Lenfers v. Henke

• Decision Date: 30 September 1874
• Parties: CAROLINE LENFERS et al.v.ANNA C. HENKE et al.
• Court: Illinois Supreme Court

73 Ill. 405

1874 WL 9003 (Ill.)

24 Am.Rep. 263

CAROLINE LENFERS et al.

v.ANNA C. HENKE et al.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Jo Daviess county; the Hon. WILLIAM BROWN, Judge, presiding.

This was a bill filed by Caroline Lenfers and Henry Lenfers, her husband, against Anna C. Henke and John A. Burrichter, her guardian, for the assignment of dower in certain mineral lands. The bill showed that the complainant Caroline Lenfers was the owner in fee of one-third part, and the defendant Anna C. Henke of the other two-thirds, and that the mother of said Anna C., in her lifetime, had agreed with the complainant that the mineral rents and profits of said lands should be equally divided between them, etc. The defendants answered, denying the right to dower, and the court, on the hearing, held the agreement null and void. The other facts appear in the opinion.

Mr. LOUIS SHISSLER, for the appellants.

Messrs. D. & T. J. SHEEAN, for the appellees.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

The demandant is herself the owner in fee of the undivided one-third part of the land in which dower is sought, and the defendant Anna C. Henke is the owner of the other two-thirds. A portion of these lands contain lead mines, all of which were discovered and opened after the right of dower attached. It was not known in the lifetime of the demandant's husband, that any valuable mines existed in these lands. Two children were living at the death of the husband, one of whom has since died. The entire estate then passed to the widow and the other child, Mary Louisa Camphouse, who afterwards intermarried with Henry Henke, both of whom are now dead, leaving Anna C. Henke, the infant defendant, as their only heir at law.

It is alleged, it was agreed between Mary Louisa, in her lifetime, and her mother, Mrs. Lenfers, in consideration of her dower interest, the proceeds of the mineral rents derived from the mines discovered in these lands, should be equally divided between them. Mines were accordingly opened that proved very valuable. The agreement as to the division of the rents was faithfully carried out by Mary Louisa during her lifetime, by her husband after her death, and after his death, by the guardian of their minor heir, until the month of November, 1872, when he and the smelters, through whose hands the rents passed, declined to make any further division on the basis of the agreement, until the rights of the parties should be judicially determined. The relief sought is, that the agreement be declared to stand as an assignment of dower, and as conclusive of the existing rights of the parties; but if the contract should be adjudged void, the widow may have dower assigned to her.

The question presented is one of first impression in this court. The general doctrine is, where mines have been opened and worked during the lifetime of the husband, the wife is dowable; but not in mines or strata not opened at all. It makes no difference, the mines may have been temporarily abandoned; it is only material, they were opened in the lifetime of the husband. She may not only work the mines, but she may construct new approaches to them. Stoughton v. Leigh, 1 Taunt. 402; Coates v. Cheever, 1 Cow. 474.

The first case we have been able to find on this subject is Hoby v. Hoby, 1 Verm. 218. In that case it is assumed the wife has dower in mines, but whether it is in mines opened during the lifetime of the husband, or not, does not appear. The next and leading case is Stoughton v. Leigh, supra. The question as to mines opened by the heir was not raised. The judge only gave opinions on the two points indicated: 1st. The wife was dowable of mines opened and worked by the husband. 2d. She was not dowable of any mines or strata not opened at all. In many of the later cases, as well as the earlier cases, no reason whatever is assigned for the adoption of the rule; but where any is assigned, it is, the dowress can not open new mines when discovered because she would be committing waste, which she is not permitted to do. On principle, why may she not be endowed of mines opened by the heir or owner of the fee, after the dower attaches and before there has been any assignment? By all the decisions, it is not waste for her to work mines opened, although the same had been abandoned before the death of the husband. She may construct new approaches and not be guilty of waste. On the same principle, if the cases on this question can be said to rest upon any principle, she could work mines opened by the heir without being guilty of waste. The reason for the rule adopted, that bars dower in all mines not opened during the lifetime of the husband, failing, the rule ought not to be extended to cases not strictly within its meaning. In view of the comprehensive definition given by common law writers of the things of which the wife is entitled to be endowed, which includes almost every thing of a permanent nature, whether it is of a material or ideal kind, there can be no reason for giving the rule any broader construction than has heretofore obtained.

Our statute does not define dower. It provides for the assignment, but leaves the interest to be determined as at common law. By reference to the authorities, we find, at common law, the wife was entitled to be endowed of all lands and tenements of which the husband died seized. The import of those terms is well known in the law. Land comprehends all things of a substantial nature, which includes any ground, soil or earth whatever, and hath in its legal signification an indefinite extent upwards as well as downwards. “Therefore,” says Blackstone, “if a man grants all his lands, he grants thereby all his mines of metal and other fossils, his woods, his waters and his houses, as well as his fields and meadows.” Tenement, according to the same author, is a word of still greater extent, and in “its original, proper and legal sense, signifies every thing that may be holden, provided it be of a permanent nature, whether it be of a substantial and sensible, or of an unsubstantial, ideal kind.” 2 Black. 17^*, 18^*.

The minerals in this land are a part of...