author: Mr. JUSTICE DRUCKER

text:
    Marilyn Hassiepen et al., Plaintiffs-Appellants, v. John C. Marcin, City Clerk of the City of Chicago, et al., Defendants-Appellees.
    (No. 59199;
    First District (5th Division)
    September 13, 1974.

      Morton Siegel, of Chicago (Allan Goldberg, of counsel), for appellant.
    Richard L. Curry, Corporation Counsel, of Chicago (Daniel Pascale and Dennis James Stolfo, Assistant Corporation Counsel, of counsel), for appellee John C. Marcin.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court;

This is an action brought pursuant to the Liquor Control Act (III. Rev. Stat. 1971, ch. 43, par. 182) to contest the validity of a “local option” election. Plaintiffs sought to enjoin defendants, the city clerk of Chicago and the Board of Election Commissioners, from filing with the Secretary of State the report of the election. After the close of arguments on defendant Marcin’s motion to strike and dismiss, plaintiffs moved to amend their complaint. Plaintiffs’ motion was denied, and they appeal contending that the court below erred in that the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 46) requires the application of the greatest latitude in allowing amendments to pleadings.

On November 7, 1972, a ‘local option” election was conducted in the 7th Precinct oí the 8th Ward of the City of Chicago. The election resulted in the adoption of a proposition prohibiting the purchase of alcoholic beverages for consumption on the premises in the precinct. Plaintiffs sought to enjoin defendants from filing a report of the election with the Secretary of State. Their complaint alleged, inter alia, certain improprieties in the method in which petitions requesting placement of the proposition on the ballot were circulated and in which the election was conducted, and that portions of the Liquor Control Act were unconstitutional in that the procedures provided for the conduct of “local option” elections differ according to the size of the community. Defendant Marcin responded by filing a motion to strike and dismiss. The trial court held a hearing on this motion. During the course of their argument plaintiffs, over defense objections, raised a second constitutional challenge, one not raised in their complaint, to the “local option” statute. (Ill. Rev. Stat. 1971, ch. 43, par. 167.) They claimed that the statute does not provide “for any notice to the [tavern owners] who are located in these geographic areas * ° ° so that they would have the opportunity to be apprised of the fact that petitions are indeed being circulated which could put them out of business and affect their inventories and business livelihood.” The trial court ruled that this matter was not raised in the complaint, denied plaintiffs’ motion to amend and entered judgment in favor of defendants.

OPINION

The sole contention raised by plaintiffs is that the court below abused its discretion in denying them leave to amend their complaint.

Section 46(1) of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 46(1)) states:

“At any time before final judgment amendents may be allowed on just and reasonable terms, introducing any party who sought to have been joined as plaintiff or defendant, discontinuing as to any plaintiff or defendant, changing the cause of action or defense or adding new causes of action or defenses, and in any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross demand.”

We have consistently held that this section is to be liberally construed in favor of allowing the amendment of pleadings. (See, e.g., Cain v. New York Central R.R. Co., 35 Ill.App.2d 333, 182 N.E.2d 910; Birchfield v. Wabash-Monroe Garage & Parking Corp., 113 Ill.App.2d 178, 252 N.E.2d 89.) However, notwithstanding this liberal policy, it is well settled that parties do not have an absolute right to amend. (Hastings v. Abernathy Taxi Association, Inc., 16 Ill.App.3d 671, 306 N.E.2d 498; Ennis v. Illinois State Bank, 111 Ill.App.2d 71, 248 N.E.2d 534.) Rather, the allowance of an amendment to pleadings rests in the sound discretion of the trial judge (Macie v. Clark Equipment Co., 8 Ill.App.3d 613, 290 N.E.2d 912) and, before “a trial judge can be deemed to have abused his discretion, the record must disclose that reasons or facts were presented to the trial judge as a basis for requesting the favorable exercise of the trial judge’s discretion.” (Stevenson v. Maston, 107 Ill.App.2d 65, 70, 246 N.E.2d 38.) Thus, a party desiring to file an amended pleading should make it part of the record on appeal. If this is not done, a court of review is not in a position to say that justice would be served by granting leave to amend. In such instances it can be presumed that a plaintiff’s second attempt to state a cause of action would be no more successful than his first. See Chicago Title & Trust Co. v. National Bank, 17 Ill.App.3d 721, 307 N.E.2d 656; Atlee Electric Co. v. Johnson Construction Co., 14 Ill.App.3d 716, 303 N.E.2d 192; and Zamouski v. Gerrard, 1 Ill.App.3d 890, 275 N.E.2d 429.

In the case at bar plaintiffs moved to amend their complaint at the close of all arguments. The basis of their request was, at best, vague. They asserted that tavern owners are entitled to notice of the fact that a “local option” election might be held. Plaintiffs neither explained the mechanics of how this notice is to be provided nor indicated upon whom this duty is to fall. We note that this matter is not even remotely related to the issues plaintiffs placed before the court in the complaint. They failed to submit a proposed amendment to the trial court either during the course of the hearing on defendants’ motion or in their post-trial motion. On the basis of the record before us we find that there did not exist sufficient “reasons or facts” (Stevenson, at 70) to require the trial court to act favorably on their request, and therefore the denial of plaintiffs’ motion to amend did not constitute an abuse of discretion. The judgment is affirmed.

Affirmed.

BARRETT and LORENZ, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Georgia Clay, a Minor, by Bertha James, Her Mother and Next Friend, Plaintiff-Appellant, v. The Chicago Board of Education et al., Defendants-Appellees.
    (No. 59621;
    First District (5th Division)
    September 13, 1974.

      Martin Fertel and Gordon, Brustin & Schaefer, Ltd., both of Chicago (Michael W. Schaefer, of counsel), for appellant.
    Glazer & Cohan, Ltd., of Chicago (Frank Glazer, of counsel), for appellees.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

This case involves a personal injury action for damages arising when David Reed allegedly struck plaintiff, a fellow student, while in a classroom of the Chicago Board of Education (hereafter defendant). Plaintiff appeals from an order of the trial court holding that plaintiff’s second amended complaint be dismissed with prejudice as against defendant.

Count I of plaintiff’s second amended complaint alleged that on March 6, 1972, plaintiff was a minor, 11 years old, and was in the sixth grade at defendant’s elementary school; that defendant had supervision and control of the school; that a Miss Wood was plaintiff’s teacher, was an employee of defendant and was acting within the course and scope of her employment; that on March 6, 1972, David Reed was a fellow classmate of plaintiff in defendant’s school; and that on that day David Reed struck plaintiff in the face and right eye without provocation causing injury to plaintiff. Plaintiff further alleged that defendant was guilty of one or more of the following wilful and wanton acts or omissions:

“a. failed to exercise that degree of supervision commensurate with the facts and circumstances then in existence;
b. caused or permitted their teacher and employee, Miss Wood to leave said classroom unattended, when she knew or should have known that injury to the plaintiff and others would occur;
c. failed to provide adequate protection for the students in the classroom;
d. permitted dangerous instrumentalities to be left near or in the hands of minor children so that as a direct and proximate result, thereof, plaintiff was injured;
e. caused or permitted injury to plaintiff to occur;
f. permitted or allowed the minor defendant, David Reed, to repeatedly strike plaintiff, although they knew or should have known that said minor defendant, David Reed, was involved in similar occurrences with other students on several other occasions.”

