text:
    Mary L. Farrell, Appellee, v. John Farrell, Appellant.
    Gen. No. 5,094.
    1. Sep abate maintenance—when proceedings to determine issues irregular. A case should not he tried piecemeal. It is improper to first refer to a master one of the defenses interposed and after the determination of such issue to then refer the balance of the case to such master for determination.
    2. Sepabate maintenance—what does not affect right to allowance of temporary alimony. The alleged existence of an ante-nuptial contract precluding the right of the wife to alimony etc. in the event that she should live separate and apart from her husband, does not bar such wife of the right to temporary alimony pending the determination of the issues in such proceeding, one of which brings into question the validity of such ante-nuptial contract.
    3. Sepabate maintenance—when method of making allowance for solicitor’s fees improper. It is improper for the court to award solicitor’s fees to a wife in advance of the rendition of the services at a specified rate per day.
    4. Pleading—how new matter to meet allegations of answer in chancery must he set up. Where an answer in equity sets up new matter which requires to he met by the complainant by pleading other facts, it must he done by amendment to the bill of complaint.
    5. Pleading—how issues cannot he made in chancery. Issues in chancery cannot he formed by affidavit.
    Separate maintenance. Appeal from the Circuit Court of Peoria county; the Hon. T. N. Geeen, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed In part, reversed In part and remanded.
    Opinion filed March 24, 1909.
    Statement by the Court. Appellee is the wife of appellant, and filed against him a hill for separate maintenance, alleging extreme and repeated cruelty. Appellant answered, denying all charges of cruelty, assailing the conduct of appellee, and setting up as one defense an ante-nuptial contract which, if valid, would relieve appellant of the duty of maintaining appellee while living separate from him. Appellee then applied to the court for alimony and solicitor’s fees pendente lite. The ante-nuptial contract set up in the answer contained a provision that if separate maintenance proceedings were instituted each party should pay his or her own solicitor’s fees and other expenses pending the suit. The court referred to the master the question of the validity of the contract, with directions to hear proofs and report his findings upon that subject, and reserved the question of alimony till the coming in of the report of the master. The master took and reported proofs upon that subject. The proofs showed that an ante-nuptial contract was executed; that it was destroyed the next day after the marriage; that each party now charges that the other party destroyed it; that two or three days after the marriage they prepared another contract, in tenor the same as the first, except that it allowed appellee a widow’s award, which the first did not; and that this contract was dated back prior to the marriage and executed by appellee by her former name, as if the marriage had not taken place. There was proof as to the circumstances-attending the.execution of each contract. The master reported that each of these contracts was void. The master overruled objections by appellant to said report, and they were refiled as exceptions thereto. The court entered a decree that said ante-nuptial contract was not binding upon appellee and Would not prevent her obtaining a decree for separate maintenance if the evidence to be taken in the cause should show that she was otherwise entitled thereto; and also upon proofs heard in open court as to solicitor’s fees, decreed that $100 was a usual, reasonable and customary solicitor’s fee for preparing the bill of complaint and examining the questions of law and fact pertaining to the cause; that a further sum of $75 had theretofore been ordered by the court for appellee’s solicitor’s fees; and that those sums be paid by appellant to appellee within ten days. The court further found that the usual, customary and reasonable solicitor’s fees for thereafter taking testimony before the master and attending the hearing of the cause would be $25 per day and further decreed that appellant pay appellee for her solicitors $25 per day for each day while necessarily engaged in the taking of testimony and the hearing of the cause before the master, and that said sum be paid upon the filing in court of the report of the master, to whom the cause was then referred with directions to take the testimony and report his findings and conclusions, and to proceed as though said ante-nuptial contract had not been executed. The decree reserved the question of temporary alimony for future consideration. This is an appeal from that decree by defendant below.
    Sheen & Miller, for appellant.
    Granville A. Stultz and William Barnes, for appellee; James A. Cameron, of counsel.
   Mr. Justice Dibell

delivered the opinion of the court.

By the course pursued the court below tried one of the defenses set up by appellant in his answer, and decided that issue against him, and entered a decree that the ante-nuptial contract is void, and then sent the cause to the master to try other issues. A case should not be tried by piecemeal, and all the issues should be tried at the same time, unless special reasons exist for a contrary course; and none appear here sufficient, in onr opinion, to justify that course. The evidence before the master on the reference as to the validity of this contract was not confined to that topic but naturally included all the relations of appellee and appellant.

Again, no issue had been made up concerning the ante-nuptial contract. Appellee had filed an affidavit asserting that the first contract had been destroyed by mutual consent, and that the second was invalid; but issues in chancery cannot be made up by an affidavit. Nor would it have been proper chancery pleading for appellee to meet the allegations of the answer relative to the ante-nuptial contract by a special replication, as seems to be supposed in argument. That would be the course of pleading at law. But under the present rules of equity pleading, where an answer in equity sets up new matter which requires to be met by the complainant by pleading other facts, it must be done by an amendment to the bill of complaint. Story’s Eq. Pl., secs. 878, 884; Hall v. Fullerton, 69 Ill. 448; Walker v. Bay, 111 Ill. 315; Harding v. Durand, 138 Ill. 515; Kerfoot v. Billings, 160 Ill. 563, 571; Fitch v. Miller, 200 Ill. 170, 184. If, however, the new matter in the answer is to be questioned as insufficient in law, exceptions to such parts of the answer should be filed and the exceptions should be heard upon such matter of law. Issues had not been made up when this reference to the master was made, and it was premature.

It is true that the alleged ante-nuptial contract contained a provision relieving appellant from temporary alimony and solicitor’s fees in any suit for separate maintenance, but appellee is the wife of appellant and has the right to question the validity of such a contract, and where, as here, she is without means and her husband has abundant means, we do not doubt the propriety of awarding her temporary alimony and solicitor’s fees while she is litigating the validity of the contract. “While the matters in controversy are being litigated, the wife will be presumed to be entitled to support until it is shown, by the result of the trial, that her claim is forfeited.” Newman v. Newman, 69 Ill. 167. Jenkins v. Jenkins, 91 Ill. 167. In Harding v. Harding 144 Ill. 588, it was held that it was no objection to an allowance of alimony pendente lite, in a suit for separate maintenance, that the husband denies what the wife alleges; that the purpose of the trial is to ascertain the truth in respect to the issues made by the bill and the answer, and that the purpose of the allowance is to enable the wife to present her cause properly. We therefore approve the allowance of the $175.

We are of opinion that the court should not have made an allowance in advance of $25 per day for the future hearing before the master, and require it to be paid when his report was filed. This would tend to cause appellee’s solicitors unduly to protract the hearing before the master. A disposition to make the hearing lengthy is shown by the testimony of one of appellee’s solicitors that it will require six weeks to try this case before the master. The first ante-nuptial contract was discussed but a day or two before it was executed; it was executed the day beforecthe marriage; it was destroyed the next day after the marriage; the second contract was executed the second or third day after the marriage, and the parties separated a few days later. They lived together only a few days. The circumstances lie within a small space of time. The questions are not complicated. We see no reason why the cause should not be tried in a day or two. To impose upon appellant an expense of $25 per day for six weeks would be ah outrage upon him, unless he shall thus protract the hearing. Moreover, the effect of this order is to allow the master to fix the number of days necessarily occupied with the hearing and to require appellant to pay $25 for each such day, without submitting to the court the propriety of the time allowed. This power cannot be conferred upon the master. Boston v. Nichols, 47 Ill. 353; Wilhite v. Pearce, 47 Ill. 413; Cowan v. Kane, 211 Ill. 572.

