waters from the district, and the commissioners could not shield themselves behind a discretionary power and leave the land without adequate drainage; that the statute required the use of the corporate funds of the district for the purpose of correcting an error where the system adopted proves inadequate. [2] If the commissioners, in the exercise of their discretionary power to determine upon a system of drainage, find they have committed an error and that the system adopted is inadequate to provide drainage of the waters from the lands of the district, their powers are not exhausted, notwithstanding they have secured from the landowners the right of way for the ditches. It is, of course, true that the release of the right of way for the outlet originally adopted would not authorize taking or damaging land for an open ditch outlet, but the right to construct the open ditch must be secured by release or condemnation. It is the mandatory duty of the commissioners to provide an outlet of ample capacity for the waters of the district, and the performance of this duty can be compelled by mandamus. Langan v. Drainage District, supra. The statute expressly confers authority upon the commissioners to correct errors committed in locating or constructing the ditches, or any of them, if it is found that the system adopted is for any cause inadequate to drain or protect the lands of the district. The bill concedes that the outlet adopted by the commissioners in this case is inadequate, and that some other or further provision is required to be made. The power to determine what provision shall be made to correct the error in the original plan is a power that is to be exercised within the discretion of the commissioners, and their exercise of that power I will not be controlled by a court of equity unless it clearly appears that it is proposed to exercise it in a fraudulent and oppressive manner. While the bill alleges the construction of an open ditch will be a gross fraud upon and injustice to the appellants, no facts are alleged in this case from which it appears that any such exercise by the commissioners of their powers is proposed, and a court of equity will not, in the absence of fraud or oppression, undertake to determine the relative merits of two proposed systems. That must be left to the lawful determination of the authorities charged with that duty. ment of it by the heirs only where, the property being unsusceptible of division without Rev. St. 1915-16, c. 41) § 39, instead of assigndamaging the whole, under Dower Act (Hurd's ing third of the net rents, issues, and profits as they accrue, which the widow is to receive as a tenant in common with the owners of the estate, a jury is impaneled to assess and fix the yearly value of the dower interest, when the heirs may be required to pay it pro rata, according to their respective interests in the premises, and its payment may also be made a lien on the real estate. Dig. §§ 312-316; Dec. Dig. 81.1 [Ed. Note.-For other cases, see Dower, Cent. 2. DOWER 93-ASSIGNMENT-INDIVISIBLE PROPERTY-PROCEDURE-CONSENT. Where, in a proceeding for assignment of dower in property unsusceptible of division, no request was made for a jury to ascertain the Act, § 39, but the cause was referred to a masyearly value of the dower interest under Dower ter to ascertain what, if any, damages the widow had sustained, and on the hearing before him the heirs paid and she received in lieu of dower the net rents arising out of the leases then on up to that time, and without protest, a third of the premises, but she insisted also on being paid her damages for dower in the property not under lease and not productive, the parties will be held to have thereby assented that she should receive in lieu of her dower an allowance equal to a third of the net rents, issues, and profits arising from such premises as were then under entitled, as her dower, to one-third of the net lease; and the court should have decreed her rents, issues, and profits arising out of such premises as they accrued and were collected each year, and should not have attempted to of such average in lieu of dower. average the same and decree payment to her [Ed. Note.-For other cases, see Dower, Cent. Dig. §§ 351, 352; Dec. Dig. 93.] 3. DOWER 93-RENTS IN LIEU OF DOWERTIME OF PAYMENT. A widow assigned a third of the rents in lieu of dower is not entitled to payment thereof, as against the heirs, in advance, though under the lease they are payable quarterly in advance, she having only a life estate, and they being the reversioners. [Ed. Note.-For other cases, see Dower, Cent. Dig. §§ 351, 352; Dec. Dig. 93.] 