Virgin v. Virgin , 91 Ill. App. 188 ( 1900 )

Mr. Justice Burroughs

delivered the opinion of the court.

Appellee, George Virgin, as administrator of the estate of John Virgin, deceased, filed in the County Court of Morgan County his petition for an order to sell the real estate of decedent to pay debts, the petition being in the usual form, and after stating all the jurisdictional facts properly, among other things alleges, that the just debts of decedent amount to about $90,000, of which about $62,000 thereof is secured by various mortgages made by decedent upon his lands, and that the balance is unsecured; that there is a deficiency of personal estate to pay debts. The real estate owned by the decedent is described, as are also the several mortgages, stating the amount due upon the indebtedness secured by each; to whom each is owing; and a particular description of the land covered by each mortgage; from which it appears that five of the mortgages were executed by the decedent prior to his marriage with appellant, and nine of them, while securing indebtedness owing by him alone, were executed by him after his marriage with her, she joined therein, and releasing her dower rights and homestead estate.

The petition also alleges that appellee, as widow of decedent, is entitled to homestead and dower in the lands sought to be sold, and makes her, together with the nine children of the deceased (who it avers, constitute the only heirs at law of the decedent), and the holders of the mortgage, parties defendants; and prays that they be required to answer the petition; for an order to sell the real estate to pay the debts of decedent; that such sale be free and clear of the mortgage liens; and that out of the proceeds of such sale the indebtedness secured by such mortgages be first paid.

Five of the holders of that number of the mortgages answered the petition, in which they each claimed to be paid, out of the moneys realized when the real estate was sold, the amount due them respectively upon their mortgages; four of whom also filed cross-petitions, setting up their mortgages, and prayed for a foreclosure of them.

Appellant also answered the petition, claiming homestead and dower in the lands, and electing in writing to have the value thereof ascertained and paid to her in a lump sum out of the proceeds arising from such sale. The other adult defendants defaulted, and the minor defendants answered by guardian ad litem.

A hearing was had upon evidence taken, and the court, after finding the necessary jurisdictional facts, etc. (among others), found that the just debts of John Virgin, deceased, were about $90,000, of which about $62,000 was secured by the mortgages substantially as stated in the petition, and the balance was unsecured; that there was a deficiency of personal estate to pay all the debts of the decedent, making it necessary to sell the real estate to pay them; that appellant consents in writing to have the real estate sold free of her homestead estate and dower right therein, and elects to take the equivalent therefor out of the proceeds of the sale thereof; and decreed that the administrator sell the real estate free and clear of all mortgage liens, and of the homestead estate and dower rights of appellee therein; that out of such proceeds, the several amounts found due the holders of the several mortgages be first paid in full; that the remainder thereof be brought into court; and that all questions as to the homestead estate and dower rights of appellant be continued for future hearing and determination.

The administrator advertised and sold the real estate pursuant to the decree, realizing $77;000.73 therefor; reported the sale to the court, which was approved; and he was ordered to pay the mortgage liens as directed in the decree, and to report, etc. And the administrator paid the liens in full as follows : On the five secured by mortgages made before decedent’s marriage with appellant, $26,855.59; on the nine in which appellant joined, $35,847.03, taking releases and discharges of the mortgages; and he also paid $368.31 costs, leaving a balance in his hands of $13,929.80; all of which he reported to the court.

