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    John Wesley Riggs, Minor, by Elwood Riggs, His Next Friend and Elwood Riggs, Appellees and Cross Appellants, v. William M. Barrett, Individually and as Administrator with the Will Annexed of Estate of Enid P. Barrett, Deceased, Appellant. Kathryn A. Culver et al., Appellees. Metropolitan Trust Company, Ancillary Administrator De Bonis Non with Will Annexed of Estate of Enid. P. Barrett, Deceased, Appellee and Cross Appellant. Ida Groves Gregory, Appellee. Continental Illinois National Bank and Trust Company of Chicago, Successor Trustee, Appellant.
    Gen. No. 41,466.

      Opinion filed February 26, 1941.
    Rehearing denied March 10, 1941.
    McCulloch, McCulloch & McLaren, of Chicago, for certain appellant; Frank H. McCulloch and Herman L. Taylor and Ned P. Veatch, both of Chicago, of counsel.
    Abraham W. Brussell, of Chicago, for certain other appellant.
    Deneen & Massena and Henry H. Koven, both of Chicago, for certain appellee; Marshall A. Pipin and David Bogolub, both of Chicago, of counsel.
    Max M. Grossman and Samuel Grossman, both of Chicago, for certain other appellee and cross appellant; Louis N. Grossman, of Chicago, of counsel.
    Winston, Strawn & Shaw, of Chicago, for certain other appellees and cross appellants; James H. Cartwright, Albert W. Potts and George B. Christensen, all of Chicago, of counsel.
    Michael F. Ryan, Guardian Ad Litem, for certain other appellees; Richard F. McPartlin, Jr., of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

Enid P. Rupp and Elwood Riggs were married at Crown Point, Indiana, on June 3, 1919. Each of the parties had previously been married. The bride was the mother of Kathryn by a previous marriage. John Dorn was born on September 12, 1923. Elwood and Enid Riggs obtained the custody of John in December, 1923, when he was 3 months old. At that time the parties resided in Los Angeles, California. Enid and Elwood Riggs adopted John Dorn as their child in a decree entered in the superior court of California in and for the county of Los Angeles on May 22, 1924. The name of the child was changed to John Wesley Riggs. Kathryn, the daughter of Enid, took the name of Kathryn Riggs. She, however, was not adopted by Elwood Riggs. Clara Groves (now deceased), was the mother of Enid Riggs. Ida Groves Gregory is the sister of Enid Riggs. On March 18, 1925, at Los An-geles, California, Elwood and Enid Riggs executed a sealed instrument which recited that the parties were then living separate and apart “on account of certain irreconcilable differences,” and that they desired to settle their respective property rights and interests. Elwood agreed to set up a trust. In accordance with this promise, on July 3, 1925, at Chicago, Illinois, Elwood, as settlor, and the Illinois Merchants Trust Company of Chicago, as trustee, executed and delivered a certain trust instrument. It was accepted by Enid as being in conformity with the property settlement agreement of March 18, 1925.- Subsequently, the Continental Illinois National Bank and Trust Company of Chicago became the successor trustee under the trust agreement. In the trust instrument of July 3, 1925, Elwood established a spendthrift trust in the principal amount of $250,000. The trustee was directed “to pay the net income from the said trust estate, in convenient instalments, to Enid P. Biggs, the former wife of the settlor, so long as she shall live, and said income shall be used by her for her own support and maintenance, and for the support and maintenance of her daughter, Kathryn A. Biggs and John Wesley Biggs, the adopted son of the settlor and said Enid P. Biggs.” The instrument also indicated a desire to provide for Mrs. Clara droves. The trust gave the income for life to Enid and gave her a general power of appointment by will, over the corpus. In der fault of appointment the remainder was to go 4/5ths to Kathryn A. Biggs and l/5th to John Wesley Biggs, with cross remainders between them and their issue. On April 3, 1925, Enid obtained an interlocutory decree of divorce from Elwood in the superior court of Los Angeles county, California, and on April 6, 1926, this decree was made final. On May 17, 1925, before the interlocutory decree was made final, Enid married one Ben B. Kitchen at Tia Juana, Mexico. Shortly thereafter this marriage was annulled. Elwood married Mabel Biggs. On November 26,1932, Elwood and Mabel Biggs adopted John Wesley Biggs by virtue of a decree entered in the county court of Cook county, Illinois. Enid consented to the adoption. On April 8, 1933, in Cook county, Illinois, Enid married William M. Barrett. On January 14,1935, a decree of divorce was entered in the superior court of Cook county, Illinois, dissolving the marriage between William Barrett and Enid Barrett. The complaint for divorce was filed by Enid. The decree found that “the plaintiff is and since prior to the filing of said complaint has been an actual resident of Cook County, and has been a resident of the State of Illinois for over one whole year next before the filing of the complaint herein.” Enid’s complaint against William M. Barrett in the superior court of Cook county alleged that she was an “actual resident of the County of Cook, aforesaid, and has been for moré than two years last past and over a resident of the State of Illinois.” It also alleged that the parties were married on May 8, 1933. The decree finds and the return on the marriage certificate shows that the marriage was performed on April 8, 1933, and that Enid gave her name as “Miss Pearle Biggs.” William Barrett and Enid were remarried in the State of Arkansas in October, 1936. Clara Groves, the mother of Enid, died prior to the year 1935. Kathryn A. Biggs, the daughter of Enid, married one Culver. Kathryn gave birth to Luana Culver. On November 8, 1940, Kathryn married George Knack, Jr. Enid died at Laramie, Wyoming, on August 7, 1937. Her death was caused by an automobile accident. Surviving her were William M. Barrett, her widower, Kathryn, her daughter, Ida Groves Gregory, her sister, and Luana Culver, her granddaughter! At the time of her death Enid was 47 years of age. Elwood Biggs is now 78 years of age. Kathryn is under the age of 35 years and her daughter Luana is a minor. John Wesley Biggs is now 17 years of age.

On June 29, 1928, Elwood Biggs filed a bill of complaint in the circuit court of Cook county, naming Enid P. Biggs, Kathryn A. Culver, John Wesley Biggs, Clara Groves, the trustee and unknown owners, as defendants. He sought the dissolution of the. trust on the ground that it had been obtained by fraud. That litigation was compromised by a contract between Elwood and Enid. The contract was drafted by attorney Charles J. Kelly of Los Angeles, and was signed by the parties in that city on July 14, 1928. On August 9, 1928, on motion of complainant Elwood Biggs, and no appearances having been filed by any of the de-fondants, the bill of complaint filed by him in the circuit court of Cook county was dismissed. The agreement of July 14, 1928, between Elwood Biggs, party of the first part, and Enid Biggs, party of the second part, provided that:

“For and in consideration of the covenants and agreements hereinafter contained on the part of the party of the first part, to be by him kept and performed, the party of the second part promises and agrees that" at’ the time of her death, by Last Will and Testament, to bequeath to John Wesley Biggs, the adopted son of the parties hereto, the sum of $75,000, to be paid to the said John Wesley Biggs from out of the trust fund of $250,000, now held in trust by the Illinois Merchants Trust Company of Chicago, Illinois, for the benefit, among others, of the party of the second part herein, to be conditioned that until the said John Wesley Biggs reaches the age of thirty-five years the income only of said sum shall be paid to him, and upon his reaching the said age of thirty-five years then the said principal of $75,000 shall be paid to him, and on the further condition that if the said John Wesley Biggs shall die before arriving at the age of twenty-one years then said bequest to the said John Wesley Biggs shall fail and shall become null and void, and the said sum shall thereupon be distributed to Kathryn Biggs Culver, the daughter of the party of the second part hereto, as the residuary legatee in said Will to be named as such.

“The party of the second part further promises and agrees to bequeath all the rest, residue and remainder of the said $250,000 trust fund to the said Kathryn Biggs Culver, subject to the terms, conditions and provisions of the said trust instrument, and subject also to the condition that if the said Kathryn Biggs Culver shall die without issue of her body then the sum of $75,000 of the sum so bequeathed to her shall be bequeathed and distributed to Elwood Biggs, the party of the first part hereto, or to his estate, in the event that he should die before the death of the party of the second part.

