{ "id": 5305426, "name": "Elizabeth Kroell v. John J. Kroell, Administrator", "name_abbreviation": "Kroell v. Kroell", "decision_date": "1905-04-20", "docket_number": "", "first_page": "76", "last_page": "79", "citations": [ { "type": "official", "cite": "120 Ill. App. 76" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "204 Ill. 72", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3276034 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/204/0072-01" ] }, { "cite": "201 Ill. 380", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5592492 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/201/0380-01" ] } ], "analysis": { "cardinality": 349, "char_count": 6182, "ocr_confidence": 0.555, "pagerank": { "raw": 4.719567370958748e-08, "percentile": 0.2964674774475269 }, "sha256": "9fb6698e1e448299885b33aaafad5b2c613ba7028ab38a728a3619dbe26734ab", "simhash": "1:99c726b68c29b6dc", "word_count": 1053 }, "last_updated": "2023-07-14T14:38:55.672753+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Elizabeth Kroell v. John J. Kroell, Administrator." ], "opinions": [ { "text": "Mr. Presiding Justice Baume\ndelivered the opinion of the court.\nAppellant filed her petition in the County Court asking for the appointment of appraisers to set off her widow\u2019s award in the estate of her deceased husband, John Kroell, Sr. The County Court dismissed her petition, and upon her appeal to the Circuit Court a like order was there entered.\nThe petition avers the necessary facts entitling appellant to an award under the statute, and proceeding, sets out an ante-nuptial contract entered into between appellant and her deceased husband, which contract she sought to have annulled upon the ground of fraud. After answer filed, it was stipulated in the court below that the allegations of fraud should be disregarded and the cause be heard upon the petition, and determined solely upon the questions of law involved, in the same mauner as if a demurrer had been interposed thereto.\nOn May 11, 1886, appellant, a widow, having a child or children by a former marriage, and John Kroell, Sr., a widower, having children by a former marriage, entered into an ante-nuptial contract reciting that they contemplated marriage; that each was seized in his or her own right, of real and personal property which they desired to hold separate and apart, and in consideration thereof and of \u00a71, each thereby released, quit-claimed and conveyed to the other all interest in the property of such other. The language of the contract, so far as it relates to the release by appellant to appellee\u2019s intestate is, \u201cdo hereby release, quit-claim and convey to said John Kroell, Sr., all interest I may acquire by virtue of such marriage in and to all his property, both real, personal and mixed, now in his possession or that he may hereafter acquire, renouncing forever all claim in law, equity or courtesy, dower, homestead, supervisorship or otherwise.\u201d\nThe parties to the contract were married upon the day of its execution, and lived together as husband and wife until September 9, 1903, when John Kroell, Sr., died intestate. No children were born of the marriage.\nThe only question presented for our determination is, does the ante-nuptial contract in question, bar appellant\u2019s right to her widow\u2019s award ?\nThe clause in the contract by which appellee\u2019s intestate purports to release to appellant all interest in her property, employs substantially the same language as the one above quoted, and it is evident the contract was drafted by one having neither appreciation of the rights of the parties, nor ability in intelligent expression.\nAlthough there is want of harmony in the adjudications in this State upon the question, and expressions are to be found in some of the reported cases which seem to suggest the holding of a contrary view, we think it must be regarded as the law in this State that an agreement between parties contemplating marriage, by which the wife, for a valuable consideration, moving to her by the terms of the agreement, or in pursuance of such agreement under the provisions of her husband\u2019s will, in lieu of her award, undertakes to release her right thereto and elects to accept the benefit of such consideration, is enforceable against her. Zachmann v. Zachmann, 201 Ill. 380; Friederich v. Wombacher, 204 Ill. 72. It is this character of contract, together with the wife\u2019s election to accept the benefit therein provided in lieu of her award, that is designated in Zachman v. Zachman, supra, an \u201cexecuted contract\u201d such as will bar the widow\u2019s right to her award.\nIt is the act of election by the widow, to accept the benefits accruing to her under the terms of the contract or the provisions of the will, in lieu of such statutory award, that is said to operate as a release of such award, and not the mere agreement to release, or the provision in a will in lieu thereof. This is manifestly what is intended by the court in Friederich v. Wombacher, supra, wherein it said : \u201c'Although a husband cannot, against the consent of his wife, deprive her of her statutory right to homestead and a widow\u2019s award by will or mere private contract, yet if he does by will give her money or property in lieu of those rights, and she elects to accept the same, she will be concluded by such election and acceptance.\u201d\nThe contract here involved was evidently intended to operate as a release by each to the other of all rights accruing to each in the property of the other by virtue of the marriage relation, which were of a reciprocal nature. The same language, in substance, is used in designating the rights released by each in the property of the other, and no intention is evident to release any distinctive or peculiar right of either in the property of the other not common to both. Appellee\u2019s intestate had no right in the property of appellant after her death, accruing to him by virtue of the marriage relation, analogous to her right to a widow\u2019s award, and there is no suggestion in the contract that the release of any such right was contemplated. Furthermore the contract provides no benefit to accrue to appellant from appellee\u2019s intestate, in lieu of her award, whereby she is put to an election of the acceptance of such benefit.\nWe hold that by the ante-nuptial contract in question, appellant did not release her right to her widow\u2019s award, and that the County and Circuit Courts \"were in error in dismissing her petition for the appointment of appraisers to set apart such award to her.\nThe judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.\nReversed and remanded.", "type": "majority", "author": "Mr. Presiding Justice Baume" } ], "attorneys": [ "H. W. Masters & Son, for appellant.", "I. R. Brown and Lyman Lacey, Jr., for appellee." ], "corrections": "", "head_matter": "Elizabeth Kroell v. John J. Kroell, Administrator.\n1. Widow\u2019s award\u2014what does not release. An ante-nuptial contract by which the widow has not specifically waived her award, -will not operate to defeat her right thereto in the absence of a special consideration which would indicate an intention not to claim such provision.\nContest in court of probate. Appeal from the Circuit Court of Mason County; the Hon. Thomas N. Mehan, Judge, presiding.\nHeard in this court at the May term, 1904.\nReversed and remanded.\nOpinion filed April 20, 1905.\nH. W. Masters & Son, for appellant.\nI. R. Brown and Lyman Lacey, Jr., for appellee." }, "file_name": "0076-01", "first_page_order": 114, "last_page_order": 117 }