delivered the opinion of the Court:
Catharine Stahl was, on December 31, 1863, married to •Christian Stahl, and lived with him as his wife on a certain eighty-acre tract of land, of which said Christian was seized in fee, until in the year 1882, when, in the month of February, she obtained a divorce from him for extreme and repeated •cruelty, and a decree for alimony of fifteen dollars per month, which, by reason of his death, has abated. (Lennahan v. O’Keefe, 107 Ill. 620.) Philip Stahl, a minor, now about ■seventeen years of age, was the sole issue of the marriage, who has, ever since the divorce, been in the sole custody of the said Catharine. The decree of divorce made no provision with respect to the custody of the child. After the divorce •Christian Stahl continued to reside on said premises. On November 11, 1882, he was married to Mary Meyers, and lived with her as his wife, on the premises, until his death, •on July 26, 1884, and ever since his death she has occupied the premises as his widow. There was no issue of this second marriage. Catharine Stahl, the first wife, and Philip Stahl, ■son of the first marriage, suing by Catharine Stahl, his next friend, filed their bill in chancery, claiming, on the part of said Catharine, dower and homestead in said real estate, alleging that Mary Stahl, the second wife, was entitled to dower in the land that should remain after the said Catharine’s dower and homestead had been set off, and praying that the respective dower and homestead rights might be set off accordingly. Mary Stahl", the second wife, answered, denying that Catharine Stahl was entitled to homestead in the real estate, and filed her cross-bill, setting up the facts of the ease, alleging that she was entitled to dower and to an estate of homestead in the premises, and praying that her dower and homestead might be set off to her. The circuit court decreed that Catharine Stahl was entitled - to a homestead estate in said real •estate of the value of $1000, and to a dower estate in what remained of said premises after said homestead estate had been set off, and that after said homestead and dower estates had been set off to said Catharine Stahl, then the said Mary Stahl was entitled to dower in the land then remaining. Mary Stahl took this appeal.
The circuit court erred in its decree as to homestead. Section 5, chapter 52, of the Revised Statutes of 1874, provides : “In ease of a divorce, the court granting the divorce may dispose of the homestead estate according to the equities of the .case.” Here, the court granting the divorce made no order with respect to the homestead. The disposition of it, therefore, must be as directed by the statute. After the divorce, the homestead estate remained and continued in Christian. Stahl, the householder and owner in fee of the premises. Upon the granting of the divorce, Catharine Stahl’s relation of wife to Christian Stahl was severed,—she then- became entirely disconnected with the homestead estate, and had no right pertaining to any property of Christian Stahl by virtue of having been his wife, except dower saved by the statute, the divorce having been for the misconduct of the husband, and the alimony which was allowed. The Homestead Exemption act provides that no release or conveyance of the homestead estate shall be valid unless the same be in writing,, subscribed by the householder and his or her wife or husband, if having one. Now, if, after the divorce and before his. second marriage, Christian Stahl had been minded to release or convey the homestead, he could have done so by his own deed alone, as he would have had then no wife to join with him in the deed. _Upon death,'the statute declares, “such, exemption (homestead) shall continue after the death of such householder, for the benefit of the husband or wife surviving, so long as he or she continues to occupy such homestead, ” etc. The wife surviving here was Mary Stahl, the second wife, and not Catharine Stahl, the divorced wife. The latter had once-been the wife of Christian Stahl, but she was not his wife-at the time of his death. Our law does not admit the idea of a man having two wives at the same time. The surviving wife of a decedent is the one who was his wife at the time-of his death. Mary Stahl was such one here, occupying the-premises at that time with Christian Stahl, and she is the person for whose benefit the statute says the homestead estate shall continue so long as she continues to occupy the homestead.
We are of opinion, too, the decree was erroneous in respect to the extent of the dower right of the second wife. There is a case of dower where the rule which the court adopted would be the correct one,—as, where a son takes land by descent from his father, subject to the dower of his mother in the same, and her dower is afterwards assigned to her, such assignment relates back to the death of -the father so as to prevent the seizin of the son as of a present estate in the third of the premises assigned to the widow of the father; and the legal effect is to deprive the widow of the son, who dies in the lifetime of his mother, of dower even in the reversion of the third of the estate assigned to the mother for dower. But the ease is different where the father conveys to the son. In such case the son becomes seized of a present estate in the whole of the premises, subject only to the contingent dower right of his mother in one-third thereof if she survives the grantor,—so that upon the death of such grantee during the life of the widow of the grantor, the wife of such grantee is entitled to an estate in dower in the whole premises, subject only to the incumbrance of the prior right of dower in one-third of that estate during the actual continuance of that right. (Dunham v. Osborn, 1 Paige, 634; In the matter of Cregier, 1 Barb. Ch. 598; Bear v. Snyder, 11 Wend. 592.) The rule is laid down to the same effect in 4 Kent’s Commentaries, marg. page 64, as follows: “If A be seized, and has a wife, and sells to B, who has a wife, and the husbands then die leaving their wives surviving, the wife of B will be dowable of one-third of two-thirds in the first instance, and of the one-third of the remaining one-third on the death of the widow of A, who, having the elder title in dower, is to be first satisfied of her dower out of the whole farm. ” And see 1 Washburn on Beal. Prop. marg. page 210; Steele v. La Frambois’ Admr. 68 Ill. 456.
This, we consider, is the rule which should apply here. Christian Stahl was seized of a present estate in the whole premises, subject only to the contingent right of dower of his first wife in one-third thereof; and the second wife is entitled to dower in the whole premises, subject to the incumbrance of the first wife’s prior right of dower during the continuance of that right.
The decree will be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
Decree reversed.