Krusemark v. Stroh

• Decision Date: 13 January 1944
• Docket Number: No. 27469.,27469.
• Parties: KRUSEMARK et al. v. STROH et al.
• Court: Illinois Supreme Court

385 Ill. 64

52 N.E.2d 156

KRUSEMARK et al.

v.STROH et al.

No. 27469.

Supreme Court of Illinois.

Nov. 19, 1943.

Rehearing Denied Jan. 13, 1944.

Proceeding by Albert H. Krusemark, Jr., and others against Floyd Stroh and others in the matter of the estate of Louis Stroh, deceased. From a decree directing the sale of decedent's realty to pay his debts and denying Dora Stroh's claim to a homestead, Dora Stroh appeals.

Affirmed.Appeal from Probate Court, Will County; Fred R. Adams, Judge.

Ray F. Faulkner, of Joliet, for appellant.

Krusemark & Krusemark and James W. Faulkner, all of Joliet, for appellees.

GUNN, Justice.

This case is a direct appeal from a decree of the probate court of Will county directing a sale of real estate to pay the debts of Louis Stroh, deceased, in which the claim of appellant, Dora Stroh, to a homestead in the premises is denied, with a finding and decree that such homestead is vested in another person. The right to a freehold estate of homestead is involved, and hence a direct appeal to this court is proper. Jones v. Jones, 281 Ill. 595, 117 N.E. 1013.

The facts are as follows: The estate involved is that of Louis Stroh, deceased. Louis Stroh and Dora Stroh were husband and wife, occupying the premises involved until the year 1928, when Dora Stroh obtained a divorce for his fault. The court ordered the payment of alimony, and also decreed that Dora Stroh and her children be permitted to use the lower apartment of the building they occupied as a homestead, and that Louis Stroh pay all taxes, insurance, assessments, and expenses of the entire building, except interior repair of the rooms occupied by her. Louis Stroh remarried in 1935 and died leaving a widow, Vera Stroh, who is an incompetent, and who is represented by her conservator. Vera Stroh and the deceased were living on the second floor of the apartment at the time of the death of Louis Stroh. Dora Stroh had not lived in the lower part of the apartment for three years, but claimed she was temporarily absent because of sickness. The probate court found Dora Stroh had no homestead estate in the premises, and that Vera Stroh was entitled to a homestead estate. The decree held, however, that Dora Stroh was entitled to dower in the premises, because the decree of divorce was for the fault of the husband. The decree shows the divorce was granted on the ground of drunkenness and that the youngest child became of age in 1938.

The principal error assigned by appellant, Dora Stroh, is that the finding that she had abandoned the right to occupy the lower part of the residence involved in contrary to the weight of the evidence. The appellees, however, contend that regardless of the question of abandonment she never had a homestead interest after the divorce from her husband, and that the homestead estate was by the death of Louis Stroh vested in the surviving widow, Vera Stroh.

The statute provides that in cases of divorce the court, in rendering its decree, may dispose of the homestead estate according to the equities of the case. Ill.Rev.Stat.1941, chap. 52, par. 5. In the suit for divorce there was no prayer that the court dispose of the homestead, nor did the court in the decree deprive the husband of his homestead, or award it to Dora Stroh upon her divorce. The statute provides that an estate of homestead shall continue after the death of the householder for the benefit of the husband or wife surviving. Ill.Rev.Stat.1941, chap. 52, par. 2. We have held, however, that a divorced wife is not the widow of her deceased husband, and therefore is not...