Smith v. Rittenhouse , 260 Ill. 599 ( 1913 )

Mr. Justice Dunn

delivered the opinion of the court:

The appellants, who are the children and devisees of William J. Rittenhouse, filed a bill for the partition of his real estate and the assignment of dower to his widow, Sarah J. Rittenhouse, the appellee. An estate of homestead was decreed to the appellee, and the controversy on this appeal is as to her right to such homestead. She, with her husband, had occupied the premises as a residence for several years before his death, and he had therefore an estate of homestead therein, which the statute declares should continue for her benefit so long as she should occupy the homestead. It is insisted that she is not entitled to the benefit of this statute because before her marriage to Rittenhouse she was the widow of Frederick Aull and had had an estate of homestead assigned to her out of his lands, which she still holds.

Frederick Aull died before 1879, and at the March term, 1879, of the county court of St. Clair county proceedings were taken for the sale of his real estate for the payment of debts, in which an estate of homestead in his lands was assigned to his widow, the appellee. She resided upon' this homestead with her second husband, William J. Rittenhouse, until 1907, when they moved to the premises assigned to her as a homestead in this proceeding and resided thereon until her husband’s death, in 1911. After leaving the homestead assigned her out of Aull’s estate she' continued to occupy it through a tenant, to whom she rented it.

After the assignment of a homestead it is not essential to the continuance of the estate that the widow should continue to reside upon the premises. She may occupy them by a tenant or she may convey them by a deed, and her estate does not differ from an ordinary estate for life. (White v. Plummer, 96 Ill. 394.) It is not dependent upon her residence, and the acquisition of an estate of homestead in other lands by residence thereon is not, therefore, inconsistent with the continuance of the former estate. Whether such former estate would, after another homestead was acquired, be exempt from sale for the payment of debts is a question not now presented or considered. It is conceded -that the appellee has not lost in any way her interest in the lands of her first husband, and we see no reason why she should be excluded from the benefit of the statute continuing to her, as surviving wife, the homestead estate which her husband, William J. Rittenhouse, undoubtedly had in his own land. Residence of the wife with the husband on the latter’s land is the only requirement for a homestead. That condition is found here, and it is immaterial what other interest the wife may have had in other land, whether acquired through a former husband or otherwise.

Decree affirmed.