Fleming v. Vennum, 45 Ill. 374 (1867)

Sept. 1867 · Illinois Supreme Court

45 Ill. 374

Rebecca Fleming v. Christopher C. Vennum et al.

Partition — assignment. Where a widow held an undivided interest in fee in a tract of land and entitled to dower in the residue, in a proceeding against her by the other owners of the fee, for partition and the assignment of dower, a decree for a sale of the land without assignment of dower, or determining its annual value, as required by the 28th section of the dower act, is erroneous.

Writ op Error to the Circuit Court of Iroquois county; the Hon. Charles R. Starr, Judge, presiding.

David Fleming died intestate, being seized of certain real estate, leaving a widow, Rebecca Fleming, and three children, his heirs at law; and afterward, one of them died intestate and without issue; and afterward, the surviving children sold and conveyed their interest in the land to Vennm and Axtell, who thereupon filed their petition in the court below, against the widow for partition, and assignment of dower. Such proceedings were had, that a decree was entered for a sale of the premises, without assigning the dower of the widow or determining its annual value.

The widow of David Fleming brings the cause to this court by writ of errror, and insists that the decree was erroneous, because her dower was not assigned nor its annual value determined therein.

Mr. James Fletcher, for the plaintiff in error.

Mr. George B. Joiner, for the defendants in error.

Mr. Justice Lawrence

delivered the opinion of the Court:

The complainants, claiming under the heirs of David Fleming, filed their bill against his widow, Bebecca Fleming, praying partition and that dower be assigned. The widow answered, and a decree of partition was made by agreement of parties. The commissioners reported the property incapable of partition according to the decree, and thereupon the court made a decree for its sale, without assigning the dower or determining its annual value, as required by the 28th section of the statute of dower. This was clearly error, and the decree must be reversed and cause remanded.

Decree reversed.