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waters from the district, and the commission- ment of it by the heirs only where, the propers could not shield themselves behind a dis- i erty being unsusceptible of division without cretionary power and leave the land without Rev. St. 1915-16, c.' 41) $ 39, instead of assign

damaging the whole, under Dower Act (Hurd's adequate drainage; that the statute required ing third of the net rents, issues, and profits as the use of the corporate funds of the district they accrue, which the widow is to receive as a for the purpose of correcting an error where tenant in common with the owners of the estate, the system adopted proves inadequate.

a jury is impaneled to assess and fix the yearly

value of the dower interest, when the heirs may [2] If the commissioners, in the exercise be required to pay it pro rata, according to their of their discretionary power to determine up- respective interests in the premises, and its pason a system of drainage, find they have com

ment may also be made a lien on the real estate, mitted an error and that the system adopted Dig. Sg 312-316; Dec. Dig. 681.]

[Ed. Note.-For other cases, see Dower, Cent. is inadequate to provide drainage of the wa

2. DOWER ters from the lands of the district, their


PROPERTY-PROCEDURE-CONSENT. powers are not exhausted, notwithstanding

Where, in a proceeding for assignment of they have secured from the landowners dower in property unsusceptible of division, no the right of way for the ditches. It is, of request was made for a jury to ascertain the course, true that the release of the right of yearly value of the dower interest under Dower

Act, $ 39, but the cause was referred to a masway for the outlet originally adopted would ter to ascertain what, if any, damages the widow not authorize taking or damaging land for had sustained, and on the hearing before him an open ditch outlet, but the right to con

the heirs paid and she received in lieu of dower struct the open ditch must be secured by re- the net rents arising out of the leases then on

up to that time, and without protest, a third of lease or condemnation. It is the mandatory the premises, but she insisted also on being paid duty of the commissioners to provide an her damages for dower in the property not unoutlet of ample capacity for the waters of be held to have thereby assented that she should

der lease and not productive, the parties will the district, and the performance of this duty receive in lieu of her dower an allowance equal can be compelled by mandamus. Langan v. to a third of the net rents, issues, and profits Drainage District, supra. The statute es- arising from such premises as were then under

lease; and the court should have decreed her pressly confers authority upon the commis- | entitled, as her dower, to one-third of the net sioners to correct errors committed in locat- rents, issues, and profits arising out of such ing or constructing the ditches, or any of premises as they accrued and were collected them, if it is found that the system adopted each year, and should not have attempted to is for any cause inadequate to drain or pro- of such average in lieu of dower.

average the same and decree payment to her tect the lands of the district. The bill con

[Ed. Note.-For other cases, see Dower, Cent. cedes that the outlet adopted by the commis- Dig. $$ 351, 352; Dec. Dig. Om93.) sioners in this case is inadequate, and that 3. DOWER Om93-RENTS IN LIEU OF DOWERsome other or further provision is required TIME OF PAYMENT. to be made. The power to determine what A widow assigned a third of the rents in provision shall be made to correct the error lieu of dower is not entitled to payment thereof, in the original plan is a power that is to be the lease they are payable quarterly in ad

as against the heirs, in advance, though under exercised within the discretion of the com-vance, she having only a life estate, and they missioners, and their exercise of that power being the reversioners. will not be controlled by a court of equity [Ed. Note.--For other cases, see Dower, Cent. unless it clearly appears that it is proposed to Dig. $$ 351, 352; Dec. Dig. 93.] exercise it in a fraudulent and oppressive 4. DOWER 94-ASSIGNMENT-INDIVISIBLE manner. While the bill alleges the construc

PROPERTY-DETERMINING YEARLY VALUE. tion of an open ditch will be a gross fraud yearly value of dower, in proceedings for as

The assessment under Dower Act, $ 39, of the upon and injustice to the appellants, no facts signment of dower in premises unsusceptible of are alleged in this case from which it ap- division, is by estimating the probable yearly pears that any such exercise by the commis- value of the use of the land in view of its prob

able condition during the life of the widow, and sioners of their powers is proposed, and a not by ascertaining the land's fair cash value court of equity will not, in the absence of and computing interest thereon. fraud or oppression, undertake to determine

[Ed. Note.- For other cases, see Dower, Cent. the relative merits of two proposed systems. Dig. S$ 337-339; Dec. Dig. 94.) That must be left to the lawful determina- 5. DOWER E105—DAMAGES FOR NONASSIGNtion of the authorities charged with that duty.