On appeal plaintiff argues that (1) the second amended complaint adequately stated a cause of action, and (2) defendant’s motion to dismiss did not set forth specific grounds for the relief requested.

OPINION

Plaintiff contends that she has stated facts sufficient to allege a cause of action in wilful and wanton negligence against defendant. A motion to dismiss admits all facts properly pleaded in the complaint. (Acorn Auto Driving School, Inc., v. Board of Education, 27 Ill.2d 93, 187 N.E.2d 722.) From the complaint the relevant facts as alleged and taken as true are that plaintiff and David Reed were fellow students at defendant’s elementary school; that David Reed acting without provocation struck plaintiff in the face causing injuries; that Miss Wood, plaintiff s teacher, was absent from the classroom when these events took place; and that defendant knew or should have known of David Reed’s propensities for such violence. Although plaintiff has alleged that defendant permitted a dangerous instrumentality to be left near or in the hands of minor children, nowhere in the complaint is it stated just what this instrumentality was.

“A complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proved under the pleadings which would entitle the plaintiff to relief.” (Courtney v. Board of Education, 6 Ill.App.3d 424, 425, 286 N.E.2d 25.) In order to state a cause of action for wilful and wanton negligence, facts must be alleged from which the law would raise á duty and a showing that the omission of such duty resulted in injury. The mere conclusory allegation of wilful and wanton negligence is not sufficient. (Ingram v. New York Central R.R. Co., 30 Ill.App.2d 455, 175 N.E.2d 129.) The definition of wilful and wanton negligence, which has been repeatedly cited by courts of this state, was enunciated in Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, 583, 69 N.E.2d 293, as:

“A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise - of ordinary care.”

As mentioned above, unless plaintiff can show a breach of some duty owed to her by defendant, there can be no recovery in tort. (Boyd v. Racine Currency Exchange, Inc., 56 Ill.2d 95, 306 N.E.2d 39.) In Boyd the court, noting that foreseeability alone does not result in the imposition of a duty, quoted from Lance v. Senior, 36 Ill.2d 516, 224 N.E.2d 231, that “[t]he likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing the burden upon the defendant, must also be taken into account.”

Several cases included in defendant’s motion to dismiss have particular relevance to the instant situation. In Woodman v. Litchfield Community School District No. 12, 102 Ill.App.2d 330, 334, 242 N.E.2d 780, plaintiff, a second grade student in one of defendant’s schools, alleged she was kicked in the head by a fellow student. It was also alleged that at the time of the injury the class was in session, and that the teacher permitted other students to move about the classroom in a disorderly fashion. The court, basing its decision on the Local Government and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1965, ch. 85, pars. 1 — 101 et seq.) and on section 24 — 24 of the School Code (Ill. Rev. Stat. 1965, ch. 122, par. 24 — 24), held that defendant could not be liable for mere negligence in a teacher’s supervision. The court then went on to recognize that defendant could be liable under a theory of wilful and wanton negligence but held “[w]e cannot say that there was here alleged such act or omission in the maintenance of discipline, including the supervision of the movement of the children in the classroom, that would constitute willful or wanton negligence.”

In Mancha v. Field Museum of Natural History, 5 Ill.App.3d 699, 702, 283 N.E.2d 899, plaintiff, while on a field trip to the museum, was attacked and injured by several youths not connected with the school. His class had been allowed to divide into smaller groups and to view the exhibits without supervision. Plaintiff alleged that the school district was negligent in permitting the students to leave the school premises without adequate supervision. The court, without relying on the immunity statutes, found that no duty had been breached, and stated in part:

“The burden sought to be imposed on the defendant School District and teachers is a heavy one which would require constant ' surveillance of the children. A baseball game, a football game or a game of hopscotch played on school grounds might break up a fight resulting in serious injury to one or more of the children. A teacher cannot be required to watch the students at all times while in school, on the grounds, or engaged in school-related activity.” (Emphasis supplied.)

The court in Mancha then went on to discuss the immunity statutes and the still existing liability under a wilful and wanton negligence theory. It then concluded that the above state of facts failed to allege wilful and wanton negligence.

Finally, defendant refers this court to the New York case of Bertola v. Board of Education, 1 App. Div. 2d 973, 150 N.Y.S.2d 831. That court, when presented with a factual situation identical to the instant case, found that “the need for closer supervision could not reasonably have been apprehended.”

Viewing the reasoning of the above cited cases, and weighing the tremendous burdens that would be imposed by a different decision, we hold that the trial court was correct in its decision that a cause of action for wilful and wanton negligence was not stated against defendant and that defendant’s motion to dismiss adequately presented its claim that wilful and wanton negligence was not properly shown by the facts stated. Therefore, the judgment is affirmed.

Affirmed.

BARRETT and LORENZ, JJ., concur.

       David Reed was made a defendant in Counts II and III of the second amended complaint but is not involved in the instant appeal which comes to us after a finding of “no just reason to delay enforcement or appeal of this order.”

       We note that defendant would be immune from suit if mere negligence was alleged. (Woodman v. Litchfield Community School District No. 12, 102 Ill.App.2d 330, 242 N.E.2d 780; Fustin v. Board of Education, 101 Ill.App.2d 113, 242 N.E.2d 308.)

       In plaintiff’s brief on appeal she has argued that this dangerous instrumentality was a yardstick. Even if we were to reach this point, it is our conclusion that a yardstick in a school classroom cannot be considered an inherently dangerous instrumentality. Maramba v. Neuman, 82 Ill.App.2d 95, 227 N.E.2d 80; Donehue v. Duvall, 41 Ill.2d 377. 243 N.E.2d 222.


author: Mr. JUSTICE HALLETT

text:
    Richard J. Daley, Mayor and Local Liquor Control Commissioner of the City of Chicago, Plaintiff-Appellant, v. Los Laureles, Inc., et al., Defendants-Appellees.
    (No. 57818;
    First District (1st Division)
    September 16, 1974.

      Richard L. Curry, Corporation Counsel, of Chicago (William R. Quinlan and Robert R. Retke, Assistant Corporation Counsel, of counsel), for appellant.
    Manuel Reyes, of Chicago, for appellees.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

The plaintiff, as Local Liquor Control Commissioner, refused to grant a retail liquor license to the applicant, Los Laureles, Inc. On appeal, the License Appeal Commission, after a trial de novo, reversed the Commissioner’s order and, on administrative review, the circuit court affirmed that reversal. The Commissioner has appealed.

The defendants have not seen fit to appear as appellees or to file briefs. Where, as here, an appellee has not filed a brief in the reviewing court, it may reverse without considering the case in detail but reversal is not required and the reviewing court may if it chooses consider and determine the case on its merits. (2 I.L.P. Appeal and Error §560 (1953); Perez v. Janota (1969), 107 Ill.App.2d 90, 246 N.E.2d 42; Daley v. Jack’s Tivoli Liquor Lounge, Inc. (1969), 118 Ill.App.2d 264, 275, 254 N.E.2d 814; Lynch v. Wolverine Insurance Co. (1970), 126 Ill.App.2d 192, 193, 261 N.E.2d 466; People v. Giannopoulos (1974), 20 Ill.App.3d 338, 314 N.E.2d 237.) We elect to follow the latter course here.

