Gehrke v. Gehrke

• Decision Date: 18 April 1901
• Parties: GEHRKE v. GEHRKE et al.
• Court: Illinois Supreme Court

190 Ill. 166

60 N.E. 59

GEHRKE

v.GEHRKE et al.

Supreme Court of Illinois.

April 18, 1901.

Appeal from superior court, Cook county; A. H. Chetlain, Judge.

Action by Sophia Gehrke against Emil Gehrke and others. From a decree taxing the fees of defendants' solicitors as costs, plaintiff appeals. Reversed.Deneen & Hamill, for appellant.

Barker & Church, for appellees.

This is a proceeding begun on May 25, 1899, by Sophia Gehrke by the filing of an original petition, alleging that she was entitled to dower in the lands of her deceased husband, Conrad Gehrke; that said dower had never been assigned or set off to her; that she had never received any compensation or equivalent therefor; and praying for a decree that she recover dower in the premises described in the petition-some eight or nine distinct parcels of land in Chicago-to be assigned and set off in the manner and according to the provisions of the statute; and also praying for general relief. The petition made defendants thereto the heirs of the deceased, Conrad Gehrke, and certain other parties having interests in the premises as tenants and mortgagees. The heirs filed their answers to the petition, and replications were filed to such answers. The petition alleged that Conrad Gehrke died testate on October 2, 1898, leaving the petitioner, Sophia Gehrke, his widow, and Emil Gehrke and Robert C. Gehrke his sons, and Matilda Lauterjung, wife of Robert Lauterjung, his daughter, as his only heirs at law. It describes in full the various pieces of real estate owned by the deceased, and alleges that on October 26, 1898, the will of the testator was admitted to probate by the probate court of Cook county, and that thereafter, within one year after the death of the deceased, the petitioner duly renounced the provisions of the will made in her behalf, and thereby became entitled to dower. Emil Gehrke, one of the heirs and a defendant to the petition for the assignment of dower, filed a cross bill, setting up the interests of the three heirs above named in the property, and the dower and homestead interests of the widow therein, and also setting up the interest of certain mortgagees in the undivided one-third of the property owned by Emil Gehrke, the cross complainant, and praying that the parts belonging to the cross complainant and the others might be settled and ascertained; that the dower of the widow, Sophia Gehrke, might be ascertained, and a portion of the premises might be allotted and set off to her for her natural term of life, for her dower; that a partition of all the remainder of the premises might be made between the cross complainant and other persons, appearing to be owners or interested in the premises, according to their respective rights; that commissioners should be appointed to make proper division and to assign dower; and that, if the premises could not be divided without manifest prejudice, the same might be sold, and the proceeds of sale be divided among the owners; and for general relief. Answers were filed by the widow, Sophia Gehrke, and by the other defendants to the cross bill, and replications were filed to such answers.

A reference was had to a master in chancery, who took testimony and made a report. The court rendered a decree, wherein it was recited that the cause came on to be heard upon the cross bill as amended, and the answers thereto, and the replications to the answers, and upon the petition of the widow, Sophia Gehrke, as amended, and the answers thereto, and the replications to such answers, and upon the report of the master in chancery, and exceptions filed thereto, and also upon proof, exhibits, and oral testimony produced and heard in open court; and wherein it was ordered and decreed that the widow, Sophia Gehrke be endowed during the term of her natural life with a one-third full and equal part of the premises in question, except a certain part thereof devised to the daughter, Matilda Lauterjung; that Sophia Gehrke have her homestead in accordance with the statute in the third and fourth floors, and a portion of the basement in the rear of the building, and in the heating apparatus therein, known as lot 8, block 8, in Newberry's addition to Chicago; that Emil Gehrke, Matilda Lauterjung, and Robert C. Gehrke, were each entitled to one-third of the premises, subject to the dower and homestead of Sophia Gehrke; that Sophia Gehrke have her dower in said premises and her said homestead; that a partition of all the premises, including the remainder in that part which should be allowed and assigned for dower, subject to homestead, be made among the three children above named; that commissioners be appointed, and that they should first assign and allot to Sophia Gehrke her dower by metes and bounds according to quality and quantity, giving her the homestead as above described; that the commissioners might assign and set off her dower in a body, or out of two or more of the tracts of the premises, as they might deem best for all persons interested. The decree finds, among other things, that, in case of sale, there shall be paid out of the proceeds of such sale the costs and expenses, including the sum of $2,500 to cross complainant for his solicitor's fee; that the said solicitor's fee shall be included among the taxed costs; and that said costs shall be apportioned among the parties in interest, and paid by them in their respective portions, in case any sale of the premises shall be made therein. From the decree thus appointing commissioners, and providing for the partition of the property and the assignment of dower, Sophia Gehrke prayed an appeal to this court, and the case is now presented for review upon such appeal.

MAGRUDER, J. (after stating the facts).

The decree entered in this cause, and from which the present appeal is prosecuted, allowed the sum of $2,500 to the solicitors of the cross complainant for their fee, and apportioned said sum among the parties in interest, so as to require the widow, Sophia Gehrke, to pay a portion thereof. The principal question in the case is whether, under the circumstances shown by this record, the appellant, Sophia Gehrke, should be required to pay any portion of the fee allowed to the solicitors of the cross complainant, Emil Gehrke.

1. Section 40 of the present act in regard to partition, as amended on June 4, 1889, provides that ‘in all proceedings for the partition of real estate when the rights and interests of all the parties in interest are properly set forth in the petition or bill, the court shall apportion the costs, including the reasonable solicitor's fee, among the parties in interest in the suit, so that each party shall pay his or her equitable portion thereof, unless the defendants, or some one of them, shall interpose a good and substantial defense to said bill or petition. In such case the party or parties making such substantial defense, shall recover their costs against the complainant according to equity.’ 3 Starr & C. Ann. St. (2d Ed.) p. 2927. By this statute, the solicitor's fee in proceedings for partition is made a part of the costs. The general rule is that statutes which impose costs are to be construed strictly, as such statutes are penal in their character, and are regarded as creating liabilities which did not exist at common law. 23 Am. & Eng. Enc. Law, p. 401; Black, Interp. Laws, p. 295; Dent v. State, 42 Ala. 514. If the principle of strict construction be applied to section 40 as above quoted, the petition or bill therein referred to is an original petition or bill in a proceeding commenced for the partition of property, and not a cross bill in a proceeding commenced originally for the assignment of dower under the dower act.

The case at bar is not an original proceeding for partition. It is a proceeding begun by the widow, who filed her petition for the assignment of her dower under the dower act. She employed her own attorney to file her petition, and the same was answered by the heirs, who were made defendants, and an issue was made upon the allegations of the petition. It is true that Emil Gehrke, one of the sons of the deceased, Conrad Gehrke, and an heir, owning an undivided one-third of the real estate subject to the widow's dower and homestead, filed a cross bill in the proceeding for the assignment of dower, and prayed not only for the assignment of dower and homestead, but also for a partition of the property among himself and the two other heirs. But it would be unjust to require that the appellant, who employed counsel to file a petition for her to have her dower set off to her, should be compelled to pay not only her own counsel, but the counsel of one or more of the defendants who filed a cross bill asking for a partition. Section 40 did not contemplate the taxation of the solicitor's fee of the cross complainant in such a partition proceeding against the widow, who filed the original petition for the assignment of dower.

In Habberton v. Habberton, 156 Ill. 444, 41 N. E. 222, we said, in regard to section 40 of the partition act, that ‘the object of the statute seems to be to allow an apportionment of solicitor's fees against all...