“The party of the first part hereby waives any and all right and/or claim of any nature or description that he may now have or that he might in any manner, at this time or at any time hereafter, assert for a cancellation or modification of the said trust instrument, and/or of the property settlement heretofore made between said parties, and, except as set forth herein, hereby ratifies and affirms said property settlement and said trust instrument.

“This agreement shall be binding upon the heirs, executors and administrators of the parties hereto.” The contract of July 14,1928, was filed with the trustee as one of the trust documents. Following the execution of the agreement purporting to modify the trust instrument and on the same day (July 14, 1928). Enid made her will. It was drafted by attorney Charles J. Kelly of Los Angeles, and was made by her in that city. Elwood did not participate in drafting the will. It reads:

‘ ‘ Second — In accordance with the terms of an agreement made and entered into between Elwood Kiggs and myself, bearing even date herewith, and to carry out the terms thereof, as well as for the reason that it is my desire and wish that John Wesley Riggs be amply provided for, I hereby give, will, devise and bequeath unto said John Wesley Riggs the sum of $75,000, to be paid to the said John Wesley Kiggs from out of that certain trust fund of $250,000 now held by the Illinois Merchants Trust Company of Chicago, Illinois, upon the condition that until the said John Wesley Riggs reaches the age of thirty-five years the income only of said sum of $75,000 shall be paid to him, and upon his reaching the said age of thirty-five years then the said principal sum of $75,000, together with any increase or' accumulated income therefrom, shall be paid to him. Should the said John Wesley Biggs die before my death then the foregoing bequest shall become null and void.

“Third — I give, will, devise and bequeath unto my daughter Kathryn Biggs Culver all of the rest, residue and remainder of said trust fund of $250,000, namely, the principal sum of $175,000, on condition, however, that until the said Kathryn Biggs Culver reaches the age of thirty-five years the income only of said sum shall be paid to her, and upon her reaching the said age of thirty-five years then said entire principal sum of $175,000, together with any increase or accumulated income therefrom, shall be paid to her, with the further condition, however, that of said sum of $175,000 so to be paid to her the sum of $75,000 shall be for her use and benefit during the term of her natural life only, and upon her death without issue I give, will, devise and bequeath the said last mentioned sum of $75,000 to Elwood Biggs, or in the event of his death before my death, then to his estate; should said Kathryn Biggs Culver die leaving issue of her body surviving her then I give, will, devise and bequeath the said sum of $75,000 unto such issue as may survive her, share and share alike. In the event of the death of said John Wesley Biggs before arriving at the age of Twenty-one years, then I give, will, devise and bequeath unto my daughter Kathryn Biggs Culver the said sum of $75,000, to be distributed to her, however, in the same manner as provided herein for distribution thereof to said John Wesley Biggs, and being the same $75,000 hereinbefore provided to be bequeathed to the said John Wesley Biggs.

“Fourth — Having complied with the terms of the said agreement hereinbefore mentioned, as to the distribution of my said estate, I now provide for the distribution thereof should the said Kathryn Biggs Culver die before my death, without issue of her body surviving her; In the event of the death of my daughter Kathryn Biggs Culver, before my death, without issue of her body surviving her, then and in such event I give, will, devise and bequeath unto James Gregory, of Glencoe, Cook County, Illinois, the sum of $50,000 of the said remaining sum of $175,000, and I give, will, devise and bequeath unto John Wesley Biggs the sum of $125,000 thereof, being the amount remaining; each of said sums to be paid and distributed to the respective parties in the same manner as hereinbefore provided, but on the condition, however, that the said bequest of $125,000 to John Wesley Biggs shall be subject to the payment of the income therefrom to my mother, Clara Groves, should she survive me, during the term of her natural life, and upon her death only to be given to said John Wesley Biggs, as hereinbefore provided, and to confirm such income therefrom unto my said mother, Clara Groves, I hereby give, will, devise and bequeath unto the said Clara Groves, during the term of her natural life, should she survive me, the use and income of said $125,000 hereinbefore bequeathed to said John Wesley Biggs.” On September 27, 1935, Elwood Biggs filed a second complaint, attacking the trust. He repeated the allegations of fraud of the previous complaint, and in addition thereto alleged newly discovered facts and misconduct on the part of Enid while married to him and a conspiracy by her and Kathryn in procuring the trust. John Wesley Biggs’ interests were not to be jeopardized by this litigation if Elwood won completely because Elwood, by amendment to the complaint, offered that any decree therein should contain “such reservations or provisions as shall . . . seem meet, establishing or affirming a right or claim on behalf of John Wesley Biggs, to the sum of $75,000 out of the corpus of the trust. ’ ’ The suit was bitterly contested on the pleadings and in preliminary motions, but before the trial the adult parties, being Elwood the settlor, Enid the income beneficiary, and Kathryn the contingent re-mainderman agreed upon a settlement. Guardians ad litem and trustees were appointed for all possible contingent remaindermen or those having mere expectancies. Under a rule to show cause, they were required by the court, to report whether the settlement proposed was in the best interests of the minors. The guardians and trustees reported that it was. On May 15, 1936, a decree was entered which was consented to by all of the adults. The essence of this settlement and decree was to permit the withdrawal from the corpus of $50,000 to be paid to Elwood and $25,000 to be paid to Enid, and to confirm, ratify and hold ‘ ‘valid, binding and enforceable” the three trust documents, being (1) the original property settlement agreement providing for the establishment of the trust (2) the original trust indenture and (3) the contract of 1928 modifying the trust by limiting the power of appointment. On February 3, 1936, while the last-mentioned cause was pending, Enid made a second will. This will was executed in Illinois. The second will, in part, reads:

“Second. Under the Power of Appointment given me under the Fourth Clause of the Trust Agreement executed by Elwood Riggs, July 3rd, 1925, in which the Illinois Merchants Trust Company was appointed Trustee, and under which the Continental Illinois National Bank and Trust Company is the Successor-Trustee, I give, devise and bequeath unto my daughter Kathryn A. Culver, the sum of $125,000 payable in cash or property of the above mentioned Trust Estate, in the manner hereinafter directed.

“Third. Under the Power of Appointment given me under the Fourth Clause of the Trust Agreement Executed by Elwood Riggs, July 3rd, 1925, in which the Illinois Merchants Trust Company was appointed Trustee, and under which the Continental Illinois National Bank and Trust Company is the Successor-Trustee, I give, will, devise and bequeath unto my sister Ida Groves Gregory, the sum of $75,000 payable in cash or property of the above mentioned Trust Estate, in the manner hereinafter directed.

“Fourth. All the rest, residue and remainder of my estate, real, personal and mixed, of every kind and nature and wheresoever situated, of which I die seized or possessed or which I may be entitled at the time of my death, (including any and all legacies, bequests and devises hereinabove in this my will set forth, which may have lapsed or failed by reason of the death of the legatee or devisee prior to my decease,) I give, devise and bequeath to my daughter Kathryn A. Culver and my sister Ida Groves Gregory, to be divided equally between them.

“Fifth. I nominate and appoint Lewis F. Baker, of the City of Chicago, County of Cook and State of Illinois, to be Executor and Attorney of this my Last Will and Testament . . . .”