4. DOWER 94-ASSIGNMENT-INDIVISIBLE PROPERTY-DETERMINING YEARLY VALUE. yearly value of dower, in proceedings for asThe assessment under Dower Act, § 39, of the signment of dower in premises unsusceptible of division, is by estimating the probable yearly value of the use of the land in view of its probable condition during the life of the widow, and not by ascertaining the land's fair cash value and computing interest thereon. [Ed. Note.-For other cases, see Dower, Cent. Dig. §§ 337–339; Dec. Dig. 94.] 5. DOWER 105-DAMAGES FOR NONASSIGN MENT. The widow should not be allowed damages for failure to assign dower in lands of which The decree of the circuit court is affirmed. she has had the use and been in possession and Decree affirmed. (276 111. 520) KLEIN v. KLEIN et al. (No. 10814.) (Supreme Court of Illinois. Dec. 21, 1916, Rehearing Denied Feb. 14, 1917.) 1. DOWER 81-ASSIGNMENT-DECREE. Proceeding for assignment of dower being in the nature of in rem, decree should be for pay occupation, or which are of such character that nothing has been or could be realized therefrom. [Ed. Note.-For other cases, see Dower, Cent. Dig. 189; Dec. Dig. 105.] 6. HOMESTEAD 152-RIGHT OF WIDOW. The homestead right of the widow under the statute is the right to occupy so much of the premises as would be worth $1,000. [Ed. Note.-For other cases, see Homestead, Cent. Dig. § 293; Dec. Dig. 152.] 7. DOWER 66-PROCEEDING FOR ASSIGN | the petition. Each party filed exceptions to MENT-SOLICITOR'S FEE-REPEAL OF STAT- the master's report, which were overruled on UTE. Provision of Laws 1869, p. 368, for allowance of a solicitor's fee in proceedings for assignment of dower is repealed by implication by the complete revision and re-enactment in 1874 (Rev. St. 1874, c. 106, §§ 1-40) of the entire act in relation to dower with such provision omitted. the hearing, and a decree was entered allowing appellee dower in each of the three pieces of property and a homestead in the Belmont for solicitor's fees. Both parties prayed and avenue property, but disallowing her claim were allowed appeals from the decree. Ap[Ed. Note.-For other cases, see Dower, Cent. pellants alone have perfected their appeal to Dig. § 177; Dec. Dig. 66.] Appeal from and Error to Circuit Court, Cook County; James S. Baume, Judge. Proceeding by Barbara R. Klein against T. Henry Klein and others for assignment of dower and homestead. From the decree, defendants appeal; plaintiff assigning a crosserror. Reversed and remanded. Edward J. Kelley and Joseph H. Muhlke, both of Chicago, for appellants. Charles L. Wood and E. F. Masterson, both of Chicago, for appellee. this court. Appellants have assigned as error that the court erred: (1) In averaging the rents for a period of years and allowing dower to the complainant based upon such average; (2) in decreeing a homestead to complainant when, in fact, she had her homestead without interruption and hindrance from appellants; and (3) in allowing damages for dower in the homestead property for a period of time when the same was in the exclusive control of the petitioner. Appellee has assigned as cross-error the refusal to tax reasonable solicitor's fees as a part of the costs of the proceeding. It appears from the pleadings and proofs, in addition to the facts hereinbefore stated, that appellee was married to Henry P. Klein, and that he was seised and possessed of the property above mentioned during coverture; that she is entitled to dower in the same, and that she had served a proper demand for assignment of dower on the heirs, and that dower had not been assigned to her; that the Halsted street property is under lease for a period of 99 years from July 1, 1911, at an annual rental of $2,750 for the first 5 years and of $3,000 for the balance of the term, the lessees covenanting to pay all taxes and assessments of every kind and nature imposed upon it during the term of the lease, the rent to be paid in advance, in equal quarterly installments, on the 1st days of January, April, July, and October in each year; that the Clark street property is under lease from June 1, 1913, to May 31, 1923, at a rental of $250 per month to and includ CRAIG, C. J. On February 28, 1914, Henry P. Klein departed this life in the city of Chicago, intestate, leaving him surviving appellee, Barbara R. Klein, his widow, and appellants, T. Henry Klein, Joseph H. P. Klein, Andrew Fred B. Klein, and Agnes Klein (also known as Sister Marie Aileen), as his heirs at law. He died seised and possessed of three tracts of land in the city of Chicago, which for convenience will be designated as the Halsted street, the Clark street, and the Belmont avenue properties. He resided on the Belmont avenue premises at the time of his death. On March 5, 1914, the widow served a written demand on the heirs at law to set off her dower and homestead in the property. Appellants neglected to comply with such notice, and on October 10, 1914, she filed her petition in the circuit court of Cook county praying that dower and homestead