant, and are now in posession thereof.

On the coming in of the answers, an amendment to the bill was filed, in which it was averred that George and Zephyr Giroux claimed to have a pretended lease for three years, but if any there be it was made without the knowledge or consent of complainant, and that Parish had no authority to execute it; that at the time it was executed complainant had not renounced the will of the deceased nor elected to take under section 12 of the Dower Act (Smith-Hurd Rev. St. 1927, c. 41), and the lease is subject to her statutory right to renounce and elect, and is void under the statute of frauds (Smith-Hurd Rev. St. 1927, c. 59) because not authorized in writing by complainant, and is no bar to her suit.

The cause was heard by the chancellor upon evidence produced in open court, and a decree was rendered in accordance with the prayer of the bill. To reverse it, the executor prosecutes this appeal.

The legal effect of the widow's renunciation of the provisions of the will is presented by the record.

[1] Dower is not a creature of our statute. It is a recognized estate at common law, whence the estate of fee simple, and all other estates in land, are derived. 2 Blackstone's Com. 139. The first section of the Dower Act abolishes the estate of curtesy and declares the surviving husband or wife shall be endowed of the third part of all the lands whereof the deceased consort was seized of an estate of inheritance during the marriage, unless relinquished in legal form. Sections 7, 8, and 9 declare the manner in which dower may be barred by jointure. By section 10 a devise of land or other provision for the surviving husband or wife shall bar dower unless such survivor shall elect to and does renounce the benefit of such devise or other provision, and in that event he or she shall be entitled to dower. By section 11 any one entitled to an election under 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 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. Section 12 relates to estates like the present, where the testator leaves no child or children or descendants thereof, and directs that the widow, upon renunciation, may, if she elect, have, in lieu of dower in the lands of the deceased husband, whether such right to dower has accrued by renunciation, as provided in the preceding section, or otherwise, and of any share of the personal estate which she may be entitled to take with such dower, absolutely and in her own right one-half of all the real and personal estate remaining after payment of all debts and claims against the estate of her deceased husband. Section 13 prescribes the form of renunciation and election as filed by complainant.

There were no children or descendants of child or children of decedent. No previous conveyances were made by the husband of complainant in derogation of her rights.

[2] The first legal question presented by the record is, What interest did complainant take by virtue of the will and her renunciation of its provisions? The legal effect of her renunciation is fixed by section 12 if she elect to take in lieu of those provisions. Preceding sections allow renunciation of the provisions made for her in the will. If she renounce only, and does not elect, the law fixes and defines her rights, but, not being the author of the will, the law permits and empowers her to elect-to determine for herself what she will take if the testator leave no child or childrenor descendants thereof. Her renunciation of the provisions of the will and her election to take without regard to it, by the terms of the statute freed one-half of the estate from every incumbrance so far as she and her rights were concerned. Her election fixed her rights and placed her under the protection of the statute enacted for her benefit. It barred dower but not homestead. The homestead right is not denied to her by section 12.

[3] It is true, as contended by appellant, that complainant by her renunciation...