Classen v. Heath

• Decision Date: 17 January 1945
• Docket Number: No 28364.,28364.
• Citation: 389 Ill. 183,58 N.E.2d 889
• Parties: CLASSEN, Public Administrator, v. HEATH et al.
• Court: Illinois Supreme Court

389 Ill. 183

58 N.E.2d 889

CLASSEN, Public Administrator,

v.HEATH et al.

No 28364.

Supreme Court of Illinois.

Jan. 17, 1945.

Appeal from Probate Court, St. Clair County; J. E. Fleming, judge.

Petition by Alice D. Classen, Public Administrator, St. Clair county, as administrator de bonis non with the will annexed of the estate of LeRoy A. Reuss, deceased, against William G. Heath, Freda Reuss and others, to sell two parcels of real property for purpose of paying deceased's debts. From an adverse decree, the defendant Freda Reuss appeals directly to Supreme Court.

Affirmed.

Turner, Holder & Ackerman and C. C. Dreman, all of Belleville, for appellant.

H. C. Lindauer, of Belleville, and Saul E. Cohn, of East St. Louis, for appellee.

WILSON, Justice.

May 14, 1937, Freda Reuss obtained a decree in the circuit court of St. Clair county granting her a divorce from her husband, LeRoy A. Reuss, upon the ground of desertion. Although Dr. Reuss then owned two parcels of real estate in the city of Belleville, no written stipulation was entered into with respect to the property rights of the parties. Reuss did not remarry. Upon his death on October 22, 1942, he was survived by brothers and sisters as his sole heirs-at-law. By his will, admitted to probate in the probate court of St. Clair county on December 8, 1942, he bequeathed and devised his entire estate, after the payment of debts, to Frances Sluderman. His heirs-at-law did not contest the will. April 27, 1944, the plaintiff, Alice D. Classen, public administrator St. Clair county, as administrator de bonis non with the will annexed of the estate of LeRoy A. Reuss, deceased, filed a petition in the probate court of the county to sell the two parcels of real property for the purpose of paying his debts. Plaintiff's petition and the answer of one of the defendants, Freda Reuss, by appropriate allegations and averments, presented for decision the question whether Freda Reuss, the divorced wife of the decedent, not having asserted nor claimed any dower rights under the relevant provisions of the Probate Act, was entitled, nevertheless to a dower interest in the property. August 1, 1944, the court found that, not having in any manner rejected the provisions of the will nor asserted any dower rights, she had no interest either in fee or in dower in the real estate. A sale of the property in which she claimed dower was ordered, and, out of the net proceeds, plaintiff was directed to pay the claims of William G. Heath and other defendants. Freda Reuss, the only defendant involved here, will be referred to as defendant. She prosecutes a direct appeal to this court, a freehold being, necessarily, involved. Goodkind v. Bartlett, 136 Ill. 18, 26 N.E. 387.

Section 21 of the Probate Act, Ill.Rev.Stat.1943, chap. 3, par. 173, ordains that a spouse who is divorced for the fault of the other spouse is not thereby barred from dower in the real estate owned by the other spouse during the marriage, except when a marriage is void from the beginning. Section 14 of the Dower Act, in force at the time the decree of divorce was entered, was substantially to the same effect. Ill.Rev.Stat.1935, chap. 41, par. 14. The Dower Act was repealed, effective January 1, 1940. Ill.Rev.Stat.1943, chap. 3, par. 500. Section 19 of the Probate Act, Ill.Rev.Stat.1943, c. 3, s 171, prescribes that the surviving spouse is barred of dower unless he (or she) perfects his right thereto by filing, at the time and the place therein provided, a written instrument, describing the real estate, and declaring an intention to take dower therein. Admittedly, defendant did not comply with, nor attempt to satisfy, the requirements of section 19.

Defendant contends that by virtue of section 21 of the Probate Act she is entitled to dower in the real estate owned by her former husband during their marriage and possessed by him when he died, without the necessity of renouncing his will or filing and instrument declaring her intention to take dower in the property. In other words, the provisions of the Probate Act relative to renunciation of a will and the perfection of dower, she urges, do not apply to her, for the reason that she was the divorced wife of LeRoy A. Reuss, and not his ‘surviving spouse.’ She contends, further, that the law in effect when the divorce was granted establishes her right to dower rather than the law in force at the time of his death.

The primary purpose of statutory construction is to ascertain and render effectivethe legislative intention. Schoellkopf v. DeVry, 366 Ill. 39, 7 N.E.2d 757, 110 A.L.R. 511. If the language employed admits of two constructions, one of which makes the enactment absurd, if not mischievous, while the other renders it reasonable and wholesome, the construction which leads to an absurd result should be avoided. Inter-State Water Co. v. City of Danville, 379 Ill. 41, 39 N.E.2d 356. Again, since statutes are to be construed according to their intent and meaning, a situation which is within the object, spirit, and the meaning of a statute is regarded as within the statute although not within the letter. 2 Lewis' Sutherland on Stat.Const. 2d Ed. s 379; People ex rel. Simpson v. Funkhouser, 385 Ill. 396, 52 N.E.2d 1014;Burke v. Industrial Com'n, 368 Ill. 554, 15 N.E.2d 305, 119 A.L.R. 1152.

The common-law right of dower entitled a wife to a life estate in one-third of all the real estate of which her husband was seized of an estate of inheritance at any time during her coverture. Schoellkopf v. DeVry, 366 Ill. 39, 7 N.E.2d 757, 110 A.L.R. 511. A wife's life estate, denominated dower, arose solely by operation of law. Kales on Estates and Future Interests, 2d Ed. s 20. The right to dower is not a debt or claim against the husband in his lifetime or against his estate after his death, but is, instead, a right which the law grants the widow in the lands of which the husband was seized during marriage, and is inchoate during the husband's lifetime. Knapp v. Knapp, 303 Ill. 535, 135 N.E. 732. This inchoate right of dower is no a vested interest but a mere expectation of property in the future, and the General Assembly may diminish, alter, or abolish dower while it remains inchoate. Steinhagen v. Trull, 320 Ill. 382, 151 N.E. 250. The rules of descent and the right to devise property, as well as the method of conveying and the manner of creating estates, are purely statutory and may be changed by the Legislature in its discretion, and the changes...