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Illinois Supreme Court • 1878

McGee v. McGee

91 Ill. 548

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Takeaway

In short, this case enforces a fair antenuptial waiver of dower while holding that private contract cannot strip minor children and their surviving mother of statutory homestead protection.

Background

The heirs of David McGee filed a chancery action seeking partition of land that David owned at his death. David's surviving widow answered by claiming both dower and a homestead interest in the property.

Before their 1857 marriage, David and his intended wife executed an antenuptial agreement. Each agreed to retain his or her separate real and personal property as though the marriage had never occurred, and each purported to renounce all claims in the other's property, including claims of curtesy, dower, survivorship, or otherwise. The couple remained married until David died in 1875. They had two minor children, who lived with their mother in the family home. Throughout the marriage, each spouse owned and managed separate property.

The record did not describe the precise terms of the lower court's decree, but the Illinois Supreme Court reversed that decree and remanded for proceedings consistent with its conclusion that the agreement barred dower but did not defeat the statutory homestead protection for the widow and minor children.

Issues

Issue #1

Whether the antenuptial agreement barred the widow's statutory dower interest in David McGee's land.

Holding

Yes. Although the agreement did not create a statutory jointure, it was a valid equitable jointure and barred the widow's dower claim.

Reasoning

Illinois's statutory jointure provision did not apply because the agreement did not convey an estate in land to the intended wife for the purpose of creating a jointure. But equity recognizes a broader principle: an adult may, before marriage, accept a reasonable provision in lieu of dower, even if that provision does not satisfy every requirement of a legal or statutory jointure.

The Court relied on Jordan v. Clark and analogous decisions from other jurisdictions. Those authorities treated a reasonable antenuptial provision, secured from realty or personalty and accepted in place of dower, as an equitable jointure that a court of equity will enforce against a later dower demand.

The agreement involved genuine mutual consideration. Under the law existing when the parties married, David would have acquired substantial rights in his wife's property through marriage, including ownership rights in her personalty and curtesy and usufruct rights in her realty. He relinquished those prospective rights, and she correspondingly relinquished the marital rights, including dower, that she otherwise would have acquired in his estate.

The arrangement was reasonable and consistent with public policy. The parties honored it during their marriage by separately owning and managing their property. The Court regarded such arrangements as particularly appropriate for people later in life or those with children from prior relationships, because they can prevent property disputes among heirs. Equity therefore would require the widow to abide by her contractual waiver of dower.

Issue #2

Whether the antenuptial agreement also barred the widow and the parties' minor children from the statutory homestead in the family residence.

Holding

No. The agreement could not deprive the minor children of the homestead, and the homestead had to be set apart to the widow so that she could occupy it with them during their minority.

Reasoning

Homestead is a statutory estate and exemption created for the protection of the householder's family, not merely for the personal benefit of a surviving spouse. After the householder's death, the statute continues the protection for the surviving spouse while occupying the home and for the children until the youngest child reaches age twenty-one.

Because the homestead laws serve a public and family-protective purpose, the parents could not nullify those protections for their minor children through a private antenuptial agreement. A broad contractual waiver of claims in the other spouse's property could bar dower, but it could not override the statutory safeguards designed to preserve a home for dependent children.

The children's right could be practically preserved only by setting the homestead apart to their mother, their natural guardian, so that the family could remain together in the home. The widow's separate means did not change the result: she was not required to spend her own estate first to support her husband's children, because the husband's estate bore that primary obligation.

The Court distinguished the contractual dower waiver from the family's statutory homestead rights. As in Phelps v. Phelps, an antenuptial agreement may prevent a widow from taking dower, but it does not prevent her from sharing in protections that the law independently provides for the family.