Appellant then moved the court to ascertain the value of her homestead estate and dower right in the proceeds of the sale, and when ascertained, to order the same paid by the administrator, claiming that she should be endowed out of the entire proceeds. Thereupon all of the appellees (except George Virgin), they being unsecured creditors of the decedent, were, on their petition, permitted by the court to become parties to the proceeding for the purpose of resisting the claim of appellant; after which a stipulation in writing was entered into by appellant and appellees to the effect (among other things) that John Virgin, late of Morgan county, Illinois, died intestate, leaving appellant, his widow, and nine children, who are his only heirs at law; that at the time he died he was the head of a family resid-. ing upon a portion of the land described in the petition; that George Virgin was duly appointed administrator of his estate, qualified, filed inventory and appraisement bills, disposed of all the personal estates of deceased under order of court, and filed an account showing condition of the estate was such as to make a large deficiency of personal property to pay the unsecured debts of decedent; that all the real estate owned by decedent in Illinois is subject to sundry mortgages, five of which were executed before his marriage with appellant, the principal amounts aggregating $27,500, and nine were executed by him and appellant after their marriage, the principal amounts aggregating $30,420; and that all the notes secured by them were given by decedent alone; that the land sold constitutes all the real estate of decedent in Illinois; and that said balance of $13,929.80 is insufficient to pay the claims of unsecured creditors of decedent, and that appellant was thirty-three years old when John Virgin died.

And they further stipulated that the points of law at issue between the parties (among others) are as follows :

“ Second. Is Martha 0. Virgin, as widow, entitled, as against the administrator and the unsecured creditors of her deceased husband, to be endowed out of the entire proceeds of sale of the real estate to be sold by the administrator (less $1,000, on account of her homestead) ?

Fourth. Is Martha C. Virgin entitled, as against the administrator and unsecured creditors, to be endowed only of one-third of the proceeds of sale of said real estate remaining after the payment of the mortgage liens ?

Sixth. What is the present value of the homestead estate and dower rights of Martha C. Virgin out of the proceeds of sale of said real estate ? ”

And they likewise agreed that upon the foregoing, the court should decide and render judgment as to the rights of the parties in the same manner as if the facts aforesaid were proven upon the hearing.

The court held on the second point “ that she (appellant) is not entitled, as against administrator and unsecured creditors of John Virgin, deceased, to be endowed out of the whole proceeds of sale; on the fourth, “that she is entitled to be endowed of one-third of the proceeds of sale remaining after payment of mortgages, liens, and after deducting homestead of $1,000;” and on the sixth, “ that (the) value of (the) homestead is $685.38 and (the) value of dower is $3,038.06, and that she (appellant) is entitled to receive (in the) aggregate, viz., $3,723.44, as the present value of her homestead and dower in proceeds of sale;” and entered an order to that effect, appellant excepting.

Appellant prosecutes this appeal to reverse the last-mentioned order, and her counsel urge as ground therefor, that the court ought to have allowed appellant dower in the entire proceeds of the real estate sold, while it improperly allowed her dower in the remainder after first taking out the portion paid to discharge the mortgage liens and then $1,000 for her homestead estate.

All the facts being stipulated, we are to determine whether the trial court determined the rights of the parties in accordance with the law applicable thereto.

Counsel for appellant contends that the widow’s right of dower is superior to the rights of general creditors, to the full value of the real estate of which her husband was seized during coverture, irrespective of all mortgages thereon, and whether such mortgages were made before marriage, or made by her husband and herself after marriage, with full release of dower on her part; and in their brief and argument they have made a very able argument in support of their contention, citing numerous authorities, some of which sustain their position; such authorities being largely decisions of courts of other States, based upon statutes different from those of Illinois, or upon judicial determinations of the character of a dower right not consonant with the holdings of the courts of this State, or upon a different state of facts from those existing in this case.

In the decisions of the courts of different States may be found decisions supporting many different theories as to the character and extent of a widow’s right of dower, and her right thereto as against the administrator, heir and creditor of her husband’s estate. In some States a wife’s inchoate right of dower is deemed a vested estate, and in others a mere expectancy; and from such different premises widely different conclusions are of course reached; to say nothing of the differences in the statutes of the States concerning dower rights which must always be considered.

The true character of a widow’s right of dower in this State can be best shown by a.n examination of the decisions of our courts and our statute.

In Blain v. Harrison, 11 Ill. 384, it is said:

“ The right of dower in a married woman is a mere intangible, inchoate, contingent expectancy; and even in a widow, until it is assigned it is no estate in the land, but it is a right resting in action only, and it can not be alienated.”

