Mr. Chief Justice Shope
delivered the opinion of the Court:
The statute requires that in a proceeding for the partition of real estate, the court shall “ascertain and declare the rights, titles and interests of all the parties,” and give judgment according to the rights of the parties. In this case, the court found that complainant was entitled to a one-tenth interest in the premises sought to be partitioned, as tenant in common with plaintiffs in error, each of whom was found to be entitled to an undivided three-tenths thereof, subject to the life estate of complainant in one-third of said premises, and to her right of homestead in the whole thereof, of the value of $1000, and to the payment of the unpaid balance of her widow’s award, amounting to $1203.70, and decreed partition accordingly, “subject, first, to the payment to said Maria Stunz, of the said value of her homestead, and of the value of one-third of the income of said estate as bequeathed to her, and to the sum allowed by said probate court, to-wit, $1203.70.” On the report of the commissioners that the premises were not susceptible of division, and were worth $5125, and its confirmation, the court ordered a sale by the master, and, in case his report of sale be confirmed, directing him “to assess the value of the homestead, the dower interest and unpaid balance of the widow’s award,” as found by the court, together with all costs and charges of the proceeding, to deduct and pay the same out of the proceeds of said sale, and to execute to the purchaser proper deeds of conveyance. Various objections are made to this decree, a part only of which will be noticed.
The decree finds that the widow is entitled to dower, and to homestead of the value of $1000. The will, under which all parties claim, gives the widow one-third of the net income of the testator’s real estate, which consisted of the lot in question, for her natural life, and the right to live on the homestead, but not to the exclusion of his children, until she should again marry. Whatever right, therefore, the widow has in the real estate is derived from the will, alone. (Cowdrey v. Hitchcock, 103 Ill. 272.) She had the right to renounce the will at any time within a year after the issue of letters testamentary, and take under the statute; but this it appears she did not do. There being a devise of an interest in the real estate,—that is, of one,-third of the net income derived therefrom, during her life,—and the right to the homestead during her widowhood, and she having failed to renounce, but elected to take under the will, she has no dower or homestead under the statute. The general rule is, that if she take under the will she is bound by the provision made for her therein. The statute gives a householder having a family, an estate of homestead to the extent in value of $1000, and by section 2, chapter 52, of the Revised Statutes, it is declared that such exemption shall continue after the death of such householder, for the benefit of the husband or wife surviving, so long as he or she continues to occupy such homestead, and of the children until the youngest child arrives at the age of twenty-one years.
Thus it will be seen that the statute gives an estate of homestead to the householder for life, and also to the surviving husband or wife for life, if he or she continues to occupy the same. The will .does not create an estate for life absolutely in the wife. The provision of the will is : “My said wife shall enjoy the right to live on my homestead, but not to the exclusion of my children, until she shall marry again.” We do not deem it important to determine the exact interest which the wife would take under that clause of the will. At most it could be only the right to enjoy the homestead, in common with the •children, during her widowhood. The statutory right of homestead terminates with the death of the wife, or her abandonment, only. The statute gives the estate to the wife and the children, to be enjoyed for their joint use and benefit until the youngest child becomes of the age of twenty-one years. The widow, under the will, has only a privilege to live on the prop-: erty until she shall marry again. The provision made by the will is inconsistent with the homestead estate given by law, and she, having elected to take under the will, can not claim inconsistent rights of homestead given by the statute. VanSant v. VanSant, 23 Ill. 536; Hitchcock v. Cowdrey, 103 id. 262.
From what has been said, it is seen that the widow took no right of homestead, in .the sense of that term as given by the statute. It follows, we are of opinion that the court erred in holding that she was entitled to a homestead in said premises of the value of $1000. Her right was not limited by its amount or value. It appears from the appraisement returned by the commissioners, that the premises were of the value of $5125, and yet, subject to the right of the children, the right given by the will was to live upon and enjoy the same regardless of its value.
Again, the decree fails to find that the children of the testator had any rights in the homestead estate. This was also erroneous. The will gave them nothing in. lieu of their estate of homestead, and, under the statute, they had a homestead right until the youngest arrived at the age of twenty-one years. The testator, by declaring that the widow should not enjoy the homestead to the exclusion of the children, if it could be held that he did not thereby interfere with the right of homestead of the widow, did nothing to defeat the statutory right of his minor children to the estate of homestead. But if this, upon further consideration, should be found to be incorrect, and the widow had a statutory right of homestead, dependent upon no contingency save that of occupancy, the decree of the court was erroneous in giving her $1000 of the proceeds of the sale of the property'. (Merritt v. Merritt, 97 Ill. 243.) In that case it was held, that under section 34 of the Partition act, either “the value of her right of homestead must be ascertained according to the usual mode of determining the values of life estates in similar cases, or the $1000 must be invested and the proceeds thereof paid over to her during her life, leaving the principal for the heirs at her death.” And such has been the uniform holding of this court.