be assigned to her in the premises in the manner and according to the provisions of the statute in such case made and provided, or that an allowance of a lump sum being May, 1918, and of $325 per month durmade to her in lieu of dower. Appellants answered, admitting appellee was entitled to dower and homestead, and that the same had not been assigned to her, but denying any claim or demand had been served upon them to assign or set off such dower and homestead. Replications were filed to the answer, and the cause was referred to a master in chancery to take the proofs and report the same, together with his conclusions as to the law and facts. The master made his report finding appellee was entitled to dower in each of the tracts of land in controversy and to a homestead in the Belmont avenue property, but that she was not entitled to be allowed and have taxed as a part of the costs in the case her reasonable solicitor's fees incurred in the proceedings, and recommended that a decree be entered substantially as prayed in ing the remainder of the term, payable in installments on the 1st day of each month; that the Belmont avenue property is not under lease, but was occupied by the deceased and appellee as a homestead, and appellee has since remained in the possession and occupancy thereof, its fair cash value being stipulated to be $16,000. It was further stipulated upon the hearing that the property in controversy was not susceptible of partition or division without material injury to the parties in interest; that the appointment of commissioners to set apart the widow's dower was waived; that the heirs were willing to pay the widow one-third of the net rents as collected on the Halsted and Clark street properties and allow her to remain on the homestead property; and that when the final decee be entered it should be upon the basis For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes of a valuation of $96,000 for the three pieces in the same to the value of $1,000 and a right of property. The decree finds, among other things, that the Belmont avenue property faces 112 feet on Belmont avenue with a depth of 165 feet to an alley, on a part of which property are situated a frame dwelling house and a barn; that the present cash value of appellee's homestead interest in the premises is $1,000, and her dower interest, after deducting her homestead, is $250 per year; that the amount of rents derived from the Halsted street property up to June 30, 1916, was $2,750 per year, and for the succeeding 94 years will be $3,000 per year, payable quarterly in advance, on the 1st days of January, April, July, and October of each year; that appellee is entitled to receive one-third of such rents so collected as her dower, payable on the 5th days of January, April, July, and October of each year; that the gross rental of the Clark street property is $250 per month to and including the month of May, 1918, and $325 per month thereafter, payable monthly; that the average present monthly value of the premises is $287.50; that the rents accruing under the leases on the Halsted and Clark street properties have been collected by the heirs; that the net amount of such rents collected up to June 30, 1915, is $6,385.44, and that the heirs have paid to the widow onethird of that amount, or $2,128.48, which payment is approved by the court; that there is due the widow from the heirs the sum of $916.66 as her share of the net rental of the Halsted street property to and including June 30, 1916, and $833.33, less one-third of the taxes for the year 1915, on the Clark street property to and including March 31, 1916; that her dower interest in the Belmont avenue property at the rate of $250 per year for two years, commencing March 5, 1914, and ending March 5, 1916, is the sum of $500, less one-third of the general taxes on the same for the year 1915, and payment of the several sums as above found due is decreed. The decree further finds that appellee is entitled to be paid, in lieu of her dower in the Halsted street property, the sum of $916.66 for the term ending June 30, 1916, and $1,000 per annum thereafter during her life, in quarterly installments on the 5th days of April, July, October, and January of each year thereafter; that the average gross annual rental of the Clark street property is $3,450, and that appellee is entitled to one-third thereof, less one-third of the general taxes, based upon the assessed value of such property for the year 1915, which sum should be paid to her annually on the 6th day of March of each year during life; that she is entitled to dower in the Belmont avenue property in the sum of $250 per year, to be paid on March 6th of each year during her survival, after deducting therefrom a sum equal to onethird of the general taxes as fixed by the assessed value of