Later some companies began inserting provisions in policies, including a large number of warranties as to comparatively immaterial facts, by means of which some companies sought, or at least the courts thought they sought, to take unfair advantage of the insured, and seizing upon this rule of law above discussed, for the purpose of preventing unjust forfeitures, some courts began to say that policies of insurance were to be construed strongly against the company and in favor of the insured and then later they began to say that policies of insurance were to be construed most strongly against the company and in favor of the insured, and in the course of time the original basis of the rule was largely lost sight of and the arbitrary rule, not based upon any general principle, began to be applied by some courts that policies of insurance, merely because they are policies of insurance and oftentimes where there was no ambiguity, should be construed in such a manner as to render the company liable, if by any strange or unnatural construction, though contrary to the real intent of the parties, some theory of construction could be evolved which would render the company liable.

In recent years statutes have been enacted in most states prescribing in a large measure the form of policies which must be employed by insurance companies, and since it is well known that insurance legislation is enacted primarily to protect the policyholder and if any heed is to be paid to the original reason for the rule, that is to say, that the language is to be construed against the party using the same, then logically language prescribed by the statutes, if given a construction for or against either of the parties, should be against the insured and not against the company. However, a further reason why contracts of insurance should receive no less favorable consideration from the courts than other contracts is the fact that competition between life insurance companies is now so keen that enlightened self-interest will prompt insurance companies to refrain from instituting contests on policies of insurance, except where fraud in the procurance of a policy was most flagrant, and in this connection it is well to bear in mind that insurance policies are required, without exception, to be made incontestible within not to exceed two years from date of issuance and there is, therefore, no opportunity for taking undue advantage of anything done by the insured years before the issuance of the policy.

It is also to be observed that in addition to all of these shields which have been erected for the protection of the policyholder there has been created in practically every state in the United States the

office of Commissioner of Insurance, who has been clothed with broad supervisory powers over the insurance business. In most states, before a policy can be issued, it is provided by statutory mandate that it must first be submitted to the Commissioner of Insurance for approval and this officer has the power to require the omission or insertion of provisions for the benefit of the insuring public. Not only is this power vested in the Insurance Commissioner, but it is frequently exercised. The company, therefore, only theoretically prepares its policies and in fact before it is permitted to use them the questions of fairness and freedom from ambiguity must first be answered to the satisfaction of a representative of the people of the state in which the policyholder resides. In view of the safeguards with which the law has protected the insured, it seems not unreasonable to urge that insurance companies in sound public policy should be accorded the same legal treatment before the courts as other litigants unless it can be shown that despite the protection now everywhere afforded the policyholder the insurance business is of such a nature as to require a judicial attitude of disfavor. It may also be suggested in conclusion that any economic disadvantage imposed on the insurance company must in the end react on the policyholder, and, especially, the innocent policyholder.

THE WIDOW AS HEIR

BY EDGAR H. ALLEN1

The 1923 amendment to paragraph four, section one, of the Illinois Descent Act was first heralded as a great boon to woman, raising her ancient one-third interest for life in real estate to a like proportion in fee simple. The popular idea was that dower had been redefined to square with modern conditions. Such a change would have greatly advanced the economic position of women throughout our state, and would have raised very few new problems for the lawyer. But while the legislature was hearing the voice of the advocate of woman's rights it also heard the wail of the creditor, for even a casual reading of the amended statute discloses that the new right of the widow is subject to the prior payment of all the deceased husband's debts. The legislature could not convince itself that by marriage the wife acquires moral rights in her husband's property superior to those of subsequent creditors of the husband. The new right of the widow was therefore subordinated to those of all sorts of creditors of the decedent, but in order that the amendment should not deprive the widow of rights already held, the lawmaking body preserved the ancient right of dower undiminished by rights of creditors of the husband. Thus it is evident that the new right of the widow is available only to the extent that the value of the net interest in real estate after payment of all debts and expenses exceeds the value of what she would have taken as dower.

