Appeal from the Superior Court of Cook County; the Hon. WALKER
BUTLER, Judge, presiding. Reversed and remanded with directions.
JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
In October 1950 Kazys Drangelis, a doctor of dental surgery, and Pauline Paukstis, a widow, entered into an antenuptial agreement concerning the property of Mrs. Paukstis. They were married the next day. In April 1961 Pauline Paukstis Drangelis died. Her will, dated January 22, 1952, left her real and personal property to the daughters of her first marriage, the plaintiffs Virginia Van Cura and Helen Donna Ott. In July 1961 Drangelis filed in the Recorder's Office a declaration to take dower in his wife's real estate, and filed in the Probate Court his renunciation of her will.
Thereafter the daughters and the executor of their mother's will brought an action against Drangelis for declaratory judgment. The complaint asserted that an actual controversy existed with respect to the construction of the antenuptial agreement and that a determination of this controversy was necessary to establish the parties' interest in the decedent's property. The plaintiffs prayed that the agreement be declared valid and that Drangelis be found to have no right in the decedent's estate. Drangelis answered the complaint, admitted the agreement but denied that by it he relinquished all interest, title or claim to the estate of his wife, acknowledged the existence of the controversy and prayed that the court order the executor to assign him dower and homestead rights and to allow him an award as surviving spouse. He also filed a counterclaim which related the steps he had taken in the Recorder's Office and the Probate Court, stated that he was entitled to dower, asked that it be assigned to him and that he be allowed damages of $500 because of the failure of the plaintiffs to assign dower to him. The plaintiffs thereupon moved to strike the counterclaim and moved for a summary decree on the complaint and answer. Both motions were allowed and Drangelis has appealed from the order denying his motion to vacate.
At the time of the agreement Mrs. Paukstis owned and resided in a two-story building at 2642 West 63rd Street, Chicago. She also had an interest in a building containing a tavern and an apartment at 4171 South Halsted Street, Chicago. After the marriage she and the defendant lived in the 63rd Street building. Her will devised this property to her daughter Virginia. In March 1952 she and her daughter Helen, as joint tenants, leased the Halsted Street building for a term of 36 years. Her interest in the Halsted Street property was devised to Helen.
In an affidavit accompanying his answer, Drangelis said that the agreement had been prepared by Mrs. Paukstis' attorney, that he was not represented by counsel and that the agreement was intended to apply to the Halsted Street property only and not to the 63rd Street property. He makes the latter point and the further one that a summary decree should not have been granted because of factual issues, as the points relied upon for reversal.
The agreement is as follows:
"KNOW ALL MEN BY THESE PRESENT, This agreement made and entered into this 24th day of October, 1950, by and between Pauline Paukstis and Kazys Drangelis, both of the City of Chicago, Cook County, Illinois.
"WHEREAS, the said parties have agreed and contemplate a marriage and the solemnization thereof, each to the other, and with one consideration have agreed;
"1. That for and in consideration of the sum of Ten ($10.00) Dollars, to him in hand paid, and the further consideration of the marriage intended between said Pauline Paukstis and said Kazys Drangelis, Kazys Drangelis agrees to, and does hereby waive, relinquish and bar all his rights, title and interest that shall, or may be here-after vested in him, as the husband or surviving spouse of said Pauline Paukstis, in and to all personal property or effects now owned or in the possession and control of said Pauline Paukstis.
"It is desired by said parties to secure to said Pauline Paukstis full control and right to dispose of such property according to her will and pleasure, to descend to her child or children at her death, now, therefore, it is agreed that the said Pauline Paukstis, after said contemplated marriage shall have and hold and retain all the property which she now possesses, in her own right the same as if she had not married, particularly to wit: the brick building and contents thereof situated on the land commonly known as 4171 South Halsted Street, Chicago, Illinois, and described as:
"Lot Twenty-seven (27) in Block thirteen (13) in Superior Court Subdivision of the West half (W 1/2) of the North West quarter (1/4) of Section four (4) Township thirty-eight (38) North Range fourteen (14) West of the Third Principal Meridian, in Cook County, Illinois.
"And by reason of the premises, said Kazys Drangelis hereby waives, relinquishes, conveys and sets over all interest, title or claim which he may or might ...