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Action by Newton Barr and others against Thomas B. Gardner and others. From a decree for plaintiffs, defendants appeal. Reversed and remanded, with directions.

Carl E. Epler and Matthew F. Carrott, both of Quincy, for appellants. E. P. Allen, John T. Inghram, and H. M. Swope, all of Quincy, for appellees.

CARTWRIGHT, J. The appellees filed the bill in this case in the circuit court of Adams county for the partition of the E. 12 of the N. E. 4 and the N. 2 of the S. E. 14 of section 13, in township 1, range 9, and the division of a fund which arose from personal property and choses in action, claiming an interest in the real estate and fund under the will of Elijah Barr, deceased. The title of appellees alleged by the bill was contested by answers and the issues were referred to the master in chancery, whose report sustained the claims of the appellees. The court overruled exceptions to the report and entered a decree in accordance with it, from which this appeal was prosecuted. Two of the appellants who demurred to the amended bill for multifariousness urge that the court ought to have sustained the demurrer and dismissed the bill and ask us to sustain that assignment of error; but, while they seek to sustain their demurrer by argument and authorities, they say they do not wish a decision of the question to prevent us from passing on the merits of the case, which are also argued at great length. As we are to pass on the merits and decide what parties are entitled to both the real estate and personal property, we will not spend time or occupy space in giving our views as to whether the bill was multifa

rious.

The controlling issue in the case is whether the remainder in one-half of the estate of Elijah Barr after the life estate therein devised to his widow vested at his death or was contingent until the termination of the life estate. He was the owner of the real estate and of the personal property from which the fund arose, and he made his will on September 30, 1864, and died 10 days afterward. After a bequest to his executor in trust to pay funeral expenses and debts he made a bequest to his sister and another to his wife, which she was to devote to religious and benevolent objects, and made the following disposition of the remainder of his estate:

"Fifth-At the death of my wife I give and bequeath the remainder of the aforesaid half of the estate to my lineal heirs should there be any living, if not, then to the heirs of my blood.

"Sixth-Should a child be born to me after

my decease, I give and bequeath unto it the

use, interest and increase of the remainder of my estate, of whatsoever nature, whether real or personal or choses in action, and so much of the principal thereof as may be necessary for its comfortable maintenance and education until it shall be married or be twenty-one years of age, when it shall be entitled, also to so much of the principal of the said remainder of the estate as shall remain. Provided, however, that no such child should be born to me, or not born alive, or die during its minority, it yet being unmarried and without lineal heirs, then the use, interest and increase of the said remainder of the estate shall go to my wife Elizabeth S., during her natural life and at her death revert to the heirs of my blood.

"Seventh-I hereby appoint my dear wife, Elizabeth S., the guardian of such child, and commit to her the sole control and management of the whole estate after the same shall have been settled by the executors and the first three bequests herein granted shall be paid, until it shall fall by the foregoing provisions either to the said child or its lineal heirs or heirs of the blood of the testator."

Eliza

The testator was 44 years old and his wife 37 years of age. They had no children and there were no lineal heirs at his death, but seven months from the day the will was made a daughter was born, who was named May A. Barr. The testator left three brothers and five sisters at his death. May A. Barr lived to be 21 years of age, and afterward, on May 28, 1895, was married to Thomas D. Gardner. She died on November 5, 1901, and by her will left to her husband all her property, including her share of the real and personal estate received from her father and that conveyed to her by her mother, after giving the income of her personal estate to her mother for life. beth S. Barr, the widow, died on March 6, 1910. May Barr Gardner had no child, and at the death of the widow there were no lineal heirs of Elijah Barr. The proviso to the sixth paragraph of the will, conditioned that no child should be born to the testator or not born alive or die during minority, did not take effect. The child was born alive, and under the will had the use of one half "Fourth-I give and bequeath unto my of the estate for her comfortable maintedear wife, Elizabeth S. Barr, the use, inter-nance and education until she became 21 est and income of one-half of the remainder of my estate, of whatsoever nature and kind, real and personal and choses in action, and so much of the principal thereof as may be necessary, in addition to its use, interest and income, for her comfortable maintenance and

years of age, during which time the control and management of that half was given to the widow, and then May A. Barr became vested with the remainder. The controversy relates to the other half of the estate.