The Commissioner contends: 1) that, on the very sketchy evidence presented to him, he properly refused to issue the license applied for; and 2) that, on an appeal from his action, “the only issue * s * is the propriety of * * * [his] decision on the evidence placed before him by the applicant,” and that the Commission therefore “went beyond the bounds of the function defined in the statute” when it permitted the president of the applicant “to directly supply the License Appeal Commission with detailed data on the finances of Los Laureles, Inc.” and, based on that data, reversed the Commissioner’s action.

We disagree with the Commissioner’s second contention and affirm; thus rendering the first contention moot.

The Illinois Liquor Control Act (Ill. Rev. Stat. 1971, ch. 43, pars. 120 (15), 123), defines who may and may not be granted a retail liquor license, and, in sections 2 through 5 of article IV (Ill. Rev. Stat. 1971, ch. 43, pars. 111 — 114), empowers local liquor control commissioners to administer said act and to grant, refuse or suspend licenses. In section 8 of article VII of the Act (Ill. Rev. Stat. 1971, ch. 43, par. 153) two, very different types of appeals from orders of such local commissioner's are provided. From certain orders, a trial de novo before the appeal commission is provided. From others, only a “review” of the record before the local commissioner, at which “no new or additional evidence shall be admitted or considered,” is provided.

Insofar as is pertinent here (an appeal from an order of a local liquor control commissioner in a city of 500,000 or more refusing to grant a license) the statute (Ill. Rev. Stat. 1971, ch. 43, par. 153), in pertinent parts, provides as follows:

“In the event such appeal is from an order of a local liquor control commissioner of a city, village or incorporated town of 500,000 or more inhabitants, granting or refusing to grant a license or refusing for more than 30 days to grant a hearing upon a complaint to revoke or suspend a license, the matter of the propriety of such order or action shall be tried de novo by the license appeal commission as expeditiously as circumstances permit.
* # *
In any trial de novo hearing before the State Commission or license appeal commission the local liquor control commissioner shall be entitled to 10 days notice and to be heard. All such trial de novo hearings shall be open to the public and the Illinois Liquor Control Commission and the license appeal commission shall reduce all evidence offered thereto to writing.
If after trial de novo hearing or review as provided herein, the State Commission or the license appeal commission (as the case may be) shall decide that the license has been improperly issued, denied, revoked, suspended or refused to be revoked or suspended or a hearing to revoke or suspend has been improperly refused, it shall enter an order in conformity with such findings, which order shall be in writing.
A certified copy of the order shall be transmitted to the particular local liquor control commissioner and it shall be the duty of the local liquor control commissioner to take such action as may be necessary to conform with the order.
In any trial de novo hearing before the State Commission or the license appeal commission, the licensee shall submit to examination and produce books and records material to the business conducted under the license in like manner as before the local liquor control commissioner, * * (Emphasis ours.)

Where the appeal is from the order of a local liquor control commissioner of a home rule municipality of less than 500,000, or from the order of a local liquor control commissioner of a city of 500,000 or over, re- voicing oi' suspending, (or refusing so to do), a.previously issued license, then only a “review,” (not a trial de novo), is provided, and it is further provided that:

“No new or additional evidence in support of or in opposition to such order or action under appeal shall be received other than that contained in such record of the proceedings.”

It should be noted, however, that said “review” type of appeal does not apply to be an order granting or refusing to grant a license, which is precisely what is involved in tire case now before us.

The case of Daley v. License Appeal Commission (1956), 11 Ill.App.2d 421, 138 N.E.2d 73, cited by the Commission is not pertinent here because it involved an appeal from a local commissioner’s revocation of a license, already issued, on the ground that the licensee had served liquor to minors. Daley v. License Appeal Commission (1965), 63 Ill.App.2d 43, 211 N.E.2d 573, also cited by the Commissioner, does not support his position. There the commissioner refused to grant a liquor license to the applicant corporation and, as here, the Appeal Commission conducted a trial de novo and after a full hearing, reversed the commissioner’s order. On administrative review, the circuit court affirmed the order of the Appeals Commission, and this court affirmed, saying (at page 48) that:

“It must be remembered that the trial before the commission is a new trial and not a review of any prior record. The commissioner may have had reasons for denying the application which were unknown to the commission, but the latter must base its decision on the evidence presented to it and must decide, in the light of this evidence, whether the commissioner’s discretion was reasonably exercised. * * *”

In our opinion, the controlling authority here is Bowlers Inc. v. Illinois Liquor Control Commission (1968), 97 Ill.App.2d 403, 240 N.E.2d 369. There the local commissioner refused to grant a license to the applicant and, on appeal, the State Liquor Control Commission conducted a trial de novo and, after considerable testimony, affirmed the commissioner’s refusal to grant a license. On administrative review, the circuit court reversed the commission’s order and directed the issuance of tire license. In affirming that judgment, this court, at page 409, said:

“The County Commissioner at the hearing before the defendant-Commission and now the defendant-Commission itself evidently failed to recognize that the hearing on administrative review before the Commission, was an entirely new trial, adversary in nature which was neither dependant upon nor limited by, any prior administrative record. Regardless of the reasons prompting the decision of the County Commissioner, the defendant-Commission was bound to independently predicate its judgment only upon the facts as established by the competent evidence presented to it. Daley v. License Appeal Commission, 63 Ill.App.2d 43, 211 N.E.2d 573 (1965).” (Emphasis ours.)

It is perfectly clear that the statute applicable to appeals to the License Appeal Commission from orders of a local liquor commissioner in a city of 500,000 or more, refusing to grant a license provides for a trial de novo and not, as is provided with respect to revocations of previously issued licenses for cause, etc., merely a “review” “on the record” of the local commissioners action. It is also clear to us that the cases reflect this difference.

We therefore hold that the Appeals Commission proceeded properly in allowing the applicant on the trial de novo before it to put into evidence “the detailed data on the finances of Los Laureles, Inc.,” and, based on that data (the sufficiency of which is not challenged), in reversing the Commissioner’s refusal to grant a license. We affirm the judgment of the circuit court affirming the Appeals Commission’s reversal of the Commissioner’s refusal to grant the applicant a liquor license.

Affirmed.

GOLDBERG and BURKE, JJ., concur.


text:
    Robert Hruby et al., Plaintiffs-Appellants, v. The Board of Fire and Police Commissioners of the City of Berwyn et al., Defendants-Appellees.
    (No. 58095;
    First District (1st Division)
    September 16, 1974.

      Adamowski, Newey and Riley, of Chicago (Francis X. Riley, of counsel), for appellants.
    Walter C. Wellman, of Lyons, for appellees.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

Achilles Chiapetta and Robert Hruby were police officers (patrolmen) of the City of Berwyn. They and police officers Charles Honsik and Charles Estes investigated a break-in at a Sears store and were subsequently charged, in substance, with improperly removing a color TV, a stereo tape player and some toys, thereby engaging in “conduct unbecoming a police officer.” After a full hearing, the Board of Fire and Police Commissioners found them guilty and discharged them from their said civil service offices.