The order is affirmed as to the allowance of $175, and in all other respects it is reversed, and the cause is remanded. Each party will pay one-half the costs of this court.

Affirmed in part, reversed in part and remanded.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    John H. Long, Appellee, v. John Wheatland, Appellant.
    Gen. No. 5,074.
    Appeals and ebbobs—when maxim de minimis non curat lex does not apply. Notwithstanding the 'amount involved in an appeal is small, a reversal will be ordered if the right to the appeal has been conferred by statute and injustice appears to have been done by the judgment appealed from.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Lee county; the Hon. Richabd S. Fabband, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed with remittitur.
    Opinion filed March 24, 1909.
    J. E. Lewis and C. H. Wooster, for appellant.
    Brooks & Brooks, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Appellee bought twenty acres of land remote from a highway, and surrounded on three sides by land occupied by appellant, and part of which appellant used as a pasture. There was no fence between the land of appellee and the pasture land of appellant. Appellant’s cattle pastured upon appellee’s land during the seasons of 1904 and 1905 with appellant’s knowledge. After the close of the pasture season in 1905 appellee sued appellant for the use of said twenty acres as pasture for said two years. Appellee recovered $25 before a justice, and on an appeal to the Circuit Court (after at least one trial there which did not result in a judgment) had a verdict and a judgment for $40, from which defendant below prosecutes this appeal.

Appellee testified that at the close of the first pasture year, he told appellant that if his cattle pastured that land any longer he should charge appellant $1 per acre. On cross-examination he left it doubtful whether this conversation was not at the end of the second year. Appellant denied that such a conversation was had. Evidence was introduced that the reputation of appellee for truth and veracity was bad in the neighborhood where he resided. There was no proof supporting his reputation. He was over seventy-eight years old and apparently somewhat querulous concerning his troubles with appellant, which began upon other subjects than the pasturing. While this state of the proof authorized an instruction on that subject, we do not think it sufficient to sustain a verdict for $1 per acre for the second year. At the beginning of the two years this land was two-thirds timber and one-third grass land and slough where no grass grew. The second year it was one-third standing timber, one-third stumps and underbrush and cut timber and tree tops lying in a windrow, and one-third slough and grass land. Appellant and one other witness testified that the fair rental value of the tract during 1904 and 1905 was $1 per acre per year. Others valued it at fifty cents per acre per year; others at fifteen or twenty cents; others at the taxes; and several testified that it was worth nothing for pasturage. On a consideration of all the testimony we are of opinion that the amount of the judgment is unjust. We are satisfied that the proof will not support a charge of over fifty cents per acre per year. We think the criticisms upon the instructions are in the main unfounded. While the judgment is small, the law gives an appeal therefrom, and the smallness of the amount does not obviate the injustice.

This opinion will be lodged with the clerk, and if within five days appellee files a remittitur of one-half of the judgment, it will be affirmed in the sum of $20, the costs of this court to be paid by appellee. If such a remittitur is not so filed, the judgment will be reversed and the cause remanded.

Appellee having filed herein a remittitur of one-half the judgment, it is affirmed in the sum of $20, the costs of this court to be paid by appellee.

Affirmed with remittitur.


text:
    Grace Smith Robertson et al., Appellants, v. H. H. Guenther et al., Appellees.
    Gen. No. 5,092.
    Appeals and erbobs—when freehold involved. If. the question at issue is as to whether a deed conveys a vested or contingent remainder, a freehold is involved, notwithstanding no issue is made as to the present right of possession.
    Bill for injunction. Appeal from the Circuit Court of Bureau county; the Hon. Richard M. Skinner, Judge, presiding.
    Heard in this court at the October term, 1908.
    Transferred to Supreme Court.
    Opinion filed March 24, 1909.
    H. M. and Cairo A. Trimble, for appellants.
    Harris & Herlocker, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

In 1893, Henry C. Smith and wife conveyed certain real estate in Bureau county, the words of grant being as follows: “convey and warrant to Alice Robertson during her natural life and at her death to her children surviving her, share and share alike.” Alice Robertson, the life tenant, executed a lease for twenty-five years and other papers authorizing her grantees to remove sand and gravel from a certain part of said premises, and they entered and began that work.

The appellees are said grantees or their assigns. Alice Robertson is still living. The appellants are two of her four living children. They filed this bill against the appellees to enjoin the commission of waste, and had a temporary injunction. On a final hearing the injunction was dissolved and the bill was dismissed for want of equity. Complainants below prosecute this appeal.

The litigated question was whether the words in the deed “at her death to her children surviving her” gave to the appellants a vested remainder or a contingent remainder. Appellees concede that if appellants have a vested remainder they are entitled to the injunction. Appellants appear to concede that if their interest is a contingent remainder they cannot maintain the bill. The court below decreed that they had a contingent remainder.

In this state of the record appellees contend that a freehold is involved and that we have no jurisdiction. Appellants contend that a freehold includes the idea of a present right to possession, and that they are not asserting a present right to possession, and that therefore no freehold is involved. From the law upon this subject as laid down in 1 Washburn on Real Property, 6th Ed., sections 124 to 127, inclusive, we conclude that this position is not well founded. When the cases of Ducker v. Burnham, 146 Ill. 9, and Ducker v. Wear and Boogher Dry Goods Co., 145 Ill. 653, are considered together, it will be found that the latter case is decisive of this question. By the will of James Ducker, set out in the case in 146 Ill., he gave his real and personal estate to his wife for her Efe, and gave his two executors, of whom his wife was one and his son George the other, power to sell and convey, and gave his estate in remainder to be equally divided between his five children after the death of his wife.. John J. Ducker was one of these five children. In the case in 145 Ill. a creditor of John J. Ducker had attached his interest in real estate so left to him in remainder by the will of his father, the said James Ducker, deceased. The widow and George, in their own right and as executors, filed an interplea in that case claiming that under the will they had a present vested interest in the real estate levied upon, and that John J. Ducker had no present or existing leviable interest in said real estate, and they prayed that the levy under the attachment might be quashed. The creditor demurred to that interplea and the demurrer was sustained and the plea was dismissed. The executors appealed to this court, and we dismissed that appeal on the ground that a freehold was involved, and that we had no jurisdiction. Ducker v. Wear and Boogher Dry Goods Co., 45 Ill. App. 153. The case in 145 Ill. 653 was an appeal to the Supreme Court from that decision. The question really litigated was whether John J. Ducker had a vested or a contingent remainder. The life tenant was still alive and John J. Ducker was not entitled to possession. It was held that a freehold was involved, and that we therefore did not err in dismissing the appeal. In Golladay v. Knock, 235 Ill. 412, the main question was whether certain parties took a vested or contingent remainder under a certain will. An appeal was prosecuted from the Circuit Court directly to the Supreme Court and the latter court took jurisdiction, thus in effect holding that a freehold was involved. We are therefore of opinion that we are without jurisdiction to determine the main question litigated in this case. An order will therefore be entered transferring the cause to the Supreme Court pursuant to the provisions of section 102 of the Practice Act of 1907.