The appellants contend that the testator

of his estate to his lineal heirs living at the time of his death, but if he left no lineal heirs, at his death then it was to go to the heirs of his blood, and under that provision it vested in the unborn child at his death. The argument is that the posthumous child was capable of taking as an heir at the death of the testator, that for the purposes of construction it was to be considered as a child in existence, and that at his death the child was his lineal and only heir, subject to the contingency of her being born alive. The appellees contend that the remainder was to go, on the death of the widow, to the lineal heirs of the testator if any were living at that time; and, if none were living, then to the heirs of his blood.

[1] Seeking for the intention of the testator in the words he used as the recognized basis for construing his will, we find that he contemplated the birth of a child and his own death before that event; that he gave to his wife a life estate in one half of his property for her maintenance and support, and also gave her the other half in trust, in case the child should be born, for the maintenance and support of such child until the child should marry or be 21 years of age, when the half so held in trust should vest in the child. The trust was to continue until that half of the estate should fall either to the child or its lineal heirs or heirs of the blood of the testator. By paragraph 5 of the will the remainder in the half in which the widow was given a life estate was devised at her death to the testator's lineal heirs if there should be any living, and, if not, then to the heirs of his blood.

[2] The child afterward born was capable of taking as an heir at the death of her father, but that does not affect the question. There was no present fixed right of future enjoyment in a determinate person or persons until the death of the wife, but the uncertainty was as to whether lineal heirs or heirs of the blood would take. The postponement was not for the purpose of letting in the life estate of the widow, but on account of the uncertainty as to whether there would be, at the death of the widow, living lineal heirs.

[3] The remainder was contingent because it was limited to take effect to dubious and uncertain persons, under the rules declared in numerous cases. Thompson v. Adams, 205 Ill. 552, 69 N. E. 1; Spengler v. Kuhn, 212 Ill. 186, 72 N. E. 214; Cummings v. Hamilton, 220 Ill. 480, 77 N. E. 264; Brownback v. Keister, 220 Ill. 544, 77 N. E. 75; Brechbeller v. Wilson, 228 Ill. 502, 81 N. E. 1094. The devise of the remainder to the lineal heirs of the testator, if any should be living at the death of the widow, can only be referred to that date. The fact could not be

102 N.E.-19

definitely ascertained at the time of the making of the will nor at the death of the testator, and could only be determined at the death of the life tenant. The court did not err in construing the remainder as contingent.

[4] By virtue of the will the daughter, May A. Barr, had the fee in an undivided one-half of the north half of the south-east quarter of the section, and, subject to the life estate of the widow, the reversion in fee in the other undivided one-half descended to her as heir at law of the testator. Peterson v. Jackson, 196 Ill. 40, 63 N. E. 643.

[5] On May 31, 1886, the widow, Elizabeth S. Barr, quitclaimed that tract to the daughter, so that the life estate merged in the reversion in fee and the contingent remainder was defeated. Bond v. Moore, 236 Ill. 576, 86 N. E. 386, 19 L. R. A. (N. S.) 540. May A. Barr then had the whole title to the tract. On the same day she made her quitclaim deed of the E. 2 of the N. E. 4 to her mother, Elizabeth S. Barr, for her natural life only. The widow then had a life estate in the whole of that tract, and, subject to the life estate, the daughter was the owner of one-half in fee and the reversion in fee in the other one-half.

[6] Just before the marriage of May A. Barr, she quitclaimed all interest in the E. 1⁄2 of the N. E. 4 to her mother, and that deed conveyed the fee in an undivided onehalf which May A. Barr had under the will and the reversion in fee in the other onehalf. The widow's life estate merged in the fee and the contingent remainder was destroyed, so that Elizabeth S. Barr was then the owner of the whole title in that tract, and it was disposed of by her will. The decree was incorrect in determining the titles to the real estate.