In April, 1936, Elwood Biggs filed a petition for leave to settle." On April 11, 1936, Enid and Kathryn filed their answer to the petition, wherein they stated that “the allegations in said petition contained are true and correct, and these defendants consent thereto, and by reason thereof join in the prayer of the said petition.” Enid swore to the answer. It will be observed that this answer was filed about 2 months after Enid made her will cutting off the minor, John Wesley Biggs, and the contingent remainder, if any, of Elwood. In accordance with the decree of May 15, 1936, the trustee, from the corpus of the estate, delivered $50,000 to Elwood and $25,000 to Enid, thereby depleting the corpus by the sum of $75,000. Shortly after the death of Enid (August 7, 1937) it became apparent that the last will which she left (February 3, 1936) was contrary to the provisions of the decree. On December 16, 1937, John Wesley Biggs, a minor, and Elwood Biggs filed the instant complaint. They prayed that the decree of May 15, 1936, be declared to be in full force and effect and a valid and binding obligation of Enid, and a lien upon the trust estate in the hands of the trustee; that the purported will of February 3,1936, be decreed to be null and void “in so far as the same violates the rights and property of these plaintiffs under the agreements of March 18, 1925, July 3, 1925, and July 18,1928, and the aforesaid decree of May 15,1936”; and for the entry of an order directing the trustee to set aside as of August 7, 1937, and hold the sum of $75,000 for John Wesley Biggs in accordance with the agreement dated July 14, 1928, and directing payment of income therefrom to John Wesley Biggs. The case was heard by the chancellor, who on June 6,1940, entered a decree which found that John Wesley Biggs had sustained the allegations of the complaint as amended; that he was entitled to the relief sought, except that his interest must abate rat-ably with that of Kathryn Culver; that the claim which Elwood Biggs asserted to a remainder or reverter to the amount of $75,000 if Kathryn “should die without issue of her body” wás not sustained; that such condition was fulfilled by the birth of Luana Culver; that by reason of the payments made under the decree of May 15, 1936, the corpus of the estate was reduced to $171,975; that the contract of July 14, 1928, and the decree of May 15, 1936, were not intended to provide a specific or demonstrative legacy in the sum of $75,000 to John Wesley Biggs, but merely to a 3/10ths share of whatever the corpus of the trust might be at the death of Enid; that various fees and expenses therein specified should be paid; that on August 7, 1937, the date of 'the death of Enid, the reasonable market value of the corpus of the trust was $178,876, and the accrued income on that date was $1,320.90, which accrued income was properly distributable to the estate of Enid. Thereupon the chancellor entered his decree in accordance with such findings. The decree also reserves jurisdiction of the cause for the purpose of enforcement thereof and administering the trust. The will of Enid was admitted to probate in the State of California and William M. Barrett was appointed administrator with the will annexed. Ancillary administration thereunder is pending in the probate court of Cook county, Illinois. Lewis F. Baker was appointed ancillary administrator. He died. The Metropolitan Trust Company was then appointed ancillary administrator de bonis non with the will annexed. The ancillary administrator filed a counterclaim asking that the funds of the trust be turned over to it for distribution to whomsoever the court should determine is entitled thereto. The trustee and Ida Groves Gregory, the sister of Enid, prosecuted separate appeals, which have been consolidated. • The Metropolitan Trust Company, as ancillary administrator de bonis non with the will annexed of the estate of Enid P. Barrett, deceased, filed notice of a cross appeal, as did Elwood Biggs and John Wesley Biggs. After the commencement of the litigation in the instant case, Kathryn was declared incompetent by a California court, and thereupon Michael Byan was appointed to act as her guardian ad litem. After the entry of the decree appealed from, Kathryn was restored as a sane person and her California guardian was discharged, save for the duty of filling his final account. Michael Byan was also appointed guardian ad litem for Luana Culver, a minor. He now appears as guardian ad litem for Luana and as attorney for Kathryn A. Culver Knack.

Ida Groves Gregory, the sister of Enid, contends that the contract of 1928 between Elwood and Enid as to how she should exercise her power of appointment by will is not enforceable against the trust on Enid’s failure to exercise the power in the manner provided in that agreement; that a contract by a donee of a power of appointment by will as to how the donee should exercise the power by will is void; that to enforce the 1928 contract would be to give it the force of ah amendment to the trust, which cannot be as all of the parties having an interest in the trust were not parties to the agreement; that the 1936 consent decree did not amend the trust agreement by substituting the terms of the 1928 contract for those of the trust agreement which provide for a general power of appointment by will and for takers on default of appointment; that except to authorize the withdrawal of $75,000, the consent decree does not purport, nor did the court or the parties intend, to amend the trust agreement; that the 1936 consent decree cannot be given the effect of impliedly amending the trust agreement as the court, on behalf of the minors and unborn persons, did not consent to have them bound by the terms of the 1928 contract; that a decree must be interpreted with reference to the other parts of the record, such as the pleadings, the issues, and any settlement agreement in pursuance to which the decree is entered; that a consideration of the provisions of the decree in the light of the petition for settlement, the answers thereto and the other pleadings in the case, discloses that the court was neither asked to nor did it consent on behalf of the minors and unborn persons that such beneficiaries of the trust should agree to or otherwise be bound by the 1928 agreement; that the effect of the consent decree of 1936 depends on the strength of the consent of Elwood and Enid; that as a consent decree is not a judicial determination, but rests on the agreement of the parties and as Enid and Elwood could not contract in the original instance as to how the general power of appointment by will should be exercised, they could not subsequently validate their otherwise invalid contract by consenting to a decree that the contract was valid; that even if the contract of 1928 were valid, either by itself or on the strength of the 1936 consent decree, plaintiffs are not entitled to specific performance ; that plaintiffs ’ only remedy is against the estate of Enid for damages for breach of contract, and that if the corpus of the trust is insufficient to pay in full the amounts appointed by will to Kathryn Culver and Ida Groves Gregory, these appointments should be abated proportionately. The parties' cite numerous cases to support their positions. It is obvious that the 1936 decree could not and was not a consent decree as to the minors. As to the adults, it was a consent decree. A search of the authorities convinces us that a decree entered by consent of the parties is binding upon them and cannot be reversed or "impeached, except for fraud. (Knobloch v. Mueller, 123 Ill. 554,565; Merriam v. Merriam, 207 Ill. App. 474, 478.) The 1936 decree is in full force and is binding on the parties, but Ida Groves Gregory insists that the court on behalf of the minors and unborn persons, did not consent to have them bound by the terms of the 1928 contract. We disagree with this contention. The record shows that the rights and interests of the minors were brought to the attention of the court, and that the court, on behalf of the minors and unborn persons, consented to have them bound by the terms of the 1928 contract. In view of the fact that the 1928 contract was submitted to and passed upon by the circuit court in the 1936^ decree,J/t is unnecessary for us to decide whether such contract would be invalid without the aid of the 1936 decree. The fact is that all of the parties were brought before the court and that the court, with full knowledge of the facts, entered the 1936 decree, no one appealed from that decree, and it remains in full force and effect. Enid consented to the entry of the decree. Without her consent, the decree would not have been entered. Having consented to the entry of the 1936 decree, it was clearly her duty to make a will in accordance with that decree. She concealed from the chancellor the fact that only 2 months before she filed her answer, wherein she requested the court to approve the settlement, she had made a will exercising the power of appointment in a manner inconsistent with the 1928 agreement, which the court, in effect, approved. This conduct on the part of Enid was not in good faith with the court. We agree that Ida Groves Gregory and William M. Barrett stand in the shoes of Enid. Clearly,Enid was bound by the decree. We hold that Ida Groves Gregory has no greater rights than Enid. The chancellor was right in decreeing that the 1928 agreement was valid and that it is binding on all of the parties. The 1936 decree recognized and stamped as binding the modification of the trust as evidenced by the 1928 agreement, and the court approved the trust as modified in the 1928 agreement. It -must be remembered that the complaint filed in 1935 sought to destroy the trust. The stamp of approval placed by the court on the 1928 agreement gave John Wesley Biggs the right to expect that Enid, would exercise the power of appointment in his favor to the extent of $75,000 in accordance with the provisions of such agreement. It would be inequitable to allow Enid, or those standing in her place, after having induced the court to approve the settlement, to later renounce her solemn promise, thus cutting the minor off without a penny. To so hold would be to ignore the actions and attitude of the parties during their course of dealings. Enid and Elwood exercised a commendable parental interest in the minor, John Wesley Biggs, by giving effect to the agreement of 1928 and the decree of 1936. The intent of the parties as expressed in writing and by their conduct, is thus carried out. It will also be observed that on the day the 1928 agreement was executed Enid also made a will in an attempted compliance with the terms of the 1928 agreement. By the terms of the 1936 decree Enid was permitted to withdraw $25,000 from the corpus of the estate and Elwood was permitted to withdraw. $50,000. We assume that the court and all of the parties, consenting to the depletion of the estate by the snm of $75,000, recognized that in so doing they were also giving greater security to John Wesley Biggs, the minor, and to Kathryn Culver. Mrs. Gregory insists that plaintiffs’ only remedy is against the estate of Enid for damages for breach of contract, and that plaintiffs are not entitled to specific performance. Our view is that a court of equity is an appropriate forum to enforce a trust. To hold as Mrs. Gregory contends would be to deprive John Wesley Biggs of an adequate remedy.

