CHAPTER 41.

DOWER.

SECTION 1

SECTION

Curtesy abolished-husband and wife endowed 24. Unknown owners, etc.
equitable estates, etc.

2. Aliens.

Mortgaged lands.

Dower barred by devise, etc.-election and renunciation.

25. How unknown owners, etc., described.
Summons.

26.

27.

28.

How unknown owners, etc., notified.
Notice by publication and mail.

29. Service by copy.

30.

Appearance when not formally notified.

31. Answer under oath.

12.

In case will renounced-election to take in lieu of dower.

37.

Homestead.

AN ACT to revise the law in relation to dower.

[Approved March 4, 1874. In force July 1, 1874.

1. CURTESY ABOLISHED-HUSBAND AND WIFE ENDOWED-EQUITABLE ESTATES, ETC.] § 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That the estate of curtesy is hereby abolished, and the surviving husband or wife shall be endowed of the third part of all the lands whereof the deceased husband or wife was seized of an estate of inheritance, at any time during the marriage, unless the same shall have been relinquished in legal form. Equitable estates shall be subject to such dower, and all real estate of every description contracted for by the deceased husband or wife, in his or her life time, the title of which may be completed after his or her decease. [R. S. 1845, p. 198, § 1.

2. ALIENS.] § 2. The surviving husband or wife of an alien shall be entitled to dower the same as if such alien had been a native-born citizen of the United States. [R. S. 1845, p. 198, § 2.

3. MORTGAGED LANDS.] § 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 person, except the mortgagee and those claiming under him. [R. S. 1845, p. 198, § 3.

4. NO DOWER AS AGAINST PURCHASE MONEY.] 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 she or he shall not have united in such mortgage; but shall be entitled to dower as against all other persons. [R. S. 1845, p. 198, § 4.

5. DOWER IN SURPLUS AFTER MORTGAGE PAID.] § 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 mort gaged 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 pay ment of the moneys due on such mortgage, and the costs and charges of sale, such survivor shall be entitled to the interests or income of one-third part of such surplus, for life, as dower. [R. S. 1845, p. 198, § 5.

6. NO DOWER IN LANDS HELD ON MORTGAGE.] § 6. No person shall be endowed of lands conveyed to his or her wife or husband by way of mortgage, unless such wife or husband have acquired an absolute estate during the marriage. [R. S. 1845, p. 199, § 6.

7. DOWER BARRED BY JOINTURE.] § 7. When an estate in land shall be conveyed to an intended husband and wife, or to either of them, or to any person in trust for such intended husband and wife, or either of them, for the purpose of creating a jointure in favor of either of them with his or her assent, to be taken in lieu of dower, such jointure shall bar any right or claim for dower by the party jointured in any lands of the other. [R. S. 1845, p. 199, § 7.

8. HOW ASSENT EVINCED BEFORE MARRIAGE.] 8. The assent required in the preceding section shall be evinced by the party, if of full age, becoming a party to the conveyance by which such jointure is settled, or, if a minor, by joining with the father or guardian in such conveyance. [R. S. 1845, p. 199, §§.

9. IF WITHOUT ASSENT OR AFTER MARRIAGE, ELECTION.] § 9. If before marriage, but without such assent, or if after marriage, land shall be given or as sured for the jointure of a wife or husband in lieu of dower, such wife or husband may elect whether to take such jointure, or to be endowed as herein provided, but shall not be entitled to both. [R. S. 1845, p. 199, § 9.

10. DOWER BARRED BY DEVISE, ETC.-ELECTION AND RENUNCIATION. § 10. Any devise of land, or any estate therein, or any other provision made by the will of a deceased husband or wife for a surviving wife or husband, shall, unless otherwise expressed in the will, bar the dower of such survivor in the lands of the deceased, unless such survivor shall elect to and does renounce the benefit of such devise or other provision, in which case he or she shall be entitled to dower in the lands and to one-third of the personal estate after the payment of all debts. [R. S. 1845, p. 199 § 10.

