Sutherland v. Sutherland
| Decision Date | 30 September 1873 |
| Parties | JOHN E. SUTHERLAND et al.v.ADELINE B. SUTHERLAND et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.
This was a bill in equity, filed by John E. Sutherland and others, as the heirs at law of John E. Sutherland, deceased, against Adeline B. Sutherland and others, for the partition and settlement of the estate of the deceased. The opinion of the court presents the points in controversy, and the leading facts relating thereto.
Messrs. FORRESTER & BEEM, for the appellants.
Mr. J. V. LeMOYNE, for the appellees. Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:
This is a contest between the brother and certain nephews and nieces of the intestate, on the one side, and his widow on the other, in regard to the interest claimed by the latter in the intestate's estate.
There is no dispute upon the facts, and they are briefly these: John E. Sutherland died intestate, seized and possessed of a considerable amount of real and personal property, leaving, surviving him, Adeline B. Sutherland, his widow, but no child or children, or descendant of child or children. Some years before his death, and immediately prior to and in view of his anticipated marriage with the said Adeline, they entered into the following written contract:
“This indenture, made and entered into this fourth day of April, A. D. 1862, between John E. Sutherland, bachelor, of the city of Chicago, in the county of Cook and State of Illinois, party of the first part, and Adeline B. Loomis, spinster, of the same place, party of the second,
Witnesseth: That in contemplation of marriage between the parties to this instrument, and for the purpose of barring any dower or claim, or right of dower which might accrue by such intended coverture to the said party of the second part, of, in and to, or out of all and every, or any, the lands and estates, in law or equity, whereof the said party of the first part now is or shall be seized at any time during the coverture between them, the said party of the first part, for and in consideration of the premises and of one dollar to him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, released and confirmed, and by these presents does hereby grant, bargain, sell, alien, release and confirm unto the said party of the second part, and to her assigns, all that certain tract or parcel of land lying and being in said city of Chicago, and known and described as-- The east twenty-five (25) feet fronting on Monroe street, running through to Smith street, off the south-east corner of the acre purchased by the said party of the first part of Samuel T. Smith, together with all and singular the tenements, hereditaments and appurtenances whatsoever thereunto belonging or in anywise appertaining.
To have and to hold the aforesaid premises, with the appurtenances, unto the said party of the second part and her assigns, for and during the term of her natural life.
And the said party of the second part hereby joins in this deed for the purpose of evincing her assent to the purposes and objects aforesaid, and hereby assents to take the estate in land so as aforesaid granted to her, as and for and in the nature of a jointure, and in full for recompense and satisfaction of and for all dower or claim, or right of dower which might accrue to her, or to which she might become entitled, or which she can or may have or claim of, in, to or out of all and every or any the lands or estates, both in law and equity, whereof the said party of the first part now is or shall be seized or possessed at any time hereafter during the coverture or marriage between the said parties to this instrument.”
The contract was signed and sealed by the parties, and acknowledged before a notary public.
The court below decreed that this contract did not bar the widow from recovering, as heir, one-half of the real and all of the personal estate, and refused to so reform it, under the evidence introduced, as to make it accomplish that end. To reverse this decree this appeal is brought, and various errors are assigned upon the record, which we will notice in the order of the objections urged by the counsel in their printed argument.
It is contended that, by the terms of this contract, the widow is barred not only of her dower, but also of her inheritance as an heir at law of the intestate.
We are unable to perceive any ambiguity in the terms used. The phraseology, “in full for recompense and satisfaction of and for all dower or claim, or right of dower,” does not differ in meaning from the last clause of section 7, of the chapter relating to Dower, (1 Gross, 216,) which is in these words: “When an estate in land shall be conveyed to a person and his intended wife, or to such intended wife alone, or to any person in trust for such person and his intended wife, or in trust for such intended wife alone, for the purpose of creating a jointure for such intended wife, and with her assent to be taken in lieu of dower, such jointure shall be a bar to any right or claim for dower of such wife in any land of her husband.” The transposition of the words “claim” and “right” in the contract, does not change their signification. They both clearly relate to and are restricted by the word “dower.”
We are not aware that there has been, for many years, any doubt as to the legal meaning of the word “dower,” when applied to a widow's interest in her husband's estate, although its application to particular cases has involved much and serious controversy. Lord COKE says: “ Dos, dower, in the common law is taken for that portion of lands or tenements which the wife hath for terme of her life of the lands or tenements of her husband after his decease, for the sustenance of herself and the nurture and education of her children.” 1 Coke upon Littleton, 30 b, 31 a. This is substantially followed by Blackstone and Kent: 2 Blackstone, (Sharswood's ed.) 129; 4 Kent, (8 ed.) 33.
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