Executors v. Julia Butler Newberry.

• Decision Date: 30 September 1869
• Citation: 1869 WL 5303,51 Ill. 203
• Parties: MARK SKINNER et al. Executors and Trustees of WALTER L. NEWBERRY, deceased,v.JULIA BUTLER NEWBERRY.
• Court: Illinois Supreme Court

51 Ill. 203

1869 WL 5303 (Ill.)

MARK SKINNER et al. Executors and Trustees of WALTER L. NEWBERRY, deceased,

v.JULIA BUTLER NEWBERRY.

Supreme Court of Illinois.

September Term, 1869.

WRIT OF ERROR to the Superior Court of Chicago.

This was a suit in chancery, instituted in the Superior Court of Chicago, by the defendant in error, against the plaintiffs in error, the facts in which case are as follows: On the 7th of November, 1868, Walter L. Newberry, of Chicago, died at sea, leaving a widow, the defendant in error, and two daughters, one of whom is an infant of the age of sixteen years. Newberry left an estate of about three millions of dollars, a little more than one-third of which consisted of personal property, and the remainder of real estate, situated in the city of Chicago. By his will, provision was made for the widow and children, but the widow filed a renunciation of the will in her favor, and elected to take her dower, and her share of the personalty. Accordingly, the defendant in error filed her bill in the court below, claiming not only dower, but also, one-third of all the personalty absolutely, after the payment of the testator's debts. And the principal question presented by this record is: What is the share of the personalty, to which she is entitled? A decree was entered in the court below, giving to complainant, one-third of all the personal estate after the payment of the debts, to reverse which, the record is brought to this court by writ of error.

Mr. EDWARD S. ISHAM, for the plaintiffs in error.

Mr. J. L. THOMPSON, for the defendant in error.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

The main question in this case, is precisely the same which was decided by this court, in the case of McMurphy v. Boyles, 49 Ill. 110. It is as to the construction to be given to the 10th and 11th sections of our statute of dower, in determining the share of the widow in the personal estate of her deceased husband, where she has renounced his will. In that case, the testator left no children, and it was contended, on behalf of his widow, that she took all the personal estate after payment of debts. On behalf of the devisees, it was insisted “her share” consisted merely of her award of specific property, and her distributive part of unbequeathed personal estate. On the last point we entertained no doubt. Our only difficulty was, whether she was not entitled to the whole personal estate, as in cases of intestacy,...