Luttrell v. Boggs

• Decision Date: 01 November 1897
• Citation: 48 N.E. 171,168 Ill. 361
• Parties: LUTTRELL v. BOGGS et al.
• Court: Illinois Supreme Court

168 Ill. 361

48 N.E. 171

LUTTRELL

v.BOGGS et al.

Supreme Court of Illinois.

Nov. 1, 1897.

Error to circuit court, Moultrie county; Edward P. Vail, Judge.

Bill by William R. Luttrell against Laura Boggs and others for the assignment of dower. From a decree dismissing the bill, complainant brings error. Affirmed.

John R. & Walter Eden, for plaintiff in error.

W. G. Cochran, for defendants in error.

CRAIG, J.

This was a bill brought by William R. Luttrell for the assignment of dower in certain lands in Moultrie county, of which his wife, Mary A. Luttrell, died seised on the 25th day of August, 1895. It appears that the complainant was married to Mary A. Luttrell on the 13th day of August, 1891; that Mary A. Luttrell owned the lands in her own right; that she left two children by a former marriage,-Albert Forkner and Laura Boggs,-who were made defendants to the bill. It also appears that the complainant and his wife, on the 20th of June, 1895, agreed to separate, and thereupon entering into the following contract in writing: ‘This agreement, made and entered into this 20th day of June, A. D. 1895, by and between William R. Luttrell, party of the first part, and Mary A. Luttrell of the second part, witnesseth: That whereas, the said parties, as husband and wife, do hereby agree this day to separate and live apart, and this agreement is for the purpose of each setting apart to each other their share or part of the property of each, both real estate and personal property, to the effect that each shall be vested in their own right to such property so released by the other to the other: The first party agrees to and does release unto her, the said Mary A. Lutrell, all his interest, right, and title to any and all real estate or personal property of whatever kind she may have been possessed of at the time of the marriage of the parties to each other. The second party agrees to and does release unto him, the said William R. Luttrell, all her interest, right, and title to any and all real estate and personal property of whatever kind that he may have been possessed at the time of the marriage of the parties to each other. Witness our hand and seal this 20th day of June, A. D. 1895. W. R. Luttrell. [Seal.] Mary A. Luttrell. [Seal.]’ The contract was duly acknowledged by the respective parties before a notary public on the day of its date, and recorded in the recorder's office of Moultrie county on the 21st day of June, 1895. Under the statute the complainant was entitled to dower in the lands owned by his wife during coverture, unless barred by the foregoing contract. On the hearing the circuit court held that the complainant had released all claim of dower in the lands and entered a decree dismissing the bill, and the only question presented by the record is whether the court erred in the decree. It may be conceded that at common law husband and wife could not contract with each other in regard to their property, as was done by the contract in question; but the statute of 1874 in relation to husband and wife has removed the common-law disability of married women to contract, or that of husband and wife to contract with each other, except so far as is provided in the act itself. That statute decla...