In Hoots v. Graham, 23 Ill. 81, it was held that until assigned, she may release the right to the owner of the fee, but can make no other disposition of it until it is set apart or admeasured to her.

In Robbins v. Kinzie, 45 Ill. 354, it was held that the inchoate right of dower is a right fully recognized and protected bjr the law, and one which may be released to the owner of the fee, or may be relinquished and pass with the fee, and in the mode prescribed by the statute.

In Johnson v. Montgomery, 51 Ill. 185, it was held that a wife need not use apt words of grant in the body of the deed in order to cut off her dower, because she is not possessed of an estate in the land, but merely of a contingent interest, which may be released for the purpose of being merged in the fee, and she signs and acknowledges a deed with her husband merely to show her free assent to his conveyance of his property, to be held by his grantee free from any claim under her contingent right of dower.

In Burson v. Dow, 65 Ill. 147, it was held that the widow of a mortgagor need hot be made a party in a suit to foreclose a mortgage made by her husband before they were married; and that she could not redeem from a sale made pursuant to a decree of foreclosure, for the reason that when the husband has executed a mortgage before marriage, his widow was not dowable in the equity of redemption at common law; but if the heir redeems, she may obtain dower in the land by contributing ratably toward the redemption; and her right of dower will be restored only upon a redemption by her husband or his legal representatives; citing Popkin v. Bumstead, 8 Mass. 491; Bird v. Gardner, 10 Id. 364; Gibson v. Crehore, 3 Pick. 475; Jackson v. Dewitt, 6 Cowen, 316; and VanDyne v. Thayre, 19 Wend. 162; and in that case the court refers to the third section of our dower act as providing that where a mortgage is executed before marriage, the widow shall be dowable out of the lands as against all persons except the mortgagee or those claiming under him; and to the fourth section as containing substantially the same provisions as to mortgages made after marriage to secure the purchase money where the wife has not joined therein; and to the fifth section as providing that where the land is sold after death, under a power in the mortgage or the decree of the court, the wife shall, in the cases provided for in the two preceding sections, be entitled to interest for her life, on the one-third of the surplus money, which shall remain, after the mortgage indebtedness is first satisfied; and in the opinion in that case, appears this language:

“ Both cases are placed by the statute upon the same footing, and the widow’s rights are the same under each section; saying also that in Stephens v. Bichnell, 27 Ill. 444, which was a case arising under the fourth section, this court held that the wife was not a necessary party to a bill for strict foreclosure, because she was not dowable as against the mortgage. If she is not a necessary party in order to foreclose her interest under one section, she would not be under the other. She was not dowable in either case at common law, and in both cases is dowable to the same extent under the statute. The statute having received this construction in the case above cited, and titles having been acquired under this construction, we do not feel at liberty now to disturb it.”

In Selb v. Montague, 102 Ill. 446, where the lands had been first mortgaged by the husband before his marriage with the widow, and again after his marriage, the wife joining in such subsequent mortgage, releasing her right of dower and homestead, in the opinion of the court it is said :

“ In Washburn on Real Estate, it is correctly said (Vol. 1, p. 184), that as the mortgagor * * * if he discharge the mortgage, is not allowed to call upon another for contribution, having only paid his own debt, so, if the mortgaged estate is bought by a stranger, under such circumstances as to show that he only paid for the excess of its value over the mortgage, or so that one part of the estate satisfies the whole, the widow of the mortgagor will be let in to claim dower at law if such purchaser shall obtain discharge of the mortgage.’

