It is not claimed by appellant that he could not, by antenuptial agreement, release and divest himself of any right to inherit from his wife or divest himself of any right to claim dower as against her collateral heirs, but it is contended that he did neither by the agreement set up in the bill in this case. There can be no question that he might have entered into an agreement which would authorize his wife, during the marriage, to convey her separate property without his joining her in the conveyance, and that would authorize her to dispose of her land by will and bar him from claiming any interest in the land in case he survived her, as against her grantee or devisee, and at the same time not release or bar his right to inherit from her, as heir, property not conveyed or devised during her life. The decision of the case therefore depends upon the meaning and intention of the parties to be gathered from the language used by them in the instrument. heir. It is also contended that the complain- | acter cited by appellant, if it was plainly ant and defendant heirs were not intended meant, as we think it was, that appellant into be benefited by the agreement; that it tended to relinquish all right to claim any inwas made for the benefit of the grantees and terest, of any kind or character, in his wife's devisees of Caroline Bevans Perkins; that property after her death. The distinction beit cannot be invoked by her heirs, and as tween this contract and the contracts conagainst them William E. Perkins is, in ad- strued in the cases cited by appellant is that dition to his right to one half the land as there was no provision in those contracts heir, entitled to dower in the other half. showing that the parties intended the husband should release any rights he would otherwise have in his wife's property after her death. They gave the wife control of her separate property during her life and with power of appointment without interference from the husband, but they did not purport, as the contract here involved does, as we understand it, to relinquish and bar any right or interest the husband would have in the wife's property after her death. The substance of the most material parts of the contract is that the parties, in consideration of the marriage about to be entered into between them, agreed that neither should, by reason of the marriage, "take any right, title or interest in or to the property of the other, either during their lives nor after the death. of either." On his part appellant covenanted and agreed that in consideration of Caroline Bevans becoming his wife he would "never at any time claim any right, title or interest in or to any property" owned by Caroline Bevans, "either during her lifetime or upon her death," in case he survived her, and that she should retain her property free and clear of any inchoate right of dower in her husband, with full power and authority to convey or dispose of the same by will, as she might see proper. In the paragraph containing the covenants and agreement of Caroline Bevans it is agreed that the meaning and intention of the parties is that the property rights of each of the parties shall be and remain absolutely and forever as they now are, separate and distinct, "just as though such marriage should not take place." There is no express statement in the agreement that appellant released the right to inherit from his wife, but this would not prevent its being given that effect if the language used shows it was understood and intended by the parties to release such right. Appellant relies on Stewart v. Stewart, 7 Johns. Ch. (N. Y.) 229 (asserted to be the leading case in this country upon the question) and cases decided by the courts of Virginia, West Virginia, Kentucky, Kansas, Pennsylvania, and Ohio. In the Stewart Case the antenuptial agreement gave the wife control over certain of her separate property, and the husband released all his marital rights therein, but there was no relinquishment of the husband's right in the property after his wife's death. Chancellor Kent held that there was nothing in the instrument that barred the husband, in default of an appointment by the wife, to claim her personal estate remaining undisposed of at her death. It was also held that, where it is intended by such an agreement to exclude the husband's right to his wife's personal property in the event of his surviving her, it should be so expressed in the instrument. That case has been cited in a number of other cases decided by the courts of other states, including this court, and so far as we can discover its soundness has never been questioned. As said by this court in Dunlop v. Lamb, 182 Ill. 319, 55 N. E. 354, the court construed the agreement to do no more than give the wife the power of appointment over her property during her lifetime. If that is the proper construction to place upon the contract in this case, as appellant contends, then we should, without question, follow Stewart v. Stewart, but we would not be justified in The same rules of law governing the construction of other contracts are applicable to the construction of antenuptial agreements. The entire instrument should be considered together with its general scope and purpose and effect