The court also allowed the widow six per cent on the balance of her award, and this, in our opinion, is error. Such award is not a judgment, within the meaning of section 3 of the statute relating to interest. The judgment there mentioned is a money judgment. The 74th section, relating to administration, gives the widow as her award specific articles of personal property, which are required to be appraised, etc., but she has the right to elect to take money in lieu thereof to the amount of such award. We are of opinion that this is a mere allowance and award, and while, for some purposes, it may be treated as a judgment, it lacks the essential characteristics of one. Certain it is that no interest on the award should be allowed before her election to take the same in money.
The court ordered a solicitor’s fee of $200 to be paid out of the proceeds of the sale, thereby in effect making the heirs pay nine-tenths thereof, when in fact they received but a small portion of the proceeds of the sale. They received an amount aggregating $1350.45 only, out of the proceeds of a sale amounting to $5100.
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Mr. Chief Justice Shope
delivered the opinion of the Court:
The statute requires that in a proceeding for the partition of real estate, the court shall “ascertain and declare the rights, titles and interests of all the parties,” and give judgment according to the rights of the parties. In this case, the court found that complainant was entitled to a one-tenth interest in the premises sought to be partitioned, as tenant in common with plaintiffs in error, each of whom was found to be entitled to an undivided three-tenths thereof, subject to the life estate of complainant in one-third of said premises, and to her right of homestead in the whole thereof, of the value of $1000, and to the payment of the unpaid balance of her widow’s award, amounting to $1203.70, and decreed partition accordingly, “subject, first, to the payment to said Maria Stunz, of the said value of her homestead, and of the value of one-third of the income of said estate as bequeathed to her, and to the sum allowed by said probate court, to-wit, $1203.70.” On the report of the commissioners that the premises were not susceptible of division, and were worth $5125, and its confirmation, the court ordered a sale by the master, and, in case his report of sale be confirmed, directing him “to assess the value of the homestead, the dower interest and unpaid balance of the widow’s award,” as found by the court, together with all costs and charges of the proceeding, to deduct and pay the same out of the proceeds of said sale, and to execute to the purchaser proper deeds of conveyance. Various objections are made to this decree, a part only of which will be noticed.
The decree finds that the widow is entitled to dower, and to homestead of the value of $1000. The will, under which all parties claim, gives the widow one-third of the net income of the testator’s real estate, which consisted of the lot in question, for her natural life, and the right to live on the homestead, but not to the exclusion of his children, until she should again marry. Whatever right, therefore, the widow has in the real estate is derived from the will, alone. (Cowdrey v. Hitchcock, 103 Ill. 272.) She had the right to renounce the will at any time within a year after the issue of letters testamentary, and take under the statute; but this it appears she did not do. There being a devise of an interest in the real estate,—that is, of one,-third of the net income derived therefrom, during her life,—and the right to the homestead during her widowhood, and she having failed to renounce, but elected to take under the will, she has no dower or homestead under the statute. The general rule is, that if she take under the will she is bound by the provision made for her therein. The statute gives a householder having a family, an estate of homestead to the extent in value of $1000, and by section 2, chapter 52, of the Revised Statutes, it is declared that such exemption shall continue after the death of such householder, for the benefit of the husband or wife surviving, so long as he or she continues to occupy such homestead, and of the children until the youngest child arrives at the age of twenty-one years.
Thus it will be seen that the statute gives an estate of homestead to the householder for life, and also to the surviving husband or wife for life, if he or she continues to occupy the same. The will .does not create an estate for life absolutely in the wife. The provision of the will is : “My said wife shall enjoy the right to live on my homestead, but not to the exclusion of my children, until she shall marry again.” We do not deem it important to determine the exact interest which the wife would take under that clause of the will. At most it could be only the right to enjoy the homestead, in common with the •children, during her widowhood. The statutory right of homestead terminates with the death of the wife, or her abandonment, only. The statute gives the estate to the wife and the children, to be enjoyed for their joint use and benefit until the youngest child becomes of the age of twenty-one years. The widow, under the will, has only a privilege to live on the prop-: erty until she shall marry again. The provision made by the will is inconsistent with the homestead estate given by law, and she, having elected to take under the will, can not claim inconsistent rights of homestead given by the statute. VanSant v. VanSant, 23 Ill. 536; Hitchcock v. Cowdrey, 103 id. 262.
From what has been said, it is seen that the widow took no right of homestead, in .the sense of that term as given by the statute. It follows, we are of opinion that the court erred in holding that she was entitled to a homestead in said premises of the value of $1000. Her right was not limited by its amount or value. It appears from the appraisement returned by the commissioners, that the premises were of the value of $5125, and yet, subject to the right of the children, the right given by the will was to live upon and enjoy the same regardless of its value.
Again, the decree fails to find that the children of the testator had any rights in the homestead estate. This was also erroneous. The will gave them nothing in. lieu of their estate of homestead, and, under the statute, they had a homestead right until the youngest arrived at the age of twenty-one years. The testator, by declaring that the widow should not enjoy the homestead to the exclusion of the children, if it could be held that he did not thereby interfere with the right of homestead of the widow, did nothing to defeat the statutory right of his minor children to the estate of homestead. But if this, upon further consideration, should be found to be incorrect, and the widow had a statutory right of homestead, dependent upon no contingency save that of occupancy, the decree of the court was erroneous in giving her $1000 of the proceeds of the sale of the property'. (Merritt v. Merritt, 97 Ill. 243.) In that case it was held, that under section 34 of the Partition act, either “the value of her right of homestead must be ascertained according to the usual mode of determining the values of life estates in similar cases, or the $1000 must be invested and the proceeds thereof paid over to her during her life, leaving the principal for the heirs at her death.” And such has been the uniform holding of this court.
