Executors v. Mcmurphy
| Decision Date | 30 September 1870 |
| Citation | 55 Ill. 236,1870 WL 6408 |
| Parties | SAMUEL S. BOYLES et al. Executors, etc.v.HANNAH A. MCMURPHY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Superior Court of Chicago.
The opinion states the case.
Messrs. FULLER & SMITH, for the plaintiffs in error.
Messrs. BRACKETT & WAITE, for the defendant in error.
Hiram C. Murphy died, testate, on the thirteenth day of October, 1867, leaving a widow, the defendant in error, but no children, or descendants of children. He left a considerable real and personal estate, and provided in his will, that the rents and income of one-half of it should be paid to his wife during her life, and at her death, his whole estate to go to various named persons; the devise to the wife was declared to be in lieu of all claim to dower. His wife duly renounced the will, and claimed the entire personal estate. Her claim was passed upon by this court, in McMurphy v. Boyles et al. 49 Ill. 110, where it was held, that she was entitled to one-third part of the personalty remaining after the payment of debts; that that was the quantity of her interest denoted by the words, “her share in the personalty of her husband,” in the tenth section of the dower act.
She has received most of her one-third of the personalty in cash. This was a petition filed by her for dower in the real estate, which, having been adjudged to her, this writ of error is prosecuted to determine whether she is so dowable or not.
The position taken by the counsel for the plaintiffs in error is, that by electing to take and receive such share in the personalty, the widow is thereby cut off from her dower in the lands; that the eleventh section of the thirty-fourth chapter of the Revised Statutes, prescribes the form of renunciation of the will as an election to take dower, or the legal share of the husband's estate, and the effect of the renunciation is stated to be, that “such widow shall thereupon be entitled to dower in the lands or share in the personal estate of the husband;” that it follows, therefore, that a widow, under the circumstances here existing can not have both dower and her share of personalty; she can have the provision made for her by the will, or dower, or share of personalty, any one, but not any two of these.
Dower is a favorite of the common law. It is not to be abridged by words of doubtful import, but only where the intention of the legislature to do so, is clearly manifested in unmistakable language. The construction here set up, of the language of this section, is one which sticks in the bark of the letter. The section is to be construed in connection with the next preceding one, the tenth, which is as follows: “Every devise of lands, or any estate therein, by will, shall bar her dower in lands, or of her share in personal estate, unless otherwise expressed in the will; but she may elect whether she will take such devise or bequest, or whether she will renounce the benefit of such devise or bequest, and take her dower in the lands, and her share in the personal estate of her husband.”
The effect of the renunciation of the will, and the widow's right thereupon, are declared in the tenth section, to-wit: to “take her dower in the lands, and her...
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...dower may remain unchanged in the statute, in a particular section it may be enlarged to embrace an interest in personal estate. Boyles v. McMurphy, 55 Ill. 236. The interest so provided is one in the nature of dower. When a provision has some connection with the subject of legislation more......
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