Allen v. Allen , 112 Ill. 323 ( 1884 )

Mr. Justice Sheldon

delivered the opinion of the Court:

The decree of December 23, 1882, was one by consent, the widow, Eliza P. Allen, being one of the parties thereto. By the decree, the parties were to make quitclaim deeds to the purchasers of the lands under the decree, of all their right, title and interest in and to the lands. The lands, then, by the decree, were to be sold free from any claim of dower." All the lands were sold under the decree, to parties to the suit. Truman D. Allen, in reliance upon the decree, and the supposition, which he had the right to entertain, that the lands were sold unincumbered by dower, purchased two hundred and thirty-five acres of the land, at $65 per acre. The parties, the widow among the rest, executed to the purchasers quitclaim deeds of all their right and interest in the lands, as provided by the decree. The proceeds of the sale were distributed,—$11,461 to the widow, and $7640.68 to Truman D. Allen,—and all was confirmed by the court. The claim that after all this, Eliza P. Allen, the widow, should be permitted to come in and assert a dower right with respect to the money derived from the sale, does not appear to have any equitable consideration for its support. She held out, by her conduct and acquiescence, the idea to purchasers that the lands were to be sold free from any claim of dower on her part. The lands were sold as being free from dower right, and so at a correspondingly higher price on that account. She executed a quitclaim deed of her right and interest in the land, in conformity with the decree. She received her share of the proceeds of the sale, considerably enhanced in amount because of the sale being free from her dower right. Truman D. Allen made the large bid that he did under the expectation that his full share of the proceeds of the sale would come to him without being diminished in amount by allowance of a dower right out of it. The motion made does not go to the disturbance of the sale, or the consent decree for the sale, but rests content therewith, and only seeks to have the order of distribution modified, to increase the widow’s allowance by the addition to it of the amount of a dower right, she retaining in her hands her share of the moneys from the sale, clear of her dower right. She has enjoyed the benefit of her dower in the increased amount which she has received from the sale of the lands, because of the sale being made free from the claim of dower. We are clearly of opinion that the widow is concluded by the consent decree, and what transpired subsequently, from asserting the claim which she now makes.

This renders it unnecessary to consider the point which has been made, whether, under our statute as it now stands, there being a widow and no child or children, or descendant of a child or children, the widow is entitled to dower in the one-half of real estate descending to the next of kin.

The judgment of the court below is affirmed.

Judgment affirmed.