Mcmahill v. Margaret A. Mcmahill.

• Decision Date: 28 March 1883
• Citation: Mcmahill v. Margaret A. Mcmahill., 105 Ill. 596, 1883 WL 10166, 44 Am.Rep. 819 (Ill. 1883)
• Parties: GEORGE W. MCMAHILL et al.v.MARGARET A. MCMAHILL.
• Court: Illinois Supreme Court

105 Ill. 596

1883 WL 10166 (Ill.)

44 Am.Rep. 819

GEORGE W. MCMAHILL et al.

v.MARGARET A. MCMAHILL.

Supreme Court of Illinois.

Filed at Ottawa Mar. 28, 1883.

APPEAL from the Circuit Court of Warren county; the Hon. JOHN J. GLENN, Judge, presiding.

The original bill in this case was brought by the heirs of William McMahill for a partition of the lands of which he died seized, among themselves. The widow of decedent was made defendant, and the bill charged she was not entitled to dower or homestead in the lands of her late husband, on account of an ante-nuptial agreement. In her answer defendant admits the making of the ante-nuptial contract, but insists it is not obligatory on her because it was so unfair and unreasonable, as, by its terms, she was only to have $1000 “in lieu of dower, homestead, widow's award and share in his estate, of whatever kind or nature, which estate, she alleges, was worth $75,000. Omitting the date and signatures, the following is a copy of the ante-nuptial contract between the parties:

This indenture, made and entered into by and between Rev. William McMahill, of the one part, and Margaret Kelly of the other part, both of the county of Warren, and State of Illinois, witnesseth: That in consideration of a marriage about to be entered into by and between the said parties, it is agreed that neither party shall, by reason of said marriage, have any right, title or interest in the property of the other during their joint lives, nor afterwards, except that the said Margaret shall live with the said William, with her two children, and be supported by him. William is to instruct said children while they stay with him, as a father, and not charge them anything, nor shall there be any charge for the labor of said children. In case the said Margaret survives the said William, she shall be entitled to $1000 in cash from the estate of the said William McMahill, in lieu of dower, homestead, widow's award and share in his estate, of whatever kind or nature, and no more.”

On the final hearing of the cause, the court found the antenuptial contract was valid, and binding upon the widow, and that it barred her claim to dower in the estate of her late husband, but did not bar her claim to homestead, under the statute. Complainants bring the case to this court on appeal, and assign errors on the record. No cross-errors are assigned by the widow, whose rights are affected by the decree. Messrs. STEWARTS & GRIER, for the appellants:

The controversy arises with reference to the ante-nuptial contract between the deceased and his widow, and involves its validity and construction. The right of the parties to make such a contract has long been settled in the affirmative. 2 Story's Eq. Jur. secs. 1370, 1371; Phelps v. Phelps, 72 Ill. 545; Jordan v. Clark et al. 81 Id. 465; McGee et al. v. McGee et al. 91 Id. 548.

In construing such contracts they are to be construed liberally “for the purpose they were intended to accomplish.” Phelps v. Phelps, supra; Ardis v. Printup et al. 39 Ga. 648.

The court below held it barred the claim of dower, and we contend it bars the right to an estate of homestead. That estate is created, not for the widow alone, but for the benefit of infant children. In this case there was no issue of the marriage, and no minor children to be protected. The statute was never intended to deprive an adult of the power of alienation, or to deal with his or her rights, whether present or prospective.

Mr. H. CHRISMAN, and Messrs. PORTER & PORTER, for the appellee:

We admit the parties might have made a valid ante-nuptial contract; but the utmost fairness and good faith are requisite before courts of chancery will enforce the same. The presumption seems to be against their validity, and the burden is upon the husband, or those claiming under him, to prove the perfect fairness of the transaction. Pierce v. Pierce, 71 N. Y. 154; Darlington's Appeal, 27 Am. Rep. 726, (86 Pa. St. 512;) Story's Eq. Jur. 310; Rockafellow v. Newcomb, 57 Ill. 186.

In this case the provision was utterly unjust and contemptible in comparison with what she was waiving, and, as the proof clearly shows, was entirely ignored by both parties, and the court should have held that the contract, if it ever had validity, was completely set aside by the acts and declarations of George W. McMahill in his lifetime, with the full consent of the appellee. Colehour v. Morrill, 82 Ill. 618.

But even if the court should hold that the appellee was bound by this unfair agreement, forced upon her upon the point of marriage, and at a time when she was in the presence of the magistrate who performed the ceremony, and that there was not sufficient evidence produced by appellee to set the contract aside, still it is clear that the court below properly held that the estate of homestead was not affected by it. Public policy will not allow parties to waive such an estate in advance. (Thompson on Homesteads, sec. 447; Boyd v. Cudderback, 31 Ill. 119.) It can only be parted with by the formalities prescribed by law. ( Abbott v. Cromertie, 72 N. C. 548; Beavin v. Speed, 74 Id. 548.) Our statute provides the only way in which it can be released. Rev. Stat. chap. 52, sec. 4; Kingman v. Higgins, 100 Ill. 319; Black v. Lusk, 69 Id. 70.

Mr. CHIEF JUSTICE SCOTT delivered the opinion of the Court:

It will be perceived the circuit court found, and so decreed, that the ante-nuptial agreement between the parties was valid, and obligatory upon defendant, and was effectual to cut off or bar her dower in the lands of her late husband, the ancestor of complainants. Touching that decision defendant has assigned no cross-errors, and, of course, can make no complaint in this court. The only question, therefore, that remains to be considered, is, whether the ante-nuptial contract cut off or barred defendant's claim to homestead in the premises on which she and her late husband resided, and which she has not since abandoned. The heirs claiming the estate are children of the decedent by a former wife. Defendant had no children after her second marriage. Nor does it appear that any of her husband's children are minors, residing with her. The claim put forth is to the right of homestead, under the statute, in lands on which she and her husband resided in his lifetime, as his widow, unaffected by any collateral considerations.

Section 1 of the Homestead act, in force July 1, 1873, secures to every householder having a family an estate of homestead in the farm or lot occupied by him or her, which can only be extinguished in the mode provided in a subsequent section of the act; and section 2 of the same act provides such exemption shall continue after the death of such householder for the benefit of the husband or wife surviving, so long as he or she shall continue to occupy such homestead. Only two modes are provided by which the...