delivered the opinion of the court:
Plainly, from this record, Blankenship intended to deprive his wife, so far as he legally could, of all interest in his property. He advised with his lawyer concerning this at various times, beginning when his wife was still in the asylum. He also consulted with the lawyer as to his right to a divorce, and there is evidence to indicate that he went to South Dakota to secure one. Finding that he could not get a divorce against an insane person, he set about to deprive her, so far as he could, of her interest without a divorce. When he found she was to be sent home, restored in mind, he planned to have her live apart from him. It is charged in the pleadings that Mary Hall led Blankenship to believe that Carl and Walter Hall were his children. No evidence was offered to sustain this allegation and the record does not justify a finding to this effect. He made quitclaim deeds conveying this property to Carl and Walter about the time he made his will. The evidence does not disclose whether he ever attempted to deliver this first set' of deeds. It appears that they were afterwards destroyed. In February, 1902, his attorney drew quit-claim deeds conveying this property to Carl and Walter. These deeds, in the presence of one Foucht, were delivered by Blankenship to the two boys, respectively, he receiving from each of them, as the deed was delivered, a silver dollar. The deeds, however were kept, after their delivery, at the house occupied by said Blankenship and the said Halls. Becoming dissatisfied with the wording as to the matter of dower, Blankenship had another set drawn up by his lawyer. These, in the presence of the same witness, were--delivered to the boys in exchange for the deeds given them in February, the old deeds being thereupon destroyed. At the time both these sets of deeds were delivered, the evidence tends to show it was Blankenship’s intention not to have them recorded or have anyone know that they were made until after he died. In 1903 he found he was sick with an incurable malady,—Bright’s disease. The local physician advised him to consult a specialist. It appears that he visited Hot Springs, Arkansas, twice, for relief. At the time of his second return, in November, 1903, he became convinced from what his medical advisers, as well as people at Hot Springs, told him, that he had nó chance of recovery. His malady seems to have been much more severe at some times than at others. In December, 1903, he was feeling very poorly and evidently did not think he had long to live. At this time he instructed Mary Hall to take the deeds and have them recorded. She testified that when Blankenship delivered these deeds to the boys they brought them to her and she put them away in the house; that later on she rented a box iñ a safety deposit vault in town and kept them there; that in December Blankenship told her he had been advised not to let the deeds go on record until after he died, but that he was suspicious that if he followed that plan they would be null and void, and that therefore she should take them and file them for record; that she then took the deeds from the safety deposit vault and recorded them, as he directed. Her evidence in this regard is uncontradicted. Blankenship shortly thereafter told Foucht that he had the deeds recorded. The public records show they were recorded in December, 1903.
The evidence fairly justifies the conclusion that Blankenship kept control of these deeds up to the time he ordered them recorded. In order to have a deed effective there must be delivery, but the intention of the grantor is the controlling element on the question of delivery. (Creighton v. Roe, 218 Ill. 619.) In deeds made for the benefit of infants the presumption of law is in favor of their delivery, and the burden of proof is on those denying it to show clearly that there was no delivery. (Rivard v. Walker, 39 Ill. 413.) The delivery of a deed conveying land to an infant may be shown by facts and circumstances indicating an intention on the part of the grantor to part with his title and vest it in the grantee. (Masterson v. Cheek, 23 Ill. 72.) The act of recording, alone, is prima facie evidence of the delivery. (Union Mutual Life Ins. Co. v. Campbell, 95 Ill. 267; Byars v. Spencer, 101 id. 429.) Blankenship made three sets of deeds to these boys. While he stated to the witness Poucht, in making the delivery of the second and third sets, that he had called him there to witness the delivery, the payment of the dollar by each of the boys as to the second set and the exchange of the second set for the third set might well be held to-be an empty and meaningless formality. Blankenship’s intention, however, was evident; he intended to make a delivery of these deeds. We think on this record it must be held that they were delivered.
No question is raised here as to the finding of the decree concerning the forty acres deeded to John T. Blankenship, and as Mary Hall has not been made a party to this writ of error, her right to the forty acres in said section 10 cannot be passed upon.
No question is made in this proceeding as to the right of the grantor to dispose of his personalty, as disposed of, prior to his death, nor as to the disposition of the property .made in the will. The questions raised and discussed on this record have reference solely to the property conveyed by the deeds in question to the boys, Carl and Walter Hall. The main contention of plaintiff in error is that those deeds were a fraud on her marital rights to take a one-half interest in the real estate in lieu of dower, under section 12 of the Dower act. (Hurd’s Stat. 1905, p. 769.)