The widow should not be allowed damages The decree of the circuit court is affirmed. she has had the use and been in possession and

for failure to assign dower in lands of which Decree affirmed.

occupation, or which are of such character that nothing has been or could be realized there

from. (276 Ill. 520)

[Ed. Note.-For other cases, see Dower, Cente KLEIN ». KLEIN et al. (No. 10814.) Dig. 8 189; Dec. Dig. 105.] (Supreme Court of Illinois. Dec. 21, 1916, 6. HOMESTEAD Eww152—-RIGHT OF WIDOW. Rehearing Denied Feb. 14, 1917.)

The homestead right of the widow under the

statute is the right to occupy so much of the 1. DowER 81-ASSIGNMENT-DECREE. premises as would be worth $1,000.

Proceeding for assignment of dower being [Ed. Note.-For other cases, see Homestead, in the nature of in rem, decree should be for pay- | Cent. Dig. § 293; Dec. Dig. 152.]


7. DOWER 66–PROCEEDING FOR ASSIGN, the petition. Each party fled 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 allow the hearing, and a decree was entered allowance of a solicitor's fee in proceedings for as- ing appellee dower in each of the three pieces signment of dower is repealed by implication by of property and a homestead in the Belmont the complete revision and re-enactment in 1874 avenue property, but disallowing her claim (Rev. St. 1874, c. 106, $$ 1-40) of the entire act in relation to dower 'with such provision omit- for solicitor's fees. Both parties prayed and ted.

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. Om 66.]

this court. Appeal from and Error to Circuit Court,

Appellants have assigned as error that the Cook County; James S. Baume, Judge.

court erred: (1) In averaging the rents for Proceeding by Barbara R. Klein against T. a period of years and allowing dower to the Henry Klein and others for assignment of complainant based upon such average; (2) dower and homestead. From the decree, de- in decreeing a homestead to complainant fendants appeal; plaintiff assigning a cross- when, in fact, she had her homestead witherror. Reversed and remanded.

out interruption and hindrance from appel

lants; and (3) in allowing damages for dowEdward J. Kelley and Joseph H. Muhlke, er in the homestead property for a period both of Chicago, for appellants. Charles L. of time when the same was in the exclusive Wood and E. F. Masterson, both of Chicago, control of the petitioner. Appellee has asfor appellee.