Chiapetta and Hruby sought judiciál review of said administrative decision and Honsik and Estes also sought similar relief in a separate action. The two actions were consolidated and heard together.

As to Honsik and Estes, the trial court remanded the matter to the Board for a limited hearing and their case is not before us. As to Chiapetta and Hruby, the trial court affirmed the Board’s findings and decision and they have appealed, contending in substance:

(1) That the Board’s findings and its decision discharging them from their offices, are not supported by and are contrary to the manifest weight of the evidence; and that the trial court therefore erred in affirming said decision.
(2) That they were denied a fair trial by the Board (a) in refusing to sever their trial from that of Officers Honsik and Estes; (b) by not having a more specific Bill of Particulars furnished them; and (c) by allowing the hearing to go on for some four months and over 1000 pages of transcripts; and that the trial court therefore erred in affirming the Board’s decision.

We conclude: (1) that the Board’s findings and decision are supported by and are not contrary to the manifest weight of the evidence; and (2) that the contention that, for various reasons, the Board did not give them a fair trial not only was not presented below but is without merit. We therefore affirm.

The Facts

Chiapetta, Hruby, Honsik, and Estes were police officers (patrolmen) of the City of Berwyn and all were on duty on the 11 P.M. to 7 A.M. shift on October 30-31, 1969. Chiapetta was driving squad car 68, which was being used as car 63, with Hruby as his partner and they had never been teamed up before. Between 4:30 and 4:35 A.M., they had not given or received any radio transmission although the operator had tried several times to contact them. Chiapetta and Hruby explain this hiatus by testifying that at about 4:30 A.M. they left their squad car at Home Avenue near 24th Street to investigate a couple kissing in a parked car, which took a few minutes. No names or license numbers were taken or report made and, as they returned to their squad car they heard the call from the station, to which they responded. At the trial there was testimony that they should not have left their car unattended without reporting that they were doing so and where and why.

When they responded, Ochsner told them to go to Dunkin Donuts at East Avenue and 22nd (Cermak) and pick up coffee and doughnuts for the station. According to Chiapetta and Hruby, they started north on Home Avenue and were stopped for a traffic light at 22nd (Cermak) when they noticed, to their right, that the wire gate in the cyclone fencing which surrounded the outdoor garden section of Sears store in the Cermak Shopping Plaza was open and swinging in the wind. They backed up and parked next to that fence. It was then about 4:50 A.M. and Chiapetta turned off the lights and the radio and removed the ignition key which he put in his belt. Both got out and went in to investigate the Sears area, without advising the radio operator at the station that they were leaving their squad car unattended. According to testimony at the trial, this was not proper police practice.

They then went through the open gate into the open air garden station, which was full of trees and bushes and a trailer. After checking it out, they noticed that a wood door into a lean-to addition had been pried open. This lean-to was 5 feet deep and some 40 feet long and 7 feet high at the door. It had a slanting roof and an overhang. The door was about 4 feet wide. According to then- testimony at the trial, an 18-inch Sears color television and a Sears stereo tape player with two extension speakers were in the doorway, half in and half out, being rained on and blocking the passage. Their subsequent handwritten reports of the incident state, however, that the TV and tape player were found inside the door. This lean-to was piled some 6 feet high with Christmas trees and ornaments, with a passageway about 3 feet wide through it.

Five feet beyond the wood door was a set of double glass doors some 6 feet wide, leading to the toy section. According to Chiapetta and Hruby, the lower half of the right door was broken and they drew their service revolvers and climbed- through the door into the toy section. Again, they did not, as yet, go back and let the radio operator at the station know what they had seen or what they were doing, which would have been the better police procedure. According to Chiapetta and Hruby, they then checked out the toy section, which was about 50 feet by 200 feet and they noticed that a second set of glass doors, leading into the main store, was also smashed and they crawled through it into the main store, some 250 by 500 feet. Another television set was standing in the aisle in front of them and Hruby picked it up and moved it out of the way, contrary to usual police practice. After some 3 to 5 minutes checking, they concluded that those who had broken into the store were probably still in there and Chiapetta started back to call the station, leaving Hruby in the toy section.

According to Chiapetta, as he went out through the two doors and the wood door, he came across the TV and the tape player in the door of the lean-to and picked up the TV and carried it out to his squad car and put it in the back seat, because it was wet .and blocking the passage and could not be put elsewhere.

In the meanwhile, Detective Russ was patrolling the area and shortly before 5 A.M. was going east on Cerníale Road and came to the Shopping Plaza and the Sears store, where he saw squad car 68 parked near the fence without lights. According to his testimony, he saw Chiapetta coming out of the Sears garden section carrying three boxes, which he put down next to his squad car. Russ also testified that Chiapetta then saw him and got into the squad car, turned on the radio and reported the break-in at the Sears store at the Shopping Plaza. The time was 5:02 A.M.

In any event, Russ asked Chiapetta what happened and Chiapetta told him that they had found the open gate and broken doors and had checked out the toy section and that he and Hruby thought that those who had broken in might still be in the main store. He admits that he did not tell Russ or Sergeant Rartunek of the TV and tape player in the back of his squad car but testified that Russ flashed his flashlight into the back of the car and saw them. Russ, on tire contrary, testified that he did not see the TV or the tape player until they were returned to the Sears store some time later.

At this juncture, Sergeant Rartunek, who had been advised of the break-in by the radio operator joined them and Chiapetta repeated what he had told Russ. The three of them then went back through the various open or smashed doors into the main store. Rartunek wanted to check out the toy section but did not after Hruby said that they had already done so. In the main store, they came upon tire second TV set and Russ wanted to dust it for latent finger prints, but did not after Hruby said that he had moved it and that his prints were all over it. Good police procedure would have been to have left it where it was until dusted for latent prints and photographed.

About this time, Chiapetta went out and backed his squad car up some 100 yards to the dock area but did not ask permission of either Russ or Rartunek before doing so. Just then Officers Honsik and Estes, who also had been advised of the break-in by the radio operator, drove up in their squadrol and they and Chiapetta transferred the TV and the tape player into the squadrol. Honsik and Estes say In their written reports that, in .addition to the TV and the tape player, three boxes were also put into their squadrol but Chiapetta denies this. Chiapetta then told them to “Get rid of the stuff” and that he would advise them in more detail later. Chiapetta then drove his empty squad car back to the store and Honsik and Estes left the scene in their squadrol headed east on Cermak. They testified that they worried about the fact that they could not function as an emergency car with all that stuff in the back seat and therefore drove to Honsik-s private garage at 1640 South Scoville Avenue, where they unloaded the TV, the - tape player and the three' boxes and drove off, after locking the garage door. After a short time, they changed their minds and returned to the garage, loaded the TV, tape player and three boxes back into their squadrol and started for the station and had nearly reached it when they got an order, through the radio operator, to return the merchandise to the Seal's store, which they then did.