Transferred to the Supreme Court.


author: Me. Justice Dibell

text:
    Pontiac Water, Light & Power Company, for use etc., Plaintiff in Error, v. City of Pontiac, Defendant in Error.
    Gen. No. 5,063.
    1. Appeals and errors—what essential to save questions. Exceptions to the rulings complained of contained in the record and shown in the abstract are essential to preserve the propriety of such rulings for review.
    2. Res judicata—when lack of identity of parties does not affect. In an action brought by a water company in which a receiver for such company is substituted, which action is carried on for the use of the bond-holders of such company, a judgment rendered therein is res judicata in a subsequent action so far as the subject-matter of the two suits is the same.
    3. Res judicata—extent of judgment as. In an action of assumpsit brought by a water company against a municipality to recover for water alleged to have been used by the latter, all claims for water existing against such municipality at the time of the commencement of such action are deemed to have been included therein and the judgment rendered in favor of such municipality is res judicata in a subsequent action as to all claims for water existing at the time of the commencement of the action.
    4. Waterworks companies—when municipality not liable for water used in flushing sewers. Held, under the evidence, that the municipality in question had, with the consent of the waterworks company, made a substitution of its method of flushing sewers, that is to say, that the use of automatic flushers in lieu of hydrants, as contemplated by the franchise ordinance, was authorized by the act of the superintendent of such company and that such municipality was liable only for the amount provided for in such ordinance in the event of the use of hydrants so long as there was no improper use made of such flushers.
    5. Cities, villages and towns—when indebtedness in excess of constitutional limitation precludes liability. An obligation payable in the future is a debt within the meaning of the constitution. It becomes due when the commodity is furnished and if the aggregate indebtedness already exceeds the constitutional limitation, no further contract for the payment of money can be enforced while the municipality is so situated.
    Assumpsit. Error to the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 24, 1909.

      Millard B. Powers and A. C. Norton, for plaintiff in error.
    Bert W. Adsit and McIlduff & Thompson, for defendant in error.
   Me. Justice Dibell

delivered the opinion of the court.

This is an action of assumpsit brought hy the Pontiac Water, Light & Power Company, plaintiff in error, for the use of eighty bond holders, against the city of Pontiac, defendant in error. The bill of particulars states that the suit is brought to recover $91,224, with interest thereon from October 16, 1902, at five, per cent per annum, for 564,896,000 gallons of water delivered to the city at certain flushing tanks and used by the city for flushing the sewers in said city between April 25, 1900, and October 16, 1902, at twenty-five cents per thousand gallons. The declaration contained counts upon an indebitatus assumpsit, á quantum meruit and a quantum valebant. There was a plea of the general issue. There seem to have been other pleading’s. Afterwards a jury was waived and the cause was submitted under the declaration and the general issue, with an agreement that all other pleadings should be disregarded and that any competent evidence might be offered by either party and admitted hy the court as if offered under appropriate special pleadings. There was a trial and a finding and a judgment for the city, from which plaintiff below prosecutes this writ of error. Plaintiff in error offered propositions of law, some of which were refused and others were held to be the law but not applicable to the case. An examination of the bill of exceptions in the record shows that plaintiff in error did not except to the action of the court on these propositions of law. They therefore present no question for our determination. After the evidence was closed, plaintiff in error entered a motion to exclude certain evidence. This was denied. The abstract is made to show an exception to this ruling and also to the refusal of the court to exclude several other items of testimony. The language thus abstracted is found on page 229 of the record and a careful examination of that language shows that it does not contain any exception whatever to said rulings refusing to exclude testimony. It is probable that those rulings were there collected with an intention to insert exceptions by plaintiff in error, but the exceptions are entirely omitted. The abstract of that page is incorrect and untrue, and the refusals to exclude there set out stand not excepted to and present no question. These eliminations narrow the field of discussion.

In 1891 the city of Pontiac adopted an ordinance authorizing certain parties to establish and operate waterworks in the city of Pontiac for the purpose of supplying the inhabitants of the city with wholesome water for domestic and other purposes. It provided that sixty fire hydrants should be established for which the city should pay a rental of $2500 per year, and provided for the location of additional hydrants for which the city should pay a rental of $45 each per year. It was ordained that these hydrants should be used only for the purpose of extinguishing fires, for reasonable practice of the fire department, and for flushing gutters and sewers through a hose and fire nozzle of one-inch diameter, and that in flushing no one hydrant should be used exceeding ten minutes in one week; that not more than one opening should be turned on at one time, and that there should be no flushing during a fire or without notice to the water company. The works were erected and became the property of plaintiff in error, by whom they were operated till a receiver was appointed. The ordinance provided that if the water company should issue bonds, the hydrant rentals should be pledged for the payment of the interest on said bonds. It did afterwards issue eighty bonds and secured them by a trust deed on the property. There was a default in the payment of the bonds and a foreclosure proceeding was instituted by the trustee, which, after pending several years, resulted in a sale of the plant and in a deficiency of over $30,000. The waterworks were accepted by the city council as a compliance with the ordinance, but in fact the water company never furnished water fit for domestic use as required by the ordinance, and thereafter, on July 3, 1897, the city served notice on the water company that unless within sixty days it furnished to consumers water so filtered as to be fit for the uses prescribed by the ordinance, the hydrant rental from the city would be forfeited. The water company did not thereafter comply with the ordinance and the city ceased to pay hydrant rentals. Thereafter the water company brought suit against the city to recover for said hydrant rentals. Afterwards the pleadings were so amended as to make the trustee the plaintiff for the use of the bondholders. That cause was tried. It was therein held that the city ceased to be liable for hydrant rentals upon the expiration of sixty days from said notice, but that it still had the right to use said hydrants for the purposes specified in the ordinance. That judgment was affirmed by this court in Illinois Trust & Savings Bank v. City of Pontiac, 112 Ill. App. 545, where said ordinance is fully stated. The Supreme Court affirmed our decision under the same title in 212 Ill. 326, but without a discussion of any of the questions here involved.

For some time after the installation of the waterworks, the city used the hydrants with a hose and nozzle for flushing its sewers as provided by the ordinance. Afterwards it abandoned that method of flushing the sewers, and installed and used certain automatic flush tanks for the purpose of flushing sewers. In each of these a tank of certain capacity was placed, controlled by such appliances that the city superintendent of sewers was able to so set them that they would fill and flush either twice or once in twenty-four hours. These tanks had an iron cover fastened on by a lock, but they were frequently opened and interfered with by private citizens by setting the apparatus so that the tank would flush much oftener. It also appeared that they were frequently so adjusted by some one that they remained entirely closed and did not operate at all for long spaces of time. This is a suit by the water company for the use of said bondholders to recover compensation for the water used in flushing said sewers through said automatic flushing tanks between April 25, 1900, and October 16, 1902. Experts testified for plaintiff in error as to the amount of water that would pass through these tanks into the sewers each day if set to discharge as often as some of plaintiff in error’s witnesses testified that they had seen them discharge, and other experts testified as to the reasonable value of the water. The defense contended that the automatic flush tanks were substituted for the hydrant for flushing purposes with the consent of plaintiff in error and that it was only bound to pay therefor when it was bound to pay hydrant rentals; that the judgment in the former suit is a bar to this action; and that during all the period covered by this suit the city was indebted beyond the constitutional limit and could not lawfully bind itself to pay for this water during this period of time.