11. WHEN SUCH RENUNCIATION MUST BE MADE.] § 11. Any one entitled to an election under either of the two preceding sections shall be deemed to have elected to take such jointure, devise or other provision, unless, within one year after letters testamentary or of administration are issued, he or she shall deliver or transmit to the county court of the proper county a written renunciation of such jointure, devise or other provision. [R. S. 1845, p. 199, § 11.

12. IN CASE WILL RENOUNCED-ELECTION TO TAKE IN LIEU OF DOWER.] § 12. If a husband or wife die testate, leaving no child or descendants of a child, the surviving husband or wife may, if he or she elect, have, in lieu of dower in the estate of which the deceased husband or wife died seized, (whether the right to such dower has accrued by renunciation as hereinbefore provided, or otherwise,) and of any share of the personal estate which he or she may be entitled to take with such dower, absolutely, and in his or her own right, one-half of all the real and personal estate which shall remain after the payment of all just debts and claims against the estate of the deceased husband or wife. The election herein provided for may be made whether dower has been assigned or not, and at any time before or within two months after notification to the survivor of the payment of debts and claims, and not afterwards. [R. S. 1845, p. 200, § 15,

13. FORM OF RENUNCIATION-FILING-RECORD-EFFECT.] § 13. The renunciation in the preceding sections required may be in the following form, to-wit:

I, A B, surviving wife (or husband) of C D, late of the county of and state of deceased do hereby renounce and quit all claim to the benefit of any jointure given or assured to me in lieu of dower, (or any devise or other provision made to me by the last will and testament of the said C D, or otherwise as the case may be) and I do elect to take in lien thereof my dower and legal share in the estate of the said C D, (or otherwise, as the case may require.)

Which renunciation shall be filed in the office of the clerk of the county court and entered by said clerk at large upon the records of the court, and shall operate as a complete bar to any claim which such survivor may afterwards set up to any jointure, devise, testamentary provision or dower thus renounced. [See "Administration, etc.," ch. 3, § 76, 78. R. S. 1845, p. 199, § 11.

14. EFFECT OF DIVORCE.] § 14. If any husband or wife is divorced for the fault or misconduct of the other, except where the marriage was void from the beginning, he or she shall not thereby lose dower nor the benefit of any such jointure, but if such divorce shall be for his or her own fault or misconduct, such dower or jointure, and any estate granted by the laws of this state, in the real or personal estate of the other, shall be forfeited. [R. S. 1845, p. 199, § 12.

15. ABANDONMENT-ADULTERY.] § 15. If a husband or wife voluntarily leave the other and commit adultery, he or she shall be forever barred of dower and of the benefit of any such jointure, unless they are afterwards reconciled and dwell together. [R. S. 1845, p. 200, § 13.

16. WHAT NOT TO BAR DOWER.] § 16. No judgment or decree confessed or recovered against a husband or wife, and no laches, default, covin, forfeiture or crime of either, no deed or conveyance of either, without the assent of the other, evinced by the acknowledgment thereof, as required by law, shall prejudice the right of the other to dower or jointure, or preclude the other from the recov ery thereof if otherwise entitled thereto. [R. S. 1845, p. 200, § 14.

17. EXCHANGE OF LAND.] § 17. If a husband or wife seized of an estate of inheritance in lands, exchange it for other lands, the surviving husband or wife shall not have dower of both. but shall make election as herein before provided, to be endowed of the lands given, or of those taken in exchange; and if such election be not evinced, by the commencement of proceedings for the recovery and assignment of dower of the lands given in exchange, within one year after the death of such husband or wife, the survivor shall be deemed to have elected to take dower of the lands received in exchange. [R. S. 1845, p. 200, § 16. 18. DUTY OF HEIR TO ASSIGN DOWER.] § 18. It shall be the duty of the heir at law, or other person having the next estate of inheritance or freehold in any lands or estate of which any person is entitled to dower, to lay off and assign such dower as soon as practicable after the death of the husband or wife of such person. [R. S. 1845, p. 200, § 17.