signed as cross-error the refusal to tax rea

sonable solicitor's fees as a part of the costs CRAIG, O. J. On February 28, 1914, of the proceeding. Henry P. Klein departed this life in the city It appears from the pleadings and proofs, of Chicago, intestate, leaving him surviving in addition to the facts hereinbefore stated, appellee, Barbara R. Klein, his widow, and that appellee was married to Henry P. Klein, appellants, T. Henry Klein, Joseph H. P. and that he was seised and possessed of Klein, Andrew Fred B. Klein, und Agnes the property above mentioned during coverKlein (also known as Sister Marie Aileen), ture; that she is entitled to dower in the as his heirs at law. He died seised and pos- same, and that she had served a proper desessed of three tracts of land in the city of mand for assignment of dower on the heirs, Chicago, which for convenience will be desig- and that dower had not been assigned to her; nated as the Halsted street, the Clark street, that the Halsted street property is under and the Belmont avenue properties. He re- lease for a period of 99 years from July 1, sided on the Belmont avenue premises at 1911, at an annual rental of $2,750 for the the time of his death. On March 5, 1914, the first 5 years and of $3,000 for the balance of widow served a written demand on the heirs the term, the lessees covenanting to pay all at law to set off her dower and homestead in taxes and assessments of every kind and nathe property. Appellants neglected to com- ture imposed upon it during the term of the ply with such notice, and on October 10, 1914, lease, the rent to be paid in advance, in equal she filed her petition in the circuit court of quarterly installments, on the 1st days of Cook county praying that dower and home January, April, July, and October in each stead be assigned to her in the premises in year;' that the Clark street property is unthe manner and according to the provisions der lease from June 1, 1913, to May 31, 1923, of the statute in such case made and pro at a rental of $250 per month to and includvided, or that an allowance of a lump sum be ing May, 1918, and of $325 per month durmade to her in lieu of dower. Appellants an- ing the remainder of the term, payable in swered, admitting appellee was entitled to installments on the 1st day of each month; dower and homestead, and that the same had that the Belmont avenue property is not unnot been assigned to her, but denying any der lease, but was occupied by the deceased claim or demand had been served upon them and appellee as a homestead, and appellee to assign or set off such dower and home has since remained in the possession and ocstead. Replications were filed to the answer, cupancy thereof, its fair cash value being and the cause was referred to a master in stipulated to be $16,000. It was further stipchancery to take the proofs and report the ulated upon the hearing that the property in same, together with his conclusions as to the controversy was not susceptible of partition law and facts. The master made his report or division without material injury to the finding appellee was entitled to dower in each parties in interest; that the appointment of of the tracts of land in controversy and to commissioners to set apart the widow's dowa homestead in the Belmont avenue property, er was waived; that the heirs were willing but that she was not entitled to be allowed to pay the widow one-third of the net rents and have taxed as a part of the costs in the as collected on the Halsted and Clark street case her reasonable solicitor's fees incurred properties and allow her to remain on the in the proceedings, and recommended that a homestead property; and that when the final decree be entered substantially as prayed in 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.

to occupy the dwelling house and ground The decree finds, among other things, that upon which the same is situated until her the Belmont avenue property faces 112 feet homestead estate in the premises is extinon Belmont avenue with a depth of 165 feet guished; that she shall not be chargeable to an alley, on a part of which property are with or liable for the payment of any part of situated a frame dwelling house and a barn; any special assessment or taxes levied for that the present cash value of appellee's local improvements which benefit or increase homestead interest in the premises is $1,000, the cash market value of such lands. The and her dower interest, after deducting her decree orders the payment of the above sums homestead, is $250 per year; that the amount of money in lieu of dower and makes the of rents derived from the Halsted street same a first lien on the property, and that in property up to June 30, 1916, was $2,750 per the event of a failure of the heirs or their year, and for the succeeding 94 years will be representatives and assigns, or the owners of $3,000 per year, payable quarterly in ad- the fee, to pay the several amounts ordered vance, on the 1st days of January, April, July, to be paid at the times therein designated, the and October of each year; that appellee is master in chancery shall proceed to sell the entitled to receive one-third of such rents so respective tracts of land against which the collected as her dower, payable on the 5th sums remain unpaid in accordance with the days of January, April, July, and October of statute, and that the court shall retain juriseach year; that the gross rental of the Clark diction for the purpose of enforcing complistreet property is $250 per month to and in- ance with the decree, and that appellants cluding the month of May, 1918, and $325 shall pay the cost of the proceedings, share per month thereafter, payable monthly; that and share alike, and that execution issue the average present monthly value of the therefor. premises is $287.50; that the rents accruing [1, 2] It is first urged that the decree is a under the leases on the Halsted and Clark joint decree against the several heirs, and is street properties have been collected by the erroneous for the reason that it might comheirs; that the net amount of such rents col- pel one who had paid or stood ready and lected up to June 30, 1915, is $6,385.44, and willing to pay his portion of the dower to that the heirs have paid to the widow one suffer his land to be sold because of the third of that amount, or $2,128.48, which pay- neglect or refusal of some of the other tenment is approved by the court; that there is ants in common to pay their just portion of due the widow from the heirs the sum of the dower under the decree. A proceeding $916.66 as her share of the net rental of the of this character is not one in personam Halsted street property to and including against the heirs at law, but is in the naJune 30, 1916, and $833.33, less one-third of ture of a proceeding in rem against the real the taxes for the year 1915, on the Clark estate to secure an assignment to the widow of street property to and including March 31, that portion of the real estate in which she is 1916; that her dower interest in the Belmont entitled to dower. It is the real estate, and avenue property at the rate of $250 per year not the heir, that is holden for the payment for two years, commencing March 5, 1914, of the dower, except in cases in which the and ending March 5, 1916, is the sum of $500, lands are not susceptible of division or less one-third of the general taxes on the partition without manifest injury to the same for the year 1915, and payment of the whole and a jury has been impaneled to asseveral sums as above found due is decreed. sess and fix the yearly value of the dower The decree further finds that appellee is en- under the statute, in which case the decree titled to be paid, in lieu of her dower in the may run against the heirs, and they should Halsted street property, the sum of $916.66 be required to pay such yearly dower pro for the term ending June 30, 1916, and $1,000 rata, according to their respective interests per annum thereafter during her life, in quar- in the premises (Peyton v. Jeffries, 50 Ill. terly installments on the 5th days of April, 143), and its payment should be made a lien July, October, and January of each year upon the respective tracts of real estate on thereafter; that the average gross annual which it is charged. In this case it is stip rental of the Clark street property is $3,450, ulated that the property could not be divided and that appellee is entitled to one-third without damaging the whole, and in such thereof, less one-third of the general taxes, case it is provided by section 39 of the Dower based upon the assessed value of such prop- Act (Hurd's Stat. 1916, p. 988) that: erty for the year 1915, which sum should be