Section 4 of the Brands and Perjuries act (Hurd’s Stat. 1905, p. 1102,) provides that “every gift, grant, conveyance, * * * made with the intent to disturb, delay, hinder or defraud creditors or other persons, * * * shall be void as against such creditors, purchasers and other persons.” Do the words “creditors and other persons” fairly include the wife, with reference to her right to take a one-half interest in real estate in lieu of dower? In Tyler v. Tyler, 126 Ill. 525, we said (p. 536) : “If the wife be not, technically, a ‘creditor’ she surely comes within the language ‘other persons,’ and she is, obviously, as much injured by such a conveyance as any creditor can be.” This was said by the court in discussing the right of a wife to separate maintenance. We held in Draper v. Draper, 68 Ill. 17, that after bill filed for divorce and alimony, a conveyance with intent to deprive the wife of alimony was fraudulent. To the same effect is Scott v. Magloughlin, 133 Ill. 33. The same ruling has been made in other jurisdictions in cases involving the question of alimony and separate maintenance. Murray v. Murray, 56 Am. St. Rep. (Cal.) 97; Picket v. Garrison, 14 id. (Iowa) 220; Starr v. Kaiser, 41 Ore. 170; Tobey v. Tobey, 100 Mich. 54.) The general rule is that a man cannot convey, by way of gift, his real estate, just prior to his marriage, without the consent of the woman about to be made his wife, and thus deprive her of dower. (Muller v. Balke, 154 Ill. 110; Higgins v. Higgins, 219 id. 146.) But this court has held in Daniher v. Daniher, 201 Ill. 489, that while such a conveyance is prima facie a fraud upon the dower rights and the burden is upon the grantee to establish its validity, yet that a conveyance made to the grantor’s children by his first wife and shown to be a reasonable provision for such children was not fraudulent as to the second wife. In this last case the authorities on this subject were reviewed at length. In the later decision of Jones v. Jones, 213 Ill. 228, the doctrine stated in the Daniher case was re-affirmed.
In discussing the right of the husband to dispose of his personal property, during his lifetime, by gift, in Padfield v. Padfield, 78 Ill. 16, we quoted with approval from Kerr on Fraud and Mistake the following: “There can be no doubt of the power of a husband to dispose absolutely of his property during his life, independently of the concurrence and exonerated from the claim of his wife, provided the transaction is not merely colorable and be unattended with circumstances indicative of fraud upon the rights of the wife. If the disposition of the husband be bona ñde and no right is reserved to him, though made to defeat the right of the wife, it will be good against her.” This case has been cited and the rule there laid down followed in many jurisdictions. (Wright v. Holmes, 3 L. R. A. (Me.) 769; Robertson v. Robertson, 3 id. (Ala.) 774; Small v. Small, 54 Am. St. Rep. (Kan.) 581; Lines v. Lines, 24 id. (Pa.) 487.) In a note at the end of this last case it is stated that this rule may not apply when the husband is in the immediate expectation of death and attempts by conveyance to accomplish the purpose of a will. See, also, on this point, Walker v. Walker, 27 L. R. A. (N. H.) 799; In re Young’s Estate, 51 Atl. Rep. (Pa.) 1036; Manikee’s Admr. v. Beard, 85 Ky. 20; Dunn v. German American Bank, 109 Mo. 90.
The precise question for decision in this case does not seem to have been decided in any jurisdiction where the right of dower and the right to renounce and take in lieu of dower were the same as in this State. In jurisdictions where widow’s dower depends upon the seizin or possession of the husband at the time of his death, it has been held that a conveyance made in fraud of the wife’s dower is void as to her. (Jiggets v. Jiggets, 40 Miss. 718; Jenny v. Jenny, 24 Vt. 324; Martin v. Martin, 48 Tenn. (1 Heisk.) 645; 14 Cyc. 946, and cases cited.) In Smith v. Smith, 34 L. R. A. (Colo.) 49, the court held that it was a fraud upon the rights of the wife when the husband stripped himself of all his property just before his death, by delivering to his children deeds of real estate, made some years before, and giving a check for money, constituting all his personal property, after he had obtained the full benefits of the property to the end of his life. That decision states that the right to dower has been abolished in Colorado, but that under the statute the wife is entitled to one-half of the husband’s estate, both real and personal, and that this right could not be defeated by transfer, such as the one in question. The court there held that the transaction was merely colorable. That court, in the later decision of Phillips v. Phillips, 30 Colo. 516, reviewed the Smith case, supra, and held where a husband executed deeds of his property to his daughters and a few months before his death delivered them and they were placed on record, that even though he retained general supervision of the property until his death, collecting the rents and paying the taxes, as there was no evidence that he delivered the deeds because he anticipated death in the near future, they should not be held testamentary in character. In Jones v. Somerville, 84 Am. St. Rep. (Miss.) 627, it was held that fraud on the marital rights could not be predicated of a voluntary conveyance by the husband or wife of real or personal property made to prevent the other from inheriting; that there was no distinction in this regard between the right of a husband or wife and the right of a child to inherit. A case very like, on the facts, the one we are now considering is Leonard v. Leonard, 181 Mass. 458. It was there held that a deed of real estate reserving a life estate in the grantor, made by a husband principally for the purpose of depriving his wife of her statutory share in his estate, but also given in consideration of care bestowed and to be bestowed upon the grantor as long as he lived, was valid against the grantor’s widow. The wife’s rights in the husband’s property are somewhat different under the Massachusetts laws from what they are in this State.
