delivered the opinion of the Court:
The principal question presented by this record is one of fact, and is, whether there wks a lawful marriage between the complainant in the original bill and the decedent, John W. Jones. That a marriage was solemnized between them, in due form of law, September 22, 1863, is clearly and satisfactorily shown. The solemnization of the marriage was followed by their living together as husband and wife, in the same community, until the death of the husband, substantially twenty years later. During that time they recognized each other as husband and wife, and were so recognized by all their neighbors. There were born, issue of such marriage, three children, viz., Nancy C., James V. and Huldah, who were made defendants to the original bill, with appellants, who were children of said John W. Jones by a former wife. It is contended how'ever, that the marriage of complainant with the decedent was illegal, for the reason that she, at the time of its solemnization, had a lawful husband living, from whom she had not been divorced.
When a marriage in fact is shown, the law raises a strong presumption in favor of its legality, and the burden is cast upon the party objecting to its validity, to prove such facts and circumstances as establish its invalidity. (Bishop on Marriage and Divorce, secs. 457, 458; Johnson v. Johnson, 114 Ill. 611.) Moreover, the effect of sustaining the cross-bill of appellants would be to illegitimatize the fruits of the marriage of complainant and John W. Jones, and, by bastardizing complainant’s children, deny their right to participate in the estate of which the said Jones died seized. (See Orthwein v. Thomas, 127 Ill. 554.) But it will be unnecessary to extend this opinion by a discussion of that rule, for upon the. facts shown we are of opinion that appellants have failed to establish the invalidity of the marriage.
To show that the marriage was invalid, the complainants in the cross-bill introduced one George W. Kuhns, who testified that he was married to Elizabeth Jones, in Pike county, Illinois, in October, A. D. 1862, something less than a year prior to complainant’s marriage with John W. Jones; that they lived together a week and three days, when she stole what he had and left him. After she left he made no inquiries about her, but some twenty-four years afterward went with one of appellants to see her, and identified her as his former wife. About three years after she deserted him, he, without being divorced, married again, and is still living with the woman Tie then married. He had not seen her in the interval. He ¡saw her, if at all, only a moment, as he says, at the time he ■was taken into her presence by appellant. There is much in the testimony of this witness tending to stamp it as unreliable. ■Conceding it to be true that he married Elizabeth Jones in 1862, in Pike county, Illinois, as he claims, and as claimed is ¡shown by the records of that county, still, there is no sufficient identification of the complainant as being the same person. She was a competent witness to testify in respect of the alleged ■interview testified to by Kuhns, and she denies ever having Been him at any time or anywhere, or that she ever knew him ■or knew anything about him. The chancellor was fully justified in holding that the evidence was insufficient to establish the invalidity of the marriage of complainant with said John W. Jones, and in decreeing that the complainant in the original bill was entitled to dower and homestead, and dismissing the ■cross-bill of appellants.
We are of opinion, however, that the court erred in establishing a lien in favor of complainant in the original bill for the entire amount paid by her to release the homestead premises from the lien of the mortgage to Lumley. The extin.guishment of the lien was necessary for the .preservation of the estate, and her interest of homestead and dower should be required to contribute to its discharge. (Selb v. Montague, 102 Ill. 446; Montague v. Selb, 106 id. 49, and 14 Bradw. 574.) 'The husband, in his lifetime, had created the lien to which the estate, including the right of homestead, was subject, as we understand the record, and if the heir discharged it, the homestead interest would have been required, under the rulings of this court, to contribute ratably; and its discharge being necessary to the preservation of the interest of the heir, •as well as of the right of homestead, when the life tenant discharges the lien the heir will be required to contribute his ratable proportion of the expense incurred. This rule is in the highest degree equitable, and should have bgen adopted. No reason can be perceived why the duty of contributing should not be mutual and reciprocal, and it can not logically be said, that when the heir extinguishes the lien the life tenant must contribute, and that when she pays off the incumbrance •she may recover the entire sum paid. The point does not seem to have been made or decided in Stinson et al. v. Anderson et al. 96 Ill. 373, relied upon by counsel. No objection is observ■able in making the ratable share to be borne by the heir a lien ■on his reversionary interest.