be given to the intention of the parties as shown by the language used. The conditions and circumstances surrounding the parties at the time the agreement was made, so far as they are shown by the record, are also proper matters to be considered. The record here shows that at the time this contract was entered into Caroline Bevans was a childless widow, 62 years old. That there was no reasonable probability of riage was known to the parties, and we are warranted in assuming was in contemplation in their minds when the agreement was made. They knew if appellant survived his wife, and she left no children, he would be entitled to one-half the land she died seised of, unless that right was relinquished. It seems to us that the plain meaning and intention of the agreement were that each of the parties released every right the law would otherwise give either in the property of the other at death. Appellant agreed that he was to have no interest in his wife's property during her life or after her death; that he would never claim any right, title, or interest in her property during her lifetime or after her death. This language seems entirely too broad and sweeping to be construed to mean that appellant intended only to release to the grantee or devisee of his wife his right in any land that his wife might during her life convey by deed or devise by will. Instead of saying, as contended by appellant, that if it was intended to release the husband's right to inherit the contract should have said so, we think it more reasonable to say that if appellant intended to reserve and retain his right to inherit he should not have used the sweeping terms releasing any-in this connection meaning all-right to any interest in any property of his wife, either during her life or after her death. It was not essential that the instrument should say, in express terms, that he released his right to inherit. If the language used was broad enough to include that right and appears to have been intended to do so, it will as readily be given that effect as if it in express terms relinquished the right to inherit from the wife. this case. Crum v. Sawyer, 132 Ill. 443, 24 N. E. 956, involved the construction of a postnuptial agreement, and among other things its effect upon the surviving husband's right of inheritance. Some of the features of that case are similar to those of this case; and, while there is some difference in the language of the two contracts, some questions decided in that case are similar to questions raised in In that case the husband, at the time of the marriage, was a widower with children by a former marriage. The woman was a childless widow, 52 years old. After their marriage the wife agreed to, and did, pay debts of her husband amounting to nearly $32,000, in consideration of which he, by the postnuptial agreement, released to the wife, her heirs, executors, administrators, devisees, and assigns, "all his right and interest, of every kind and nature whatsoever, and especially his contingent right of dower and homestead, in all lands of which the party of the second part [his wife] is now seised or of which she may hereafter become seised." The husband further covenanted and agreed that, in the event he survived his wife, he would not sue for or claim any right of which his wife died seised. One of the questions raised and decided in that case was whether the contract was good as a release of the husband's right to inherit as heir, because that right was a mere naked possibility or expectancy, and was not, at the time the agreement was made, a vested right, like the inchoate right of dower. The court held the expectancy of an heir, apparent or presumptive, is a proper subject of contract, assignment, and release by parties capable of contracting with each other. Another point made in the case was that, whether the contract was to be regarded as made for the benefit of the wife herself or for the benefit of her heirs, it must be deemed to inure as completely to the benefit of the husband as to the other heirs, and the husband, as one of the heirs, would be entitled to the benefits of the contract. The court held against this contention, and said: "The true view would seem to be that a release by an heir of his expectancy operates, not as a transfer or conveyance to either the ancestor or the other heirs of the estate which would descend to him upon the death of the ancestor, but rather as an extinguishment of his right to take any estate by descent. It obliterates the right to inherit to an extent substantially equivalent to its obliteration by the death of death of the ancestor. The other heirs are an heir expectant without issue before the thereby placed in the same position in which they would have been if such right had never they would have been if such right had never existed, and they therefore inherit the entire to them of the estate in expectancy of the estate, not upon the theory of an assignment heir executing the release, but upon the theory of an extinguishment or obliteration of that estate." It was also contended in that The court case that, properly construed, the release extended only to the husband's right of dower and homestead, and did not affect his right to inherit as