Meanwhile, back at the store, Russ, using a public pay telephone, had contacted the station and told the operator to have Mr. Sachar, who represented the Sears store in such an emergency and lived near the store at 2121 South Maple Avenue, come to the store, which he did. At about this point, Russ told Bartunek that he had seen Chiapetta placing three boxes next to his squad car and had later seen him backing the car from the scene with the boxes on the seat. Bartunek called Chiapetta and Hruby over and told them to “Bring back whatever you’re taking from the store.” Chiapetta answered that it had already left the scene in the squadrol. Bartunek said that that was not right and to “get it back to the store right away.” Hruby’s testimony was that he did not know that any merchandise had been removed until Chiapetta told him of it, just before the confrontation with Russ and Bartunek above related.

Detective Russ and Sergeant Bartunek testified that, just after Bartunek told Chiapetta and Hruby to get the stuff back to the store, they saw Hruby leave the scene in the squad car at 40 to 50 miles an hour, headed east on Cermak and that he was gone for about 10 minutes. Hruby flatly denies this and says that he did not leave the scene and that he could not have driven the squad car because Chiapetta had the only ignition key in his belt.

In any event, Hruby and Estes carried the TV back into the Sears store and Chiapetta returned the TV and tape player. Detective Russ and Sergeant Bartunek testified that they then both asked Chiapetta and Hruby where the three boxes were and that Hruby said that “They’re just toys and Sears won’t miss them.” Hruby denies making any such statement. The boxes were not seen again.

After a complete check of the premises, the store was locked up and the officers returned to the station at about 6 A.M. Sergeant Bartunek told Sergeant Hanzl, the watch commander, that there had been an “attempted break-in, no loss.” At that time, Sergeant Hanzl did not know that any property had been taken from Sears to a private garage and later returned to Sears and Sergeant Bartunek did not so advise him at that time. At about 9 A.M., Police Chief Herald called Hruby’s wife and she told him the chief wanted him to come to the station immediately which he did. The chief asked him if anything happened last night and Hruby said no. The chief then said that he had received a call from some woman who said “if you want to catch some thieves, look at your own police department.” He then asked Hruby, “Was any merchandise taken from Sears?” Hruby said “No.” The chief replied “Okay. If anything further comes up, we’ll notify you.” Chiapetta also had a similar experience except that he was more loquacious and gave his resume of the incident. He also testified that Chief Herold threatened him with criminal charges, and said “If you’ll resign, we’ll let everyone else go.” The chief and others present deny this.

The officers involved all made written reports. Honsik’s reflected the facts that Chiapetta had given him and Estes a TV, a tape player and three boxes and told him to get rid of them, that he and Estes took said merchandise to Honsik’s own garage and unloaded it there but later returned and reloaded it into the squadrol and were headed for the station when the radio operator told them to return to the shopping center which they did.

On about November 5, 1969, the Chicago Sun Times newspaper had a big write-up “Burglary Ring in Berwyn” and all of the officers were again called into the chief’s office. A rather uproarious confrontation then and there occurred, and the testimony as to what actually was . said is in considerable conflict. According to the chief, Chiapetta said that he was sorry for what had transpired, that the whole incident was of his doing and that he was willing to resign if charges would not be pressed against the other officers. Other officers present corroborate this version, but Chiapetta denies making any such statement. Chiapetta and Hruby, on the contrary, testified that they were asked to resign and were threatened with criminal charges if they did not and that the chief said that “If you resign, we’ll let everyone else go.” The chief denied making such statements or threats.

On November 7, 1969, Chiapetta and Hruby were suspended from duty; criminal charges were filed against them; and they were tried in the criminal court where a verdict of “Not Guilty” was directed at the end of the State’s case. All four officers subsequently were tried before the three-man Board of Fire and Police Commissioners, which, after hearing some 16 witnesses, found them guilty and discharged them.

I.

This brings us to the plaintiffs’ first contention — that the Board’s findings and decision are not supported by and are contrary to the manifest weight of the evidence; and that the court below erred in affirming said decision.

Insofar as Chiapetta is concerned, his story about the kissing couple as an explanation for not answering radio calls; his leaving his squad car unattended (without advising the radio operator) while he and Hruby checked a break-in; his moving a TV and a tape player from the lean-to to his squad car to get them out of the way and out of the rain when his handwritten statement puts them inside the lean-to which not only had an overhang but was some 5 feet deep toward the first broken glass doors; his further action in removing three boxes, apparently toys (which he denies but many others say was so) which were never returned to Sears; his orders to Honsik and Estes to “get rid of the stuff”; his failure to tell Russ or Bartunek of the stuff in the squad car and squadrol until asked by them as to its whereabouts; and his statements after the publicity about “police burglars” to the effect that the whole incident was of his doing and that he would resign if the others were let go (corroborated by many, although denied by him) seem to us to support the Board’s findings that he was guilty of improperly removing a color TV, a tape player and some toys from the Sears store during said investigation and thus guilty of engaging in conduct unbecoming a police officer. The Board’s decision most certainly is not contrary to the manifest weight of the evidence.

Insofar as Hruby is concerned, much of the foregoing, which applies equally to him as well as to Chiapetta; plus the testimony (which he denies) that after Sergeant Bartunek ordered the merchandise returned to the Sears store, he left the scene at high speed in the squad car and was gone for 10 minutes just before the return of the property; plus testimony that he handled and moved the second TV in the main store before it was fingerprinted or photographed; plus testimony (which he denies) that when asked about the failure to return the three boxes, he replied that “They’re just toys, and Sears will never miss them,” appears to us to support the Board’s findings and decision discharging him and they are most certainly not contrary to the manifest weight of the evidence.

We recognize that Chiapetta’s and Hruby’s versions of many of the key factual issues conflict with the Board’s findings, but, as was said by the trial court:

“The police officers may argue that they provided plausible explanations for their individual actions. The answer is that the Board was not required to accept them.”

This is so because, where there is conflicting testimony, the agency conducting the hearing determines the credibility of the various witnesses (Davenport v. Board of Fire & Police Commissioners (1972), 2 Ill.App.3d 864, 868, 278 N.E.2d 212; Davis v. Board of Fire & Police Commissioners (1962), 37 Ill.App.2d 158, 185 N.E.2d 281), and so long as the findings of the agency are based on substantial evidence and they do not go against the manifest weight of the evidence, the courts will not substitute their own independent judgment. (Rauland Division, Zenith Radio Corp. v. Metropolitan Sanitary District (1973), 9 Ill.App.3d 864, 874, 293 N.E.2d 432; Avent v. Police Board (1964), 49 Ill.App.2d 228, 199 N.E.2d 637; Etscheid v. Police Board (1964), 47 Ill.App.2d 124, 197 N.E.2d 484.) As we noted previously, the fact findings of the Board are here supported by the evidence.

We are also of the opinion that facts established that such actions constituted “conduct unbecoming a police officer” in violation of chapter 1, rule 2 of the rules and regulations of the department and fully justified their discharge.