[7] The widow, Elizabeth S. Barr, was given the use, interest, and income of onehalf of the remainder of the personal estate after the payment of funeral expenses, debts, and bequests, and so much of the principal as might be necessary for her comfortable maintenance and support during her natural life, and at her death, there being no lineal heirs of the testator living, the heirs of his blood became entitled to the remaining onehalf of the personal estate of Elijah Barr. Boyd v. Strahan, 36 Ill. 355. She was only authorized to use so much of the principal as might be necessary for her comfortable maintenance and support, and she could not otherwise dispose of the principal. The court did not err in so finding.

The decree is reversed and the cause is remanded to the circuit court, with directions to enter a decree in accordance with the rights of the parties as herein declared.

Reversed and remanded, with directions.

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[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 345, 944, 946, 947; Dec. Dig. § 310.*]

2. JUDGMENT (§ 743*)-RES JUDICATA.

Where the court in a suit under the Burnt Records Act construed a deed from the grantor of complainant therein to defendant village herein as only giving an easement to the village, its construction was res judicata upon defendant in the present suit involving the same question.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1252, 1253, 1275-1277, 1284; Dec. Dig. § 743.*]

3. JUDGMENT (§ 501*)-RES JUDICATA-ERRONEOUS JUDGMENT.

An erroneous judgment binds the parties. therein until reversed in a direct proceeding with respect to the material issues decided.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 941; Dec. Dig. § 501.*] 4. JUDGMENT (§ 660*)-RES JUDICATA-ERRONEOUS JUDGMENT.

A court of equity will recognize the binding effect as res judicata of a former judgment between the parties which was valid and not reversed by a direct proceeding, though the judgment was erroneous.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1171; Dec. Dig. § 660.*] 5. MUNICIPAL CORPORATIONS (8 (§ 657*) STREETS-VACATION.

county against the village of River Forest and the Chicago & Northwestern Railway Company to quiet title and to enjoin them from destroying appellant's fence or interfering with his possession of a tract of land 35 feet wide and 400 feet long lying west of Oak avenue and north of the right of way of said railway in said village, and to re

Adoption of a vacation ordinance with respect to a particular street terminated all interest of the village in the strip constituting the street.

move as a cloud a certain plat so far as it affects a certain tract theretofore vacated as a street. A demurrer filed by the village was overruled and thereafter its answer was filed. On a hearing before the court the bill was dismissed for want of equity, and this appeal followed.

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The following plat will give a better understanding of the matters involved:

Injunction is the proper remedy against a city seeking to take possession of a street to which it has no right.

[Ed. Note.-For other cases, see Injunction, Cent. Dig. § 102; Dec. Dig. § 49.*]

Appeal from Circuit Court, Cook County; E. M. Mangan, Judge.

Suit by Edward C. Waller against the Village of River Forest. From a decree dismissing the bill, complainant appeals. Reversed and remanded, with directions.

F. J. Griffen and E. J. Price, both of Chicago, for appellant. B. F. Langworthy, Village Atty., of Chicago, for appellee.

CARTER, J. This was a bill in equity filed by appellant in the circuit court of Cook

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The strip in question lies immediately north of the Chicago & Northwestern Railway, between Oak avenue on the east and

Waller avenue on the west. It was formerly a part of Centrai avenue, acquired by the village by quitclaim deed from Alfred H. Blackall and wife, which deed conveyed the land by metes and bounds, and contained immediately after the description the words, "to be used for street purposes only." It appears that it was found in 1905 that the tract in question was not needed as a street and that it and the contiguous lands were being used for disreputable purposes and were a nuisance, and that on the request of appellant, who owned the adjoining land, the village board on July 3, 1905, vacated that part of the street now in question, along with that part of Waller avenue which connected this strip with Lake street. The bill alleged that the appellant thereupon took possession of these vacated streets and erected a substantial fence around the entire tract of land between Oak avenue and the river, the Northwestern Railway and the southern boundary of Lake street; that this possession and fence remained undisturbed for about three years, until May, 1908, when the village authorities of River Forest passed an ordinance wherein it was declared that the strip of land in question between Oak avenue and Waller avenue was to be an open public street; that thereafter, in June, said village authorities filed a plat with the recorder of Cook county showing said strip as a public street, and shortly thereafter said authorities tore down the fence and threaten to tear it down again; that thereafter the village board granted to the Chicago & the Chicago & Northwestern Railway Company the right to occupy the south 30 feet of this land for an embankment to raise its track; and that before filing this bill the appellant had replaced the fence around this strip, which still remained. The bill further alleged the other facts upon which appellant based his title. The Chicago & Northwestern Railway Company joined in the general demurrer filed by the village to the bill, but prior to the hearing on the demurrer said company settled with appellant and procured a warranty deed from him to the south 20 feet of the strip, together with land west thereof to the river, and the court thereupon dismissed the bill as to said railway company upon said company waiving in open court all further claim to the north 15 feet of the tract in controversy.

