Skinner v. Newberry ( 1869 )

Mr. Justice Lawrence

delivered the opinion of the Court:

The main question in this case, is precisely the same which was decided by this court, in the case of McMurphy v. Boyles, 49 Ill. 110. It is as to the construction to be given to the 10th and 11th sections of our statute of dower, in determining the share of the widow in the personal estate of her deceased husband, where she has renounced his will. In that case, the testator left no children, and it was contended, on behalf of his widow, that she took all the personal estate after payment of debts. On behalf of the devisees, it was insisted “ her share” consisted merely of her award of specific property, and her distributive part of unbequeathed personal estate. On the last point we entertained no doubt. Our only difficulty was, whether she was not entitled to the whole personal estate, as in cases of intestacy, there being in that case .no children. We finally, however, arrived at the conclusion that the widow does not, by renunciation, take as in cases of intestacy, and that “ the share” designed to be given by the statute, was one-third of the personal estate after payment of debts. In this case the widow claims only one-third, and it is insisted by the executors, as in the other case, that she is entitled only to her award and to her distributive part of unbequeatlied personal property. , Our opinion, however, announced in that case, has not been changed by the arguments in this. , The reasons of that opinion were then given, and it is unnecessary to repeat them. The fact that there are children in this case in no wise affects the question.

The minor question here presented, whether moneys due the testator at his decease, upon contracts for the sale of real estate, made by him during his life, no deed having been executed, are to be considered a part of his personal estate, is one about which no doubt can reasonably be entertained, and we suppose it is merely made by counsel in order that the executors may feel no uncertainty as to their responsibilities in the disposition of an estate understood to be very large. We consider these debts as much a part of the personalty as any others that may be due the estate. Drenkles' Estate, 3 Barr, 377; Hawley v. James, 5 Paige, 456 ; Fletcher v. Ashbruner, 1 Leading cases in Equity, note, 534. By claiming her share of the purchase money, she cuts off, we have no doubt, her right of dower in the lands sold, and she expressly offers in her bill to release such right. The fact that some of these contracts were liable to forfeiture is immaterial, since the testator did not assert such right.

Decree affirmed.