{
  "id": 2494009,
  "name": "Charles B. Pavlicek, executor, v. Katarina Roessler",
  "name_abbreviation": "Pavlicek v. Roessler",
  "decision_date": "1905-06-20",
  "docket_number": "Gen. No. 11,761",
  "first_page": "219",
  "last_page": "223",
  "citations": [
    {
      "type": "official",
      "cite": "121 Ill. App. 219"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
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      "reporter": "Ill.",
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    {
      "cite": "113 Ill. 461",
      "category": "reporters:state",
      "reporter": "Ill.",
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      "case_paths": [
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    {
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      "reporter": "Ill.",
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    {
      "cite": "109 Ill. 188",
      "category": "reporters:state",
      "reporter": "Ill.",
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  "analysis": {
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  "last_updated": "2023-07-14T19:30:46.479318+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Charles B. Pavlicek, executor, v. Katarina Roessler."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Bakes\ndelivered the opinion of the court.\nThe question in the ease is whether the ante-nuptial contract between appellee and her deceased husband, Joseph Roessler, is under the facts of the case, a bar to her right to a widow\u2019s award in his estate. The decision of the Probate Court was that it was not a bar and the appraiser\u2019s estimate of one thousand dollars as the widow\u2019s award in his estate was approved by that court and ordered to be recorded. The Circuit Court, upon appeal, ordered that said order of the Probate Court be approved and confirmed and also that the appraiser\u2019s estimate of the widow\u2019s award in said estate be approved and recorded, and from this order the executor of the will of Joseph Roessler prosecutes this appeal.\nAppellee contends that as the trial in the Circuit Court was de novo there was no order of the Probate Court to \u201cconfirm and approve,\u201d and therefore so much of the order and judgment appealed'from as approves and confirms the order of the Pobate Court was improper, and further contends that so much of said order as orders that, \u201cthe appraiser\u2019s estimate of the widow\u2019s award in the estate of said deceased be approved and recorded,\u201d was improper because no appraiser\u2019s estimate of the widow\u2019s award was put in evidence.\nThe appeal to the Circuit Court was from the order that the appraiser\u2019s estimate of the widow\u2019s award be approved and recorded.\nThe transcript filed in the Circuit Court on that appeal became a part of the record of the cause in the Circuit Court. That transcript properly contains a copy of the record of the appraiser\u2019s estimate of the widow\u2019s award. The Circuit Court took judicial notice of the appraiser\u2019s estimate of the widow\u2019s award, because it was a part of the record in the cause, and it was not necessary to put it in evidence. 1 Wharton on Evidence, sec. 325; Secrist v. Petty, 109 Ill. 188.\nIf the contention of the appellant be conceded that so much of the order and judgment of the Circuit Court as orders that the order of the Probate Court, \u201cbe approved and confirmed\u201d was improper, still the contention will \u00bfvail him nothing for the Circuit Court also ordered that the appraiser\u2019s estimate of the widow\u2019s award \u201cbe approved and recorded.\u201d\nThe principal contention of appellant is that the court erred in holding that appellee by the ante-nuptial contract, taken in connection with the facts agreed upon at the trial, did not waive her right to a widow\u2019s award in the estate of her deceased husband. The ante-nuptial contract between Roessler of the first part and appellee of the second part, begins with a recital that each had certain personal property and also certain real estate therein described, and that a marriage was intended between them, and that it had been and was agreed between them, \u201cthat each of them shall and will mutually waive and release all right and interest that they and each of them may have in and to the property of the other.\u201d The agreement of Roessler to release and waive all interest in the property of appellee is then set out and then follow the covenante of appellee as follows:\n\u201cAnd the said party of the second part, in consideration of the premises above recited, and the covenants of the said party of the first part hereinbefore set forth, does hereby re-' mise, release and relinquish unto the said party of the first part, his heirs, executors, administrators, devisees and assigns, all her right and interest, of any kind and nature whatsoever, and especially her contingent right of dower and homestead in all lands of which the said party of the first part is now seized, or of which he may hereafter become seized; and doth hereby covenant to and with the said party of the first part, his heirs, executors, administrators, devisees and assigns, that in the event she should survive the said party of the\u2019 first part she will not sue for, claim or demand any right of dower or other interest whatsoever in or out of any and all real estate of which the said party of the first part may die seized, or to which he may be entitled at the time of his death, either in possession, reversion, remainder, or otherwise.