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dower or homestead in the real estate, and also decreed she was not entitled to the award out of his personal estate given by the statute to the widow of a deceased husband, on the ground the terms and conditions of an ante-nuptial agree ment, entered into by and between the appellant and the deceased, her husband, provided she should accept and be paid the sum of one thousand dollars out of the estate of the husband in full of all her interest in the estate, whether by way of dower, homestead or widow's award. The decree further declared the appellee Gertrude was not a daughter of said deceased and not entitled to share in his estate as an heir, and that John Zachmann, deceased, was a son of the deceased, and that Mary Mace, the daughter and only heir at law of John, was an heir of said deceased, Christian Zachmann. Errors assigned by the appellant, and cross-errors assigned by the appellee Gertrude, a minor, by her guardian ad litem, bring the correctness of these findings before us for review.

As the question of the force and effect of the ante-nuptial agreement depends, to some extent, upon whether 382 said Gertrude is the daughter of said deceased, the finding of the decree upon that point will be first considered.

Gertrude Zachmann was born December 9, 1891. The appellant was her mother, and at the date of her birth was the lawfully married wife of said deceased, Christian Zachmann. The husband and wife were living together at the time of the birth of Gertrude, and so continued to live together as husband and wife during the remainder of the lifetime of the husband He died July 3, 1901, at which time Gertrude was of the age of about nine and one-half years. During all of the time intervening between her birth and the death of said Christian, Gertrude resided in the family of Christian and the appellant as their daughter, and was in all respects treated by said Christian as his child. He provided for her in all of her wants and called her his daughter, and in the draft of a will written by himself, but never legally executed, he called her his daughter and devised to her one of the two pieces of real estate here sought to be partitioned, and bequeathed to her, as his daughter, whatever money should remain after the payment of his debts and funeral expenses. She lived in his family as his daughter at the time of his death, and the proof is ample that he entertained the affection of a father for her. Every act and every expression of the deceased having any bearing upon the question of her pater

nity indicated her legitimacy, and the record is barren of proof having any tendency to show he had any doubt that he was her father. The only fact relied on to cast doubts upon her parentage was that her mother had been married to said Christian but about fifteen days at the time of her birth, and that the appellant, her mother, had only twenty days before her marriage with Christian been granted a divorce from one Wilhelm Juergens, her former husband. It appears from the transcript of the record of the decree of divorce that the said Wilhelm Juergens, defendant in said divorce 383 case, had been notified of the pendency of the bill for divorce by publication. Whether he was a nonresident of the state or on due inquiry could not be found was not disclosed. There was no proof whatever in the record in the case at bar that said Juergens and the appellant had lived together at or within the period of conception of the said Gertrude, nor is there any proof as to the whereabouts of said Juergens at any time. Gertrude was born of the body of the appellant while the latter was the lawful wife of said Christian Zachmann, and every child born in lawful wedlock is presumed to be legitimate: Illinois Land and Loan Co. v. Bonner, 75 Ill. 315; 5 Cyc. 626. "A legitimate child is he that is born in lawful wedlock or within a competent time thereafter": 1 Blackstone's Commentaries, 446. A minor child reared in the family of a lawfully married husband and wife who are living together as husband and wife, and is treated and recognized as their lawful offspring, is prima facie to be regarded as the child of the husband, and the burden of disproving such parentage is cast upon those denying it: Metheny v. Bohn, 160 Ill. 263, 43 N. E. 380. The conception of Gertrude was ante-nuptial but her birth was post-nuptial. The presumption which arises from birth in lawful wedlock is not overcome by proof, merely, of ante-nuptial conception: Coke's Littleton, 344a. Conception during wedlock is not essential to the presumption of legitimacy which arises from birth in wedlock: Rex v. Luff, 8 East. 198; Dennison v. Page, 29 Pa. St. 420, 72 Am. Dec. 644. The mere fact that the legal relation of husband and wife still subsisted between the appellant and the said Juergens when Gertrude was conceived is not sufficient to overcome the presumption that she was the child of Christian Zachmann, arising from the fact that her mother was the lawful wife of Zachmann when she gave birth to Gertrude. This presumption is further strengthened by the fact that Gertrude

was born within fifteen days after the marriage between her mother and Zachmann, 384 and was received by Zachmann, who knew all the facts relied on to cast doubts on her parentage, as his child, and was cared for and nurtured by him as his daughter during the remainder of his lifetime. The court erred in holding the presumption that Gertrude was the legitimate child of Christian Zachmann had been overcome. The decree should have declared said Gertrude to be the daughter of said Christian Zachmann, deceased, and as such to be entitled to share in his property as one of his children.

The ante-nuptial contract entered into between Christian Zachmann and the appellant was produced in evidence. It expressly provides appellant shall not claim the allowance or award allowed to a widow by the statute or dower or homestead in the lands owned by him, and expressly waives and releases her right to claim such award, dower or homestead in consideration of the payment to her of one thousand dollars out of the estate of the husband. The agreement was signed by Christian and by the appellant, and appended thereto is the certificate of Ada C. Williams, notary public, showing that both of the parties to the agreement had acknowledged the same before her, and the certificate contains a clause showing that the appellant and said Christian each acknowledged that they had waived, released and relinquished all rights of dower and homestead. The acknowledgment is in compliance with the requirements of section 27 of the conveyance act, with relation to the waiver and release of the estate of homestead in lands.

