dissenting:
When a case between these same parties was before this •court at a former term, it was held the ante-nuptial agreement between the decedent and his surviving widow did hot bar or cut off her right of homestead in the premises on which she and her husband resided after their marriage. That was all the question that was then decided by the court. (McMahill v. McMahill, 105 Ill. 596.) The question now presented is, whether the. ante-nuptial contract bars the widow’s award. I am of opinion it does not. It has been frequently held by this court the widow’s award is for the benefit of the widow and. the family, and that the policy of the law forbids the parties releasing the same by ante-nuptial agreement. Phelps v. Phelps, 72 Ill. 545, McGee v. McGee, 91 id. 548, and other cases.
It appears from the stipulation in the record, that in the former suit commenced by the heirs of the decedent for partition of the land of which he died seized, the decree denied the widow’s right to homestead and dower in the lands, by reason of the ante-nuptial agreement; that the heirs brought into court the $1000 mentioned in that contract, and tendered the same to the widow, and that after the circuit court decided she was barred of dower by the provisions oí the agreement, but not of homestead, she accepted the $1.000 so tendered, and receipted to the clerk of the court for the same. It is now insisted the acceptance of the $1000 as tendered in the former suit, bars the widow’s award, as well as her dower in the lands of her deceased husband. It is conceded if there had been children by the marriage of the parties, that under the decision of this court in Phelps v. Phelps, the ante-nuptial agreement would have constituted no bar to the widow’s award. The objection in this case runs on the ground the widow had no family residing with her at the time of her husband’s death, whom he was under any obligation to support. That, it is thought, is a misapprehension of the facts of the case. It is true that all of decedent’s children by his former marriage were of age, and none of them resided with him at the time of his death, and it is also true he had no children by his marriage with claimant in this case; but it appears the widow had two children by a former marriage residing with her, and constituting a part of her husband’s family- at the time of his death,—one twelve and the other fourteen years of age. Under the decision of this court in Race v. Oldridge, 90 Ill. 250, these children constituted a part of the family of decedent. Strawn v. Strawn, 53 Ill. 263.
But it is said he was under no obligation to support these minor children of his wife by her former marriage, although they did in fact constitute a part of his family, and hence, it is said, the case is not within the principle of Phelps v. Phelps, and other cases in this court. That is not true, either in law or fact. It is recited in the ante-nuptial agreement: “That neither party shall, by reason of said marriage, have any right, title or interest in the property of the other during their joint lives, nor afterwards, except that the said Margaret shall live with the said William with her two children, and be supported by him. William is to instruct said children while they stay with him, as a father, and not charge them anything, nor shall there be any charge for the labor of said children. ” This is an absolute undertaking on the part of the decedent to make the children of claimant residing with them, members of his family. He assumed to them the relation of a father, and in consideration no charge was to be made for their labor he obligated himself to give them support and instruction without charge. What more could he do to make them members of his family as they would have been had they been his own children ? By the ante-nuptial agreement he assumed the same relation to them the law imposed upon him in regard to his own children residing with him. These children had arrived at the ages, respectively, of twelve and fourteen years,—an age when they might be expected to render services in the family, of which decedent had the benefit, of very considerable value; and especially would that be true if he had lived until they had become of age. In that event it would have been a favorable contract for him. But whether the services were of much or little value, such services were a sufficient consideration for the undertaking of decedent to make them members of his family, and entitle them to the same support and instruction that his own children would be at his hands. The claimant here surrendered to her husband all benefits of the labor of her minor children, in consideration they should be made members of his family, and receive from him support and instruction such as a father would give his own children, and now that h<- had the benefit of that contract during his lifetime, it is but just his estate should bear the burden of it. The other heirs have no just ground for complaint. It was a contract the decedent could lawfully make, and one the policy of the law favors. Assuming, then, as ought to be done, the minor children of claimant were members of decedent’s family, and still resided with her, she is clearly entitled to the widow’s award, precisely in the same way as she would have been had there been minor children of herself and late husband. No just distinction can be taken.
The judgment, in my opinion, ought to be reversed.