heir of his wife. held the language used was comprehensive enough to include the release of the husband's expectancy as heir, and that it was intended to have that effect. In Wetsel v. Firebaugh, 258 Ill. 404, 101 N. E. 602, we held the antenuptial agreement there involved, although it was not so stated in express terms, operated to release the husband's expectancy as heir of his wife. In Dunlop v. Lamb, supra, Dunlop, in consideration of his intended marriage with Mrs. Story, agreed that she should, after the marriage, have the enjoyment, control, and right to dispose of her separate property the same as if she were unmarried. He further agreed that he would not at any time claim any right in her property as widower, heir, or next of kin, and upon request would execute any deed thought necessary by counsel to extinguish any right of dower, homestead, or of inheritance in his wife's property. One of did not, under a proper construction of the agreement, release his interest in his wife's estate which might remain intestate upon her death; that it only gave her the right to control, manage, and dispose of her separate property during the marriage relation, free from any interference on his part. The court held to the contrary; and, while the contract contained the terms "heir" and "inheritance," the opinion is an instructive one upon the question of the construction of such agreements. (177 Ind. 213) ROBBINS et al. v. SOUERS. (No. 21,950.) (Supreme Court of Indiana. Nov. 28, 1911.)† Concurring opinion on rehearing. For majority opinion, see 177 Ind. 213, 96 N. E. 586, 97 N. E. 530. MYERS, J. I concur in the reversal, but am constrained to the belief that a new trial should be awarded, instead of a judgment directed on the interrogatories. Luttrell v. Boggs, 168 Ill. 361, 48 N, E. 171, There is evidence that one cow, some two involved the construction of a separation years after appellee purchased her, became agreement between husband and wife. By a breeder. By a breeder. There is evidence that it was the agreement the husband released to his known to appellant that the purchase was wife all his interest, right, and title to any made for the purpose of holding a sale of the real estate or personal property she was stock for breeders, shortly, and in view of possessed of at the time of the marriage. abortion of one cow she was not offered for The wife died leaving children by a former sale, and could not have been safely sold for marriage, and her surviving husband brought the purpose for which she was purchased. suit for the assignment of dower in her lands. There is also evidence that abortion may The court held he was not entitled to dower have arisen from injury, though the jury find in real estate she died seised of; that by the that it was from contagious abortion. The agreement he released all right, title and jury found in answer to interrogatories that interest in her property. the cow was valued by the parties, at the time of the purchase, at $750, and that she was of that value, and that she would have been of that value, if she had not aborted. In Talbot v. Calvert, 24 Pa. 327, cited by appellant, the court said: "Where it [the contract] indicates, in terms tolerably clear, that the husband intended to relinquish all the rights which he had or could have in his wife's property, not only during but after the coverture, then it descends to her next of kin, and they take it under the intestate laws just as if she had never been married." Straub's Appeal, 66 Conn. 127, 33 Atl. 615, Ward v. Thompson, 6 Gill & J. (Md.) 349, and Buffington v. Buffington, 151 Ind. 200, 51 N. E. 328, sustain the construction we have placed upon the agreement involved in this case. The contention that the agreement was not The contention that the agreement was not made for the benefit of the next of kin of the deceased wife, and therefore, does not bar appellant's right of dower, we think is fully answered by the previous decisions of this court cited in this opinion. In our judgment the decree of the circuit court was correct, and it is affirmed. Decree affirmed. It seems clear to me that the answers of the jury are predicated on a value for breeding purposes only, and in view of the explicit evidence that she did not breed for two years, and of some evidence that she was only of the value of $40 or $50 during the time she did not breed, or in case she had ground for support of the answer of some been exposed to aborters, there is some failure of consideration or some breach of warranty, and that justice will be better subserved by granting a motion for a new trial, upon the authority of Lake Erie & Western Ry. Co. v. Hennessey, 97 N. E. 331, decided January 30, 1912; Matchett v. Cincinnati, etc., Co. (1892) 132 Ind. 334, 31 N. E. 792; Shoner v. Penna., etc., Co. (1892) 130 Ind. 170, 28 N. E. 616, 29 N. E. 775; Elliott's App. Proc. § 5630, and cases cited; Buskirk, Pr. p. 334. Received for publication October 10, 1913. (259 Ill. 483) ELLIS v. DUMOND et al. (Supreme Court of Illinois. June 18, 1913. Rehearing Denied Oct. 16, 1913.) 1. WILLS ($ 795*)-ELECTION-PROVISIONS FOR 2. APPEAL AND ERROR (§ 880*)-REVIEW - [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3584-3590; Dec. Dig. 880.