Lenfers v. Henke

Citations

• 73 Ill. 405

Syllabus

<p>1. Dower—in mines. The general doctrine is, that where mines have been opened and worked during the lifetime of the husband, the wife is dowable, but not in mines or strata not opened at all. It makes no difference that they may have been temporarily abandoned. If opened in the lifetime of the husband, she may not only work them, but may construct new approaches thereto. But this court holds it is not waste in a widow to work mines opened by the heir before assignment of dower, and that she is entitled to dower in the profits in case the mines should be worked by the heir or owner of the fee before assignment of dower.</p> <p>3. Same — of an assignment as to mines. Where a widow, seized of one-third interest in mineral land, makes an agreement with the heir seized of the other two-thirds, that each shall receive one-lialf of the rents or profits of the mines before they are opened, the agreement may be regarded as an assignment of dower as to the other two-tliirds.</p> <p>3. Mines in land, when opened, are, from their nature, indivisible, and neither partition can be made at law, nor dower assigned by metes and bounds. The only partition that can be made is to order a sale and divide the proceeds.</p> <p>4. Same—assignment of, by heirs of mines, binding. Where an heir of lawful' age makes an assignment of dower in mineral land, hy giving the dowress a distinct portion of the rents, if fairly made, it will hind the heir and all privies in estate.</p> <p>o. Statute of Frauds—does not apply to assignment of dower. As dower is not created but only ascertained by an assignment, it may be assigned by parol, and livery of seizin is not required.</p>