through foreclosure of a trust deed given by the former owner, Alfred H. Blackall; that said petition alleged that the strip of land here in question and a small strip extending east of Oak avenue had been conveyed in September, 1899, by Blackall and wife to said village of River Forest, to be used for street purposes only; that said association alleged in said petition "that the petitioner, in claiming ownership in fee simple of the tract first aforesaid, intends to admit, and hereby admits, that said ownership is qualified as to the interest conveyed by said deed in so far that the premises described in said deed are subject to be used by said village for street purposes only." for street purposes only." It is further alleged in said petition that said Blackall caused a map or plat to be made in 1882 of the land here in question, by which he professed to make streets and highways of certain strips running north and south on said plat, but that said strips had never been accepted by said village as streets; that said strips for north and south streets were not located where said Oak avenue and Waller avenue are now located. The petition further alleged that the trust deed given by said Blackall, through which said association derived title, contained the words, "except the portion thereof embraced within street lines," but that these words were used merely to except said land embraced in the streets from the covenants of warranty and were not intended by Blackall as a reservation to himself of any portion of said premises described in the trust deed. The petition prayed that the title to all of said tract of land, including all the land bounded by Oak avenue, the railroad right of way, the center line of the Desplaines river and the center of Lake street and of the bridge, be held to be in the petitioner in fee simple. The record further showed that the village of River Forest answered the petition in the burnt records suit, admitting that certain strips on said plat were dedicated by the owner (Blackall) as streets, and were accepted and have ever since been, and are now, public streets, but denied "each and all the other allegations contained in said bill of complaint as amended," demanding strict proof thereof, and denying that the complainant was entitled to the relief, or any part thereof, prayed for in said petition. The record further showed that there was a hearing on this petition and answer in the circuit court; that thereafter, on June 6, 1900, a decree was entered in said burnt records suit finding the Hibernian Banking Association "to be seised of the premises aforesaid as of an indefeasible estate of inher

From the proof offered on the hearing it appeared that in 1900 the Hibernian Banking Association filed a bill in the circuit court of Cook county under the Burnt Records Act to quiet title to certain land shown on said plat, including all of that between the west line of Oak avenue, the northern bound-itance in fee simple, * * saving only ary of the railway right of way, the center to the village of River Forest, and its sucline of the Desplaines river, and the center cessor or successors, the right to use, for line of Lake street and the bridge; that in street purposes only, the strip of 35 feet dethe petition or bill in the circuit court un- scribed in said deed of September 3, 1889, der said Burnt Records Act said association from said Blackall and his then wife to said

[1] Even though the pleader misconceives the legal effect of an instrument, if the instrument is made a part of the bill the court will give such instrument the legal effect to which it may be entitled. Benneson v. Savage, 130 Ill. 352, 22 N. E. 838; Dempster v. Lansingh, 244 Ill. 402, 91 N. E. 488.

this decree included all of the land within | down in the case just cited is undoubtedly the west line of Oak avenue, the northern the law, but in our judgment it does not right of way line of the railway, the center apply to the facts before us. of the Desplaines river, and the center line of Lake street and of the bridge. This decree set out in full the deed from Blackall and wife conveying said disputed strip here in question, along with other land, to the village of River Forest. From the allegations of this bill it appears that appellant has obtained, by various mesne conveyances, all the title of said Hibernian Banking Association and other parties who claimed an interest in said land.

