Patterson v. Durand Farmers Mut. Fire Ins. Co.

• Decision Date: 08 January 1940
• Docket Number: Gen. No. 9423.
• Citation: 24 N.E.2d 740,303 Ill.App. 128
• Parties: PATTERSON v. DURAND FARMERS MUT. FIRE INS. CO.
• Court: United States Appellate Court of Illinois

303 Ill.App. 128

24 N.E.2d 740

PATTERSON

v.DURAND FARMERS MUT. FIRE INS. CO.

Gen. No. 9423.

Appellate Court of Illinois, Second District.

Jan. 8, 1940.

Appeal from Circuit Court, Winnebago County; William L. Pierce, Judge.

Action on fire policy by Frances B. Patterson against Durand Farmers Mutual Fire Insurance Company. From a judgment for the plaintiff, the defendant appeals.

Reversed.

George T. Liddell, of Rockford, for appellant.

Lathrop, Lathrop, Brown & Lathrop, of Rockford, for appellee.

DOVE, Presiding Justice.

On March 10th, 1937 Frances B. Patterson, acting through her husband as agent, applied to the Durant Farmers Mutual Fire Insurance Company for insurance upon a dwelling house located on the land, the title to which at that time was in Sam Schreiber, Trustee in Bankruptcy of Everett C. Patterson, the husband of said Frances B. Patterson, and on the same day the Insurance Company issued its ordinary fire policy purporting to insure “the inchoate dower right of Frances B. Patterson against all direct loss and damage by fire and lightning in the amount of Eighteen Hundred Dollars” on the dwelling house described in the policy. Among other provisions, this policy contained the following: “This entire policy shall be void unless otherwise provided by agreement in writing (a) if the interest of the insured be other than unconditional and sole ownership; or (b) if the subject of insurance be a building on ground not owned by the insured in fee simple”. The premium upon this policy was $17.63, which was paid. On April 2nd, 1937 the dwelling house was destroyed by fire and thereafter due proof of loss was furnished the Company as provided by the policy. The dwelling was worth $1,800 at the time it was destroyed by fire. Thereafter, the company having refused to pay, this suit was instituted in the Circuit Court of Winnebago County, resulting in a judgment in favor of the plaintiff for $1,926 and the defendant appeals.

The question for determination is whether appellee, who had an inchoate right of dower in the land upon which the dwelling house, which was destroyed by fire, stood, had an insurable interest therein. In this state an inchoate right of dower is a mere intangible, contingent expectancy and its value unascertainable. In Cowan v. Kane, 211 Ill. 572, 71 N.E. 1097, it was so held, the court stating that whether the right will ever become more than an expectancy depends upon the wife surviving the husband and this may not occur. In Bennett v. Bennett, 318 Ill. 193, 149 N.E. 292, our court expressly held that a wife's inchoate right of dower, in an estate in land, does not rise to the dignity of a vested right and before it has been consummated by the death of the husband is a mere expectancy. In the early case of Summers v. Babb, 13 Ill. 483, it was stated that the right to dower rests in action only. Before assignment it can not be aliened by the widow nor sold on execution against her. She may release it to the owner of the fee but can not transfer it to a stranger. It attends the estate and is only severed from it by assignment and when assigned it then becomes the subject matter of sale and transfer. Bouvier states that it is not such a vested right or interest as can not be taken away by legislative action and that until the death of her husband, the wife's right of dower is not an interest in real estate of which value can be predicated and in Shaeffer v. Weed, 8 Ill. 511, 3 Gilman 511, it was held that a wife's claim for dower is not subject to mechanic's liens.