This rule, however, applies only where ' the mortgaged estate is bought by a stranger ’ by a purchase from the husband. In such case, the husband having by his contract of sale, made during coverture, provided for the discharge of the mortgage, the case in this regard stands as though he had himself paid off the mortgage during coverture. In case the husband, before marriage, had mortgaged his land, the wife, upon marriage, takes an inchoate right to dower only in the excess of the value of the land over the amount of the mortgage. If the husband in his life pays the mortgage, he acquires title to that interest in the land which at the time of the marriage was in the mortgagee, and the wife’s right to dower attaches to the same as to an interest in land bought by the husband during coverture. But if the mortgagee be paid by the heir after the death of the husband, this is equivalent to a purchase by the heir of that interest in the estate which is in the mortgagee, and as the widow takes no dower in estates bought by the heir, she acquires no right of dower in the new estate so bought by the heir. The right of the heir, however, having been acquired by removing an incumbrance upon an estate in which the heir and the widow each had an interest subordinate to the incumbrance, the widow, in such case, has the right, by a just contribution, to avail herself of the benefit of the purchase by the heir of the adverse title of the mortgagee. And so the same author says (Vol. 1, p. 187) that fif the mortgagee is in possession of the mortgaged premises for condition broken, or the purchaser of the equity of redemption, who has redeemed the mortgage, the widow’s remedy for the recovery of her dower is by bill in equity only, as she can not maintain a writ of dower until she has contributed her share of the redemption money.’ And so Kent says (Vol. 4, p. 48) that ‘ though the wife be dowable only of an equity of redemption when the mortgage was given prior to her marriage, or when she joined her husbandin the mortgage, she is, after her husband’s death, if she claims her dower, bound to contribute ratably toward the redemption of the mortgage.’ A sale by the administrator, under our statute, of the real estate, is equivalent to a sale by the heir and an appropriation of the purchase money to the payment of the debts of the testator, the administrator being made, by statute, in substance, the attorney in fact of the heir to make such sale. His power, where the land is mortgaged, is merely to sell the equity of redemption, for that is all that vests in the heir. The purchaser takes the right of the heir, no more, no less—that is, the fee, subject to the mortgage. If the purchaser redeems from the mortgage, he holds as the heir would have held had he paid off the mortgage. The debt paid in discharging the mortgage is not the debt of the heir. In paying that debt he is not ‘ paying his own debt,’ as would be the case were the debt-paid by the mortgagor in person.”

In Noffts v. Koss, 29 Ill. App. 301, this court cited and followed the Selb case; and again, in Zinn v. Hazlett, 67 Ill. App. 410, in determining the relative liability of the widow and the heir in regard to mortgage indebtedness of the ancestor, where the land had been sold by the administrator to pay the debts, we said:

“ Had the personal estate been sufficient to pay that debt (a debt secured by mortgage of ancestor), it might have been so applied, and then the dowress would have been exempt from any liability on account of the incumbrance; but because the personalty was not sufficient, the land has necessarily been resorted to and the heirs have paid the debt fro tanto, which is equivalent to a purchase by them of that interest in the estate which was held by the mortgagee, and which, of course, is paramount to the right of dower. Ordinarily, the question of contribution arises when the widow asserts her dower in a direct proceeding against the mortgagee and the others interested in the estate, but the principle must be the same, whether she proceeds directly or indirectly.”

In Henson v. Moore, 104 Ill. 403, it was held that the right of dower which a wife has in the land of her husband before his death, is one which may be enlarged, diminished or abolished as the legislature may think best.

In Cox v. Garst, 105 Ill. 342, it was held that the purchaser at an administrator’s sale takes the interest of the decedent mortgagor in the lands, and occupies the same position in this respect, as the heirs; and the widow, joining her husband in the execution of the mortgage, if she claims dower, must contribute ratably toward redeeming from the mortgage.

In Miller v. Pence, 132 Ill. 149, Goodkind v. Bartlett, 136 Ill. 18, and in McNeer v. McNeer, 142 Ill. 388, it was also again held that a right of dower in a married woman, before it has become consummate by the death of her husband, is a mere intangible, inchoate contingent expectancy, which does not rise to the dignity of a vested right, and may be changed by the legislature at any time before the death of the husband; and in the McUeer case the court quotes approvingly from the Supreme Court of the United States what was said in Randell v. Kreiger, 23 Wallace, 148 :

“During the life of the husband, the right of dower is a mere expectancy or possibilitv. In that condi tion of things, the law-making power may deal with it as may be deemed proper. It is not a natural right. It is wholly given by law, and the power that gave it may increase, diminish, alter it or wholly take it away. * * * Upon the death of the husband "x" 'x' * rights of the widow * * * become fixed and vested.”