John Wesley Biggs and Elwood Biggs contend that the decree is erroneous in ordering an abatement as between John Wesley Biggs and Kathryn Culver. When the 1936 settlement agreement was made by Elwood, Enid and Kathryn, those parties agreed to reduce the trust from $250,000 to approximately $171,975. It is contended that John was not a party to and did not consent to the reduction. The decree appealed from provides that John should stand part of that reduction, and that the $171,975 should go approximately $51,591 to John and $120,384 to Kathryn, rather than $75,000 to John and $96,975 to Kathryn. Plaintiffs contend that the agreement of 1928 clearly provides for a gift of $75,000 to John Wesley Biggs in the nature of a demonstrative legacy with a residuary gift to Kathryn A. Culver. Counsel for Kathryn and Luana Culver argues that the decree is correct in ordering an abatement as to John Wesley Biggs and Kathryn Culver. The will made by Enid on July 14, 1928 tends to support the argument for an abatement. This will, however, is not binding on the minor John Wesley Biggs. Having carefully considered the proposition, we are convinced that the agreement of July 14, 1928, which was approved by the decree of 1936, required Enid to bequeath to John Wesley Biggs the sum of $75,000, and the rest, residue and remainder to Kathryn Biggs Culver. At the time of the 1936 decree Kathryn Culver possessed all of her faculties. All of the parties were represented by counsel. The language of the 1928 agreement is unambiguous. We are of the opinion that the chancellor was in error in ordering an abatement as between John Wesley Biggs and Kathryn Culver.

Plaintiffs also contend that the phrase “die without, issue” in the 1928 agreement is to be construed as meaning “die without issue surviving.” In the 1928 agreement a contingent remainder is provided for Elwood Biggs, or his estate, to the extent of $75,000, in the following language:

“The party of the second part further promises and agrees to bequeath all the rest, residue and remainder of the said $250,000 trust fund to the said Kathryn . . . subject ... to the condition that if the said Kathryn Biggs Culver shall die without issue of her body then the sum of $75,000 of the sum so bequeathed to her shall be bequeathed and distributed to Elwood Biggs . . . or to his estate.” The instrument was executed in California and was drawn by a California lawyer. Elwood Biggs calls attention to section 1071 of the California Civil Code which reads:

“Sec. 1071. Meaning of ‘heirs’ and ‘issue,’ in certain remainders. Where a future interest is limited by a grant to take effect on the death of any person without heirs, or heirs of Ms body, or without issue, or in equivalent words, such words must be taken to mean successors, or issue living at the death of the person named as ancestor.” The question is, shall the phrase “die without issue” be construed as meaning “die without having had issue” or “die without issue surviving?” If the former definition is adopted, then the condition has been fulfilled with the birth of Luana, and the decree is correct in giving Kathryn’s portion to her outright. If the latter definition is adopted, the condition cannot be determined until the possibility of issue in Kathryn has ceased and Luana and any other children she may have had, may have predeceased her. The parties concede that under the Illinois decisions, unless a contrary intention is shown, the words are construed as meaning ‘ ‘ died without having had issue. ’ ’ (Noth v. Noth, 292 Ill. 536.) Article 5 of the original trust instrument provides that under a certain contingency the corpus of the trust shall be paid in accordance with the statute of descent of the State of Illinois. The original trust was established in the State of Illinois ; the trustee and the corpus have been here at all times, and the three suits involving the trust were filed in this State. The divorce action by Enid against Barrett also proceeded on the basis that she was a resident of the State of Illinois.

We are of the opinion that it was the intention of the parties that the trust should be governed by the law of Illinois. We hold that the phrase “die without issue” in the 1928 agreement should be construed as meaning ‘ ‘ die without having had issue. ’ ’ As Kathryn gave birth to a daughter, Luana, the condition has been fulfilled and the decree is correct in giving Kathryn’s portion to her outright.

A brief filed in behalf of the ■ Metropolitan Trust Company, as ancillary administrator, in addition to the points above discussed, urges that the trial court should have ordered the corpus of the trust (after paying the expenses of the trust) turned over to the Illinois ancillary administrator of the estate of Enid P. Barrett, deceased, for distribution either in accordance with the provisions of her last will and testament, or in accordance with the decree of the court. We find that it is the law of this State that the trustee should distribute directly to the appointees and that the trust funds do not pass through the administrator of the donee of the power of appointment. Furthermore, the trust instrument provides that upon the death of Enid, the trustee “shall pay over, convey and deliver all of the trust estate as it shall then be constituted to such person or persons, corporation or corporations, in such amounts and upon such terms as the said Enid P. Biggs shall by her last will and testament lawfully direct.” The parties contemplated that the trustee would administer the trust. Hence, the chancellor was right in ruling that the trust funds should not be distributed through the estate of Enid P. Barrett. The Illinois ancillary administrator also maintains that the chancellor should have allowed a reasonable fee to it and its attorneys for services rendered in connection with this cause, to be paid out of the corpus of the trust. It argues that in order to determine which of several diverse claims to the trust fund were valid, it became necessary to construe the provisions of the trust involved and indirectly the will of Enid P. Barrett, and that it is just and equitable that attorneys’ fees of necessary interested parties, particularly of the administrator, which have been incurred in procuring the judicial construction, should be borne by the trust estate. We agree with the statement of opposing counsel that no construction of the will of Enid P. Barrett was involved. The ancillary administrator and its attorneys did, however, render valuable services in presenting to the court the contentions of the creditors of Enid P. Barrett, deceased. We are of the opinion that for this service a reasonable fee should be allowed to the ancillary administrator and its attorneys.

It is further contended that the creditors of Enid P. Barrett, deceased, have such an interest in the trust fund that they should have been made parties, because Enid P. Barrett, by exercising the power of appointment given to her by the trust agreement dated July 3, 1925, subjected the trust property to the claims of her creditors to whatever extent other available property is insufficient to pay her creditors. The ancillary administrator urges that under the equitable rule that “one must be just before he is generous,” the trial court should have found and ordered that all claims allowed in due course of administration against the estate of Enid P. Barrett should be paid first. This administrator also urges that the creditors of Enid P. Barrett are not necessary or proper parties to the suit as they are represented by an ancillary administrator de bonis non with the will annexed, of her estate. Having concluded that the 1928 agreement, as approved by the 1936 decree, so amended the trust as to give Enid a special or limited power of appointment, it follows that her creditors can assert no claim against the corpus of the trust. The trustee is bound by the 1936 decree and cannot now assert that the power given to Enid is general. The donee of a special power is required to exercise the trust as stipulated and cannot appoint to the donee’s creditors. As the power to appoint given to Enid is a special power, it is unnecessary for us to decide whether the rule that when the donee of a general power makes an otherwise effective appointment by will to a volunteer or creditor, the property appointed can be subjected to the payment of claims of creditors of the donee or claims against his estate to whatever extent other available property is insufficient for that purpose, is the law in this State. It is also contended that William M. Barrett, widower of Enid, has an interest in the trust funds. We are of the opinion that our discussion of the previous points disposes of his claim. Enid had the right to the income from the corpus during her lifetime, and was required to appoint certain donees by her last will and testament. At the time of her death she had no interest in the corpus of the estate to which he could attach any claim.

The trustee states that Lasher B. Gallagher, an attorney of California, asserts a claim by assignment from Kathryn A. Culver of one sixth of her interest in the trust, and that he should be made a party to the suit. The trustee further states that some of the parties in the trial court argued that the assignment of Gallagher was not valid. It is obvious that the validity of the assignment and the rights of Gallagher, if any, have not been adjudicated. We believe it would have been better practice had Gallagher been made a party. However, the decree does not direct the disbursement of any of the trust assets except as may be necessary to pay fees. John Wesley Biggs’s share is to be held in trust for approximately 17% years. Kathryn’s share is not to be disbursed until the further order of the court. There are ample assets to protect the trustee. The decree reserves jurisdiction for the purpose of administering the trust. The trustee in our opinion is justified in withholding distribution of the corpus of the estate, except for fees and expenses, until the claim of Gallagher is adjudicated or disposed of. As to the point urged by the trustee that the creditors of Enid have such an interest in the trust fund that they should be made parties, we are of the opinion that her creditors were represented through the Metropolitan Trust Company, the administrator de bonis non with the will annexed. This administrator argued the rights of Enid’s creditors before the chancellor and also presented a comprehensive brief in their behalf in this court. Furthermore, we hold that the creditors of a donee of a limited power have no right against the appointed fund. The circuit court in 1936 adjudicated that the power in the trust was to remain a limited power. The trustee was a party to that proceeding and is bound thereby. It cannot now be heard to argue that the power is a general power. We are of the opinion that it was not necessary to make the creditors of Enid P. Barrett, deceased, parties to the complaint.