After the city began the installation of these flush tanks plaintiff in error’s superintendent and manager of the waterworks sent to Chicago for one Dickinson, who came to Pontiac, examined the flush tanks and their method of operation and highly approved the same and authorized the city to install them. It is argued by plaintiff in error that it is not shown by competent evidence that Dickinson was an official of plaintiff in error and had authority to bind it. The superintendent of waterworks, the manager of plaintiff in error, sent for Dickinson, was with him during the making of this examination, held him out to the city as having authority in the matter, and immediately thereafter ceased all opposition to the installation of the flush tanks which he had till that time opposed. We are of the opinion that the acts of the superintendent bound plaintiff in error and justified the finding by the court that plaintiff in error consented to the substitution of the flush tanks for the hydrants for flushing purposes. Unless, therefore, the city by its officers, as distinguished from intermeddling by private citizens, used said flushing tanks in some improper manner so as greatly to exceed the use of the amount of water for which they were intended, the city would only be liable to pay the hydrant rentals, and would not be bound to pay for the use of the flush tanks if it was not bound to pay hydrant rentals.

Though the former suit went to judgment in the name of the trustee instead of the water company as plaintiff, yet it was begun by the water company, plaintiff in error here, and the substitution of its trustee as plaintiff must have been with the consent of plaintiff in error. That suit also was brought for the use of the same bondholders who are the usees in this suit. We therefore hold plaintiff bound by that judgment, although it was not nominally a party to the suit when the judgment was entered. That suit was begun on March 30, 1902, after the expiration of most but not all of the time covered by this suit. In that suit it was finally adjudged that the city was not liable to pay hydrant rentals after the expiration of sixty days from the service of the notice already mentioned. We conclude that the former judgment is conclusive against plaintiff in error as to the time covered by its bill of particulars between April 25, 1900, and March 30, 1902, for two reasons: first, because the flush tanks were substituted for the hydrants for flushing purposes by consent of plaintiff in error; and second, because the declaration and bill of particulars in the former suit were broad enough to cover the water used in said flush tanks. The declaration in that case was in evidence in this, and one count thereof was for goods, wares, merchandise, ivater, and property furnished by said party to said defendant, and the bill of particulars attached to the declaration, among other things, claimed a certain sum for “money due for goods, wares, merchandise, water, and property.” The cause of action of plaintiff in error in that suit could not be split up. It sued to recover for water and was therefore bound to prove in that suit all its claims for water alleged to be due when the suit was begun, and the final judgment in that suit must be held to bar all claims it had against the city when that suit was begun for water furnished by it to the city, whether it made proof thereof in that case or not. Moreover, as we conclude that the flush tanks were substituted for the hydrants for flushing purposes with the consent and acquiescence of plaintiff in error, and as the misuse of said flush tanks, if there was any such misuse, was not by the city or its officers, but by the interference of private individuals for whose conduct the city cannot be held responsible, and as it was established by the former judgment that long before the date covered by this suit the city had ceased to be liable to pay hydrant rentals, and as it is not shown that any new condition had arisen thereafter which would give the plaintiff in error any cause of action against the city for the use of water for flushing purposes, it follows that, on the same principle on which the former cause was decided, plaintiff has no cause of action against the city for the water used in said flushing tanks between March 30, 1902, and October 16,1902.

It appears to be conceded in argument that if the evidence introduced by the city on that subject was competent, then during all the time covered by this suit the city had exceeded the constitutional limit to the indebtedness of a municipal corporation, namely, five per cent of the assessed valuation of the property within the city, and therefore the city is not liable. An obligation payable in the future upon such a contingency as the furnishing of water in the future is a debt within the meaning of the constitution. It becomes due when the water is furnished, and if the aggregate indebtedness already exceeds the constitutional limitation, no further contract for the payment of money can be enforced while the city is so situated. City of Chicago v. McDonald, 176 Pontiac Water, Light & Power Co. 404; Lobdell v. City of Chicago, 227 Ill. 218. The deputy county clerk gave evidence as to the assessed valuation of the property in the city for several years, including the period covered by this last suit. He gave a summary of what appeared upon the assessor’s books. It may be that the assessor’s books themselves should have been produced, but the objection was not made on that ground. It was necessary to have a witness make a summary of what the books showed. The city offered in evidence a summary prepared by one S. E. Sims, showing the bonded indebtedness of the city outstanding and unpaid upon the first day of each month covered by this suit. Sims was not called as a witness, and it is insisted that error was committed by receiving in evidence this tabulated statement. We think there are two answers to this position: First, we think the objection that the witness was not produced and the statement sworn to was waived. The objection made was that it was incompetent, immaterial and irrelevant. Counsel for the city then said: “The objection of secondary evidence is waived?” The record shows that this sentence ended with an interrogation. Counsel for plaintiff in error then said: “Oh, no, not on that account.” While the first part of that answer might be thought to mean that the objection that it was secondary evidence was not waived, yet when the whole of the answer is considered, we think that the meaning was that he was not objecting on the ground that it was secondary evidence. We think counsel and the court so understood it, for it was obvious that an unverified statement of that kind could not be competent if that particular objection was made. But, second, plaintiff in error did not except. The court at that time permitted it to go in under objection without deciding whether it was competent or incompetent, and there was no exception then, and the exception to the refusal to exclude that paper which the abstract says is found on page 229 of the record we have already stated is not in fact there. The bill of exceptions does not contain any exception by plaintiff in error to the use of that tabulated statement in evidence.

We find no reversible error in the record. The judgment is therefore affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Lloyd Z. Jones, Plaintiff in Error.
    Gen. No. 5,053.
    1. Indictments—effect of motion to quash made upon specific grounds. A point not urged in a motion to quash an indictment made upon specific grounds may well be deemed to have been waived.
    2. Malicious mischief—section 208 of division 1 of Criminal Code construed. This statute means that whoever wilfully and maliciously kills, wounds, maims, disfigures or. poisons any domestic animal, the property of another, shall be imprisoned, etc.; and also, that whoever wilfully and maliciously exposes any poisonous substance, with intent that the life of any domestic animal, the property of another, shall be destroyed thereby, shall be imprisoned, etc.
    3. Malicious mischief—what not gist of section 203 of division 1 of Criminal Code. Malice towards the owner is not the gist of the offense defined by section 203 of division 1 of the Criminal Code.
    4. Malicious mischief—when indictment sufficient. An indictment under section 203 of division 1 of the Criminal Code is sufficient if in the language of the statute.
    5. Malicious mischief—when judgment not excessive. A conviction under the malicious mischief statute which imposes a fine of $550, is not excessive inasmuch as such judgment is less than the average punishment authorized by the statute.
    6. Malicious mischief—what not defense to prosecution for. Held, that the evidence offered in this case to justify the castration of a bull owned by the prosecuting witness, did not constitute a defense to the prosecution.