Each case must be considered in the light of the special facts and the law of the jurisdiction where decided. If a man dies intestate in this State without children or descendants of a child or children, his wife, as his heir, inherits one-half of his real estate after payment'of debts, (Hurd’s Stat. 1905, chap. 39, par. 3, sec. 1, p. 763; Tyson v. Postlethwaite, 13 Ill. 727; Sturgis v. Swing, 18 id. 176;) and has her dower as to the other half of the real estate. (Hurd’s Stat. 1905, chap. 41, sec. 1, p. 768; Sutherland v. Sutherland, 69 Ill. 481.) If he dies testate she has a dower interest in all the lands of which he was seized during coverture and which she has not relinquished in legal form, and she may, under section 12 of said Dower act, (Hurd’s Stat. 1905, p. 769,) where there is no child or descendants of a child, elect to take, in lieu of dower in the estate of which the husband died seized and of any share of the personal estate which she may be entitled to take with such dower, one-half of all the real and personal estate which shall remain after the payment of the just debts and claims against the estate of the deceased husband. (Brown v. Pitney, 39 Ill. 468; Ringhouse v. Keever, 49 id. 470; Gullett v. Parley, 164 id. 566; Laurence v. Balch, 195 id. 626.) She takes this one-half of the real estate of her husband of which he diéd seized, as his heir. (Lessley v. Lessley, 44 Ill. 527.) The right of dower, under section 1 of the Dower act, is in all the real estate of which the husband was seized of an estate of inheritance during the marriage, and this includes equitable estates. The husband cannot deprive his wife, by will or otherwise, of this right of dower without her consent, but under section 12 of the Dower act the provision is that she has the right to elect to take in lieu of dower only the real estate of which he died seized. In discussing the construction that should be put upon this provision of the statute in Brown v. Pitney, siopra, this court, speaking by Justice Lawrence, said (p. 481) that this one-half in fee is given in lieu of dower in “all classes of estates in which dower is demandable, and this, by express provision, includes equitable as well as legal estates of inheritance. The only limitation is, that the one-half in fee can be substituted for the one-third for life only in the estates of which the husband died seized. To have allowed the substitution in regard to lands conveyed by him in his lifetime, without joinder by the wife, would have been palpably unjust.”
There has been a manifest desire on the part of the lawmakers of this State to provide for the support of the wife, not only during the lifetime of the husband but also after his death, until, as this court said in In re Taylor’s will, 55 Ill. 252, on page 259: “We do not go' too far when we say that it has become a sort of common law in this State that this support shall be in all cases one-third of the husband’s real estate for life, and one-third of the personal estate forever, which shall remain after the payment of debts.”
In considering the widow’s rights in an intestate estate, this court said, speaking by Justice Scholfield, in Sutherland v. Sutherland, supra, (p. 486) : “The widow claims, here, one-half of the real and all of the personal estate, not in her right as dowress, but as heir-at-law. The right of dower exists independently of the rights of the heir, and it is in no way affected by them. The right to dower is perfect where there has been an ownership in real estate by the husband during coverture and the wife survives the husband, although the ownership by the husband may have been but momentary. The inchoate right to dower attaches the moment the husband’s right to the realty attaches during coverture, and he cannot convey or encumber the property so as to divest or prejudice that right without the wife’s consent, given in the manner provided by statute; nor can his creditors, by any proceeding to be instituted by them, destroy or impair the right. The heir, on the other hand, has no interest whatever in the property until the intestate’s death, nor can it even be known, certainly, until that event shall have happened, who will be the heir. The inheritance may be conveyed away by the intestate in his lifetime or it may be exhausted by creditors after his death, so as to deprive the heir of everything to which he might otherwise be entitled. The dissimilarity in the origin, character and duration of the two estates must be plain to every apprehension.” In Mowbry v. Mowbry, 64 Ill. 383, this court, in discussing this same subject, said (p. 386) : “She held her dower and specific articles of personal property independent of the wishes of her husband, and he was absolutely powerless to deprive her of her rights to the same, by will or other means, unless it might have been to the personal property, by its sale and the expenditure of the money or by giving it away in his lifetime.”