We have found and herein declared that the evidence established that Gertrude Zachmann was the daughter of said appellant and said Christian Zachmann, deceased, and is one of the heirs at law of said Christian. She was less than ten years old at the time of the death of her father. The appellant, said Christian, and the child, Gertrude, lived together as a family at the time of the death of said Christian.

385 The ante-nuptial contract, at the date of the death of said Christian, was purely executory, and was repudiated by the appellant, who claimed her widow's award and dower and homestead in the real estate of the deceased. It was contended in the trial court that the ante-nuptial contract could not be regarded as executory. This contention was based upon the insistence it appeared from the proof the appellant received from Christian, during his lifetime, the sum of three hundred and fifty dollars on the ante-nuptial contract. The chan

cellor found adversely to this contention, and that finding was clearly correct. The money paid to the appellant by the said Christian was shown to have been handed to her for the purpose of discharging claims against said Christian and paying household bills and family expenses. The sum of sixty-seven dollars alleged to have been received by the appellant from Mrs. Cull for the rent of a portion of the homestead property after the death of Christian was not received as a payment on the amount specified to be paid in the ante-nuptial contract. The appellant had repudiated the ante-nuptial agreement, and received the rents under the belief she was entitled thereto until her dower and homestead in the real estate of her deceased husband should be assigned to her. The legality of this claim to the rents need not be here adverted to. It is sufficient for the present purposes that the amount so collected did not constitute a payment on the ante-nuptial con

tract.

The family of the deceased, Christian Zachmann, at the time of his death, consisted of himself, the appellant (his wife), and their daughter, Gertrude. The family of the appellant, the widow of Christian, after his death consisted of herself and the said Gertrude, the daughter of herself and her deceased husband. Did the unexecuted ante-nuptial contract bar her right to the award which section 74 of chapter 3, entitled "Administration," etc., provides shall be set apart for widows of deceased husbands whose estates are administered in this state? We 386 think not. In Phelps v. Phelps, 72 Ill. 545, 22 Am. Rep. 149, it was said that the allowance of a widow's award was provided out of motives of public concern, and that there are grave reasons why a law enacted from public considerations should not be abrogated by mere private agreement, and that it would be in contravention of the policy of the law to permit a man, by an ante-nuptial agreement, to relieve his estate from the operation of the statute providing that an allowance should be made for the maintenance of his widow and minor children for a limited period, and upon this reasoning we held that an ante-nuptial agreement was inoperative as to the widow's award. In that case one child, born of the marriage, was living with the widow at the time of the application for an award. The contract was a bare undertaking on the part of the widow that she should have no rights in the property of the husband after his death,

but that the same should pass to his administrators and executors free from all claims on her part.

In Weaver v. Weaver, 109 Ill. 225, there was no child or children of the deceased husband and his widow, but a son of the husband by a former marriage and the daughter of the wife by a former marriage lived in the family of the deceased husband as members of his family. The ante-nuptial agreement provided for the payment of twelve thousand dollars to the wife, and the same had been paid in full by the legal representatives of the deceased husband and accepted by the widow. We held the widow was concluded by the antenuptial agreement, and there said (page 233): "A widow having a family, consisting, in part, of the decedent's children, is entitled to the widow's award notwithstanding there is an outstanding ante-nuptial executory contract, by which she has agreed to accept a certain sum of money or something else in lieu of it. In other words, under the circumstances stated, so long as the contract remains executory she may repudiate it." And speaking of the other authorities relied 387 upon to sustain the view pressed upon the court that an ante-nuptial agreement was inoperative to abrogate the provisions of the statute providing for a widow's award, further said: "It will be found that in every case where it has been held the widow was not bound by the ante-nuptial agreement, the widow's family consisted, in part, of a child or children of the deceased husband, and that the agreement was unexecuted by his legal representatives. So far the matter has come in actual judgment and is authoritatively settled, but no farther. On the other hand, the cases already cited fully establish that where such an agreement has in good faith been fully performed by the husband's legal representatives the widow will be concluded by it, whether there be any such children or not." The declaration there made that it was judicially settled that a widow whose family consisted, in part, of a child of her deceased husband was not bound by an ante-nuptial agreement which was unexecuted and repudiated by her, stated correctly the principle applicable to the circumstances of the case at bar. The later cases of McMahill v. McMahill, 113 Ill. 461, Spencer v. Boardman, 118 Ill. 553, 9 N. E. 330, and Christy v. Marmon, 163 Ill. 225, 45 N. E. 150, announce no doctrine inconsistent with that declared in Weaver v. Weaver, 109 Ill. 225. In McMahill v. McMahill, 113 Ill. 461, the widow accepted the sum of money specified in the ante-nuptial con

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