In Kusch v. Kusch, 143 Ill. 353 (351) it was said :

“ The right of dower that a married woman has is not a vested right, but a mere intangible, inchoate, contingent expectancy. Where there is a defeasible title in the husband, and that title is defeated, the right of dower in the wife also terminates.”

In Holden v. Dunn, 144 Ill. 413, the material facts were that John W. Dunn, a married man, bought land subject to a deed of trust which he assumed to pay as part of the consideration of the purchase. A suit for the foreclosure of said trust deed against Dunn, his wife-, and various judgment creditors of John W. Dunn, resulted in a decree of foreclosure and sale and order for payment of surplus, after satisfying trust deed and costs, to various judgment creditors in the order of their priority, etc., etc. Before any sale was made under .that decree, John W. Dunn died, and his widow filed her petition for dower in the surplus proceeds of sale over and above amount needed to discharge trust deed and costs, etc.; and decree that one-third of such surplus be invested for life of widow, and income paid her, was affirmed.

And in Davis v. Lang, 153 Ill. 175 (181) the opinion contains this language:

“ The wives of tenants in common are not necessary parties to suits for the partition of real estate. The right of dower in a wife subsists by virtue of the seizin of her husband, and this right is always subject to any incumbrance, infirmity, or incident which the law attaches to that seizin, either at the time of the marriage, or at the time the husband became seized; and a liability to be divested by a sale in partition is an incident which the law affixes to the seizin of all joint estates, and the inchoate right of the wife is subject to that incident; and when the law steps in and divests the husband of his seizin, and turns the realty into personalty, she is, by the act and policy of the law, remitted in lieu of her inchoate right of dower in the realty, to her inchoate right to a distributive share of the personalty into which it has been transmuted.”

Sections 3, 4 and 5, Chap. 41, Ill. Revised Statutes, entitled “ Dower,” are as follows :

“ Sec. 3. Where a person seized of an estate of inheritance in land, shall have executed a mortgage of such estate before marriage, the surviving husband or wife of such person shall nevertheless be entitled to dower out of the lands mortgaged as against every other person except the mortgagee and those claiming under him.”

“ Sec. 4. Where a husband or wife shall purchase lands during coverture, and shall mortgage such lands to secure the payment of the purchase money thereof, the surviving wife or husband shall not be entitled to dower in such lands as against the mortgagee or those claiming under him, although he or she shall not have united in such mortgage, but shall be entitled to dower as against all other persons.”

“ Sec. 5. When, in either of the cases specified in the two preceding sections, the mortgagee or those claiming under him, shall, after the death of such husband or wife, cause the land mortgaged to be sold either under a power contained in the mortgage or by virtue of the judgment or decree of a court, and any surplus shall remain after the payment of the moneys due on such mortgage and the costs and charges of sale, such survivor shall be entitled to the interest or income of one-third part of such surplus for‘life as dower.”

From, those decisions, and the provisions of said sections 3, 4 and 5 of our statute, it' seems reasonable to us to conclude that appellant, by her marriage with John Virgin, became entitled to an inchoate right of dower in his lands, subject to the liens, however, of the five mortgages given by him upon them before the marriage; and when she joined with him in executing the nine which he gave upon them after the marriage, she thereby released that right, together with her homestead estate therein, to the extent of the liens created thereby. And by so releasing, she did not thereby pledge her homestead estate and right of dower as so much of her separate estate to secure the payment of the debts of her husband secured by them; for the reason that such estate and right were not her separate property, her right of dower being but a mere incident of the marriage in conjunction with the seizin of her husband in the lands, and which right might or might not ripen into an estate depending upon her surviving him.

