McMahill v. Estate of McMahill

Citations

• 113 Ill. 461
• 1885 Ill. LEXIS 718

Syllabus

<p>1. Widow’s award—of the conditions on which it rests—and rights of widow concerning it. The widow’s award given by section 74, chapter 3, of the Bevised Statutes, does not depend upon her having a family. She is entitled to more, however, if she has a family, and the amount is graduated according to the size of the family; but the award, whatever may be its amount, belongs to the widow as her sole and exclusive property, and this being so, she may release her award by accepting another provision in lieu of the same.</p> <p>2. Same—how affected by an ante-nuptial agreement providing for an allowance in lieu thereof. Two persons, just before their marriage, entered into an ante-nuptial agreement that neither one should have any interest in the property of the other, except that the wife, and her two children by a former marriage, were to be supported, the contract providing, however, that if the wife should survive the husband she should be entitled to $1000 from his estate, in lieu of dower, homestead, widow’s award, and share in his estate of every kind and nature, and nothing more. After the husband’s death she accepted the $1000: Held, that she was not entitled to any set-off of a widow’s award.</p> <p>3. Same—former decision distinguished. In Phelps v. Phelps, 72 Ill. 545, it was held that a widow’s award in her husband’s estate could not be barred by an ante-nuptial contract. This was based upon the ground of his legal liability to support his wife and children; but the reason of the rule in that case fails when the husband dies leaving no child having any legal claim on him for support, and these cases are in that regard to be distinguished.</p>