Stunz v. Stunz

• Decision Date: 21 January 1890
• Parties: STUNZ et al. v. STUNZ.
• Court: Illinois Supreme Court

131 Ill. 210

23 N.E. 407

STUNZ et al.

v.STUNZ.¹

Supreme Court of Illinois.

Jan. 21, 1890.

Error to superior court, Cook county.

Bill for partition brought by Maria Stunz against Catherine, Louise, and Mina Stunz. Defendants bring error. Rev. St. Ill. c. 41, § 10, provides that any devise of land or estate therein to a wife bars dower, unless otherwise expressed in the will, or unless the widow renounces the devise.Kraus, Mayer & Stein, for plaintiffs in error.

Julius Rosenthal and Barnum, Evans & Barnum, for defendant in error.

SHOPE, C. J.

The statute requires that in proceedings for the partition of real estate the court shall ‘ascertain and declare the rights, titles, and interests of all the parties,’ and give judgment according to the rights of the parties. In this case the court found that complainant was entitled to a one-tenth interest in the premises sought to be partitioned, as tenant in common with plaintiffs in error, each of whom was found to be entitled to an undivided three-tenths thereof, subject to the life-estate of complainant in one-third of said premises, and to her right of homestead in the whole thereof, of the value of $1,000, and to the payment of the unpaid balance of her widow's award, amounting to $1,203.70, and decreed partition accordingly; ‘subject, first, to the payment to said Maria Stunz of the said value of her homestead, and of the value of one-third of the income of said estate as bequeathed to her, and to the sum allowed by said probate court to it, $1,203.70.’ On the report of the commissioners that the premises were not susceptible of division, and were worth $5,125, and its confirmation, the court ordered a sale by the master, and, in case his report of sale be confirmed, directing him ‘to assess the value of the homestead, the dower interest and unpaid balance of the widow's award,’ as found by the court, together with all costs and charges of the proceedings, to deduct and pay the same out of the proceeds of said sale, and to execute to the purchaser proper deeds of conveyance. Various objections are made to this decree, a part only of which will be noticed. The decree finds that the widow is entitled to dower, and to homestead to the value of $1,000. The will, under which all parties claim, gives the widow one-third of the net income of the testator's real estate, which consisted of the lot in question, for her natural life; and the right to live on the homestead, but not to the exclusion of his children, until she should again marry. Whatever right, therefore, the widow has in the real estate is derived from the will alone. Cowdrey v. Hitchcock, 103 Ill. 272. She had the right to renounce the will at any time within a year after the issue of letters testamentary, and take under the statutes, but this it appears she did not do. There being a devise of an interest in the real estate,-that is, of one-third of the net income derived therefrom during her life,-and the right to the homestead during her widowhood, and she having failed to renounce, but having elected to take under, the will, she had no dower or homestead under the statute. The general rule is that, if she take under the will, she is bound by the provision made for her therein.

The statute gives a householder having a family an estate of homestead to the extent in value of $1,000; and by section 2, c. 52, Rev. St., it is declared that 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 continues to occupy such homestead, and of the children until the youngest child arrives at the age of 21 years. Thus it will be seen that the statute gives an estate of homestead to the householder for life; and also in the surviving husband or wife for life, if he or she continues to occupy the same. The will does not create an estate for life absolutely in the wife. The provision of the will is: ‘My said wife shall enjoy the right to live on my homestead, but not to the exclusion of my children, until she shall marry again.’ We do not deem it important to determine the exact interest which the wife would take under that clause of the will. At most, it could be only the right to enjoy the homestead, in common with the children, during her widowhood. The statutory right of homestead terminates with the death of the wife or her abandonment only. The statute gives the estate to the wife and the children, to be enjoyed for their joint use and benefit until the youngest child comes to the age of 21 years. The widow, under the will, has only a privilege to live on the property until she shall marry again. The provision made by the will is inconsistent with the homestead estate given by law, and she, having elected to take under the will, cannot claim inconsistent rights of homestead given by the statute. Vanzant v. Vanzant, 23 Ill. 536.

From what has been said, it is seen that the widow took no right of homestead, in the sense of that term as given by the statute. It follows, we are of opinion that the court errod in holding that she was entitled to a homestead in said premises of the value of $1,000. Her right was not limited by its amount or value. It appears from the appraisement returned by the commissioners that the premises were of the value of $5,125, and yet subject to the right of the children. The right given by the will was to live upon and enjoy the same regardless of its value. Again, the decree fails to find that the children of the testator had any rights in the homestead estate. This was also erroneous. The will gave them nothing in lieu of their estate of homestead, and under the statute they had a homestead right until the youngest arrived at the age of 21 years. The testator, by declaring that the widow should not enjoy the homestead to the exclusion of the children, if it could be held that he did not thereby interfere with the...