The standard “conduct unbecoming a police officer” is an elastic term subject to a wide variety of differing interpretations depending on the individual conceptions of how policemen should conduct themselves. (Gaudette v. Board of Public Safety (1956), 20 Conn. Supp. 147, 127 A. 2d 836.) However, these individual conceptions of misconduct must be rooted in substantial shortcomings (Coursey v. Board of Fire & Police Commissioners (1967), 90 Ill.App.2d 31, 37, 234 N.E.2d 339) thereby excluding any individual’s conception of misconduct which is so trivial as to be unreasonable and arbitrary. Davenport v. Board of Fire & Police Commissioners (1972), 2 Ill.App.3d 864, 869, 278 N.E.2d 212.

The legislature therefore has prescribed that no police officer may be discharged without cause (Ill. Rev. Stat. 1969, ch. 24, par. 10 — 2.1— 17), and while "cause” is nowhere defined by statute, the courts have construed it to mean, “some substantial shortcoming which renders the employees continuance in office some way detrimental to the discipline and efficiency of the service and which the law and sound pubhc opinion recognizes as good cause for his no longer holding the position.” Murphy v. Houston (1928), 250 Ill.App. 385; cited with approval in Coursey v. Board of Fire and Police Commissioners, supra.

In Davenport the court affirmed the Board’s dismissal of the appeUant police officer for conduct unbecoming a police officer where the Board found that, while armed and off duty, he attacked the complainant without provocation. The court determined that such conduct was detrimental to the discipline and efficiency of a metropolitan police department and that therefore the Board had sufficient cause to discharge him. In the instant case the evidence establishes that the plaintiffs wrongfully removed merchandise from the Sears store in a manner strongly indicative of the commission of a theft, and we are forced to conclude, as did the court below, that the Board properly discharged them. Their conduct amounted to a substantial shortcoming which constituted cause for dismissal and we fully concur in the trial court’s conclusion that:

“Such a course of conduct would constitute conduct unbecoming an officer and because the prosecution called it that rather than theft or conspiracy should not redound to their benefit.”

Affirmed.

GOLDBERG and BURKE, JJ., concur.


author: Mr. JUSTICE DOWNING

text:
      In re Estate of Hattie Gerbing, Deceased—(Frank Gerbing, Jr., Ex’r of the Will of Hattie Gerbing, Petitioner-Appellee, v. Katherine Siebold Grigg et al., Respondents-Appellees—(Frank Gerbing, Jr., Respondent-Appellant.))
    (No. 59020;
    First District (2nd Division)
    September 17, 1974.

      Rehearing denied October 21, 1974.

      Sidley & Austin, of Chicago (Alice M. Bright, George A. Plata, and James J. Carroll, of counsel), for respondent-appellant.
    James H. Canel and Ira D. Schultz, both' of Chicago (Canel & Canel, of counsel), for respondents-appellees.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

Frank Gerbing, Jr., as the executor of the will of Hattie Gerbing, (hereinafter petitioner), filed a petition in the court below for instructions seeking a determination of whether a provision of the will violated public policy and was therefore void. He joined as respondents Katherine Siebold Grigg (a half sister of decedent), Robert Grigg (son of Katherine Siebold Grigg), and Robert Griggs children, Scott, William, Daniel, Nancy, and Linda, all the respondents (hereinafter respondents) being apparent alternative contingent beneficiaries of the trust corpus whose interest would be affected by the allegedly void provision of the will. The probate court entered an order declaring that the trust created under the will was valid. Petitioner then filed motions to vacate that order both in his individual capacity as primary beneficiary of the trust and in his capacity as executor, both of which were denied by the probate court. Petitioner, in his individual capacity as a respondent, now prosecutes this appeal from those orders.

This appeal presents the following issues for review: (1) whether petitioner is estopped from asserting the invalidity of the trust; (2) whether the conditions pertaining to the termination of the petitioner’s and his wife’s marriage are contrary to public policy and void; and (3) should the conditions be found void, what effect will such determination have upon the trust created under the will.

Article IV of decedent’s will provides, in part, as follows:

“I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed, of whatsoever character and wheresoever situate (referred to below as the “trust property”) of which I may be seized or possessed and to which I may be entitled at the time of my decease, but expressly excluding any property over which I now or hereafter may have power of appointment, to THE NORTHERN TRUST COMPANY, of Chicago, Illinois, as trustee, subject to the following terms and conditions:
4.1 Commencing at my death and during the life of my son, FRANK GERBING, JR., the trustee shall pay to him the entire net income from the trust property.
4.2 In addition to income, the trustee also shall pay to my son, FRANK GERBING, JR., such amounts from the principal of the trust property as he from time to time may direct by writing filed with the trustee, except that (a) the aggregate payments to him pursuant to this paragraph in the calendar year in which my death occurs or in either of the next two succeeding calendar years shall not exceed the sum of Ten Thousand Dollars ($10,-000.00) and (b) the aggregate payments to him pursuant to this paragraph in any calendar year subsequent to tire calendar years mentioned above shall not exceed the sum of Ten Thousand Dollars ($10,000) or an amount equal to five (5) percent of the value of the principal of the trust property determined as of the time such a written direction for a given payment is filed with the trustee, whichever is larger. I am aware of the fact that the aggregate amount which my said son may be entitled to withdraw pursuant to this paragraph in a given calendar year may vary as distributions of principal of the trust property to him take place pursuant to this paragraph or the following paragraph and as the assets included in the principal of the trust property changed in value. The rights to withdraw principal of the trust property during any given calendar year bestowed upon my said son by this paragraph shall lapse at the end of such year.
4.3 In addition to the payments mentioned above, the trustee from time to time may pay to my son, FRANK GERBING, JR., such amounts from the principal of the trust property as the trustee considers necessary or desirable for his comfortable maintenance, medical care, best interests and welfare, including reasonable luxuries, taking into consideration the income and cash resources known to the trustee to be available to him for such purposes from other sources.
4.4 In the event my said son’s wife, ARLIE GERBING predeceases my son, FRANK GERBING, JR., or in the event ARLIE GERBING and FRANK GERBING, JR. are divorced and remain divorced for a period of two (2) years, then in either event this trust shall terminate and my trustee is directed to pay, turn over and deliver the remaining principal of the trust property and all accrued dividends or interest accumulated thereon to my said son. In the event my son, FRANK GERBING, JR., predeceases his wife, ARLIE GERBING, then I direct my trustee to deliver the remaining principal of tire trust property together with all accrued or undistributed net income therefrom to my sister, KATHERINE SIEBOLD GRIGG, if she survives my said son. If my said sister predeceases my son, FRANK GERBING, JR., then upon the death of my said son, I direct my trustee to deliver the remaining principal of the trust property and all accrued or undistributed net income therefrom to ROBERT GRIGG, if living, or if ROBERT GRIGG is not living at that time, to his children living at the date of the death of FRANK GERBING, JR., share and share alike.” (Emphasis supplied.)

Petitioner is the only child of Hattie Gerbing and her sole heir at law. He has been married to Arlie Gerbing for 34 years and was married to her both at the time decedent executed her will and at the time of decedent’s death.

I.

Pursuant to a provision in the challenged article of the will, the probate court ordered the trustee to distribute the sum of $10,000 to petitioner. Respondents now maintain that, since petitioner has accepted benefits under the will, he has confirmed and ratified every other part of the will and cannot now assert an invalidity of the trust and will of the decedent.