"Dower may be assigned of the rents, issues paid to her annually on the 6th day of March and profits thereof, to be had and received by of each year during life; that she is entitled the person entitled thereto as tenant in common to dower in the Belmont av nue property in with the owners of the estate, or a jury may be

empaneled to inquire of the yearly value of the the sum of $250 per year, to be paid on March dower therein, who shall assess the same accord6th of each year during her survival, after ingly, and the court shall thereupon enter a dededucting therefrom a sum equal to one cree that there be paid to such person as an althird of the general taxes as fixed by the as

lowance in lieu of dower, on a day therein Damsessed value of the same for the year 1916, such dower, and the like sum on the same day of

ed, the sum so assessed as the yearly value of and that she is entitled to a homestead estate each year thereafter during his or her natural

life, and may make the same a lien on any real sustained and report his findings of such estate of the party against whom such decree is facts, with his conclusions, to the court. On rendered, or cause the same to be otherwise se the hearing before the master the beirs paid, cured." Two methods of procedure are provided by

and the widow received in lieu of her dower the above section for the ascertainment and up to the time of such hearing, and without setting off to the widow of her dower inter of the leases then on the premises, but she

protest, one-third of the net rents arising out est in the premises. The first and by far the insisted also upon being paid her damages simplest and most satisfactory method is that for dower in the Belmont avenue property, of assigning to the widow one-third of the which was not under lease, and, so far as the net rents, issues, and profits of the land as

evidence shows, was nonproductive. This, they accure, which she is to receive as a

under the circumstances, must be held an tenant in common with the owners of the estate. The other method is by impaneling

assent upon the part of the parties that the a jury and ascertaining at the outset the widow should receive in lieu of her dower an yearly value of her dower interest in the allowance equal to one-third of the net rents, premises and then directing the payment of issues, and profits arising from such premises such sum to her each year during her nat- as were then under lease. The court should ural life in lieu of dower. When the first therefore hare decreed that she was entitled, method is pursued the amount allowed is not as her dower, to one-third of the net rents, isnecessarily a fixed sum, but is one which may sues, and profits arising out of such premises vary from year to year with the rents, issues, as the same accrued and were collected each and profits actually received from the land. year, and should not have attempted to averWhere the premises are under lease for a age the same and decree the payment to her fixed term, she would be entitled to receive of such average in lieu of her dower. her one-third part of such net rents, and if