During the pendency of the appeal, the attorney for Kathryn A. Culver moved the court “to authorize and direct the Continental Illinois National Bank and Trust Company of. Chicago, as trustee, to pay directly to Kathryn A. Culver the monthly installments of $250.00 heretofore authorized by order of the trial court to be paid for the support of said Kathryn A. Culver and Luana Culver, in lieu of making such payments to Dr. Henry C. Crozier, California guardian of the estate of Kathryn A. Culver and the person of Luana Culver, minor.” The trustee filed objections to the allowance of the motion. The motion was taken with the case. This is a court of review. In our opinion, this motion should be presented to the chancellor. Therefore, the motion is not entertained.

For the reasons stated, the decree of the circuit court of Cook county is reversed and the cause remanded with directions to enter a decree not inconsistent with the views expressed herein.

Reversed and remanded with directions.

Hebel, P. J., and Denis E. Sullivan, J., concur.


source: Caselaw Access Project

author: Mr. Justice Burke

license: Public Domain

text:
    Van V. Lain and William V. V. Lain, Appellees, v. Alfred Rennert et al., Defendants. Appeal of Walter Piper, Jr., Appellant.
    Gen. No. 41,496.

      Opinion filed February 26, 1941.
    Harry J. Guyon and Eli B. Herren, both of Chicago, for appellant; Clyde C. Fisher, of Chicago, of counsel'.
    Dillner & Dearborn,' of Chicago, for appellees ; Arthur E. Dillner and Robert P. Dearborn, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

Catalpa avenue is an east and west street, Ashland avenue a north and south street, Clark street a north and south street and Balmoral avenue an east and west street. These streets bound a block in the city of Chicago, Catalpa avenue on the north, Balmoral avenue on the south, Clark street on the east and Ash-land avenue on the west. In the summer of 1938, Alfred Rennert owned the premises bounded on the north by Catalpa avenue, on the west by Ashland avenue and on the east by Clark street, and extending south from Catalpa avenue about 84 feet and east and west along Catalpa avenue approximately 283 feet. A public alley, paralleling Clark street and Ashland avenue and approximately midway between these 2 streets, extends north from Balmoral avenue to the southern boundary of the Rennert property. Because it does not cross the Rennert property, it is what is commonly known as a “blind alley.” However, as the Rennert property was vacant, it became a common practice for persons using the so-called.“blind alley” to continue across the Rennert property in going to and from Catalpa avenue. Van V. Lain and William V. V. Lain owned the premises bounded on the south by Catalpa avenue, on the east by Clark street, on the west by Ashland avenue and extending north from Catalpa avenue approximately 150 feet. The southern boundary from Clark street to Ashland avenue measures about 280 feet. Catalpa avenue separates the Lain property from the Rennert property, the Lain property being on the north side of the street and the Rennert property being on the south side of the street. In the spring of 1937, the Lains erected a funeral home on their property, the real estate and improvements thereon representing an investment of approximately $300,000. Alfred Rennert desired to erect a gasoline filling station on the east half of his property, and through an agent named O. A. Helgeson, he negotiated with Walter Piper, Jr., an operator of filling stations, for the purpose of inducing the latter to take a long lease on the premises. Under an ordinance of the city of Chicago, it was necessary, in order to secure a permit for the erection and maintenance of a filling station, to secure the frontage consents of the owners of the majority of the total frontage in feet of any lot or plot of ground lying wholly or in part within lines 150 feet distance from and parallel to the boundaries of the proposed filling station site, including driveways and inclosing fences. Under the ordinance the total property frontage affected was 1379.24 feet, the majority of which is 689.63. Of this the Lain frontage constituted 446.37 feet and the Rennert frontage 213.89 feet. Thus, the Lain and Rennert frontages, as computed under the terms of the ordinance, aggregated 660.26 feet. The combined Rennert and Lain frontages lacked 29.37 feet of being sufficient to constitute a majority of all the frontage affected in the consideration of an application for a permit to build and operate a gasoline filling station. Rennert and Piper approached the Lains for the purpose of inducing them to consent to sign a frontage consent for the erection and operation of a filling station. The Lains agreed to execute the consent in consideration that Alfred Rennert and Charlotte Rennert, his wife, would execute a covenant. The parties so agreed and on August 3, 1938, the Rennerts signed, sealed and delivered a covenant that Alfred Rennert was the owner in fee simple of the west half of the property heretofore described; that the said property will be kept “free and clear of all signs, billboards and other advertising- matter of any kind, nature or description; that the above described property will be kept covered with grass, properly seeded and mowed, and at all times to be kept in a good and sightly condition, and that the said covenant shall run with the land for a period of five years from the date thereof. ’ ’ The covenant was recorded in the recorder’s office as document No. 12195735. On October 25, 1938, Geraldine Rennert, as lessor, and Walter Piper, Jr., as lessee, executed a lease covering the premises heretofore described, bounded on the north by Catalpa avenue and extending from Clark street to Ashland avenue. The lessor agreed to erect on the east portion of the premises a building adapted to the operation and maintenance of a gasoline filling station, together with the utility connections and other materials specified in the plans, and agreed to complete the construction of the filling station within 90 days. It was contemplated that the cost of constructing this filling station would approximate $17,450. The lease was to run for a term of 15 years from the time the building would be completed and ready for occupancy, and the lessee agreed to pay rent of $325 per month for the first 5 years, $350 per month for the succeeding 5 years and $425 per month for the final 5 years. Clause 2a of the lease provides that the “lessee hereby expressly understands that there is of record a certain covenant recorded as Document No. 12195735 concerning the west half of said premises, wherein the said west half is to be kept free and clear of all signs, billboards and other advertising matter of any kind, nature or description, and wherein the said west half is to be covered with grass and to be properly seeded and mowed, and at all times be kept in a good and sightly condition, and which said covenant runs for a period of 5 years from August 3, 1938, and Lessee hereby expressly agrees that he is taking this lease subject to said covenant so recorded as Document No. 12195735.” Application for the permit was made by Alfred Rennert. Frontage consents were signed by the owners of property having a frontage of 882.56 feet, or 192.93 feet more than a majority of frontage. On November 3, 1938, a permit for the erection of a filling station was issued by the commissioner of buildings. The filling station was constructed and opened for business in January or February, 1939. It will be noted that although the covenant was executed by Alfred and Charlotte Rennert, the lessor is G-eraldine Rennert. On May 8, 1939, the Lains filed their complaint in chancery in the circuit court of Cook county against Alfred and Charlotte Rennert and Walter Piper, Jr. They alleged the execution and delivery of the covenant. The complaint erroneously stated that the lease was between Alfred and Charlotte Rennert and Piper, and alleges further that “the consideration involved for the execution of the aforementioned covenant by Alfred Rennert and Charlotte Rennert to Yan Y. Lain and William Y. Y. Lain was the execution by Yan Y. Lain and William Y. Y. Lain of frontage consents in accordance with an Ordinance of the City of Chicago, by Yan Y. Lain and William Y. Y. Lain to Walter Piper, Jr., for the use of the east one-half of said property by Walter Piper, Jr., for a gasoline filling station.” Another allegation of the complaint states that the purpose of plaintiffs in effecting the execution of the covenant was to “create an attractive view and to maintain for the neighborhood the value and sightliness of such neighborhood, and thus to maintain the value of their property; to afford to patrons of the. plaintiffs’ business a pleasing and sightly view upon entering and leaving plaintiffs’ place of business.” The complaint further alleges that the premises of defendants were totally covered with gravel and that it will be necessary that such gravel be removed before any grass can be planted or grown; that defendant Piper “is now using the premises for the parking of automobiles,” and that no action has been taken by defendant toward the fulfillment of the covenant, particularly that part wherein the defendants Alfred and Charlotte Rennert covenanted to keep the premises covered with grass, properly seeded and mowed, and at all times in a good and sightly condition. Plaintiffs pray that the court direct the defendants, Alfred and Charlotte Rennert, to do or cause to have done, the act or acts necessary so that the property will be kept covered with grass, properly seeded and mowed, and at all times in a good and sightly condition, and that an order be entered restraining the defendants Alfred and Charlotte Rennert and Walter Piper, Jr., “from acting in any manner with respect to said premises, or from using said premises for the purpose of parking or allowing automobiles to be parked or stored on said premises; from causing any act to be done with respect to said premises whereby the premises could not be covered with grass and kept in a good and sightly condition; that the defendants be restrained from the placing of gravel or other like materials upon the premises, excepting such materials as will aid in the fulfillment of paragraph Three of said covenant. ’ ’ The defendants Alfred and Charlotte Rennert and Piper filed separate motions to dismiss the complaint. On motion of the plaintiffs Alfred and Charlotte Rennert were dismissed as defendants. Piper’s motion to dismiss was overruled and he answered. The case was referred to a master in chancery, who, after taking the depositions of witnesses, found that defendant violated the covenant by placing gravel upon the premises and by permitting cars to be parked thereon. He also found that defendant did not make any attempt “to keep the said premises covered with grass, properly seeded and mowed, and at all times in good and sightly condition.” The master found, as a matter of law, that “a court of chancery will not issue a mandatory injunction which would require the court to supervise and direct the performance of a duty for a protracted period, ’ ’ and recommended that “plaintiffs’ prayer for injunction be granted and that the prayer for a mandatory injunction be denied and that a decree be entered in accordance with the finding’s and conclusions herein contained. ’ ’ Objections were filed by the plaintiffs and defendant, which were overruled by the master. These objections were permitted to stand as exceptions. The court overruled the exceptions and entered a decree denying the prayer for a mandatory injunction; restraining the defendant Piper from “acting in any manner with respect to said premises or from causing any act to be done with respect to said terms whereby the premises cannot be covered with grass and kept in a good and sightly condition.” The decree concluded by entering a judgment against the defendant in the sum of $211.15, representing approximately one half of the costs incurred. Defendant prosecutes this appeal for the purpose of reviewing the decree. The plaintiffs do not assign any cross-errors because of the action of the chancellor in overruling their exceptions to the master’s report.

