Heisen v. Heisen

Citations

• 145 Ill. 658
• 21 L.R.A. 434

Syllabus

<p>1. Dower—husband's dower, same as that of a wife. The legislature haying abolished tenancy by the curtesy, and conferred upon the husband the right of dower in his wife’s lands in general terms, without the use of words showing an intention to enlarge the right of the husband beyond that granted to the wife, it will be presumed that the same right was intended to be conferred upon each, and that the dower right so conferred is such as bad previously existed in this State in favor of widows of deceased owners of lands.</p> <p>2. Same—nature of right before assignment. The right of dower in a wife is an inchoate expectancy during coverture, maturing upon the death of the husband into a right of action to have admeasured to her her dower in the lands of which he had been seized, and to which her dower had not been released. After the death of the husband, and before the assignment, the right rested in action merely, was not an estate in the land, nor did it give the dowress the right of entry.</p> <p>3. The right of dower can exist only in the person upon whom it is cast by operation of law. It may be released so as to unite with the fee, but is not subject to alienation before assignment. The right of a husband to dower in his wife’s lands, under the statute of 1874, before assignment, is not an estate in the lands, but a right of action to demand assignment of his dower. What is said in Crum v. Sawyer, 132 Ill. 443, contrary to the above, is obiter dictum, and not accurate.</p> <p>4. Same—release by husband—estoppel to assert. The husband, being sui juris and under no disability, may release his inchoate expectancy or his right of action for dower, or bar recovery in respect thereof, the same as he may release or bar any other expectancy or right.</p> <p>5. Same—estoppel of widow to assert. After the death of a husband the widow is sui juris, and the doctrine of estoppel applies to her acts as to those of other persons. After the death of the husband the widow may