\nAnd, for the consideration aforesaid, the said party of the second part does hereby release and relinquish unto the said party of the first part, his heirs, executors, administrators and legatees, all right, title and claim to any and all distributive share or portion of the personal estate of which the said party of the first part may be possessed, or to which he may be entitled, in remainder, reversion, or otherwise; and does hereby covenant and agree to and with the said party of the first part, his heirs, executors, administrators and legatees, that in-the event she should survive the said party of the first part she will not sue for, claim or demand any distributive share or interest, whatsoever, to which she might be entitled as the surviving widow or. wife of the said party of the first part, in or out of any and all personal estate of which the said party of the first part may die possessed, or to which he may be entitled at the time of his death, in reversion, remainder, or otherwise.\u201d\nThe facts agreed upon were that the parties were married the day after the contract was made; that the husband died three years after the marriage; that no children were born of the marriage; that neither husband nor wife had at the time of the husband\u2019s death a minor child living; that the husband at the time of his death was living separate and apart from his wife; that a bill for-separate maintenance filed by the wife was then pending; that the personal estate of the deceased husband was of the value of $22 and his real estate of the value \u00f3f $3,000, encumbered by a mortgage for $600.\nThat appellee might have waived her right to a widow\u2019s award in the estate of her deceased husband, if she survived him and had no minor child living at her death, is not disputed. In Weaver v. Weaver, 109 Ill. 225, the contract was that there should be paid to the widow, if she survived her husband, $12,000, \u201cin lieu of dower or widow\u2019s portion\u201d and it was held that \u201cwidow\u2019s portion\u201d in that connection meant widow\u2019s award. In McMahill v. McMahill, 113 Ill. 461, the contract in express terms waived the widow\u2019s award. In Phelps v. Phelps, 72 Ill. 545, the clause which it was insisted barred the right to a widow\u2019s award was as follows: \u201cIt is agreed that' the property of each shall be kept separate and distinct, held and enjoyed by each separately and distinctly, by each in the same manner as if they were and had continued unmarried; and upon the death of either party his or her real estate and personal property shall pass to his or her heirs, executors or adminstrators, free from all claim and survivor.\u201d In that case it was said (p. 547) : \u201cTreating the provision which the law makes for the widow and children residing with her, by the allowance of specific articles of property, as a means of support, it cannot be said to be an interest in the property of itself of the husband. It comes within no definition of property. It is a benefit created in their favor by positive law and adopted for reasons deemed wise and politic.\nThe ante-nuptial agreement in this case makes no allusion to their rights. Hence it cannot be said that the petitioner has released her rights to the benefits of the obligations imposed upon her husband and his estate which are to enure to her and her family in case of his death.\u201d\nThe language of the contract in the Phelps case is broader and more sweeping than any found in the contract in this case. The ante-nuptial agreement in this case, as in that, makes no mention of appellee\u2019s right to a widow\u2019s award. \u00a1Nor are there in the contract in this case words that can be construed to refer to or mean the widow\u2019s award. The word \u201cportion\u201d in the phrase \u201cdistributive share or portion of the personal estate,\u201d etc., cannot be held to refer to or include the widow\u2019s award. It means the distributive portion, the distributive share of his personal estate to which she would be entitled under the statute of Descent and Distribution. In that statute it is provided that in a certain contingency the estate shall be divided in equal parts among the parents, brothers and sisters of the deceased, \u201callowing to each of the parents, if living, a child\u2019s part or to the survivor of them, if one be dead, a double portion \u201d\nBy the terms of the contract appellee waived only interests and rights in the property of her husband. That her right to a widow\u2019s award in the estate of her deceased husband is not an interest in the property itself of the husband, was expressly decided in Phelps v. Phelps, supra, and upon the authority of that case the order and judgment of the Circuit Court in this case must be affirmed.\nAffirmed.\nHr. Justice Smith took no part in the decision of this case.",
        "type": "majority",
        "author": "Mr. Presiding Justice Bakes"
      }
    ],
    "attorneys": [
      "H. B. Spurlock, for appellant.",
      "John Reid McFee, for appellee."
    ],
    "corrections": "",
    "head_matter": "Charles B. Pavlicek, executor, v. Katarina Roessler.\nGen. No. 11,761.\n1. Judicial notice\u2014of what taken. Judicial notice will he taken of matters constituting a part of the record in a cause.\n2. Order\u2014when impropriety of, will not reverse. Where a part of an order is improper, such order will not be reversed where such improper part may he rejected as surplusage without changing the effect of the order.\n3. Widow\u2019s award\u2014when ante-nuptial contract does not release. An ante-nuptial contract does not bar the right to a widow\u2019s award where it does not specifically release the same or employ words capable of such construction.\nContest in court of probate. Appeal from the Circuit Court of Cook County; the Hon. Frederick A. Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1904.\nAffirmed.\nOpinion filed June 20, 1905.\nH. B. Spurlock, for appellant.\nJohn Reid McFee, for appellee."
  },
  "file_name": "0219-01",
  "first_page_order": 237,
  "last_page_order": 241
}