      7. Appeals and ebbobs—when instructions presumed cured by others. If the abstract filed on appeal does not set forth all of the instructions given it will be presumed in support of the judgment below that the given instructions as a series were accurate, that any omissions or inaccuracies appearing in those set out in the abstract were cured by other given instructions or that those which the plaintiff in error requested contained the same error or imperfection complained of.
    8. Appeals and ebbobs—what abstract should contain. An abstract filed on review should set out in full every instruction given, modified or refused.
    9. Tbial—when remarles of court will not reverse. Remarks of the court made in the presence of the jury which are reasonably necessary to a discussion of the questions argued in the presence of the jury will not reverse especially where there was no motion asking that the jury be excluded during such discussion.
    Prosecution for malicious mischief. Error to the Circuit Court of Henry county; the Hon. Emebt C. Gbaves, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 24, 1909.
    Anderson & Andrews and Thomas J. Welch, for plaintiff in error.
    Charles E. Sturtz, for defendant in error; Wm. C. Ewan, of counsel.
   Mr. Justice Dibell

delivered the opinion of the court.

Plaintiff in error was indicted for malicious mischief in castrating a bull calf, the property of one Johnson. The indictment was under section 203 of Division 1 of the Criminal Code, which is as follows:

“Whoever wilfully and maliciously, kills, wounds, maims, disfigures or poisons any domestic animal, or exposes any poisonous substance, with intent that the life of any such animal should be destroyed thereby, such animal being the property of another, shall be imprisoned in the penitentiary not less than one, nor more than three years, or fined not exceeding $1,000 or both; Provided, that this section shall not be construed to apply to persons owning sheep or other domestic animals, who may, in the exercise of reasonable care and good intentions put out poison on Ms own premises where sheep are kept, to kill sheep-Mlling dogs.”

Plaintiff in error pleaded not guilty, and was' tried and convicted, and was sentenced to pay a tine of $550 imposed by the jury, and the costs. He sued out this writ of error to review the judgment.

Plaintiff in error contends that the indictment will not sustain the conviction, because it does not charge that the act was done “with intent that the life of such animal should be destroyed thereby.” He argues that by the true construction of the statute the words last above quoted qualify all the preceding part of the section, and that that intent is an essential part of any crime under that entire section. TMs was not the view taken by plaintiff in error in the court below, for he filed a written motion to quash the indictment and therein alleged as the sole ground for said motion that no count of the indictment stated the value of the property alleged to have been maimed and wounded. He did not move in arrest of judgment. It may well he doubted whether, having expressly confined his motion to quash the indictment to another specific point, he can now be heard to question the sufficiency of the indictment upon this new ground. But if we treat the case as if plaintiff in error could now be heard to question the indictment for this newly discovered reason, we find that this position leads to the absurd result that if one were indicted under this statute for killing an ammal it would be necessary to allege that the defendant wilfully and maliciously Hlled the animal with intent that the life of such animal should be destroyed thereby. Moreover, the construction contended for would lead to this result : one might cut off the ears and tail of a domestic animal, the property of another, and remove its eyes, and yet not be guilty of a violation of this statute, unless it further appeared that he intended that the life of the animal should he destroyed thereby. We are of opinion that the law makers intended that such cruelty should be embraced within the provisions of this section. We construe the statute to mean that whoever wilfully and maliciously kills, wounds, maims, disfigures or poisons any domestic animal, the property of another, shall be imprisoned, etc.; and also, that whoever wilfully and maliciously exposes any poisonous substance, with intent that the life of any domestic animal, the property of another, shall be destroyed thereby, shall be imprisoned, etc. The indictment in Swartzbaugh v. People, 85 Ill. 457, was under this statute, and the substance of the indictment is there set out, and it does not contain any allegation that the shooting, wounding and cutting of horses, constituting the offense there complained of, was with intent that the lives of said horses should be destroyed thereby. It is true that this particular construction of the statute does not seem to have been presented in that case, but the indictment was held good and a conviction was sustained.

Each count of the indictment charged that the act was done by plaintiff in error “unlawfully, wilfully, feloniously and maliciously,” but it does not in express words charge malice against the owner of the animal. Plaintiff in error contends that malice against the owner is essential to the crime, and that such a charge was essential to make the indictment sufficient to sustain a conviction. Authorities from other jurisdictions are relied upon to support this position. We are of opinion that such is not the law of this state. Section 6 of Division 11 of the Criminal Code of Illinois enacts that every indictment shall be deemed sufficiently technical and correct which states the offense in the language of the statute, or so plainly that the nature of the offense may be easily understood by the jury. Loehr v. People, 132 Ill. 504. This indictment is in the language of the statute, and may be easily understood by the jury. Section 156 of Chapter 30 of the Revised Statutes of 1845 relating to criminal jurisprudence, provided for the punishment of the offense of unlawfully, wantonly, wilfully or maliciously killing or wounding domestic animals owned by another. Snap v. People, 19 Ill. 79, was an indictment under that statute, and did not charge malice against the owner of the animal, and a conviction was sustained. True, the language of that statute is slightly different from this. But in Swartzbaugh v. People, supra, an indictment under the statute now before us was held good, and it did not charge malice against the owner. It was held not necessary to charge the defendant with malice against the owner, in State v. Scott, 2 Dev. & B. (N. Car.) 35; Brown v. State, 26 Ohio St. 176; State v. Bruner, 111 Ind. 98; Mosely v. State, 28 Ga. 190; Territory v. Crozier, 6 Dak. 8. The indictment charged that plaintiff in error did not act maliciously, and in many instructions the court made it indispensable to a conviction that malice against the owner should be shown. We are of opinion that this point is not well taken.

It is argued that the proof did not warrant a conviction. Plaintiff in error was a stock farmer and raised registered short horns. He had several hundred head of stock. His pasture adjoined the pasture of Johnson. The cattle of each had previously broken into the pasture of the other, and the men were unfriendly on that account. A few days before the occurrence here involved another bull owned by Johnson had been in the enclosure of plaintiff in error. On the day in question Johnson had a bull calf or a bull one year and seven days old, which he had bought four or five days before. It got into the pasture of plaintiff in error, and among his cows, two of whom were in a heat. Plaintiff in error got a pail of salt and called his cattle to the barn yard, and drove one of said two cows into a shed and from there into an inner stable, and the bull followed. Plaintiff in error then turned the cow out and left the bull in the stable. This was about 3:10 o’clock P. M. Plaintiff in error then went to town and returned about 8 P. M., and went into the stable with a lantern and a milk pail. The bull put his head down and attempted to attack plaintiff in error, but the latter dodged and the bull struck the barn instead, and then kicked plaintiff in error twice and hit the lantern and put it out. Plaintiff in error went to his house and lit his lantern, came back and got a rope over the bull’s horns and tied bim up in a stall, then put a plank beside him in the stall and then castrated him, or, as he phrased it, “made an international winner out of him,” and then turned him loose. Plaintiff in error while testifying in his own behalf was asked why he castrated the bull, and he said it had got to be a contest between him and the bull for the possession of the milking stable; that he was alone and had no help; and that he did not care to turn him out with the other cattle because of the other cow which was in a heat. He was asked the same question on cross-examination and answered that he did it because he had to have the milking stable and had to get the bull out, but that the bull was then tied to the stanchion and he did not castrate him because of any fear that the bull was then going to jump on him, or because he was then attempting to or could do any damage to his cows. Plaintiff in error argues that his act was justified. If he had injured the bull while attempting to separate him from the cows or in defending himself from the attack of the bull in the stable, and such injury appeared to him reasonably necessary in the defense of his cattle or of his own person, and would have so appeared to a reasonable person situated as he was, no doubt he would be entitled to be exonerated. But he did not castrate the bull in an effort to separate him from the cows or in his own defense. The bull had already been separated from the herd for more than six hours. He was in that stable because plaintiff in error had enticed him there, and had shut him in. He was tied and could not then possibly injure plaintiff in error or his cows. There is no proof how many stalls plaintiff in error had on Ms premises, but as the owner of several hundred cattle it is not to be presumed that tMs was the only stall in which he could milk his cows. The right and duty of plaintiff in error, and the restrictions placed by law upon him, under such circumstances, are thus stated by Chief Justice Catón in Snap v. People, supra; “It is a violation of the common law as well as of this statute, for a person to shoot or wound stock found trespassing upon Ms premises. He may expel them from Ms premises, and use the necessary force for that purpose, doing them no unnecessary damage; or he may take them up damage feasant, if need be, to protect his crops or close, but the law of right, as well as humanity, forbids him to inflict an unnecessary injury upon the brute. The owner of the animal may be liable for the damage committed by it, but the injured party may not inflict injury in return. He may not take the law into Ms own hands, and thus retaliate upon the owner, and wreak his vengeance upon the animal, wMch but follows the instincts of nature in seeking food where it is most inviting.” We are of opinion that the proof did not justify plaintiff in error.

