delivered the opinion of the Court:
j
It is insisted, first, that the court below erred in decreeing that the dower of Richard Cribben is barred by statute; and second, that the court below erred in depriving said Richard Cribben of his estate of homestead.
On the first point it is admitted that no renunciation of the will of his deceased wife was made, or attempted to be made, by appellant, but it is insisted that no such renunciation was necessary in order to preserve the dower rights of appellant.; The first point attempted to he made is, that the will “did noir actually provide anything for her husband.” This assertion is based upon the assumption that the will gave him precisely what he was entitled to under the Statute of Descents,—that is to say, one-third' of the personalty of the testatrix,—and therefore, it is said, the statute speaks, and not the will; that' the husband took by descent and not by purchase, citing the rule laid down by Kent in his Commentaries, (vol. 4, p. 596, 12th ed.) that “a devise to the heir-at-law is void if it gives precisely the same estate that the heir would take by descent if the particular devise to him was omitted out of the will. The title by descent has, in that case, precedence to the title by devise.” Manifestly, that rule can give no support to the proposition here laid down, because, waiving all controversy as to whether the bequest in question is precisely the same estate Richard Cribben would have taken in his deceased wife’s estate if she had died intestate, it is an admitted fact that she did dispose of her estate, both real and personal, by will, and therefore the Statute of Descents has no application, and hence her husband could take nothing by descent except by renouncing the will, as provided in sections 10 and 11 of the Dower act, and in that way, only, could he take one-third of the personal estate of his deceased wife. She could dispose of her estate as she pleased. (Statute of Wills, sec. 1.) He could only defeat her will by successfully contesting it, or by renouncing its provisions in his favor, and thereby preserve his right to dower in her real estate, and to one-third of her personal estate after the payment of her debts.
But it is again said, the words “any other provision,” used in section 10, supra., mean a bequest “which would be a reasonable compensation for dower," citing United States v. Duncan, 4 McLean, 99. The record in this case presents no question of that kind. If we should consent to the construction contended for, there is nothing here shown to justify the conclusion that the bequest is not “such reasonable compensation.” One-third of the personalty willed to the husband, for anything shown by this record, may have been worth much more than the dower claimed.
In the argument it seems to be assumed that section 11 of the Dower act can have no effect upon the husband’s right of. dower, unless the will gives him at least as much of the wife’s estate as he would have taken had there been no will. The statute admits of no such construction.
It is again said, that section 11 does not require a renunciation to be filed in the “probate court,” but if filed at all it must be done in the “county court,” and therefore complainants’ bill failed to show that no renunciation had been made by appellant. It is true, the language of the statute is, “in the county court; ” but it is clear that it means in the court from which letters testamentary issue, which in this case was the probate court of Cook county, which had become vested' with all the probate jurisdiction formerly belonging to the county court of that county, and hence was the only court from which letters testamentary could issue. The object in requiring a renunciation to be filed is, that the executor or administrator, and other parties interested in the execution of the will, may be informed thereof, and the estate settled accordingly. Rev. Stat. chap. 3, sec. 78.
The other points made on this branch of the case have been-considered, and they are overruled. The statute furnishes a sufficient answer to each of them. The decree holding the dower of appellant barred, is fully authorized by the facts of the case, and to that extent it will be affirmed.
The remaining assignment of error urged as ground of reversal is, “the court erred in depriving said Richard Cribben of his estate of homestead.” The argument on this point proceeds on the hypothesis that the decree appealed from orders a sale of the homestead, and directs its value to be assessed according to life tables. We have carefully examined that decree, find are unable to find in it any order of sale whatever. It does find that appellant is entitled to an estate of homestead, and adds, “to the sale of which he has consented in writing, by his answer filed herein, ” but does not authorize the commissioners to set off homestead, nor does it in any way attempt to fix its value. Recurring to that part of the answer relied upon by appellees as giving consent, in writing,. for the sale of the homestead estate, it appears that whatever consent is there given is upon the express condition that homestead can not be assigned without manifest injury to the parties in interest. Having found that appellant was entitled to an estate of homestead, it was the duty of the court to cause it to be set off to him. (Partition act, sec. 22.) It is not claimed that he has waived that right absolutely, so that in any view, as to the effect of his answer, the court should have ordered the commissioners to set off the homestead, if it could be done without manifest injury to the parties in interest, and until that has been done and the commissioners have reported, no sale can be legally ordered. As the record now stands, the commissioners may make partition of the premises, ignoring entirely the estate of homestead,—in fact, they can not do otherwise, under the decree, if the premises are susceptible of division between the tenants in common. The error under consideration is therefore well assigned, and on it the decree of the circuit court must be reversed.
In this view the question as to whether the answer amounts to consent that a sale of the homestead may be made, is not very important, for the reason that even if appellees’ construction of the clause in question is correct, and it should also be held, as we think it should, that the signing of appellant’s name by his solicitors is sufficient under the statute, the assent can be withdrawn at any time before an order of sale is made. Section 32 of the Partition act, so far as it applies to the estate of homestead, is as follows: “In case of sale the court may, with the assent of the person entitled to an estate. * * *" of homestead to the whole or any part of the premises, who is a party to the suit, sell such estate with the rest.” This language clearly indicates that the assent spoken of is to be given, or at least can only become effective as authority to sell the homestead, after it has been found necessary to order a sale of “the rest” of the premises. Assent to a sale of the homestead is in no sense a matter in issue in the partition proceedings until a sale becomes necessary. If that. contingency should arise in this case, and appellant sees proper to allow that portion of his answer to remain in the record, the question will arise as to whether it amounts to consent to a sale, within the meaning of the statute. So far no question of that kind has arisen in the circuit court, and hence is not before us.
The decree of the circuit court will be reversed, and the cause remanded for further proceedings in that court in conformity with this opinion.
Decree reversed.