*1 3. PARTITION (§ 25*)-DECREE PREMATURE ENTRY-PENDENCY OF PROCEEDINGS TO SETTLE ESTATE. since their interest was inherited directly from their grandfather, and they could not be held liable for their father's debts. [Ed. Note.-For other cases, see Descent and Distribution, Cent. Dig. §§8 472, 478-487; Dec. Dig. § 130.*] Appeal from Circuit Court, Moultrie County; Solon Philbrick, Judge. Partition by Arabella Ellis against Lydia Dumond and others. From the decree, the defendant named appeals, and plaintiff and the other defendants cross-appeal. Reversed and remanded, with directions. F. M. Harbaugh, of Sullivan, for Arabella Ellis and Harriet A. Randolph. John E. Jennings, of Sullivan, for Homer Shepherd, guardian ad litem. E. J. Miller, of Sullivan, for Lydia Dumond. COOKE, C. J. This is an appeal from a decree of the circuit court of Moultrie county for partition. Where, in a suit to partition the land of Jacob Dumond died testate April 16, 1912. a decedent, his widow filed a cross-bill in which By his will he devised in fee simple to his she asked that a widow's award allowed her by the appraisers should be declared a lien on the wife, Lydia Dumond, the homestead in the land, the dismissal of the cross-bill on the city of Sullivan and 160 acres of land in ground that the question of the award should Shelby county, and bequeathed her certain be determined in another proceeding then pend-personal property. The will provided that ing for that purpose could not be complained of the provisions for his wife were "made to by the other parties, but only by her. her in lieu of her dower and all other rights as widow of my estate." The remainder of the property disposed of by the will was devised to his three children, Henry P. Dumond, Arabella Ellis, and Harriet A. Randolph. One of the devises to the son Henry P. Dumond was as follows: "I also have forty acres lying south of Sullivan, the southwest quarter of the southwest quarter of section 23, township 13, north, range 5, east of the third principal meridian, Moultrie county. I will and devise said forty acres to my son, Henry Dumond, in fee simple, upon condition that he pay to my two daughters and my wife $1,200 in equal portions-$400 to each onethe land being valued at $1,600, thereby giving him his one-fourth interest of the same; the said amounts to be paid within three years after the probating of my will, without interest, and the said sums are made a lien upon the land until the same are paid." Although the practice is not to be approved, it is not reversible error to enter a decree for partition or sale of land formerly owned by decedent, before his estate is finally settled; but, if a sale is ordered, the personal representative should be brought into court, and the court should so control the funds arising from the sale as to protect the interests of crditors of the es tate. [Ed. Note. For other cases, see Partition, Cent. Dig. §§ 77-79; Dec. Dig. § 25.*] 4. PARTITION (§ 25*)-DECREE PREMATURE ENTRY-PENDENCY OF PROCEEDINGS TO SETTLE ESTATE. In a suit for the partition of the land of a decedent to which the widow was a party, if a sale was ordered, she had a right to be heard before a distribution as to any claim which she might have as widow, and hence it was not reversible error to enter a decree for partition or sale while proceedings were pending for the determination of the widow's award fixed by the appraisers. [Ed. Note. For other cases, see Partition, Cent. Dig. 88 77-79; Dec. Dig. § 25.*] 5. WILLS (§ 821*) — REPRESENTATION UNDER STATUTORY PROVISIONS. Where a testator devised land to a son, on condition that he pay certain amounts to the widow and other children, and the son died be fore the testator, his children took the land subject to the condition under the statute. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 2114-2119; Dec. Dig. § 821.*] 6. DESCENT AND DISTRIBUTION (§ 130*) LIENS-RIGHTS OF CREDITORS. This will was executed about nine years prior to the death of Jacob Dumond. After making the will he purchased 80 acres of land in Moultrie county and another residence property in the city of Sullivan. Henry P. Dumond died about three years prior to the death of his father, leaving surviving him seven children, six of whom are now minors. The executors named in the will having predeceased the testator, Lydia Dumond, the widow, was appointed administratrix with the will annexed. The daughter Arabella Ellis filed this bill for the partition of the 80-acre tract and the residence properThe interest of grandchildren of a decedent ty in Sullivan which had been purchased by in his intestate realty could not be subjected to a lien for the amount of a debt due their grand- the testator since the making of his will and father from the estate of their deceased father, which were not disposed of by the will, and *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes of the 40-acre tract above mentioned as having been devised to Henry P. Dumond, alleging that the same was all intestate property. The bill alleged that the title to the property therein described was in the two daughters and the grandchildren of Jacob Dumond, and that Lydia Dumond, his widow, had no interest therein. To this bill Lydia Dumond, as widow and