The court sustained objections to proof offered by plaintiff in error to the effect that when a cow has been served by a bull of another breed, and she produces a cross breed calf, there remains with the cow a tendency to cross breed ever afterwards; and also that if a bull has once attacked a man, he will have the habit for a long time thereafter of attacking that particular man, and that the only known remedy is to castrate the bull. It is argued that this proof tended to justify the act of plaintiff in error. We are of opinion that the court properly refused to admit tMs evidence. The law has not given a party authority to right his wrongs in this fashion. Besides, plaintiff in error was questioned on both direct and cross examination as to the reasons why he castrated the bull, and he gave them and did not give any such reasons. He did not claim that he was acting under the influence of any such theories.

It is argued that the court erred in ruling upon certain instructions. The ruling upon some of them is supported by what we have already said. In other cases we find that the instruction properly construed does not have the exact meaning attributed to it. But we find upon examination that plaintiff in error has omitted from his abstract numerous instructions which were given by the court, many of them at his request. Rule 16 of this court (137 Ill. App. 625) requires the abstract to set out in full every instruction given, modified or refused. The reasons for this rule are stated in Thompson v. People, 192 Ill. 79, and Toluca, M. & H. Ry. Co. v. Haws, 194 Ill. 92, and in the numerous cases there cited. In view of these omissions from the abstract, it will be presumed in support of the judgment of the court below that the given instructions as a series were correct, that any omissions or inaccuracies appearing in those set out in the abstract were cured by other given instructions, or that those which plaintiff in error requested contained the same error or imperfection complained of.

It is argued that the fine is excessive, in view of the fact that the bull was worth only $40, and was not killed. This is not a suit to reimburse the owner. It is a prosecution for cruelty and malicious mischief. The jury were authorized by the statute to fix the punishment at imprisonment in the penitentiary for not less than one year or more than three years, or at a fine of from one cent to $1000, or to inflict both imprisonment and fine. The imprisonment is mentioned first in the statute. An average punishment would have been confinement in the penitentiary for eighteen months and a fine of $500. This jury inflicted much less than half of what the law permitted. The law has authorized the jury to fix the punishment. They saw the demeanor of plaintiff in error upon the witness stand, and may have seen that which threw light upon his motives and upon the extent to which he was controlled by malice in what he did. The trial judge who also heard plaintiff in error testify, has approved the punishment. We cannot say upon this record that the fine is so excessive as to call for a reversal on that ground.

There was a lengthy argument upon questions of evidence, and the trial judge in deciding the questions delivered a somewhat lengthy opinion, in which he discussed the questions argued, and expressed his views upon them. Complaint is made of this language used in the presence of the jury. The remarks of the court appear to have been reasonably necessary in a discussion of the questions argued. Ashbaugh v. Murphy, 90 Ill. 182. Plaintiff in error did not except to the language used, neither did he ask to have the jury withdrawn during the lengthy argument which preceded the decision by the judge nor while that decision was announced. We do not think plaintiff in error has preserved any question in that regard for review.

We find no reversible error presented by the abstract and briefs of plaintiff in error. The judgment is therefore affirmed.

Affirmed.


text:
    George Wagner, Appellant, v. Robert A. Wagner et al., Appellee.
    Gen. No. 5,080.
    1. Tbusts—spendthrift trust defined. Spendthrift trusts are defined as those trusts which are created with a view to providing a fund for the maintenance of another and at the same time securing it against his own improvidence or incapacity for self-protection. The fact that the beneficiaries of such trust may be active, sober, frugal business men does not affect its character, nor is it essential to the creation of such a trust that the immunity of the fund from the claims of creditors be specifically provided for; if such a result is accomplished by the terms of the will, it is sufficient.

      2. Tbttsts—what not dry trust. A trust which gives the income of property devised to trustees in trust without providing for the final disposition of such property, is not a dry trust if certain active duties with respect to the property in question are imposed upon the trustees.
    - 3. Wills—when rule against perpetuities not violated. Held, that the trusts created by the will in question in this case provided in effect for their termination on the deaths respectively of the several named beneficiaries, if such trusts were not sooner terminated by the exercise of the power of disposition conferred upon the trustees.
    Bill to construe will. Appeal from the Circuit Court of ■ Rock Island county; the Hon. W. H. Gest, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed April 28, 1909.
    J. T. & S. R. Kenworthy, for appellant.
    Connelly & Connelly and Searle & Marshall, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

George Wagner, now deceased, executed a will on June 3, 1901, and executed a first codicil on April 13, 1906, and executed a second codicil thereto on January 3, 1907. He died on January 10, 1907. Said will and codicils were duly admitted to prohate. By the first paragraph of his will he directed his executors and trustees to take possession of all his estate, real, personal and mixed as soon after his decease as practicable. By the second paragraph thereof, he appointed his son, Bobert A. Wagner, and his friend, Bernard D. Connelly, executors of his will and gave, devised and bequeathed to them all his estate in trust for the use and purposes thereinafter set forth. He directed that after the payment of his debts and funeral expenses and certain bequests, his executors and trustees should invest and keep invested all the residue of his personal estate in good securities, and keep rented all his real estate to the best advantage, and out of the income therefrom pay all taxes, insurance, repairs and other legitimate demands against his estate. In the third paragraph he stated that he had made liberal advancements to his sons,' George Wagner, Jr., and Ernst Wagner, and to equalize these advancements he bequeathed to his son Robert (these three sons being his only children) sixty-two shares of stock in a certain bank, and five thousand dollars in cash, provided that if Robert died before the testator, Robert’s wife should receive said sixty-two shares of stock and said five thousand dollars. By the fourth paragraph he gave to a son and daughter‘of his son George $2500 each, to be paid to them or to their guardian, if they were minors at the date of testator’s death, and provided that the same ‘1 shall be deducted and taken from the share of my estate which my said son George may inherit in its final distribution.” By the fifth paragraph he authorized his executors and trustees at any time to mortgage, pledge or sell the whole or any part of his real or personal estate, together or in parcels, on such terms and in such manner as they think fit, and gave them various other like powers, and directed them to use the proceeds in their discretion in the improvement of any other part of his property. By the sixth paragraph he provided that all stocks and bonds and other securities belonging to the testator at the time of his death should form a part of the trust created by his will, and empowered his executors and trustees to make investments and reinvestments of the trust money in such securities and in such real and personal property as they thought proper, and exonerated them from liability for any loss or depreciation. By the seventh paragraph he empowered his executors and trustees to pay or compromise any debts testator owed or which it might be claimed that he owed, and gave them other like powers. The eighth paragraph gave his executors and trustees power to determine questions arising in the administration of his will, and made their decision binding on those interested thereunder. The ninth paragraph provided for the compensation of his executors and trustees. The tenth paragraph was as follows: “When the time for the closing up and final distribution of my estate arrives, it is my wish that all real, personal and mixed property of every kind remaining under the control and in the possession of my said executors and trustees shall be distributed among my said legal heirs in accordance with the laws of the State of Illinois, relating to descent.” The eleventh and last paragraph of the original will provided for filling vacancies in the offices of executors and trustees, and investing the successors in trust with the same powers and authority given to the executors and trustees therein named.