Counsel for plaintiff in error places great reliance upon Higgins v. Higgins, supra. In that case the husband conveyed his real estate to his children by his first wife, before his second marriage, without the knowledge or consent of the second wife.” He claimed afterwards that the deed was not delivered until after the marriage. It was not found necessary in that case to decide whether the delivery of the deed was made before or after the marriage. What was said in that case with reference to the marital rights of the wife having thfe same protection as the rights of a creditor was stated with reference to the widow’s dower right. In that case there were children, and the second wife had no right to take, in lieu of dower, the half of the real estate. What was said in a number of the other decisions relied on by plaintiff in error - was also stated with special reference to the widow’s dower rights.
The rights to dower, widow’s award and to inherit one-half, in the absence of children or their descendants, are regulated by law, and the law could be so changed as to deprive the widow of all these rights. Manifestly, the legislature intended that her right under said section 1 of the Dower act might be in different real, estate, subject to entirely different regulations, from her right under said section 12 of the Dower act to take, in lieu of her dower, one-half the real estate of which her husband died seized. From a comparison of these two sections, alone, the conclusion is almost irresistible that the husband could convey real estate in his lifetime without the wife joining and his wife would not be deprived of her dower right thereto, but that if he did so convey his real estate she would be deprived of her right to take one-half of such real estate in lieu of dower. By the great weight of authority in this and other jurisdictions the intent to deprive the wife of the right to take one-half of the real estate, which otherwise she might claim, is not enough to defeat these deeds.
Cross-errors have been filed to the finding of the chancellor in the decree below giving the widow a lien as to her award on the real estate conveyed by the deeds in question if the personal property be insufficient. The words “ credit,ors and others,” in the statute on frauds and perjuries, has generally been liberally construed, the word “creditors” not being used in a strict technical sense, but . applying to all persons having demands, accounts, interest or cause of action. (Waldradt v. Brown, 1 Gilm. 397.) The character of the claim, if it is just and lawful, is immaterial, and a contingent claim is as fully protected as one that is absolute. (Bump on Fraudulent Conveyances,— 4th ed.—secs. 502, 503; 14 Am. & Eng. Ency. of Law,— 2d ed.—p. 251, and cases cited.) The widow’s award provided for in section 74 of the Administration act (Hurd’s' Stat. 1905, p. 117,) is plainly, by statute, a debt against the estate and the widow a creditor for the amount of the award. While we have held in King v. Goodwin, 130 Ill. 102, that the widow’s claim for her award is against the estate of her deceased husband, and if there is no estate she will have nothing, to rely on for its payment, still we are inclined to hold, under the reasoning of the decisions heretofore cited, and, as we believe, in accord with sound public policy, that Blankenship could not. deprive his wife of her right to her award by disposing of his property previous to his death, in the manner set forth in this record.
Defendants in error also question the finding of the court as to plaintiff in error being entitled to a homestead right in said section 3. It is the duty of the wife to reside with the husband and his domicile is hers. (Phillips v. City of Springfield, 39 Ill. 83.) The residence of the wife follows that of the husband. (Kenley v. Hudelson, 99 Ill. 493.) It is against the policy as well as the terms of the Homestead Exemption law to permit the husband to deprive the wife of her right to claim the homestead except by her voluntary removal, with his family, from the place. (Allen v. Hawley, 66 Ill. 164.) It might well be doubted whether the husband could deprive his wife of her homestead rights in said section 28, where they resided when she was taken to the asylum. When she returned he compelled her to remain, clearly against her will, in a house in Shobonier, apart from him. We think it cannot be claimed that her homestead, at the time of her husband’s death, was on the Shobonier property. Her husband never lived with her there, and we think, both by reason and authority, the decree of the court as to her homestead rights in section 3 is in accordance with law.
Counsel for plaintiff in error states that the deeds were void because they attempted to limit a fee on a fee. This contention is without merit.
We have considered all the points raised in the briefs. In our opinion the deeds in question must be upheld, except as to the homestead rights and the widow’s award. The decree of the circuit court will accordingly be affirmed.
Decree affirmed.
Mr. Justice Farmer took no part in the decision of this case.
Mr. Chief Justice Hand, dissenting.