Mr. Justice Cartwright
delivered the opinion of the court :
Plaintiff in error, Thomas Garwood, by his amended bill of complaint filed in the circuit court of Jasper county, alleged that his father, Charles E. Garwood, made and acknowledged a quit-claim deed of lands occupied by him as a homestead, of less value than $1000, to his wife, Sarah E. Garwood; that the deed was not subscribed or acknowledged by the wife and possession was not abandoned or given pursuant to the conveyance and the deed was not delivered; that said Charles E. Garwood died intestate on January 8, 1891; that afterward said Sarah E. Garwood executed and delivered to M. E. Jones a mortgage of a portion of said land to secure the payment of a- note for $250, and later executed a warranty deed to her daughter Nora A. Adkins of the whole tract of land subject to said mortgage and reserving to herself “the life use of the rents and profits thereof.” The bill prayed for a cancellation of the deed to Sarah E. Garwood and the mortgage to M. ,E. Jones and the deed to Nora A. Adkins, except as an ex-tinguishment of the homestead estate of said Sarah E. Gar-wood and dower in the undivided • fifth interest of Nora A. Adkins as one of the heirs of Charles E. Garwood, and for assignment of dower and partition of the premises. The widow and a brother and three sisters of the complainant, and M. E. Jones, were made defendants. The widow, Sarah E. Garwood, amd Nora A. Adkins and M. E. Jones, answered, admitting the execution of the deeds and mortgage but denying that the premises were of less value than $1000, and alleging that the widow paid a mortgage lien on the premises created by her husband, Charles E. Garwood. The cause was heard by the court and the bill was dismissed for want of equity. The record has been brought to this court as a return to a writ of error.
There were controversies at the hearing concerning the value of the property and whether the deed of Charles E. Garwood was delivered, but the facts as we find them from the evidence are as follows: Charles E. Garwood was the owner of a tract of 57J2 acres of land in Jasper county, of less value than $1000, which was occupied by him as a homestead, and on December 24, 1889, he executed a quitclaim deed of the same to his wife, Sarah E. Garwood, in which she did not join. He continued to occupy the premises as a homestead until his death, on January 8, 1891. He had some property in Richland county and letters of administration were taken out in that county, but the homestead was not abandoned and the homestead estate did not pass by the deed, which was delivered before his death and was recorded after his death. He left Sarah E. Garwood, his widow, and the complainant, Thomas Garwood, and the defendants, Clara Bixler, Iva Sowers, Samuel Garwood and Nora A. Adkins, his children and heirs-at-law. The widow continued to reside on the premises as a homestead, and one of the daughters, Nora A. Adkins, has also resided there with her mother. There never was any allotment of homestead or dower. On September 24, 1907, the widow mortgaged 17% acres of the premises to M. E. Jones to secure the payment of her note for $250, due five years after date, with seven per cent interest. She also executed a deed on March 21, 1908, to her daughter Nora A. Adkins of the whole tract of land, in consideration of one dollar and the assumption by the grantee of the mortgage, with this reservation: “The grantor reserves the life use of the rents and profits arising from said premises.” The conveyance contained the statutory release of homestead.
The deed from Charles E. Garwood purporting to convey his homestead to his wife was void, and upon his death the fee descended to and vested in his five heirs, subject to the widow’s right of dower and estate of homestead, (Kitterlin v. Milwaukee Mechanic’s Mutual Ins. Co. 134 Ill. 647; Anderson v. Smith, 159 id. 93; Gray v. Schofield, 175 id. 36; Shields v. Bush, 189 id. 534;) and the heirs have a right to partition subject thereto. (Brokaw v. Ogle, 170 Ill. 115; Miller v. Lanning, 211 id. 620; Whitaker v. Rhodes, 242 id. 146.) There was no evidence as to the value of the 57^ acres of land at the time the deed was made to Nora A. Adkins or at the time of the hearing, but as the complainant was entitled to1 a partition and the court erred in dismissing his bill, questions will necessarily arise as to the extent of the homestead right, and whether Nora A. Adkins has any property or estate in the excess over $1000, if the property is of greater value.