Humphrey v. Clement, 44 Ill. 299, was a suit to compel specific performance of a contract for the sale and conveyance of a tract of land. It appeared that the seller tendered a deed which the buyer refused to accept and the reason why he refused to accept it was because the wife of the seller had not released her dower. The Chancellor decreed a conveyance upon payment of the purchase price, the decree providing that in case the wife of the seller refused to join in the deed that then the buyer might retain $250 out of the purchase money. The Supreme Court held that the decree insofar as it authorized the retention by the purchaser of $250 as an indemnity against the contingent right of dower was erroneous, the court saying: “In fixing $250, or any other sum, the court is simply making a guess--as mere a guess as if we were to undertake to say whether a white ball or a black ball would be drawn by lot from an urn containing an equal number of each color. If the husband were dead, the value of the wife's dower might be approximately estimated by the tables of mortality, though even these tables, while furnishing reliable evidence of the value of a considerable number of lives, taken in the aggregate, are but an uncertain guide in fixing the probable duration of any individual life. But the fact in the present case, which reduces the decree to a mere guess, is, that the husband is still living, of about the same age and health of the wife, and, therefore, with at least equal probabilities of surviving, and yet the court must necessarily base its decree on the theory that the wife is to be the survivor. Yet we have no evidence, or indication, even, that such will be the fact, and the foundation for the decree is therefore utterly wanting. * * * We regard the decree as wrong in principle. It is an instance in which a court of chancery, in an extreme anxiety to do equity, really does a wrong, for want of the means with which to act. * * * It [the court] can give him [the purchaser] the husband's title, but it cannot compel the wife to release her dower, and it cannot decree compensation when there is no basis whatever for determining the amount.”

Appellee cites and calls to our attention Firebaugh v. Wittenberg, 309 Ill. 536, 141 N.E. 379;Ratzman v. Ratzman, 333 Ill. 461, 165 N.E. 172 and other authorities to the effect that an inchoate right of dower is an encumbrance within the meaning of a contract to convey a merchantable title to land and that it is a valuable and substantial right or interest which can not be divested or prejudiced without the wife's consent, given in the manner provided by law. This is true. Counsel also call our attention to the case of Doyle v. American Fire Insurance Company, 181 Mass. 139, 63 N.E. 394; and Home Ins. Co. v. Mendenhall, 164 Ill. 458, 45 N.E. 1078, 1080,36 L.R.A. 374. In this last case it appeared that a policy of insurance was issued by the defendant to J. A. Mendenhall on two dwellings located on eighty acres of land purchased by the father of the plaintiff at a Master's sale. At the time of the issuance of the policy, October 27, 1889, the father had not received his deed from the Master but had placed his son, the plaintiff, in possession thereof, for whom he had purchased the land, had informed his son that it was his and that he had made a will devising the premises to him. The son continued in possession and received the rents and profits and paid the taxes thereon. On March 5, 1894, during the life of the policy, the buildings were destroyed by fire and in sustaining a judgment against the company upon its contract of insurance and in favor of the plaintiff, the Supreme Court said that the title of the plaintiff was one in expectancy, but under certain conditions was sure to ripen into one absolute and that where the title of one is such, though not in fee, that he would suffer a loss or damage by the destruction of the premises, he may protect his interest, whatever may be the nature of it, by insurance. The Court held that the plaintiff had a reasonable expectancy of inheriting and becoming the owner in fee, that his relation to the property was such that its destruction involved pecuniary loss to him and that therefore he had an insurable interest. “In the case here presented” said the court after referring to numerous authorities, “appellee [plaintiff] did not have a title in fee, but he had such an interest that pecuniary loss would have resulted to him in case of destruction of the premises by fire. The interest he had, such as it was, was fully disclosed to the agent of appellant. Appellant cannot now insist upon a forfeiture for the reason that the title of appellee was not as conditioned in the policy, when the full condition of this title was known to the insurer, through its agent.”

Doyle v. American Fire Ins. Co., supra, was a suit brought by a tenant by curtesy to recover for the loss of a barn and its contents, occasioned by a fire. The title to the land upon which the barn stood was in the wife of the plaintiff and the only interest the plaintiff had...