And when John Virgin died, the title of his lands descended to his nine children, subject, first, to the payment of such of his debts as were secured by the fourteen mortgages, if the personal estate left by him was not sufficient to pay them; second, to the homestead estate and dower right of appellant, as his widow; and third, to the payment of such of his debts as the personal estate would not pay; and by his death, appellant’s right of dower becoming consummate, she could then compel dower to be allotted to her in the lands, subject, however, to the payment, first, of so much of the fourteen mortgages as the personal estate would not pay, and, second, to her homestead estate.

And when it was ascertained that the personal estate of the decedent was insufficient to pay the just claims against his estate, and there were lands to which the decedent had title, it became the duty of the administrator of his estate, under Section 99 of Chap. 3, entitled “ Administration of Estates,” which was enacted June 15, 1887, and has been in force since July 1 of that year, to file in the County Court, where he had been appointed, the petition he did, in this case making the widow, heirs at law and holders of the mortgages, parties defendant; and the court, by the provisions of section 101 of the same chapter, had the power to ascertain, as it did, the amounts due upon the mortgage liens upon the land, and to direct the sale thereof discharged of those liens, and to provide for their payment and satisfaction out of the proceeds arising from such sale; and to settle and adjust, as it did, all the equities between the parties, and all questions of priority between them in the lands or the proceeds thereof; and, with the assent in writing of appellant, to direct the lands sold free and discharged of her homestead estate and right of dower therein; and after such sale, to ascertain, as it did, the value of such estate and right, and order the same paid out of the proceeds in gross.

And we understand that counsel for appellant do not question but that the court possessed that power, and that it exercised it properly in this case, but they ably contend that the court erred in allowing their client dower only in the surplus of the proceeds of the sale of the lands, when she was entitled to such estate and right in all the lands, as against the administrator and unsecured creditors of her deceased husband,’s estate, who alone are resisting her claim thereto.

This contention is based upon two reasons : First, that the mortgages were not procured to be foreclosed and the lands sold by the judgment or decree of a court at the instance of the holder of the mortgages, but by the administrator; and second, that her homestead estate and right of dower in all the lands were pledged by the mortgages for the payment of her husband’s debts secured thereby, malting her, in so far as that estate and right were concerned, his surety; and when the lands of her principal were sold to pay the mortgages, and they were in fact paid off and satisfied out of the proceeds of the sale of his lands and left a surplus remaining, then, being such surety, she is entitled to the full value of her homestead estate and dower right in all the lands out of that surplus, in so far as it is sufficient to pay the same.

But we are unable to concur in that view; for while it is true that the court, in directing the lands sold to pay the mortgage liens, acted in its inception at the instance of the administrator, yet in effect it was but the agent of the mortgagees, in so far as it caused their debts to be paid out of the proceeds of the sale of the lands upon which they were, liens; and the administrator, in filing the petition and obtaining the order to sell, in making such sale, and paying off the mortgage liens, was but the agent of the court for that purpose; so that, in effect, the lands were sold by the mortgagees under the judgment of decree of a court foreclosing the mortgages within the meaning of said section 5 of the dower act; and under its express provisions appellant is entitled only to dower in the surplus remaining after the mortgage liens upon the lands sold were paid and satisfied.

And beside the right of dower which appellant had in the lands, being in the lifetime of her husband but an inchoate and contingent right, was not, nor could it be pledged for the payment of the mortgage debts, hence, she was not the surety of her husband on that account; and, as against the mortgages she joined with her husband in executing, she waived her homestead estafe and dower right in the lands, and as against the others, made before marriage, she never had such an estate or such right; and the lands having been sold to pay and satisfy them all, and they having been actually paid and satisfied out of the proceeds of such sale, she could be given dower and homestead only-in the surplus remaining after the mortgages were thus paid and satisfied, and which the court correctly allowed her. Frederick v. Emig, 186 Ill. 319.

The order of the County Court appealed from, being in accordance with the law arising from the facts stipulated in the record, we will affirm it. Order affirmed.