From this statement it is apparent that practically only the north 15 feet of said 35foot strip, between Oak avenue and Waller avenue as vacated, is in dispute between the village authorities and appellant, as the village authorities have granted the railway company the right to build an embankment on the south 30 feet and appellant has deeded to the railway company all his interest in the south 20 feet of said strip. Counsel for appellee concedes that if said Blackall did not convey a fee in this strip of land to the village of River Forest the decree below should be reversed. Counsel for appellant Counsel for appellant contend that this deed only conveyed an easement to the village, and that if there was any question as to its proper constructionwhether it conveyed a fee simple or only an easement-that was settled by the proceedings in the circuit court under the burnt records suit, which held that said deed only conveyed an easement to the village, and that the fee remained in the grantor, and that said interest of said Blackall in said strip was acquired by said association through said foreclosure and confirmed by said burnt records proceeding, and was also quitclaimed to said association by said Blackall on September 14, 1889.

If the decree in the burnt records proceeding legally confirmed the title to the strip in controversy in the Hibernian Banking Association, then such finding must be held to be res judicata as to the extent and character of such title. Counsel for appellee contends that the title of the village to this tract of land was not contested in the burnt records proceeding, and that therefore the rule of res judicata cannot be invoked here. White v. Sherman, 168 Ill. 589, 48 N. E. 128, 61 Am. St. Rep. 132; People v. Chicago, Burlington & Quincy Railroad Co., 247 Ill. 340, 93 N. E. 422. It is insisted that the issue as to the title was, under the burnt records proceeding, one of fact and not of law, and was not raised in the pleadings in that proceeding because the deed which was incorporated as a part of the pleadings showed that the title was in the village; that the pleader's rights must depend upon the actual facts stated, and not upon erroneous conclusions of the pleader with respect to them.

[2] Beyond question, the court in the burnt records proceeding construed the deed conveying this strip of land from Blackall to the village of River Forest as only giving an easement for street purposes to said village, and held that the fee-simple title remained in the grantor by the terms of said deed and had been conveyed to the Hibernian Banking Association. The facts upon which this finding is founded are fully set out in the petition and decree in the burnt records proceeding. The circuit court in that case had full authority to enter that decree. It effectually settled the title between the parties. Harms v. Coryell, 177 Ill. 496, 53 N. E. 87.

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[3] No matter if its finding as to the interest of the village of River Forest under the deed in question was erroneous, it is binding upon all parties and privies to that proceeding until it is reversed in a direct proceeding. Young v. Lorain, 11 Ill. 624, 52 Am. Dec. 463; Bradish v. Grant, 119 Ill. 606, 9 N. E. 332; Chicago Terminal Railroad Co. v. Barrett, 252 Ill. 86, 96 N. E. 794; Sielbeck v. Grothman, 248 Ill. 435, 94 N. E. 67, 21 Ann. Cas. 229; Denk v. Fiel, 249 Ill. 424, 94 N. E. 672.

[4] Counsel for appellee insists that the decree in the burnt records proceeding cannot be held res judicata in this proceeding because the part of the decree construing the deed in question as only giving an easement in the street to the village of River Forest was clearly wrong, and appellant has no right to ask a court of equity to assist in enforcing an inequitable decree, under the doctrine laid down in Wadhams v. Gay, 73 Ill. 415. That doctrine cannot be invoked here, as it does not apply to decrees that are complete and free from inherent defects. Hultberg v. Anderson, 252 Ill. 607, 97 N. E. 216. The burnt records decree was not imperfect or incomplete in any particular. It was not necessary to ask, and appellant is not, in effect, asking, that it be made complete. The necessity for filing this bill arose out of the fact that the village of River Forest was attempting to set aside and violate the findings made in the burnt records decree.

[5] No question is made as to the legality of the vacation ordinance of Central avenue from Oak avenue to Waller avenue, and of, Waller avenue from the Chicago & Northwestern Railway right of way to Lake street. Its passage therefore terminated all the interest of the village of River Forest in the

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