Defendant assails the decree on the ground that it is against public policy to traffic in frontage consents. Plaintiffs reply by stating that the consideration for the covenant is legal and binding and not against public policy, and that a party to a contract under seal ‘ ‘ cannot avoid the contract on the ground that it is a nudum pactum, since a seal imports consideration sufficient to sustain the instrument.” The frontage represented by the property owned by plaintiffs and the original defendants lacked 29.37 feet of the majority required before a permit could issue. In addition to the signatures of the plaintiffs and the defendants, the frontage consents also bore the signatures of the treasurer, of the University of Chicago and Lyndon Lesch. All of those signing had real estate fronting on Clark street, which is a business street. The real estate of plaintiffs and defendants also extended back so that it was bounded by Ashland avenue on the west. During the hearings before the master, persons who owned property fronting on the east side of Ashland avenue south of the parcel owned by the original defendants, testified in behalf of plaintiffs. They did not sign the frontage consents and apparently were not requested so to do, although their property was within the area affected. Defendant argues that persons who have the right to sign or not to sign frontage consents are charged with a duty to the public and to their neighbors and other members of the community, and that such persons must exercise their discretion without being influenced by a consideration moving to them. Defendant maintains that the consideration for the giving of the covenant is contrary to public policy and that the covenant is unenforceable. The inference is that if the Rennerts had not agreed to execute and deliver the covenant, the frontage consents would not have been signed by plaintiffs and that in signing the frontage consents the plaintiffs were influenced by their self-interest and did not discharge that duty which they owed to the public and to their neighbors. Defendant leans heavily on the case of Theurer v. People ex rel. Deneen, 211 Ill. 296. In that case the State’s Attorney filed an information in the nature of a quo warranto against Joseph Theurer to test the validity of a dram shop license issued to him. The trial resulted in a judgment of ouster, ivhich was affirmed by the Appellate and the Supreme Courts. The evidence showed that Norman Cummings and two others received the sum of $1,000 for signing the application for the license (which was the equivalent of the frontage consents in the instant case). The court said (302):

“If the legislative power, instead of providing that the license should be issued upon the written application of a majority of the property owners, according to frontage, had provided the question of issuing the dram-shop license should be decided at an election by the property owners within the same district, would it be contended that the applicant for a license lawfully might control the result of the election by purchasing-votes? We apprehend not.” In People v. Griesbach, 211 Ill. 35, the court said (40):
“Those persons . . . are charged, in a degree, with a duty to the public. . . . He is entrusted with a power the exercise whereof concerns the welfare of the public, and he therefore has a duty to discharge to his neighbors and other members of the community whose interests, rights, morals and safety are concerned and may be affected by his act.” In support of the proposition that a property owner who signs or refuses to sign a frontage consent to erect a gasoline service station owes a duty to the public, defendant cites Fligelman v. City of Chicago, 348 Ill. 294 (300), where the court said:
“Although the fire and explosion hazard involved in conducting filling stations in Chicago is shown of record, yet, altogether apart from the evidence, judicial notice may be taken of the fact that the business of storing and handling gasoline and similar -liquids and transferring them at filling- stations from tanks to motor vehicles in a great city is, without the observance of proper precautions, attended with a peculiar degree of danger to life and property.”- The plaintiffs suggest that the contract is valid because it is sealed. It is well established, however, that in equity the real consideration may be inquired into and that the parties are not concluded by the recitals in the instrument, though under seal. In Way v. Union Cent. Life Ins. Co., 61 S. C. 501, 39 S. E. 742, the Supreme Court of South Carolina said (745):
“It is true, that the referee finds, and the Circuit Judge confirms such finding, that the assignment is under seal, which imports a consideration, therefore, it cannot be attacked for lack of consideration. This may be so at law, but not so in equity, at least in a case of this kind; and this is a case on the equity side of the Court — for the cancellation of a written instrument.” In Gray v. Hook, 4 N. Y. 449, the court of appeals said (459):

“A seal cannot protect an illegal contract, nor prevent an inquiry into the legality of its consideration. ’ ’ We conclude, therefore, that despite the seal we have the right to inquire into the legality of the consideration. The evidence shows that the signing of the frontage consent in consideration for the covenant, the erection of the filling station and the execution of the lease were acts done in contemplation of one another. This is not a case where the rights of innocent third parties are involved. The Rennerts, Piper and the plaintiffs knew all of the facts. Plaintiffs are attempting to force defendant to carry out a covenant obtained by the performance of an act which is contrary to public policy. We are of the opinion that the giving of the covenant in consideration for the signing of the frontage consent, or vice versa, was contrary to public policy and should be struck down as was the consent to the issuance of a dram shop license in the Theurer case. We are convinced that the covenant is invalid.

Defendant urges other points, but it is unnecessary to extend the opinion by a consideration thereof. For the reasons stated the decree of the circuit court of Cook county is reversed and the cause remanded with directions to dismiss the complaint for want of equity and to enter judgment against plaintiffs for costs.

Revised and remanded with directions.

Hebel, P.J., and Denis E. Sullivan, J., concur.


text:
    Leonella Desiron, Minor, by Mrs. Eileen Desiron, Her Mother and Next Friend, and Eileen Desiron, Appellants, v. Tony Peloza, Trading as Tony’s Tavern, et al., Appellees.
    Gen. No. 41,520.