Where there is an estate of homestead in a single tract of land of greater value than $1000 an allotment is necessary to define the limits of the homestead estate, and in such a case the value is to be determined at the time of the assignment and not at the time of the death of the ancestor. (Anderson v. Smith, supra.) The rule is the same whether there has been an increase or diminution in the value of the whole premises. In Jespersen v. Mech, 213 Ill. 488, the owner of premises of the value of about $3500, occupied as a homestead, made a quit-claim deed to his wife, which did not convey the homestead estate, and ten years after his death, when the property had depreciated in value to $1500, a bill was filed for partition. It was considered that the only practicable rule was to determine the value of the property at the time of the allotment, which could work no hardship to either party, as the bill might have been maintained by either at any time after the death of the grantor in the deed. But the question in this case is a different one. If premises in which there is a homestead estate exceed in value that estate, the widow and heirs hold as tenants in common until a severance of their interests by setting off the homestead, (Montague v. Selb, 106 Ill. 49,) and where it is necessary that the homestead should be set off or assigned for the purpose of defining its limits, it is not such an interest as can be conveyed separately from the fee until it has been set off or assigned. (Best v. Jenks, 123 Ill. 447; Lagger v. Mutual Union Loan Ass’n, 146 id. 283.) Where one who has an estate of homestead 'in a tract worth more than $1000 dies leaving a widow, the estate of homestead vests in the widow immediately by operation of law, and the purpose of an allotment is not to vest such estate, but merely to determine its boundaries. (Wilson v. Proctor, 28 Minn. 13.) Where the whole premises do not exceed in value the homestead estate, the limits of the estate are already definitely fixed, and neither the widow nor heirs could have an allotment out of the premises. There would be neither reason nor justice in a rule requiring either party to incur the useless expense of a proceeding to declare an existing fact. Accordingly, it is held that no allotment is necessary where the premises occupied as a homestead do not exceed in quantity and value the homestead estate vested by law in the widow, and that she may avail herself of her rights without any proceeding for allotment or setting off of the homestead. (Parks v. Reilly, 5 Allen, 77; Rogers v. Marsh, 73 Mo. 64; Jarrell v. Payne, 75 Ala. 577; Jackson v. Wilson, 117 id. 432.) When the homestead right in this State was a mere exemption it was regarded in some cases as variable in extent and subject to contraction if the value became enhanced. Mr. Justice Breese, in Stubblefield v. Graves, 50 Ill.
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Mr. Justice Cartwright
delivered the opinion of the court :
Plaintiff in error, Thomas Garwood, by his amended bill of complaint filed in the circuit court of Jasper county, alleged that his father, Charles E. Garwood, made and acknowledged a quit-claim deed of lands occupied by him as a homestead, of less value than $1000, to his wife, Sarah E. Garwood; that the deed was not subscribed or acknowledged by the wife and possession was not abandoned or given pursuant to the conveyance and the deed was not delivered; that said Charles E. Garwood died intestate on January 8, 1891; that afterward said Sarah E. Garwood executed and delivered to M. E. Jones a mortgage of a portion of said land to secure the payment of a- note for $250, and later executed a warranty deed to her daughter Nora A. Adkins of the whole tract of land subject to said mortgage and reserving to herself “the life use of the rents and profits thereof.” The bill prayed for a cancellation of the deed to Sarah E. Garwood and the mortgage to M. ,E. Jones and the deed to Nora A. Adkins, except as an ex-tinguishment of the homestead estate of said Sarah E. Gar-wood and dower in the undivided • fifth interest of Nora A. Adkins as one of the heirs of Charles E. Garwood, and for assignment of dower and partition of the premises. The widow and a brother and three sisters of the complainant, and M. E. Jones, were made defendants. The widow, Sarah E. Garwood, amd Nora A. Adkins and M. E. Jones, answered, admitting the execution of the deeds and mortgage but denying that the premises were of less value than $1000, and alleging that the widow paid a mortgage lien on the premises created by her husband, Charles E. Garwood. The cause was heard by the court and the bill was dismissed for want of equity. The record has been brought to this court as a return to a writ of error.
