Sutherland v. Sutherland

Citations

• 69 Ill. 481

Syllabus

<p>1. Marriage settlement—jointure in bar of wife's dower does not affect her rights as heir of her husband. Where a party, in anticipation of marriage, conveyed to his intended wife certain real estate, which was declared to be a jointure in full recompense and satisfaction for dower, or any claim of dower on her part, the latter joining in the execution of the same to evince her assent to the provisions thereof, and after the marriage the husband died intestate, leaving no child or children, or descendants of any child: Held, that this ante-nuptial contract did not bar the widow from claiming as heir of her husband, and that, under the statute, she took as such heir one-half of the real and all the personal estate of her deceased husband, left after the payment of his debts.</p> <p>3. Dower—estate of, differs from that by inheritance. The right to dower is perfect when there has been an ownership in real estate by the husband, during coverture, and the wife survives the husband, although the ownership may have been but momentary, and the husband can not defeat the same by any act of his, nor can the widow be deprived of it by creditors of her husband. The heir, on the other hand, has no interest in the property until the intestate’s death, and the inheritance may be conveyed away by the intestate in his lifetime, or it may be exhausted by creditors after his death, so as to deprive the heir of everything to which .he might otherwise be entitled.</p> <p>3. Mistake—proof required to justify a collection of a written contract.</p> <p>As the parties are presumed to have understood the legal effect of their written contract, in order to justify a reformation on the ground of mis- * take, the proof must be such as to leave no fair and reasonable doubt upon</p> <p>the mind that the instrument does not embody the final intention of the parties.</p> <p>4. Same—the mistake must be mutual. A rectification can only be had when both parties have executed an instrument under a