      Opinion filed February 26, 1941.
    Robert E. Dowling, of Chicago, for appellants.
    Kirkland, Tollkuehn, Finn & Smith, of Chicago, for certain appellee; Harold F. Tollkuehn, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

On November 28, 1939, Leonella Desiron, a minor, by Eileen Desiron, her mother and next friend, and Eileen Desiron, in her own right, filed their complaint in the supérior court of Cook county against Tony Peloza, doing business as Tony’s Tavern, and Frances Peloza, his wife. Frances Peloza was not served. On April 15, 1940, plaintiffs filed an. amended complaint, which alleges that Leonella is a minor 10 years of age and the daughter of the other plaintiff, Eileen; that on August 19, 1937, defendants owned the property known as 1621 North Kedzie avenue, Chicago, where defendant Tony Peloza was operating a tavern and selling intoxicating liquors; that on that day a patron in the tavern became drunk and disorderly as a result of having imbibed intoxicating liquors which had been sold and delivered to him in said premises, and that as a result of such “drunk and intoxicated condition,” he, the patron, spilled a glass of beer upon the floor of the premises, thereby rendering the floor wet, slippery and unsafe; that on the same day plaintiff, Eileen Desiron, who was at all times in the exercise of due care for her own safety, while walking across the floor of the tavern, “was caused to slip and fall upon the said floor by reason of the said floor having been rendered slippery, wet and unsafe due to the aforesaid spilling upon the said floor of a glass of beer by the aforesaid intoxicated patron”; that plaintiff Eileen Desiron sustained a severe fracture of the left foot, and suffered a severe mental and nervous shock, which impaired her health, her organs and her mental faculties, and caused her to suffer severely from insomnia; that “she has been severely and permanently crippled, handicapped and disabled as a result thereof, so that she has been totally prevented from working or earning her livelihood, and that her earning capacity in the future has been permanently impaired; that the plaintiff necessarily paid and has become liable to pay medical expenses and for nursing and medicine in the amount of, to-wit, Five Hundred Dollars; and that the plaintiff has lost, as a result thereof considerable monies which she no doubt could have earned, and that the plaintiff will no doubt incur expenses of a similar nature in the future”; that her health, physical abilities and earning power have been permanently impaired; that plaintiff Leonella Desiron is a minor child and is totally dependent upon her mother for support, maintenance and custody, and that as a result of the injury above-described she, Leonella, has been injured in her means of support and in her person and property. The amended complaint also quotes section 14 of article 6 of the Liquor Control Act, commonly called the Dram Shop Act, approved January 31, 1934 (par. 135, ch. 43, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 68.042]). Plaintiff Eileen Desiron prays judgment for the sum of $15,000 and Leonella Desiron prays judgment for a like amount. Defendant Tony Peloza filed two separate motions to strike plaintiffs’ amended complaint, on the ground that the supposed cause of action accrued on August 19, 1937, whereas, the original complaint was not filed until November 28, 1939, after the supposed causes of action were barred by the provisions of section 14 of the statute of limitations (par. 15, ch. 83, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.274]). The court sustained the motions and dismissed the cause “for the reason that said cause of action was not commenced within the statutory period.” Plaintiffs prosecute this appeal for the purpose of reviewing the action of the trial court.

The instant action is brought by virtue of section 14 of article 6 of the Dram Shop Act (par. 135, ch. 43, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 68.042]) which reads:

“Every husband, wife, child, parent, guardian, employer or other person, who shall be injured, in person or property, or means of support, by an intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person; and any person owning, renting, leasing or permitting the occupation of any building or premises, and having knowledge that alcoholic liquors are to be sold therein, or who having leased the same for other purposes, shall knowingly permit therein the sale of any alcoholic liquors that have caused, in whole or in part, the intoxication of any person, shall be liable severally or jointly, with the person or persons selling or giving alcoholic liquors aforesaid, for all damages sustained, and for exemplary damages; and a married woman shall have the same right to bring suit and to control the same and the amount recovered as a feme sole; and all damages recovered by a minor under this Act shall be paid either to such minor, or to his or her parent, guardian or next friend as the court shall direct; and the unlawful sale, or giving away, of alcoholic liquor, shall work a forfeiture of all rights of the lessee or tenant, under any lease or contract of rent upon the premises where such unlawful sale or giving away shall take place; and all suits for damages under this Act may be by any appropriate action in any of the courts of this State having competent jurisdiction.” Plaintiffs maintain that their case is governed by that section of the statute of limitations which permits an action to be commenced within 5 years after its accrual. Defendant on the other hand insists that the cause is controlled by that section of the statute of limitations which provides that actions for damages for an injury to the person or for a statutory penalty shall be commenced within 2 years after the cause of action accrued. The parties are in agreement that the original complaint was filed subsequent to 2 years following the accrual of the cause of action. In a discussion of the points raised, the following paragraphs from the statute of limitations (ch. 83, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.272-107.275, 107.281]) are pertinent:

“13. The following actions can only be commenced within the periods hereinafter prescribed, except when a -different limitation is prescribed by statute:

"14. Actions for slander or libel shall be commenced within one year next after the cause of action accrued.

“15. Actions for damages for an injury to the person, or for false imprisonment, or malicious prosecution, or for a statutory penalty, or for abduction, or for seduction, or for criminal conversation, shall be commenced within two years next after the cause of action accrued.

“16. Actions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued.

“22. If the person entitled to bring an action, mentioned in the nine preceding sections, is, at the time of the cause of action accrued, within the age of twenty-one years, or if a female, within the age of eighteen years, or insane, or imprisoned on a criminal charge, he or she may bring the action within two years after the disability is removed.” Plaintiffs insist that par. 16 is applicable, while defendants urge that par. 15 controls. The Dram Shop Act does not include any limitation on the right to sue. It is seldom that the legislature includes a limitation. It is reasonable to assume that in the passage of an act granting rights of action where no limitation provision is included, that the legislators recognize that the limitations statute (chapter 83) adequately covers such new right of action. The statute of limitations is one of repose, for the purpose of suppressing fraudulent and stale claims from springing up at great distances of time and surprising the parties or their representatives, when all proper evidence or vouchers are lost or the facts have become obscure from lapse of time or the defective memory or death or removal of witnesses. The principle embodied in the statute of limitations is a part of the public policy of this State. In discussing the statute of limitations, we will allude to the paragraph numbers set out in chapter 83 of the Illinois Revised Statutes of 1939. The corresponding sections as adopted by the legislature are numbered 12, 13, 14, 15 and 21. The volume known as the Revised Statutes designates these sections as paragraphs 13, 14,15, 16 and 22. In Handtoffski v. Chicago Consolidated Traction Co., 274 Ill. 282, our Supreme Court observed that in paragraphs 14, 15 and 16 the limitations are not based upon the form of the particular action, but on the particular injury sued for, or upon the obligation out of which the action grows, and that the provisions of par. 13 are to be considered and read as a part of pars. 14, 15 and 16. In that case the plaintiff sued for injuries suffered while he was a passenger on a streetcar being operated by the defendant. His first declaration was grounded on negligence. After 2 years from the time when the cause of -action accrued, he amended his declaration by changing the form of his action to that of the violation by the defendant of its contractual duty “to safely carry the plaintiff and to use due care and diligence in carrying him. ’ ’ One of the pleas filed by defendant averred that the supposed cause of action was barred by the provisions of par. 15, ch. 83. The trial court sustained a demurrer to this plea. The defendant elected to stand by its plea. In that case plaintiff sought by changing the form of action to come within the provisions of par. 16, but the Supreme Court ruled that par. 15 clearly fixed the limitation for personal injuries at 2 years without regard to the form of the action. The Supreme Court said (286), that “section 14 [par. 15, Ill. Rev. Stat. 1939] is a particular provision designed to control actions for damages because of or on account of an injury to the person, regardless of the form of action, and it must prevail over the more general provision made in section 15 [par. 16] and be treated as an exception to that general provision. ’ ’ The instant cause in behalf of • the mother Eileen Desiron is clearly an action for damages for injury to her person. The amended complaint so states. Hence, it is governed by the provisions of par. 15, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.274], that actions for damages for an injury to the person shall be commenced within 2 years next after the cause of action accrued. Par. 135, ch. 43, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 68.042], on which plaintiffs ground their action, grants a right of action to every husband, wife, child, parent, guardian, employer or other person who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, against any person or persons who shall by selling or giving alcoholic liquor, have caused the intoxication in whole or in part of such person. This remedy may be exercised severally or jointly and in his or her own name. The section also provides that all suits for damages thereunder may be by any appropriate action in any of the courts of this State having competent jurisdiction. Our view is that where a cause of action under this section is for damages for an injury to the person it is governed by the 2-year statute of limitations. Where the cause of action is based on an injury to property it is governed by the 5-year statute of limitations. For example, occupants of an automobile which is damaged, and who suffer injuries to their persons because of the drunken misconduct of the driver of another vehicle, clearly have the right to join in one action against all the persons alleged to be liable, including the alleged drunken driver, and all persons engaged in the liquor traffic who caused the intoxication in whole or in part of the drunken driver. Our view is that an action by the occupants who suffered personal injuries in the collision is governed by the 2-year paragraph of the statute of limitations, and that an action by the owner of the automobile for damages to the automobile is controlled by the 5-year provision of par. 16, ch. 83, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.275]. Hence, a person who sues under the civil damages section of the Dram Shop Act is governed by the provisions of the statute of limitations applicable to the facts of the case. Clearly all possible actions under this civil damages section (par. 135, ch. 43, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 68.042]) are not governed by one section of the Limitations Act. It is apparent that par. 15, ch. 83, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.274], applies to all actions for damages for an injury to the person. The action of Eileen Desiron, the mother, is for damages for an injury to her person. It is clear that such an action must be commenced within 2 years after it accrued. Our view is that the legislature intended that actions for damages for injury to the person brought under the provisions of the civil damages section of the Dram Shop Act, should be commenced within 2 years next after the accrual thereof. Hence, the superior court of Cook county was right in dismissing the complaint as to Eileen Desiron, the mother.