[3] It is further urged that the court erred the land is not under lease and there are no in decreeing that appellee be paid her dower rents, issues, or profits arising therefrom, in the Halsted street property quarterly as she will receive nothing while that condition collected under the lease, for the reason that, continues. When the second method is as the rent is payable in advance by the proadopted the amount is fixed by the jury and visions of such lease, she might thereby be remains so, irrespective of any changes paid more than she would be entitled to in which may occur in the rents, issues, and the event of her death immediately following profits derived from the lands. In such case

the collection of such rent and the payment the yearly value as estimated by the jury of her portion thereof. An estate for life in should not be based on the condition of the land, such as the dower interest of appellee rents and profits at the time dower is assign- in this case, terminates on the instant of the ed, but should be based upon a consideration death of the life tenant, and the reversioners of the probable condition of such estate dur- are then entitled to the possession and the ing the lifetime of the dowress, and if it ap- entire rents from such land. A life tenant pears that the rents and profits are likely to cannot lawfully collect rent from an underbe diminished or entirely swept away at some tenant in advance, as against the reversionfuture time, such fact should receive due ers, for a period that might extend beyond consideration and weight in determining the the life term. Appellants are the reversionyearly value of such allowance to be made i ers in this case, and the suit is between such 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 be compelled to pay appellee rent that may the lands, the decree should not be against never belong to her. the heirs or their representatives or assigns [4] It is next urged that the court erred in for the payment of the same, but should be allowing appellee dower in the Belmont av. that the widow is entitled to receive in her enue property to the amount of $250 per year, own right one-third of the net rents, issues, subject to the payment of one-third of the and profits arising from such premises as a general taxes as fixed by the assessment of tenant in common with the owners of the 1915, and in allowing her as damages for the fee. Heisen v. Heisen, 145 Ill. 658, 34 N. E. failure to assign such dower at the rate of 597, 21 L. R. A. 434. When the allowance is $250 per year, commencing on March 5, 1914, made by the second method the decree may and ending on March 5, 1916. This allowance be made to run against the heirs and their was not based upon any evidence as to the assigns and representatives, and the payment probable yearly value of such dower interest, of the same also made a lien upon the real | but was arrived at by deducting from the estate upon which the same is charged. In stipulated value of the property, which was the case at bar neither method seems to have $16,000, the homestead estate therein of the been pursued. No request was made by widow, of the value of $1,000, leaving a baleither party for a jury to ascertain the yearly ance of $15,000, and taking 5 per cent. of one value of the widow's dower interest in the third of such' value, or $250, as the value of premises. On the contrary, the cause was such dower interest. As above pointed out referred to the master in chancery to as- two methods for assigning dower are providcertain what, if any, damages the widow haded by section 39 of the Dower Act where the

premises in which dower is to be assigned, der the statute, could only set off to her so are not susceptible of division. The first is much of the premises as would be worth $1,by assigning to the widow one-third of the 000, which she would have the right to oce rents, issues, and profits thereof, and the cupy as her homestead during the remainder other is by impaneling a jury to inquire into of her life. Under the stipulation of appel. the yearly value of such dower and fix the lants, the premises described as the Belmont same. This sum is not to be arrived at by as- avenue property, on which was situated the certaining the fair cash market value of the dwelling house, may be set off for the ocwhole tract of land and allowing the widow a cupancy of the widow as her homestead, or sum each year equivalent to 5 per cent. on she can waive her homestead in the tract if one-third of such value, but is to be fixed by she prefers not to occupy it under the cir. estimating the probable yearly value of the cumstances, and have dower assigned in that use of such land in view of the probable con property by one of the methods above pointdition of such estate during the lifetime of ed out. the widow, which might or might not be more