the same for the year 1916, and that she is entitled to a homestead estate to occupy the dwelling house and ground upon which the same is situated until her homestead estate in the premises is extinguished; that she shall not be chargeable with or liable for the payment of any part of any special assessment or taxes levied for local improvements which benefit or increase the cash market value of such lands. The decree orders the payment of the above sums of money in lieu of dower and makes the same a first lien on the property, and that in the event of a failure of the heirs or their representatives and assigns, or the owners of the fee, to pay the several amounts ordered to be paid at the times therein designated, the master in chancery shall proceed to sell the respective tracts of land against which the sums remain unpaid in accordance with the statute, and that the court shall retain jurisdiction for the purpose of enforcing compliance with the decree, and that appellants shall pay the cost of the proceedings, share and share alike, and that execution issue therefor. [1, 2] It is first urged that the decree is a joint decree against the several heirs, and is erroneous for the reason that it might compel one who had paid or stood ready and willing to pay his portion of the dower to suffer his land to be sold because of the neglect or refusal of some of the other tenants in common to pay their just portion of the dower under the decree. A proceeding of this character is not one in personam against the heirs at law, but is in the nature of a proceeding in rem against the real estate to secure an assignment to the widow of that portion of the real estate in which she is entitled to dower. It is the real estate, and not the heir, that is holden for the payment of the dower, except in cases in which the lands are not susceptible of division or partition without manifest injury to the whole and a jury has been impaneled to assess and fix the yearly value of the dower under the statute, in which case the decree may run against the heirs, and they should be required to pay such yearly dower pro rata, according to their respective interests in the premises (Peyton v. Jeffries, 50 Ill. 143), and its payment should be made a lien upon the respective tracts of real estate on which it is charged. In this case it is stipulated that the property could not be divided without damaging the whole, and in such case it is provided by section 39 of the Dower Act (Hurd's Stat. 1916, p. 988) that: "Dower may be assigned of the rents, issues and profits thereof, to be had and received by the person entitled thereto as tenant in common with the owners of the estate, or a jury may be empaneled to inquire of the yearly value of the dower therein, who shall assess the same accordingly, and the court shall thereupon enter a decree that there be paid to such person as an allowance in lieu of dower, on a day therein named, the sum so assessed as the yearly value of such dower, and the like sum on the same day of each year thereafter during his or her natural Two methods of procedure are provided by the above section for the ascertainment and setting off to the widow of her dower interest in the premises. The first and by far the simplest and most satisfactory method is that of assigning to the widow one-third of the net rents, issues, and profits of the land as they accure, which she is to receive as a tenant in common with the owners of the es tate. The other method is by impaneling a jury and ascertaining at the outset the yearly value of her dower interest in the premises and then directing the payment of such sum to her each year during her nat sustained and report his findings of such facts, with his conclusions, to the court. On the hearing before the master the heirs paid, and the widow received in lieu of her dower up to the time of such hearing, and without of the leases then on the premises, but she protest, one-third of the net rents arising out insisted also upon being paid her damages for dower in the Belmont avenue property, which was not under lease, and, so far as the evidence shows, was nonproductive. This, under the circumstances, must be held an widow should receive in lieu of her dower an assent upon the part of the parties that the allowance equal to one-third of the net rents, issues, and profits arising from such premises as were then under lease. The court should therefore have decreed that she was entitled, as her dower, to one-third of the net rents, issues, and profits arising out of such premises as the same accrued and were collected each year, and should not have attempted to average the same and decree the payment to her of such average in lieu of her dower. [3] It is further urged that the court erred in decreeing that appellee be paid her dower in the Halsted