The allegations of the amended complaint in behalf of Leonella Desiron, the minor plaintiff, are that she is totally dependent upon her mother, Eileen Desiron, and was on August 19, 1937, totally dependent upon her mother for her support, maintenance and custody, and that as a result of the injury sustained by her mother, she, Leonella Desiron, has been, injured in her means of support in her person and property to the extent of $15,000. Clearly the minor does not bring her action for damages for an injury to her person. The damages she suffered, if any, arise out of the injury to her mother. In Roth v. Lundin, 237 Ill. App. 456, plaintiff brought an action to recover damages resulting from a collision of the automobiles of the parties. Plaintiff sought damages for towing his car, for placing a new top thereon and for physician’s services rendered to his wife because of the collision. Defendant contended that the action was begun one day after the 2-year statute of limitations had run. The court, however, ruled that the action was not for damages for injuries to the person but came within par. 16, ch. 83, Ill. Stat. 1939 [Jones Ill. Stats. Ann. 107.275] providing that actions on unwritten contracts, expressed or implied, or to recover damages for an injury done to property, real or personal, and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued. In Waller v. City of Chicago, 11 Ill. App. 209, Waller sued the City of Chicago to recover compensation for the loss of service and expenses incurred in consequence of an injury to his minor daughter. The action was filed more than 2 years after it accrued. The defendant filed a plea of the statute of limitations under the provisions of par. 15, that damages for an injury to the person shall be commenced within 2 years next after the cause of action accrued. Plaintiff demurred. The trial court overruled the demurrer and plaintiff elected to abide by his demurrer. The reviewing court said (page 211): “In his admirable work on Torts, Judge Cooley says: ‘ The injury which one may suffer in the relation of parent, seems, at the common law, to be limited to an action for the recovery of damages for being deprived of the child’s service. The action is therefore planted rather upon a loss in the character of the master of a servant. ’ Cooley on Torts, 228. It follows from that view of the law, that in actions like the present one, the negligence or original wrong resulting in the injury to the person of the child, is not the cause of action, but it is the loss of service, ’ ’ The opinion of the court by Mr. Justice McAllister held that the injury was not to the person of the plaintiff, but to his property. The judgment was reversed and the cause remanded. From these two cases it appears that an action under the civil damages section of the Dram Shop Act for injuries in the means of support may be brought within 5 years under par. 16 (ch. 83, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.275]). We are convinced, however, that Leonella Desiron, the minor, has the right to bring her action regardless of whether she comes within the provisions of par. 15 or par. 16. Leonella, being under the age of 18 years, may bring her action within 2 years after arriving at that age, as provided by par. 22, ch. 83, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.281]. By the clear language of this section she may maintain her action within 2 years after becoming 18 years of age, whether her case is governed by par. 15' or par. 16. Defendant argues that under the civil damages section of the Dram Shop Act ‘ ‘ a minor is entitled to bring an action for damages by his or her parents, guardian or next friend, and that failing to file such action within two years after the accrual of said action, the same is barred by the two year Statute of Limitations.” In the case of In re Estate of Sheehan, 290 Ill. App. 551, this court passed on the proposition. There a claim for $1,907, based on a ■promissory note, was filed in the probate court by Catherine McManmon, guardian of the estate of Mary Ellen McManmon, against the estate of Margaret Sheehan, insane. It was contended that the statute of limitations ran against the holders of the note from the time a certain payment had been made thereon and that the claim was barred because more than 10 years had elapsed from the time the cause of action accrued until the claim was filed. The only question presented for determination was whether, because the minor had a probate guardian during the statutory period, the statute of limitations bars recovery on a promissory note which she owned. The court, speaking through Mr. Justice John J. Sullivan, said (555):

■ “It is the public policy of this State that courts should guard carefully the- rights of minors and that a minor should not be precluded from enforcing his or her rights unless clearly debarred from so doing by some statute or constitutional provision. (Walgreen Co. v. Industrial Commission, 323 Ill. 194.) Not only is there no statutory or constitutional prohibition in this State against the minor’s claim in the case at bar, as and when asserted, but it has express statutory sanction, as heretofore shown, and surely the minor should not be deprived of her rights by the laches or neglect of a recreant guardian. ... In Illinois a guardian is not vested with the title to a minor’s estate, but is merely charged with its care and management. The title to the note in question was never in the guardian but remained at all times in the minor. . . . It is unnecessary to further discuss the rule urged as applicable here that a minor is barred by limitations when his legal representative is barred, except to state that we have carefully examined all the authorities cited and find that this rule is applicable only where the legal title to the res is in the legal representative or trustee.” This court found that par. 22, ch. 83, Ill. Rev. Stat. 1939 (sec. 21) of the Limitations Act [Jones Ill. Stats. Ann. 107.281], was applicable. We are of the opinion that the cause of action of the minor, Leonella Desiron, is not barred by any provision of our statute of limitations, and that the court was in error in dismissing the cause as to her.

Finally, plaintiffs maintain that the “question as to what damages the minor has sustained in her means of support in her person and property is unseverably joined with what damages the mother has sustained to her person, property and means of support as a consequence of the defendants’ liability imposed by the civil damages section of the Dram Shop Act,” and that the “benefit of [Par. 22] Ch. 83, Ill. Rev. Stat. 1939, [sec. 21 of the Limitations Act] claimed by the minor, Leo-nella Desiron, therefore avails her mother and co-plaintiff Eileen Desiron.” The case cited by plaintiffs in support of this proposition, Beresh v. Supreme Lodge Knights of Honor, 255 Ill. 122, is not in point. Par. 135, ch. 43, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 68.042], states that the injured person or persons “shall have a right of action in his or her own name severally or jointly. . . .” This section distinctly recognizes that an action may be several or joint. The parties may sue separately or they may all join in the same action. Under the liberal provisions of the Civil Practice Act and the rules adopted by the Supreme Court concerning joinder of plaintiffs and defendants in one action, parties claiming rights by virtue of the civil damages section of the Dram Shop Act may join in one action. The determination of the issues will, however, depend on the facts and the law applicable to' each litigant. We, therefore, reject the contention of plaintiffs that because the action is not barred as to Leonella Desiron, the minor, it is not barred as to her mother.

For the reasons stated that part of the order of the superior court of Cook county dismissing the cause as to Eileen Desiron is affirmed, and that part of the order dismissing the cause as to Leonella Desiron, a minor, is reversed and the cause is remanded with directions to proceed in a manner not inconsistent with this opinion.

Affirmed in part, reversed in part, with directions.

Hebel, P. J., and Denis E. Sullivan, J., concur.