[7] As to the cross-error assigned by appelor less than 5 per cent. of one-third of the lee because of the refusal of the court to total value of such property. The proper

tax reasonable solicitor's fees as a part of practice in such a case as this is for the the costs in the case, in Wilson v. Clayburgh, court to impanel a jury to assess the yearly 215 Ill. 506, 74 N. E. 799, we poi out value of the property and then direct the that, as a general rule, nothing can be alpayment of such sum of money as dower lowed and taxed as costs by the clerk or the during each year of the widow's life.

court except such items as are designated as [5] As to the allowance of damages at the costs by the statute. Appellee cites as aurate of $250 per year for the years 1914 and thority for the allowance of such fees as 1915, in which the property was not under costs sections 39 and 40 of the present Par. lease, was nonproductive so far as the evi- tition Act (Hurd's Rev, St. 1915--16, c. 106) dence shows, and was in the possession of and section 1 of the Partition Act of 1869,

which latter act provided as follows: appellee, we think this also was erroneous. Until her dower was assigned appellee was this state, for the partition of real estate, or

"That in proceedings in any of the courts of entitled to exclusive possession of the whole for the assignment (or of] dower, or for either, of these premises and to use or lease the it shall be lawful for the court to order that a same and apply the whole profits thereof to reasonable fee be allowed the solicitor or solici. her exclusive use. Lambert v. Hemler, 244 which shall be taxed as costs, and divided pro

tors prosecuting, to be determined by the court, Ill. 254, 91 N. E. 435. In this case she has rata between the parties to the proceeding, had since the death of her husband the use according to their respective interests." Laws and has been in possession and occupancy of 1869, p. 368. said property. Even if she had not occupied

While this statute does not appear to have the premises or if they were of such a char- been expressly repealed by any act of the acter that nothing could be realized from Legislature, the entire act in relation to dowthem, it would be inequitable to allow her er, as well as that in relation to partition, anything as damages in lieu of dower in such was revised and re-enacted in 1874, and the premises, when, in fact, nothing has been provision for the allowance of solicitor's fees realized from them.

in proceedings for the assignment of dower [6] The homestead right of appellee un

was omitted from such revision of the act. der the statute is the right to occupy so much The effect of the complete revision of the of the premises as would be worth $1,000 act of 1874 (Rev. St. 1874, c. 106) was to while she lives. Appellants, the owners of work an implied repeal of the prior law; the reversion, concede this right, and even

the new act superseding and taking the place concede that she may occupy the entire Bel of the old act. State Board of Health v. mont avenue property, on which the home- Ross, 191 Ill. 87, 60 N. E. 811. In Gehrke v. stead was situated. If this were a proceed-Gehrke, 190 ill. 166, 60 N. E. 59, in speaking ing for partition by those who are the own

of the omission of this provision from th. ers of the fee subject to the dower and home revision of the Partition Act of 1874, we

said: stead rights of the appellee, and the premises were not susceptible of division and assign- Legislature did not intend to allow the taxation

"This omission evidently indicates that the ment of dower, by metes and bounds, in the of a solicitor's fee as a part of the costs in proland without manifest injury, and for that ceedings for the assignment of dower." reason must be sold, and if a homestead of In that case we further held that solicitthe value of $1.000 could not be set off by or's fees were not properly taxed, under secmetes and bounds and the parties consented tions 39 and 40 of the Partition Act, as a thereto, the value of the dower and home part of the costs in the case, even in a parstead could be ascertained and paid in a tition proceeding, where the original prolump sum or a sum equal to the value of ceeding was one commenced for the assignthe homestead, and also dower in the re- ment of dower, and partition was asked and mainder could be set aside, and the appellee obtained on a cross-bill filed by the heirs in paid the income thereon during life, but on such proceeding. That case is conclusive of

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