While it is true that one’s voluntary acceptance of a benefit conferred by a will precludes an attack by him upon other lawful provisions of the will, this general rule is qualified to the extent that, even though one accepts a benefit under the will, he is not precluded from questioning the validity of any provisions that are contrary to the law or public policy (Chaney v. Baker (1922), 302 Ill. 481, 484, 135 N.E. 14). Thus, in Schuknecht v. Schultz (1904), 212 Ill. 43, 72 N.E. 37, appellant, who had taken a beneficial interest under the will, was permitted to attack certain clauses of the will as violative of the rule against perpetuities. The cases cited by respondents in support of their position do not involve any claim that a provision in the will being attacked was illegal or against public policy and are, for this reason, inapposite.

In the case at bar petitioner’s theory of the case — that the provisions of the trust represent a scheme to induce him to divorce his wife and therefore violate public policy permits him to attack those provisions of the will. It is also significant to note that the probate court’s order which directed the funding of the trust and permitted $10,000 distribution, also specifically provided “* * * that the distribution is made without prejudice to the right of Frank Gerbing, Jr., to seek a ruling from the court concerning the validity of the trust.”

Respondents contend that, by filing in his individual capacity a motion to vacate the court’s order declaring the trust valid, petitioner has abandoned his position as executor and violated the obligations imposed on him by that office since, as executor, he was bound to follow the dictates of the court’s order; and that he has further violated his executor’s duties by prosecuting this appeal without having first removed himself as executor. Respondents have cited no authority to support their position. The record does not indicate any petition filed in the court below by the respondent to remove the petitioner as executor. Likewise there is nothing in the record to indicate that the court below ever ruled on this specific point.

Section 276 of the Probate Act (Ill. Rev. Stat. 1971, ch. 3, par. 276) sets forth the statutory basis for the removal of an executor. In 1965 the legislature added the following subsections:

“(9) becomes incapable of or unsuitable for the discharge of his duties; or
(10) there is other good cause.”

In the case of In re Estate of Phillips (2nd Dist. 1972), 3 Ill.App.3d 1085, 280 N.E.2d 43, the court considered a situation in which the administrator of a decedent’s estate was also the officer of a corporation founded by the decedent and indebted to the decedent; the issue was whether the administrator’s failure to collect debts due the estate from the corporation on grounds that the corporation needed money more than did the estate constituted a conflict of interest. The court held that under section 276 of the Probate Act an administrator will be removed, and a special administrator appointed, where there is a conflict of interest between the estate and the personal interest of the administrator or between the positions held by the executor or administrator. The court further stated that an administrator or executor may be removed only for reasons set forth in said section 276.

In In re Estate of Kuhn (2nd Dist. 1987), 87 Ill.App.2d 411, 231 N.E. 2d 97, the court affirmed the denial of the petition for the removal of an executor. In noting that an executor should be removed only for the reasons set forth in section 276, the court also stated:

“[T]hat where an executor’s personal interests are so conflicting with and adverse to the interests of the estate that both such interests cannot be fairly represented by the same person, he may be removed as such executor. We disagree with the petitioners’ conclusion that the factual situation here warrants such action; and that the effect of the petitioners’ will contest action is to place the executor in a position where her personal interests are so conflicting with and adverse to her interests and duties as executor that she cannot fairly carry out her obligations as executor.” 87 Ill.App.2d at 422.

In the case of In re Estate of Benson (2nd Dist. 1969), 111 Ill.App.2d 251, 250 N.E.2d 281, the court affirmed tire lower court’s appointment, upon petition, of an administrator to defend the estate regarding certain counterclaims. In Benson the executor of the estate of the decedent was also the attorney for certain claimants who sought to reach the assets of the estate.

We think that there was a conflict of interest involved such that the petitioner-executor should have been replaced by a special administrator to defend the will. In his petition for instructions, petitioner is not only in the anomalous position of suing himself as one of the respondents, but in both capacities he is suggesting that a material provision of the will is void for violation of public policy.' Even if we assume that he had a right as petitioner-executor to suggest the voidness of the provision as violative by public policy, it would still be the fact that no one involved in the litigation is representing the interest of the estate as such; the other respondents are representing their private interests as contingent beneficiaries under the will. The same situation prevails on this appeal: No one is representing the interest of the estate as such.

We think, however, that this issue cannot be raised on this appeal for the first time, because the record does not disclose any effort by respondents to procure the appointment of a special administrator in the court below; as a result, the court below was never given an opportunity to rule on the matter. More significantly, respondents have not demonstrated any prejudice to their private interests arising from what is in effect the non-representation of the estate in this litigation.

II.

Turning to the question of the validity of the conditions (see the underscored portions of 4.4 on page 3, supra) imposed in the trust created by the testatrix in Article IV of her will, the law in Illinois, as well as in many other jurisdictions, is well-established that “* 5 *

conditions annexed to a gift, the tendency of which is to encourage divorce or bring about a separation of husband and wife are against public policy and void.” Winterland v. Winterland (1945), 389 Ill. 384, 386, 59 N.E.2d 661. See also Ransdell v. Boston (1898), 172 Ill. 439, 50 N.E. 111; Tripp v. Payne (1930), 339 Ill. 178, 171 N.E. 131; Fleishman v. Bregal (1938), 174 Md. 87, 197 A. 593; Hawke v. Euyart (1890), 30 Neb. 149, 46 N.W. 422; In re Onoras Will (1954), 205 misc. 531, 130 N.Y.S.2d 480; Graves v. First National Bank (N.D. 1965), 138 N.W.2d 584; Fineman v. Central National Bank (Ohio App. 1961), 18 Ohio Op. 2d 33, 175 N.E.2d 837.

In the case at bar the testatrix provided that, if her son was alive at her death, such personalty as jewelry, clothing, household furniture and effects of all kinds were bequeathed to petitioner; two specific bequests of $5,000 each were provided for the Bethany Methodist Home and a niece, and the residue of her estate is to be disposed of through the means of the trust. As set forth earlier, petitioner is the primary beneficiary of that trust, the terms of which call for the distribution of the income from the trust property to petitioner during his lifetime with a limited power in petitioner to invade the corpus of the trust annually and a discretionary power in the trustee to pay to him additional limited amounts from the principal of the trust property. The terms further provide that the remaining trust principal is to be delivered to petitioner “In the event my said sons wife, ARLIE GERBING, predeceases my son, FRANK GERBING, JR., or in the event ARLIE GERBING and FRANK GERBING, JR. are divorced and remain divorced for a period of two (2) years.” Should petitioner predecease his wife, the trust principal is to pass to the named contingent beneficiaries.

Petitioner contends that this trust created by the testatrix had for its sole object the furtherance of her scheme to separate her son from his wife and thus is contrary to public policy and void.