A somewhat more difficult question is presented by the assignment of error that the court erred in assigning dower. The entire estate was comprised within the homestead, and was of the value of $650, only. The whole of the property was decreed to be the homestead of the complainant, and the •court also found she was entitled to dower therein, and appointed commissioners to admeasure the same. The question is therefore squarely presented, whether she may have homestead and dower in the same premises, when the total value is less than $1000. The estate-of homestead in a widow in the lands of which her husband died seized is a conditional life estate, subject to the joint right of occupancy of the children of the deceased husband, during the minority of the youngest thereof. The estate is upon condition that it shall not be voluntarily surrendered or abandoned. She may abandon the homestead at will, and the estate is thereby extinguished, oi\she may continue to occupy and enjoy it. If the abandonment occurred at once upon the death of the husband, and before the homestead had been set off, no one would doubt that the widow would have dower in the lands of which the homestead had been comprised. The only effect of the action of the court, manifestly, is, to ascertain the value, and determine, by metes and bounds, her estate of homestead in the land of her deceased husband. The estate is measured and defined by the value alone, and to the extent of the value fixed by the law the estate devolves upon the widow and children, by operation of law, eo instanti upon the death of the husband. If she may take dower at one time, why may she not at another ? She can, as we have seen, abandon the estate at will, and if, subsequently to her homestead being set off, she, for any reason she may deem wise, elects to abandon her homestead, may she not assert dower ? We have repeatedly held that the homestead estate must contribute to the dower,—that is, that the widow, in cases like the one at bar, and where there have been lands other than those comprised within the homestead, can not take the homestead and have the equivalent of one-third of the entire estate assigned her as dower out of the residue, but is endowable of one-third of the residue, after deducting the homestead, only. It follows, therefore, that in such case so much of the widow’s dower as is represented in the homestead is not assigned her, but is in abeyance until the homestead estate is extinguished, and when that occurs the right of action revives. She may not take the whole estate of homestead, and charge the residue of the estate with her dower in the homestead, but we are aware of no rule of law requiring us to hold, that by accepting the homestead she thereby relinquishes her right of dower therein. It is true it can not be asserted whilst the homestead estate continues, either in herself or the children upon whom it has devolved; but the running together of the two estates is not incompatible, so that there is a merger of the dower in the homestead estate, or so that it may not be asserted upon the extinguishment of the dominant estate of homestead.
Nor is the holding in Merritt v. Merritt, 97 Ill. 243, at all inconsistent with this view. There, as in other cases holding the same doctrine, there was, by consent, a sale of the entire estate, and the question arose upon distribution of the proceeds ; and the court held, (as we think, properly,) that the widow, having been given the' value of her life estate in the land comprising the homestead, was not entitled to receive a sum in lieu of dower in the same land. She could not enjoy two life estates in the same premises, and if allowed for the value of her life estate in the whole, could not recover for her life interest for one-third of the same land. Manifestly this was correct, for her homestead estate was treated as continuing for life, and she received a sum equal to its present value, and she could not be entitled to receive compensation for the one-third, as representing her dower in the land, for which she had been allowed the value of her life estate in the whole land.
We are of opinion that complainant had right of dower in the premises, which must necessarily be subservient to the homestead estate while it continues, and which, upon its ex-tinguishment, she might rightfully assert.
We can see no objection to the decree finding that the widow has dower, subject to the homestead. Any assignment of it could be of no avail during the continuance of the homestead, and no right could be asserted by the widow in derogation of that estate, while it exists, as against the minor children of the decedent. We are of opinion that the decree finding that she was endowable of the one-third of the premises was not erroneous. In all subsequent proceedings, if any attempted assignment of dower should be made, it must be in subordination to the homestead estate.
So much of the decree of the circuit court as finds and declares a lien upon the reversion for the sum advanced by the complainant in the original bill in clearing off said incumbrance, is reversed, and the cause remanded, with the right to either party to take further proof in respect thereof. In all other respects the decree is affirmed; and it is ordered that the parties pay the costs by them respectively made in this court.
Decree reversed in part and in part affirmed.