The court also allowed the widow six per cent on the balance of her award, and this, in our opinion, is error. Such award is not a judgment, within the meaning of section 3 of the statute relating to interest. The judgment there mentioned is a money judgment. The 74th section, relating to administration, gives the widow as her award specific articles of personal property, which are required to be appraised, etc., but she has the right to elect to take money in lieu thereof to the amount of such award. We are of opinion that this is a mere allowance and award, and while, for some purposes, it may be treated as a judgment, it lacks the essential characteristics of one. Certain it is that no interest on the award should be allowed before her election to take the same in money.
The court ordered a solicitor’s fee of $200 to be paid out of the proceeds of the sale, thereby in effect making the heirs pay nine-tenths thereof, when in fact they received but a small portion of the proceeds of the sale. They received an amount aggregating $1350.45 only, out of the proceeds of a sale amounting to $5100. But in addition to this, it is patent upon the face of the record that the entire proceeding was conducted with unfairness toward the wards and in the interest of the widow. The proceeding, as conducted, was not an amicable suit instituted for the benefit of the wards, but was hostile to their interests. Such fees may be allowed when the suit is an amicable one, for the reason that therein the solicitors represent the interests of all the parties alike. It would be grossly unjust to compel these children to pay the fees of the solicitor of the widow, who alone represented her interest, and who so conducted the proceeding as to produce the unconscionable result already indicated. We can discover no indications that the solicitor represented the interests of plaintiffs in error in this proceeding. In Lilly v. Shaw, 59 Ill. 72, this court said, “that the services of the widow’s solicitor were evidently bestowed with great zeal, ability and effect against plaintiffs in error, and it was unreasonable and inequitable that they should be made to pay for them.” As much, at least, may be very properly said in. this case, and we think it was error for the court to allow such fee against the plaintiffs in error.
It also appears that a guardian ad litem was appointed by the court to defend and protect the interests of the infant defendants. It is apparent that the duty required of him by law was entirely disregarded. The statute (Chancery Code, section 6,) authorizes the court to appoint a guardian ad litem, for infant or insane defendants, and to compel him to act, and provides that “he shall, moreover, be allowed a reasonable sum for his charges as such guardian, to be fixed by the court, and taxed with the bill of costs.” It is the duty of the guardian ■ad litem, when appointed, to examine into the case and determine what the rights of his wards are, and what defense their interest demands, and to make such defense as the exercise of •care and prudence will dictate. He is not required to make ■a defense not warranted by law, but should exercise that care •and judgment that reasonable and prudent men exercise, and submit to the court, for its determination, all questions that may arise, and take its advice, and act under its direction in the steps necessary to preserve and secure the rights of the minor defendants. The guardian ad litem who perfunctorily ■files an answer for his ward, and then abandons the case, fails to comprehend his duties as an officer of the court. Had the •guardian ad litem in this case properly discharged the duties •of his office, it is not probable that the learned chancellor who heard the cause would have entered this decree. No objection iseems to have been interposed at any stage of the case, nor attention called to the grave errors into which the court has fallen. It was his duty to have understood the cause and the rights of the parties, and to have called the attention of the •court thereto. While the guardian ad litem will not be warranted in interposing useless or vexatious defenses, the law contemplates a defense in fact, so far as necessary to protect the rights and interests of the ward. The failure of the guardian in this regard, while forming of itself no sufficient ground of reversal, was a grave irregularity, and undoubtedly led the court into most, if not all, of the errors found in the decree.
It is objected that the plaintiffs in error have filed a bill to impeach the decree in this case for fraud, etc., and that they therefore can not maintain this writ of error. Defendant in error has, in apt time, entered her motion to dismiss this writ for that reason. Without pausing to question the manner in which this is brought before the court, we do not- regard the matters set up in the bill to impeach the decree as being the same involved in this writ of error. The bill introduces matters that do not' appear on the face of this record. It- seeks relief on the ground of fraud, in that the defendant in error had entered into a fraudulent combination and agreement with the guardian ad litem, in pursuance of which the rights and interests of plaintiffs in error were sacrificed, and a like combination with the commissioners, whereby they were induced to value the property at substantially one-half of its .real value. It also appears that there is a party to that bill, necessarily, who is not a party here, and can not be. So that neither the-parties nor the subject matter in litigation can be said to be identical. Even if the pendency of the bill to impeach the decree can be properly brought before the court otherwise'than, by plea, we think the motion to dismiss must be overruled.
For the foregoing reasons, the decree of partition and the subsequent orders made in the cause are reversed, and the. cause is remanded for further proceedings.
Decree reversed.