The first codicil, after the preliminary words stating that it is a codicil, read as follows, omitting the witness clause and signature:

“Whereas, since the making of my said last will, I have converted the most of my estate into personalty, and,
“Whereas, many years of my life have been given to the upbuilding of the brewing industry of the city of Bock Island and the fruits of my long business career are largely represented by shares of capital stock of the Bock Island Brewing Company now in my name, and
“Whereas, it is my earnest wish and desire that as far as possible my personal interest and holdings in said Bock Island Brewing Company may be kept intact by my sons after my death,
“Now, Therefore, I do hereby give, devise, and bequeath unto Eobert A. Wagner and Bernard D. Connelly, executors and trustees named in my said last will, one-third of my holdings in said Eock Island Brewing Company’s stock in trust for the benefit of my son Ernst Wagner, and I also give, devise, and bequeath unto said Eobert A. Wagner and Bernard D. Connelly executors and trustees named in my said will, one third of my holdings in said Eock Island Brewing Company’s stock in trust for the benefit of my son George Wagner, first deducting however, from the stock so to he held for the benefit of said George Wagner such portion of $5,000 as may be necessary to carry out the bequests under the fourth paragraph of my said last will.
“I direct my said trustees to pay to said Ernst Wagner the net income that may be derived from said Eock Island Brewing Company’s stock, so held for his benefit, at such times and in such amounts as said trustees- in their discretion shall deem proper, and I direct that my said trustees shall pay to said George Wagner the net income that may be derived from said Eock Island Brewing Company’s stock, so held for his benefit, at such times and in such amounts as said trustees in their discretion shall deem proper.
“If at any time, for the proper support and maintenance of either of my said sons, Ernst Wagner or George Wagner, or for any other purpose deemed expedient by my said trustees, it shall be advisable to pay unto said Ernst Wagner or said George Wagner any sums greater than the annual net income derived from said stock so held for their benefit, then I direct my said trustees to so pay such sums unto said Ernst Wagner and said George Wagner, and in order to raise additional sums I direct and empower my said trustees, in their discretion, to mortgage, pledge, or sell any portion of my said stock so held by them in trust for their benefit, and I direct my said trustees to so pay such sums unto Ernst Wagner and said George Wagner, and in order to raise such additional sums, I direct and empower my said trustees, in their discretion, to mortgage, pledge, or sell any portion of said stock so held by them in trust.
“I desire my said trustees to so administer the trusts herein created so that in their dealings with my said sons, Ernst Wagner and George Wagner, they shall, as nearly as possible, deal and treat with them as I would myself were I living, keeping in mind, however, my expressed desire to have the Wagner interests remain identified with the Eock Island Brewing Company as far as practicable. The trusts hereby created shall terminate in the discretion of the trustees or their successors.
“I give, devise, and bequeath the remaining one third of my holdings in the stock of the Bock Island Brewing Company to my said son Bobert A. Wagner, to be his forever.
“In all other respects I hereby ratify and confirm my said last will and testament.”

The second codicil contained a bequest of $5000 to Amelia Mattes in compensation for services.

The case now before the court arose upon an amended bill as amended, filed by George Wagner against his two brothers and the two executors and trustees and his two children and Amelia Mattes, now Stenger, for a construction of the first codicil, and to have it determined that thereby George took at once the one-third of the holdings of the Bock Island Brewing Company’s stock, and that his brother Ernst also become the absolute owner of the other one-third, and that the court would declare the trust closed and turn said property over to George and Ernst, respectively, and also for a partition of certain real estate of which it was alleged the testator died seized. Said amended bill as amended will hereinafter be called the bill. Amelia Mattes answered the bill, admitting its allegations, except that she denied the allegations of the bill that the legacy to her had been paid. Ernst Wagner was defaulted ; a guardian ad litem filed an answer for the two children of George Wagner; Bobert A. Wagner in his own right, and he and Connelly as executors and trustees, demurred to the bill. It was stipulated in open court that said demurrer should apply to and be respectively sustained or overruled as to the several parts of the bill in the same manner and to the same extent as if specially directed to such several and distinct parts. The cause was submitted upon these pleadings.

The court held that the tenth clause of the original will was void for remoteness, and obnoxious to the rules against perpetuity, and that the demurrer should be overruled as to so much of the bill as sought partition of the real estate or distribution of the personal estate under said tenth clause of the original will, and decreed partition of the real estate. The court held against the complainant as to the first codicil, and held that it created a valid trust, to terminate, respectively, at the time of the respective deaths of George and Ernst, if not sooner terminated by voluntary act of the trustees in the exercise of the discretion given them by the testator, and that so much of the complainant’s bill as sought to have the first codicil declared null and void should be dismissed; and it was thereby dismissed. Complainant elected to abide by his bill so far as the demurrer was sustained thereto, and appealed from that part of the decree to this court, and perfected that appeal.

It is contended by appellant that the sole object of the testator in making his first codicil was to keep his brewery interests intact, and therefore the trust was intended to continue indefinitely beyond the lifetime of his sons George and Ernst, and hence the provision establishing a trust was void because it violated the rule against perpetuities. The preamble to the first codicil does show that since the testator made his original will he had converted most of his estate into personalty; that he had given many years of his life to the building up of the brewing industry in the city of Bock Island; that the fruits of his business career were largely represented by the shares of capital stock of the Bock Island Brewing Company standing in his name; and that he desired that as far as possible his holdings in that stock should be kept intact by his sons after his death. He does not, however, say that the sole purpose or the main purpose of making that codicil was to cause those holdings to be held intact. That that was not his sole or objective purpose is obvious from several considerations. He therein gives Bobert one-third of that stock absolutely, thereby enabling Bobert at any time to prevent the testator’s stock from being held intact, and enabling Bobert at any time to sell and dispose of the same, and enabling Robert’s creditors at any time to seize the same. Again, he directed his trustees to pay the net income from the other two-thirds of the stock to Ernst and George, respectively, at such times and in such amounts as the trustees should deem proper. If his sole object had been to keep his brewery interests, or even two-thirds thereof, intact, he would not naturally have put any limitation upon the payment of the income to these sons.- Still further, he authorized his trustees to sell, mortgage or pledge any part of the stock held by them in trust for George and Ernst, for the proper support and maintenance of George and Ernst, or for any other purpose deemed expedient by his trustees. This gave the trustees full power to dispose of the stock entirely at any time, whenever they thought that the proper support and maintenance of these sons, or any other unforeseen exigencies, made it seem expedient to the trustees to do so in caring for George and Ernst. These directions seem to manifest clearly that the purpose of the codicil was not to preserve his brewery interests intact, but to provide for the welfare of his children, and to secure to George and Ernst a sure support and a provision against the unforeseen exigencies of life. If its purpose had been to keep his brewery interests intact, it cannot be supposed that he would have authorized his trustees to dissipate and scatter those interests whenever they thought proper.