There were controversies at the hearing concerning the value of the property and whether the deed of Charles E. Garwood was delivered, but the facts as we find them from the evidence are as follows: Charles E. Garwood was the owner of a tract of 57J2 acres of land in Jasper county, of less value than $1000, which was occupied by him as a homestead, and on December 24, 1889, he executed a quitclaim deed of the same to his wife, Sarah E. Garwood, in which she did not join. He continued to occupy the premises as a homestead until his death, on January 8, 1891. He had some property in Richland county and letters of administration were taken out in that county, but the homestead was not abandoned and the homestead estate did not pass by the deed, which was delivered before his death and was recorded after his death. He left Sarah E. Garwood, his widow, and the complainant, Thomas Garwood, and the defendants, Clara Bixler, Iva Sowers, Samuel Garwood and Nora A. Adkins, his children and heirs-at-law. The widow continued to reside on the premises as a homestead, and one of the daughters, Nora A. Adkins, has also resided there with her mother. There never was any allotment of homestead or dower. On September 24, 1907, the widow mortgaged 17% acres of the premises to M. E. Jones to secure the payment of her note for $250, due five years after date, with seven per cent interest. She also executed a deed on March 21, 1908, to her daughter Nora A. Adkins of the whole tract of land, in consideration of one dollar and the assumption by the grantee of the mortgage, with this reservation: “The grantor reserves the life use of the rents and profits arising from said premises.” The conveyance contained the statutory release of homestead.
The deed from Charles E. Garwood purporting to convey his homestead to his wife was void, and upon his death the fee descended to and vested in his five heirs, subject to the widow’s right of dower and estate of homestead, (Kitterlin v. Milwaukee Mechanic’s Mutual Ins. Co. 134 Ill. 647; Anderson v. Smith, 159 id. 93; Gray v. Schofield, 175 id. 36; Shields v. Bush, 189 id. 534;) and the heirs have a right to partition subject thereto. (Brokaw v. Ogle, 170 Ill. 115; Miller v. Lanning, 211 id. 620; Whitaker v. Rhodes, 242 id. 146.) There was no evidence as to the value of the 57^ acres of land at the time the deed was made to Nora A. Adkins or at the time of the hearing, but as the complainant was entitled to1 a partition and the court erred in dismissing his bill, questions will necessarily arise as to the extent of the homestead right, and whether Nora A. Adkins has any property or estate in the excess over $1000, if the property is of greater value.
Where there is an estate of homestead in a single tract of land of greater value than $1000 an allotment is necessary to define the limits of the homestead estate, and in such a case the value is to be determined at the time of the assignment and not at the time of the death of the ancestor. (Anderson v. Smith, supra.) The rule is the same whether there has been an increase or diminution in the value of the whole premises. In Jespersen v. Mech, 213 Ill. 488, the owner of premises of the value of about $3500, occupied as a homestead, made a quit-claim deed to his wife, which did not convey the homestead estate, and ten years after his death, when the property had depreciated in value to $1500, a bill was filed for partition. It was considered that the only practicable rule was to determine the value of the property at the time of the allotment, which could work no hardship to either party, as the bill might have been maintained by either at any time after the death of the grantor in the deed. But the question in this case is a different one. If premises in which there is a homestead estate exceed in value that estate, the widow and heirs hold as tenants in common until a severance of their interests by setting off the homestead, (Montague v. Selb, 106 Ill. 49,) and where it is necessary that the homestead should be set off or assigned for the purpose of defining its limits, it is not such an interest as can be conveyed separately from the fee until it has been set off or assigned. (Best v. Jenks, 123 Ill. 447; Lagger v. Mutual Union Loan Ass’n, 146 id. 283.) Where one who has an estate of homestead 'in a tract worth more than $1000 dies leaving a widow, the estate of homestead vests in the widow immediately by operation of law, and the purpose of an allotment is not to vest such estate, but merely to determine its boundaries. (Wilson v. Proctor, 28 Minn. 13.) Where the whole premises do not exceed in value the homestead estate, the limits of the estate are already definitely fixed, and neither the widow nor heirs could have an allotment out of the premises. There would be neither reason nor justice in a rule requiring either party to incur the useless expense of a proceeding to declare an existing fact. Accordingly, it is held that no allotment is necessary where the premises occupied as a homestead do not exceed in quantity and value the homestead estate vested by