19. PROCEEDINGS TO RECOVER DOWER.] § 19. If such heir or other person shall not, within one month next after such death, satisfactorily assign and set over to the surviving husband or wife, dower in and to all lands, tenements and hereditaments whereof by law he or she is or may be dowable, such survivor may sue for and recover the same by petition in chancery, as here inafter prescribed, against such heir or other person, or any tenant in possession, or any other person claiming right or possession in said estate. [R. S. 1845, p. 200, § 18.

20. WHERE PETITION FILED.] 20. The petition may be filed in any court of record of competent jurisdiction in the county where the estate or some part thereof is situated.

21. INFANTS, LUNATICS, ETC.] § 21. Infauts may petition by guardian or next friend, and other persons under guardianship by their conservators. When an infant or person under guardianship is a defendant, he may appear by guardian or conservator, or the court may appoint a guardian ad litem for such person, and compel the person so appointed to act. [R. S. 1845, p. 201, § 22,

22. FORM OF PETITION.] 22. The petition shall set forth the nature of the claim, and particularly specify the premises in which dower is claimed, and shall set forth the interests of all parties interested therein so far as the same are known to the petitioner, and shall pray for the assignment of such dower. [R. S. 1845, p. 200, § 19.

23. WHO TO BE DEFENDANTS.] § 23. Every person having any interest in the premises, whether in possession or otherwise, and who is not a petitioner, shall be made a defendant to such petition.

24. UNKNOWN OWNERS, ETC.] § 24. When there are any persons interested in the premises whose names are unknown, or the share or quantity of interest of any of the parties is unknown to the petitioner, or where such share or interest shall be uncertain or contingent, or the ownership of the inheritance shall depend upon an executory devise, or the remainder shall be contingent, so that such par ties cannot be named, the same shall be so stated in the petition.

25. HOW UNKNOWN OWNERS, ETC., DESCRIBED.] § 25. All persons interested in the premises in which dower is claimed, whose names are unknown, may be made parties to such petition by the name and description of unknown owners of the premises, or as the unknown heirs of any person who may have been interested in the same. [R. S. 1845, p. 201, § 20.

26. SUMMONS.] § 26. The defendants to any such petition shall be sum moned in the same manner as defendants to suits in chancery.

27. HOW UNKNOWN OWNERS, ETC., NOTIFIED.] § 27. Unknown owners. or parties in interest, of the premises, and the unknown heirs of any such per sons, may be notified by advertisement as in cases in chancery. [See "Chancery," ch. 22, § 7. R. S. 1845, p. 201, § 20.

28. NOTICE BY PUBLICATION AND MAIL.] § 28. When it shall appear by affidavit filed, as in cases in chancery, that any defendant resides or has gone out of the state, or upon due inquiry can not be found, or is concealed within this state so that process can not be served on him, and the affiant shall state the place of residence of such defendant, if known, or that upon diligent inquiry his place of residence can not be ascertained, he may be notified in the same manner as in such case in chancery. [See "Chancery," ch. 22, § 12. R. S. 1845, p. 200, $19.

29. SERVICE BY COPY.] § 29. Non-resident defendants may be served by a copy of the petition in the same manner that such defendants in chancery may be served by a copy of the bill of complaint, and the service thereof may be proved as in such case provided. [See "Chancery," ch. 22, § 14, 15.

30. APPEARANCE WHEN NOT PERSONALLY NOTIFIED.] $30. Any defendant who is not summoned, served with a copy of the petition, or shall not receive the notice required to be sent him by mail, or the heirs, devisees, executors, administrators and other legal representatives of such person, may appear and answer the petition within the same time and upon the same conditions, and with like effect as in other cases in chancery. [See "Chancery," ch. 22, § 17, 19.

31. ANSWER UNDER OATH.] § 31. The petitioner may, in his petition, require the defendants or any of them to answer his petition on oath, in which case the answer shall have the same effect as an answer in chancery under oath.