street property quarterly as collected under the lease, for the reason that, as the rent is payable in advance by the provisions of such lease, she might thereby be paid more than she would be entitled to in the event of her death immediately following the collection of such rent and the payment of her portion thereof. An estate for life in land, such as the dower interest of appellee in this case, terminates on the instant of the death of the life tenant, and the reversioners are then entitled to the possession and the A life tenant entire rents from such land. cannot lawfully collect rent from an undertenant in advance, as against the reversioners, for a period that might extend beyond the life term. Appellants are the reversioners in this case, and the suit is between such ural life in lieu of dower. When the first method is pursued the amount allowed is not necessarily a fixed sum, but is one which may vary from year to year with the rents, issues, and profits actually received from the land. Where the premises are under lease for a fixed term, she would be entitled to receive her one-third part of such net rents, and if the land is not under lease and there are no rents, issues, or profits arising therefrom, she will receive nothing while that condition continues. When the second method is adopted the amount is fixed by the jury and remains so, irrespective of any changes which may occur in the rents, issues, and profits derived from the lands. In such case the yearly value as estimated by the jury should not be based on the condition of the rents and profits at the time dower is assigned, but should be based upon a consideration of the probable condition of such estate during the lifetime of the dowress, and if it appears that the rents and profits are likely to be diminished or entirely swept away at some future time, such fact should receive due consideration and weight in determining the yearly value of such allowance to be made in lieu of dower. When the dower is allow-reversioners and appellee. They should not ed out of the net rents, issues, and profits of the lands, the decree should not be against the heirs or their representatives or assigns for the payment of the same, but should be that the widow is entitled to receive in her own right one-third of the net rents, issues, and profits arising from such premises as a tenant in common with the owners of the fee. Heisen v. Heisen, 145 Ill. 658, 34 N. E. 597, 21 L. R. A. 434. When the allowance is made by the second method the decree may be made to run against the heirs and their assigns and representatives, and the payment of the same also made a lien upon the real estate upon which the same is charged. In the case at bar neither method seems to have been pursued. No request was made by either party for a jury to ascertain the yearly value of the widow's dower interest in the premises. On the contrary, the cause was referred to the master in chancery to ascertain what, if any, damages the widow had be compelled to pay appellee rent that may never belong to her. [4] It is next urged that the court erred in allowing appellee dower in the Belmont avenue property to the amount of $250 per year, subject to the payment of one-third of the general taxes as fixed by the assessment of 1915, and in allowing her as damages for the failure to assign such dower at the rate of $250 per year, commencing on March 5, 1914, and ending on March 5, 1916. This allowance was not based upon any evidence as to the probable yearly value of such dower interest, but was arrived at by deducting from the stipulated value of the property, which was $16,000, the homestead estate therein of the widow, of the value of $1,000, leaving a balance of $15,000, and taking 5 per cent. of onethird of such value, or $250, as the value of such dower interest. As above pointed out two methods for assigning dower are provided by section 39 of the Dower Act where the premises in which dower is to be assigned are not susceptible of division. The first is by assigning to the widow one-third of the rents, issues, and profits thereof, and the other is by impaneling a jury to inquire into the yearly value of such dower and fix the same. This sum is not to be arrived at by ascertaining the fair cash market value of the whole tract of land and allowing the widow a sum each year equivalent to 5 per cent. on one-third of such value, but is to be fixed by estimating the probable yearly value of the use of such land in view of the probable condition of such estate during the lifetime of the widow, which might or might not be more or less than 5 per cent. of one-third of the total value of such property. The proper practice in such a case as this is for the court to impanel a jury to assess the yearly value of the property and then direct the payment of such sum