law in the widow, and that she may avail herself of her rights without any proceeding for allotment or setting off of the homestead. (Parks v. Reilly, 5 Allen, 77; Rogers v. Marsh, 73 Mo. 64; Jarrell v. Payne, 75 Ala. 577; Jackson v. Wilson, 117 id. 432.) When the homestead right in this State was a mere exemption it was regarded in some cases as variable in extent and subject to contraction if the value became enhanced. Mr. Justice Breese, in Stubblefield v. Graves, 50 Ill. 103, said there might be a new allotment if the premises set off became enhanced in value; that there was no hardship in that rule, for the reason that a debtor had no right to a homestead of greater value than $1000, and that if a homestead of that value was secured to him his rights were satisfied. Mr. Justice Walker, following that decision, said in Haworth v. Travis, 67 Ill. 301, that a rise in value of property-after an allotment had been made would authorize a new appraisement and allotment; but the same justice afterward, in Kenley v. Bryan, 110 Ill. 652, doubted the right to have a re-assignment of homestead if the land allotted should increase in value, and suggested the obvious reason that if a new assignment should be had to reduce the quantity when the lands rise in value, justice would, require a new assignment to increase thé quantity if the land depreciates in value. If a new allotment would be justified upon an increase in value because the party entitled to homestead has got all the law allows him if he has a homestead of the value of $1000, it is equally clear that he has not got all the law allows him if the premises decrease in value belpw $1000. The estate of homestead, however, is not now a mere exemption but is an estate in the land, and when its boundaries have once been fixed, a rule which would permit it to be cut down on account of subsequent enhancement in value, or to be added to in case of depreciation, would be impracticable and lead to much embarrassment. It would be just as fair to enlarge the estate as to decrease it, which would unsettle titles, since the heirs could convey the fee after allotment or it may be sold in partition free from the homestead. In this case the premises were not worth $1000 when the estate of homestead vested in Sarah E. Garwood for her life, and the boundaries of the homestead estate must be considered as then fixed and determined by the law. There was nothing to which the deed of her husband could attach, and the fee descended to his heirs subject to her homestead estate and dower rights and could not be afterward divested as to any part of it by any increase in value before the deed was made to Nora A. Adkins. Neither could the widow be deprived of any part of it by an increase in value before this proceeding. The answer alleged that the widow had paid an encumbrance on the homestead created by her husband, Charles E. Garwood, and if that fact had been proved, the homestead would be valued on the basis of the difference between the value of the property and the encumbrance. (Kilmer v. Garlick, 185 Ill. 406.) But there was no proof of the fact alleged and the whole value of the property was less than $1000.
The widow had nothing to convey but her homestead and a dower right subject to the homestead, which she might assign to the owner of the fee. She did not, however, undertake to convey the homestead estate or any other right which she had for her life. She reserved'to herself by the deed the life use of the rents and profits arising from the premises, and one who has an unrestricted right to the use and enjoyment of real estate has the estate itself. The reservation included all that the grantor had in the way of homestead or dower, and there was nothing upon which her deed could or did operate. It is only where a deed conveys property in which there is an estate of homestead that the release is effective, and the release in her deed could not operate upon something not conveyed by it. As the release of homestead could only be operative with respect to some estate conveyed, and a life estate was reserved, there was nothing upon which the release of homestead could take effect.
It is averred in the answer that Charles E. Garwood mortgaged the premises to O. J. Bailey to secure a note for $250 for money borrowed, and after the death of the mortgagor his widow paid the mortgage, and in the brief for the defendants in error it is stated that the mortgage was given to Jones for money to pay off' the mortgage to Bailey, and for that reason Jones should be protected. If the facts stated are properly pleaded and established by evidence, the court can make such order as the principles of equity may require.
The decree is reversed and the cause is remanded for further proceedings in accordance with the views herein expressed, and with leave to the defendants to make any desired amendments of the answer respecting the payment of the alleged encumbrance created by Charles E. Garwood with money borrowed from Jones, and to make proof of the facts relating thereto. D , , , ,
D , , , , Reversed and remanded.