The bill averred that each of the three sons of the testator was and had been for many years prior to the death of the testator sui juris and compos mentis, and active, sober, frugal and industrious business man. It is argued that the demurrer admitted these allegations, and therefore the trust created by the first codicil in behalf of George and Ernst cannot be a spendthrift trust. The term “spendthrift” as used in that connection merely means one in whose behalf or for whose support a fund is provided in such a way as to be removed from the control and disposition of the beneficiary, and from liability for Ms individual debts. A spendthrift trust is defined to be a term applied to those trusts that are created with a view of providing a fund for the maintenance of another, and at the same time securing it against his own improvidence or incapacity for self-protection. 26 A. & E. Encyc. of Law, 2nd ed. 138. By the trust created by this first codicil, no part of the brewery stock directed to be held for the benefit of Ernst Wagner and George Wagner, respectively, was ever to be delivered to them or the proceeds paid to them unless the trustees deemed it advisable, for their proper support and maintenance, or for any other purpose. The income also was not to be paid to George and Ernst at stated times or in stated amounts, but it was to be paid at such times and in such amounts as the trustees in their discretion deemed proper. It is obvious that the interests so created could not be reached by the creditors of George and Ernst. It was held in Bennett v. Bennett, 217 Ill. 434, that it was not necessary that an instrument creating a spendthrift trust should contain an express declaration that the interest of the cestui que trust should be beyond the reach of his creditors, if that intention appeared from all parts of the instrument construed together in the light of the circumstances. It was also held that in that case the fact that a trustee was appointed' and vested with the estate, and that the beneficiary was given the income only, was a circumstance from which the intention of the testator to create a spendthrift trust might be inferred. It is argued by appellant against this position that where property is given to a trustee and the income is to be paid to another, and the will makes no final disposition of the property, the gift of the income is a gift of the body of the estate, and the trust is a dry trust, and the person to whom the income is given takes the whole estate and title of the trust property at once. It is argued that under this principle and the authorities cited in its support, this is a dry trust. This position overlooks the duties imposed upon the trustees. They are to hold this stock. They are to deduct from the stock held for the benefit of George such portion of the five thousand dollars as may be necessary to carry out the bequests to the children of George, under the fourth paragraph of the original will. The trustees are to receive the income from this stock. They are not to pay that income at once upon its receipt to George and Ernst, respectively; but they are to hold the income and exercise their discretion as to the times when and the amounts which shall be paid to these two sons. They are to pay Ernst and George the “net” income, implying that they will first pay taxes and perhaps other charges therefrom. They are authorized to determine whether at any time it is advisable for the proper support and maintenance of said sons, or whether for any other reason it is expedient that a greater sum than the annual net income be paid to Ernst and George, and if they so conclude, they then are authorized to mortgage or pledge or sell any portion of the stock. They are also authorized to so administer this trust in their dealings with Igrnst and George that they shall as nearly as possible deal and treat with Ernst and George as the testator himself would do if he were living. They are also authorized in their discretion to terminate the trust. These are positive duties enjoined upon the trustees, and the performance of these duties requires the trustees to hold the stock, and therefore forbids the application of the rule that the gift of the income to the sons was the gift to them of the title to the stock itself. It seems obvious that the testator believed that the support and maintenance of George and Ernst would not be assured if they were each given the possession and control of one-third of this stock upon the death of the testator, but that such support would be better assured if the stock was placed in the hands of these trustees with discretionary powers as to payment of the net income, and authority to use the principal in case of need, with power in the trustees to give them the absolute control of the proceeds of the stock when in the discretion of the trustees they felt justified in so doing. There must have been some reason personal to George and Ernst, respectively, why these provisions were made. The testator in the third paragraph of his original will stated that he had already made liberal advances to George and Ernst. We are of opinion that the court below was justified in concluding that this first codicil created a spendthrift trust for the benefit of George and Ernst, within the meaning of that term as used in the law.

It is argued that no time is provided for the termination of this trust, and therefore it is void. We think this position unsound. The trustees were given no duties to perform after the death of George and Ernst. As to each one-third of the stock the duties of the trustees ended when the beneficiary of that third died. It is said in Kohtz v. Eldred, 208 Ill. 60, that “where the evident purpose of a trust is the accomplishment of a particular object, the trust will terminate so soon as that object has been accomplished, and the fact that a fee is given to the trustee does not show the testator’s intention that the trust estate shall continue after the active duties connected with the trust have been accomplished.” We regard it as clear that the court below correctly held that the trusts terminated, respectively, at the time of the respective deaths of the cestuis que trust, if not sooner terminated by the voluntary act of the trustees in the exercise of the discretion given them by the testator. The trust therefore did not violate the rule against perpetuities.

But appellant contends that it is uncertain what becomes of the title to this two-thirds of the brewery stock, upon the death of George and Ernst, and insists that the court should have determined that question; and also seems to combat each possible theory as to the meaning of the will on that subject, and to claim that because that subject is left indefinite the trust created by the codicil is void. We do not suppose that question is in doubt when the whole codicil is considered. The stock was given to the trustees in trust for the benefit of Ernst Wagner and George Wagner, respectively, and the trustees had authority, if they deemed it advisable and proper, to sell and dispose of any part of the stock and pay the sums derived therefrom to Ernst and George, even to the exhaustion of the entire sum received from the sale of all the stock. But that question does not concern the present complainant. When the court decided that the trust created by the codicil was not void, and that George did not take the body of the estate, but only the income, at such time and in such amounts as the trustees saw fit to pay it to him, that disposed of all the interest of George in this litigation', except as to the real estate, which is not brought before us by this appeal. When George is deceased and the trust as to that one-third of the stock ends, it may be that there will be no dispute or litigation upon the question who takes that stock. If there should be any occasion for litigation upon that subject, there may be parties interested in that litigation who are not before the court by this bill. It is sufficient for the purposes of this litigation that the trust will end as to the stock held for the benefit of George when he dies, and the trust as to the stock held for the benefit of Ernst will terminate at his death, and that said stock will then be distributed in such manner as this will, when properly construed, provides. Or if it should then be held that the will makes no provision on that subject, it will then be distributed as intestate estate of the testator. The court properly declined to determine that question by this decree. So much of the decree as is appealed from is therefore affirmed.

Affirmed.