of money as dower during each year of the widow's life. [5] As to the allowance of damages at the rate of $250 per year for the years 1914 and 1915, in which the property was not under lease, was nonproductive so far as the evidence shows, and was in the possession of appellee, we think this also was erroneous. Until her dower was assigned appellee was entitled to exclusive possession of the whole of these premises and to use or lease the same and apply the whole profits thereof to her exclusive use. Lambert v. Hemler, 244 Ill. 254, 91 N. E. 435. In this case she has had since the death of her husband the use and has been in possession and occupancy of said property. Even if she had not occupied the premises or if they were of such a character that nothing could be realized from them, it would be inequitable to allow her anything as damages in lieu of dower in such premises, when, in fact, nothing has been realized from them. [6] The homestead right of appellee under the statute is the right to occupy so much of the premises as would be worth $1.000 while she lives. Appellants, the owners of the reversion, concede this right, and even concede that she may occupy the entire Belmont avenue property, on which the homestead was situated. If this were a proceeding for partition by those who are the owners of the fee subject to the dower and homestead rights of the appellee, and the premises were not susceptible of division and assignment of dower, by metes and bounds, in the land without manifest injury, and for that reason must be sold, and if a homestead of the value of $1.000 could not be set off by metes and bounds and the parties consented thereto, the value of the dower and homestead could be ascertained and paid in a lump sum or a sum equal to the value of the homestead, and also dower in the remainder could be set aside, and the appellee paid the income thereon during life, but on der the statute, could only set off to her so much of the premises as would be worth $1,000, which she would have the right to occupy as her homestead during the remainder of her life. Under the stipulation of appellants, the premises described as the Belmont avenue property, on which was situated the dwelling house, may be set off for the occupancy of the widow as her homestead, or she can waive her homestead in the tract if she prefers not to occupy it under the circumstances, and have dower assigned in that property by one of the methods above pointed out. [7] As to the cross-error assigned by appellee because of the refusal of the court to tax reasonable solicitor's fees as a part of the costs in the case, in Wilson v. Clayburgh, 215 Ill. 506, 74 N. E. 799, we pointed out that, as a general rule, nothing can be allowed and taxed as costs by the clerk or the court except such items as are designated as costs by the statute. Appellee cites as authority for the allowance of such fees as costs sections 39 and 40 of the present Partition Act (Hurd's Rev. St. 1915--16, c. 106) and section 1 of the Partition Act of 1869, which latter act provided as follows: this state, for the partition of real estate, or "That in proceedings in any of the courts of for the assignment for of] dower, or for either, it shall be lawful for the court to order that a reasonable fee be allowed the solicitor or soliciwhich shall be taxed as costs, and divided pro tors prosecuting, to be determined by the court, rata between the parties [to] the proceeding, according to their respective interests." Laws 1869, p. 368. While this statute does not appear to have been expressly repealed by any act of the Legislature, the entire act in relation to dower, as well as that in relation to partition, was revised and re-enacted in 1874, and the provision for the allowance of solicitor's fees in proceedings for the assignment of dower was omitted from such revision of the act. The effect of the complete revision of the act of 1874 (Rev. St. 1874, c. 106) was to work an implied repeal of the prior law; the new act superseding and taking the place State Board of Health v. of the old act. Ross, 191 Ill. 87, 60 N. E. 811. In Gehrke v. Gehrke, 190 Ill. 166, 60 N. E. 59, in speaking of the omission of this provision from th. revision of the Partition Act of 1874, we said: Legislature did not intend to allow the taxation "This omission evidently indicates that the of a solicitor's fee as a part of the costs in proceedings for the assignment of dower." In that case we further held that solicitor's fees were not properly taxed, under sections 39 and 40 of the Partition Act, as a part of the costs in the case, even in a partition proceeding, where the original proceeding was one commenced for the assignment of dower, and partition was asked and obtained on a cross-bill filed by the heirs in such proceeding. That case is conclusive of |