32. INTERPLEADER.] $32. During the pendency of any such suit or proceeding any person claiming to be interested in the premises may appear and answer the petition, and assert his or her rights, by way of interpleader; and the court shall decide upon the rights of persons appearing as aforesaid, as though they had been made parties in the first instance.

33. NO FORMAL PLEADINGS REQUIRED―JURY.] § 33. Petitions for the recovery and assignment of dower shall be heard and determined by the court upon the petition, answer, replication, exhibits and other testimony, without the necessity of formal pleading. The court may direct an issue or issues to be tried by a jury, as in other cases in equity. [See "Chancery," ch, 22, § 40. R. S. 1845, p. 201, § 23.

34.

JUDGMENT-COMMISSIONERS-THEIR OATH.] § 34. When the court adjudges that the one entitled thereto recover dower, it shall be so entered of record, together with a description of the land out of which he or she is to be so endowed, and the court shall thereupon appoint three commissioners not connected with any of the parties either by consanguinity or affinity, and entirely disinterested, each of whom shall take the following oath :

I do solemnly swear that I will fairly and impartially allot and set off to A B, surviving wife (or husband) of C D, her (or his) dower, out of the lands and tenements described in the order of the court for that purpose, if the same can be done consistently with the interests of the estate, according to the best of my ability: so help me God.

[R. S. 1845, p. 201, § 24.

35. DIVISION.] § 35. The commissioners shall go upon the premises, and if the same are susceptible of division, without manifest prejudice to the parties in interest, shall set off and allot to the person entitled thereto his or her dower, by metes and bounds, according to quality and quantity, of all the premises described in the order of the court. [R. S. 1845, p. 202, § 25.

36. WHEN SEVERAL TRACTS.] $36. The dower need not be assigned in each tract separately, but may be allotted in a body out of one or more of the tracts of land, when the same can be done without prejudice to the interests of any person interested in the premises. [L. 1865, p. 48, § 1.

37. HOMESTEAD.] § 37. The surviving husband or wife shall have the homestead or dwelling house, if he or she desires, and such allotment shall not affect his or her estate of homestead therein, but if the dower is allotted out of other lands, the acceptance of such allotment shall be a waiver and release of the estate of homestead of the person entitled to dower, and his or her children, unless it shall be otherwise ordered by the court. [R. S. 1845, p. 202, § 25.

38. REPORT-APPROVAL BY COURT-EFFECT-POSSESSION.] § 38. The commissioners shall make report in writing, signed by at least two of them, showing what they have done, and if they have made a division, describing the premises allotted by metes and bounds or other proper description; and the allotment so made, if approved by the court, shall vest in the person entitled thereto an estate in the lands and teuements set off and allotted to him or her for and during his or her natural life; and the court shall forthwith cause such person to have possession by writ directed to the sheriff for that purpose. [R. S. 1845, p. 202, § 25. 39. WHEN PROPERTY CANNOT BE DIVIDED WITHOUT INJURY.] § 39. When the estate out of which dower is to be assigned consists of a mill or other tenement which cannot be divided without damage to the whole, and in all cases where the estate cannot be divided without great injury thereto, the 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 impaneled 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 life, and may make the same a lien on any real estate of the party against whom such decree is rendered, or cause the same to be otherwise secured. [R. S. 1845, p. 202, § 28.

40. HOW LIEN MAY BE ENFORCED.] § 40. Whenever any such decree is made a lien on any real estate, as provided in the preceding section, and a sale of such real estate shall become necessary to satisfy any such installment, the property shall be sold subject to the lien of the installments not then due, unless the court shall at the time direct otherwise, and subsequent sales may, from time to time, be made to enforce such lien as the installments may become due, until all the installments are paid. [L. 1859, p. 48, § 1.

41. DAMAGES.] $ 41. Whenever, in any action brought for the purpose, a surviving husband or wife recovers dower in any lands, he or she shall be entitled