Not only is the new right of the widow circumscribed by the rights of all creditors of the deceased husband, but in fact the form of the new law gives the creditor certain preferences and advantages in protecting his rights. The creditor has one year from the date that letters of administration are granted in the estate within which to file his claim. The widow is, by the new statute, given only one year from the date of her husband's death within which to elect to take dower. The strategy for the creditor to pursue is to keep his claim secret until the widow, in her ignorance believing it to be to her advantage, has allowed the time to pass within which she may protect herself against her husband's creditors. Thereafter the creditor may file his claim and if the claim is large enough

1. [Of the Decatur, Ill., bar.]

may take all the real estate formerly owned by the decedent to the entire exclusion of the widow, thus by his cunning depriving the widow of even the right of dower which was formerly preserved for her automatically by law.

The creditor not only is preferred to the new right of the widow and given a chance to defeat even the right formerly preserved for her by law, but he is given an additional advantage. By the express terms of the act, the election to take dower is effective only as to lands located in the county where the election is actually recorded. In practice it will be quite easy for a lay person, especially a widow without prior business or legal experience, to assume that when she signs a document purporting to be an election to take dower free of decedent's debts, she has thereby made her desire effective. It might occur to a lawyer that in order to preserve such dower against bona fide purchasers for value of real estate, the election should be recorded in the several counties where land is situated, but it might very well escape the attention of even the lawyer that no right of dower in any particular piece of real estate is preserved unless the document containing the election is actually recorded within the prescribed time in the county within which that tract is located. A creditor or possibly a purchaser may, therefore, profit largely by the failure of the widow to record her election in the proper counties. Of course, an alternative advantage is given the widow where the creditor is not advised that the deceased husband owned lands in other counties, but it will be very hard to preserve the benefit of this advantage for the widow.

If the legislature really intended to benefit the creditor it might better have modified the old rule which prevents a judgment creditor of both husband and wife from obtaining a merchantable title by execution sale. The rule is that inchoate dower is not subject to execution sale even on a judgment against both the husband holding the fee and the wife holding such incomplete right of dower. Obviously, a creditor only of a wife ought not be able to reduce the value of the husband's fee simple title by selling the inchoate dower independent of the fee simple title, but where the husband's interest is entirely disposed of at the same execution sale, it would seem that both equity and expediency would require that the inchoate right of dower be sold with the fee simple title, in case both husband and wife are judgment debtors.

The new right of the widow has up to this point been discussed as if it were to some extent connected with or in modification of the

Dower Act. However, it must be noted that the additional rights are given the widow only in case of intestacy. If the husband has left a will the widow does not benefit to any extent from the modification of the law. In cases of intestacy at the present time, the widow stands in the position of an heir, to the extent of one-third of the real estate. The new law, therefore, benefits the wife of a man who has thoughtlessly failed to protect his wife by making a testamentary provision for her or who has been so ignorant or fearful of the provisions of law that he had not undertaken to mitigate the harshness of their application by executing a will. A husband who for any motive good or bad cares to reduce to a minimum the property to be taken by his wife, can, by mere execution of a will, whatever its provisions, avoid the application of the new statute. Heretofore, except in cases where a husband left no children, he could not by making a will reduce the interest his widow would take. As a matter of law, the interest of the widow was free from any manipulations of the husband as well as free from his debts. But now the husband can die testate, leave one dollar to his wife and thus force her to renounce the will and take the dower which is given by law in lieu of the provisions of the will. There is no election provided at the present time for the wife to take a one-third interest in fee simple in the real estate in lieu of the provision for her in the will. She is confined merely to dower, hence the new right given her by the recent amendment is subject to the whim of her husband.

Regardless of the statements made by trust companies in sumptuous advertisements in current newspapers and magazines advising everyone to make a will, it is the experience of practitioners that, other things being equal, it is cheaper, safer and simpler for a man to die intestate than for him to leave a will. All matters of construction, contest, jealousy and the like so familiar in cases of wills are obviated when a person dies intestate. Trust provisions, entailments to avoid dissipation of the estate and other expediencies are often necessary and are often quite lucrative to the practitioner, but, if possible, they are to be avoided. The law should provide a general, well-considered plan for devolution of the property of the ordinary individual and thus permit him, if possible, to die without leaving trouble and expense for his family, but the recent amendment of the Statute of Descent puts a premium upon the making of wills and upon the creation of dissension and dispute within the family.