APPEAL from the Circuit Court of Douglas County; the Hon.
CHARLES E. KELLER, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 19, 1953.
This is an appeal from a decree of the circuit court of Douglas County in a partition proceeding excluding appellant, Lou Jackson Widman, from all participation in the estate of her deceased husband, Berger W. Widman. The estate consists, in great part, of realty. Mrs. Widman, having elected to take a fee in one third thereof, now appeals to have that fee decreed to her. A freehold being necessarily involved, the appeal comes here directly.
Berger W. Widman was a resident of Newman, Illinois, and died testate on August 29, 1949. He was survived by his widow, appellant, a daughter, Annie Biddle, and seven grandchildren. One daughter, Ella Dill, and his first wife, the mother of his two children, preceded him in death.
The will of Widman was admitted to probate September 26, 1949, and on that same date the widow filed a renunciation thereof. By the terms of this will he bequeathed all of his property to his children and grandchildren. In the fourth paragraph of the will he stated that no provision was made for his wife, for the reason that she had been provided for by a postnuptial contract executed in 1935, whereby he deeded to her about 111 acres of land which she agreed to accept in "full settlement of any and all interest she might have as my said wife in my estate."
George Dill, a grandson of testator, filed a complaint, later amended, for the partition of certain real estate belonging to the testator. Appellant filed an election to waive dower and take a fee in one third of this real estate, and filed an answer and counterclaim to the amended complaint. Annie Biddle and the remaining grandchildren, defendant-appellees, filed a counterclaim by which they sought to exclude Mrs. Widman from participation in the estate because an executed postnuptial agreement existed between her and the testator.
Upon hearing, the master and the chancellor found the agreement between testator and his wife to be established, and that it should be enforced. Hence, it was decreed that Lou Jackson Widman should have no interest in her husband's estate.
Appellant and testator were married on April 10, 1935. It is undisputed that on December 11, 1935, testator deeded to appellant about 111 acres of land situated two miles east of Newman and known as the home place. It was recited in the deed that the consideration for the conveyance was one dollar, love and affection, and other good and valuable consideration. On December 18, 1935, she deeded back to the testator a life estate in the same property employing identical language of consideration.
It is the contention of the defendant-appellees that the deed from testator to Mrs. Widman was executed as part of an oral agreement then entered into between them. By this agreement, it is alleged, appellant agreed to accept and did accept a conveyance of about 111 acres, in lieu of all claims or interest in, to, or against the estate of her husband.
It is first incumbent on this court to determine just what claim or interest appellant might have in the estate of her husband. We have previously found that under the law as it existed in this State in 1949, the surviving spouse was given, in the first instance, dower, and the fee descended to the decedent's children encumbered with a right existing in the spouse either to perfect dower or to permit the barring of that right, by which she became vested with a fee in one third of the real estate. Hence, during coverture, a wife had only an imperfect right to dower which she could perfect or permit to become barred. (Bruce v. McCormick, 396 Ill. 482.) It is clear then that prior to her husband's death, Lou Jackson Widman had a statutory interest commonly referred to as an inchoate right of dower in her husband's property as the only thing she could release or convey.
In her answer to the counterclaim of defendant-appellees, Mrs. Widman specifically denied the contract with her husband. Section 2 of the Evidence Act (Ill. Rev. Stat. 1951, chap. 51, par. 2,) declares parties to a civil suit incompetent to testify when the adverse party sues or defends as an heir or devisee of a decedent. (Mann v. Mann, 270 Ill. 83; Weinebrod v. Rohdenburg, 343 Ill. 318.) Appellant was, therefore, incompetent to testify in this case to any transactions between herself and her husband, since plaintiff and defendant-appellees sue and defend as devisees of the testator. Her testimony denying the alleged agreement could not properly be considered by the court.
Testator's will was first offered in evidence generally as plaintiff's exhibit No. 7. Defendant-appellees, Annie Biddle et al., waived identification of that exhibit and asked to have it considered as their exhibit G. Mrs. Widman also waived identification and joined in its offer as her exhibit No. 107. Thus, she offered the will generally and without restriction as her own exhibit. Where no restriction is placed upon the purpose for which an exhibit is received, it becomes general evidence, and the party offering it can never be heard to say that it is not evidence of the facts stated therein. (Morris v. Central West Casualty Co. 351 Ill. 40.) Moreover, a will is admissible as evidence of, and in connection with, the proof of an agreement to which it refers. (Alward v. Woodard, 315 Ill. 150.) The will of Widman, being generally admitted as an exhibit, is proper evidence in proof of the agreement referred to in its fourth paragraph. It is proper evidence of the facts referred to within that paragraph and no competent evidence in this record in any manner refutes the statement of the testator in paragraph four of his will.
During the course of the hearing before the special master, Kent Morrow, cashier of the State Bank of Newman, testified that he accompanied Mrs. Widman and Warren Biddle, executor of the estate and a defendant-appellee here, to the bank shortly after testator's death for the purpose of opening the bank box. He related that just before the box was opened, appellant said, "I know what is there. We had our agreement right after we were married, and I am satisfied." He explained that "we" referred to appellant and her deceased husband. Morrow also said that when the will was read aloud in her presence, appellant made no comment and failed to deny the contract set forth in the fourth paragraph thereof.
Warren Biddle, on being called to the stand, testified that while he was at the bank with appellant and Morrow, and before the box was opened, Mrs. Widman stated "There is nothing in it for me, I had my part, and I am ...