as administratrix, Mrs. Randolph, the other daughter of the testator, and the children of Henry P. Dumond, were made defendants. Lydia Dumond answered the original bill and (in her own right and as administratrix with the will annexed) filed her cross-bill, in which she alleged that the title to the real estate acquired by Jacob Dumond after the execution of his will was in his children and grandchildren, subject to her right of dower; that under the terms of the will of Jacob Dumond she was entitled to a one-fourth interest in the 40-acre tract described in the original bill, and asked for a construction of that clause of the will. She further alleged that she was entitled to an award in the sum of $2,000, as fixed by the appraisers, in the estate of Jacob Dumond, and that the same should be held to be a lien upon the intestate real estate; and, further, that as administratrix with the will annexed she was entitled to have paid to her, out of the share of the property belonging to the children of Henry P. Dumond, the balance of a claim due from the insolvent estate of Henry P. Dumond to the testator, amounting approximately to the sum of $700. By its decree the circuit court found that Lydia Dumond was entitled to dower in the 80-acre tract and the residence property in the city of Sullivan, and that the same should be partitioned between the two daughters and the grandchildren of Jacob Dumond, subject to her dower therein. The court further found that an application having been made in the county court of Moultrie county to determine the widow's award in the estate of Jacob Dumond, and an appeal having been taken from the judgment of the county court thereon to the circuit court of Moultrie county, the circuit court upon a hearing of said appeal, is the proper forum in which to determine the question of the widow's award, and dismissed that portion of the cross-bill without prejudice. The court further found that the children of Henry P. Dumond were the owners of the 40-acre tract devised to their father by the will of Jacob Dumond, subject to the payment of $400 to Lydia Dumond, Arabella Ellis, and Harriet A. Randolph, each, within three years after the will of Jacob Dumond had been admitted to probate, and ordered that the original bill and the cross-bill be dismissed as to that tract. The court further found that Lydia Dumond, as administratrix with the will annexed, is not entitled to a lien upon the share lands of Jacob Dumond for the unpaid balance of the claim of Jacob Dumond against the estate of Henry P. Dumond, and ordered that that portion of the cross-bill relating thereto be dismissed. From this decree separate appeals were prosecuted by Lydia Dumond, Arabella Ellis, Harriet A. Randolph, and the minor children of Henry P. Dumond. [1] Complaint is made by Mrs. Ellis, Mrs. Randolph, and the minors, of that part of the decree which awards Lydia Dumond the right of dower in the intestate real estate. Section 10 of the Dower Act (Hurd's Rev. St. 1911, c. 41) is as follows: "Any devise of land, or estate therein, or any other provision made by the will of a deceased husband or wife for a surviving wife or husband, shall, unless otherwise expressed in the will, bar the dower of such survivor in the lands of the deceased, unless such surviyor shall elect to and does renounce the benefit of such devise or other provision, in which case he or she shall be entitled to dower in the lands and to one-third of the personal estate after the payment of all debts." Lydia Dumond has not renounced the provisions made for her in the will of her husband, but insists that she is entitled to dower by reason of the fact that the lands herein involved were not devised by the will and are therefore not affected by it. The will speaks from the time of the death of the testator. By the terms of the will of Jacob Dumond the provisions therein for his wife were expressly made in lieu of dower and such other statutory rights as she had in his estate. Under said section 10 of the Dower Act, if she shall elect to accept the provisions made for her by the will she is not entitled to claim dower in any of the lands of which he died seised, whether the same be devised by will or not. This construction of section 10 of the Dower Act is sustained by the views expressed in Haynie v. Dickens, 68 Ill. 267, where a similar section of the Dower Act contained in the Revised Statutes of 1845 was construed. The widow is not entitled to dower in the intestate lands, and the court erred in so decreeing. [2] The cross-complainant, Lydia Dumond, did not assign as error the action of the court in dismissing her cross-bill without prejudice on the question of the widow's award. The daughters and infant grandchildren of Jacob Dumond, however, have assigned this action of the court as error, and insist that the question whether Mrs. Dumond is entitled to a widow's award should be determined in this litigation. There was no allegation in the original bill as to the widow's award. This question was first raised in the cross-bill, where affirmative relief thereon was asked. The children and the grandchildren of Jacob Dumond are not aggrieved by the action of the court in dismissing the cross-bill as to this matter. Mrs. |