Petefish, Skiles & Co. v. Buck , 56 Ill. App. 149 ( 1894 )

Mr. Justice Boggs

delivered the opinion of the Court.

Bight of dower not assigned, though it may be released to one having an interest in the fee of the land, can not be sold by the dowress nor upon execution against her. Blain v. Harrison, 11 Ill. 384; Norman v. Willett, 48 Ill. 534. When assigned it becomes a life estate, and may then be sold and transferred as any other life estate in lands, either by the dowress or upon execution against her. Summers v. Babb, 13 Ill. 483.

The bill alleges that the dowress in the case at bar in order to defeat the collection of the judgment against her refuses to apply for an assignment of her dower. It is within the general jurisdiction of a court of chancery to assist a judgment creditor to reach, and apply to the payment of his debt any property, rights or equitable interests of the judgment debtor, which by reason of their nature only, and not by reason of any positive rule exempting them from liability for debt, can not be taken on execution. Auger v. Murray, 105 U. S. 126; Bayard v. Hoffman, 4 N. Y. 450; Beck v. Burton, 1 Paige (N. Y.) 308; Roberts v. Hodge, 16 N. J. (Eq.) 302; Scribner on Dower, Vol. 2, Sec. 39. In the case of Tompkins v. Ford, 4 Paige (N. Y.) 448, it was held that the right of dower is such an interest as may be reached by the aid of an equitable court, and applied to the satisfaction of a judgment against' the dowress in the manner contemplated by the bill in the case at bar. Hor do we regard the ruling in that case as resting, as is suggested, upon the particular provisions of the statute of the State of Hew York, but think it but declaratory of a general and fundamental doctrine of equity. It follows that in our opinion the bill was not obnoxious to the demurrer. Therefore the decree is reversed and the cause remanded with directions to the court to overrule the demurrer and require the appellees to answer the bill.