There appear to be only three reported cases in Illinois that interpret and determine the effect to be given to testamentary provisions of this nature. In Ransdell v. Boston, supra, the testator provided that his son should have the occupancy, use, rents, and profits of certain land for life or until the dissolution of his son’s marriage at which time the land was to be conveyed to him in fee. The testator further provided that, should his son die without issue and without dissolution of the marital relationship, the land should pass to other named beneficiaries. The son there presented the same argument as does petitioner in the instant case. Recognizing the appellant’s position, the supreme court, quoting from Judge Story (1 Story’s Eq. Jur. sec. 291a), stated:

“ ‘The question as to what conditions affecting marriage are valid must depend upon the circumstances of each particular case, and will be very materially affected by the consideration how far the condition was one fairly applicable to the relation of the parties and the peculiar views and situation of the donor and donee.’” (172 Ill. at 445.)

The court then noted that in Ransdell the testator’s son and his wife had been separated for two years prior to the execution of the will and that a divorce suit between them on cross-complaints for divorce had been pending for more than two years. Observing that the condition certainly could not have tended to encourage either the separation or the divorce suit since both took place long before the execution of the will, the court held the provision to be valid stating that the testator “# # * did not disinherit his son upon condition that he should live with his wife or should obtain a divorce from her. He simply made one provision for him in case they were not divorced, and another if they were.” (172 Ill. at 446.) Since in Ransdell the court based its holding on the fact that the son and his wife had already been separated and had filed for divorce before the execution of the will, it is readily distinguishable from the factual situation now presented and the court’s conclusion there does not bind this court.

In Tripp v. Payne, supra, the testatrix placed all of her property in trust and provided that the residue of the income should be accumulated for 21 years and then' be paid to her son provided that his wife should die within that time or that he should cease to live with her. Appellee argued that this proviso was contrary to Illinois law and against public policy in that it attempted to induce a divorce between him and his wife. Reviewing the public policy of this state with regard to marriage and divorce, the supreme court held:

“[I]t is the public policy of this State to safeguard and protect the marriage relation. Indeed, that relation is the foundation stone of modern society in civilized countries, and we think sound public policy dictates that the relation should not be allowed to be interfered with. Nor does the fact that our laws recognize and make provision for divorce militate against this conclusion. * * * The effect of the laws relating to divorce is merely that when one has been wronged by his or her spouse in a manner provided by the statute, such injured party may have the marriage dissolved. But that does not indicate any public policy to encourage divorce.” (339 Ill. at 182.)

The court distinguished the holding of the Ransdell case for the reason that, in Tripp, appellee and his wife had neither separated nor contemplated separation. In conclusion the court held that it could draw but one reasonable inference from the language of the testatrix, i.e.: “Since the provision would tend to induce a separation it is clearly contrary to the public policy of this State and is void.” 339 Ill. at 183.

Finally, in Winterland v. Winterland, supra, the testator first provided a life estate for his widow until her death or remarriage. On the happening of either event, the estate was to be divided evenly among his 11 children. By a codicil he provided that the share of his son George was to be held in trust and the income paid to him until his present wife died or was separated from him by absolute divorce. If either event occurred during George’s lifetime, the trust was to cease and the corpus was to be paid to George. If neither event so occurred, the principal was to be paid to testator’s other children and the descendants of any other children then deceased who were living at George’s death. The testator died in 1928 and his widow in 1935. George accepted the income of the trust and made no effort to challenge the validity of its provisions, dying on June 7, 1940, having continuously resided with his wife until his death. After George’s death his wife and son filed suit seeking to have the codicil declared null and void and to compel the trustee to pay George’s fund to them.

Recognizing the general prohibition of conditions annexed to gifts, the purpose of which is to encourage divorce, the supreme court, citing Ransdell and Tripp, noted that the conditions in question must be analyzed in light of the particular circumstances of each case. The court then stated that any attempt to distinguish the Tripp case on the ground that, in the case before it, the testator withheld only part of his bounty from his son pending his divorce, while in Tripp the testatrix’s son received nothing so long as he continued to live with his wife, was inappropriate:

“In both cases the donee was to receive the benefit of a gift upon becoming separated or divorced; and we must conclude that there is no difference in principle or effect whether all or a part of the testator’s bounty is withheld because of failure of the condition.” (389 Ill. at 387.)

Noting the public policy of this state to safeguard and protect the marriage relationship, the court concluded that:

“The natural tendency of the provision of the testator’s codicil giving to his son George the corpus of the trust estate upon his becoming divorced from his wife is to encourage divorce, and for that reason it is void, notwithstanding they continued undivorced and living together until the date of his death.” 389 Ill. at 387-88.

Based upon the long-established public policy as stated in Winter-land, the divorce condition annexed to petitioner’s receipt of the remaining principal of the trust corpus is void as against the public policy of this state. Here the provisions of the trust gave petitioner a fife estate in the income from the principal of the trust funds but permitted the remaining principal to vest in him only upon the cessation of his present marriage relationship or upon his wife predeceasing him. There is nothing in the record before us to suggest that at the time of the will’s execution petitioner and his wife were not happily married. Further, it is significant to note that “* * * the vice of the condition is that it tends to and might operate on the recipient’s mind to influence the procurement of a divorce by him in order to obtain his bequest outright.” (In re Agnews Estate (1957), 11 misc. 2d 1006, 174 N.Y.S.2d 1008, 1011. See Matter of Rothchild’s Will (1946), 271 App. Div. 582, 66 N.Y.S.2d 573.) Thus, considering the provisions of the testatrix’s will in light of public policy and the circumstances of this particular situation, it is apparent that the testatrix’s trustee condition tended to effect the separation of her son from his wife.

We reaffirm today the long established public policy to safeguard and protect the marriage relationship, and based on the record before us, hold invalid the following language of Article 4.4: “* * 6 or in the event ARLIE GERBING and FRANK GERBING, JR. are divorced and remain divorced for a period of two (2) years, * # * in either event * # #»

III.

We next consider the effect our holding will have on the remaining provisions of Article IV. Petitioner urges that the invalid provision requires invalidating the entire article, for to do otherwise would permit the testatrix to accomplish her unlawful scheme by indirection. On the other hand respondents suggested — in case the court reaffirmed the public policy — that only the inoperative or unenforceable conditions be stricken.

The real question is whether the offensive language in Article 4.4 is separable and, if so, is the remaining language valid.

Or to say it another way: if it is shown that the testatrix was through the testamentary trust primarily seeking the divorce termination of the marriage, then both the alternative divorce and the alternative death conditions precedent are void (as is thereby the trust itself), and this is so whether the said alternative conditions precedent condition both the income and the corpus interest under the trust or only the corpus interest. On the other hand, if the testatrix is not shown to have been primarily seeking the divorce termination, then the alternative condition precedent will be divisible, and only the divorce condition precedent is void.

In this case, neither the wording of the Rust provision nor the “four comers” of the will indicates the testatrix’s primary intent, and no parol evidence was offered on that point. Absent, therefore, any showing that the testatrix’s primary intent was to seek the divorce termination of the marriage, we hold that the alternative condition precedent relating to the death termination of the marriage is divisible and itself valid.

Petitioner suggests that based on the Tripp v. Payne case, and the weight of authority in other jurisdictions, the entire Article IV is void.

In Tripp v. Payne the supreme court held (in 1930) tire entire provision void without distinguishing that portion which conditioned the sons receipt of the bequest upon the death of his wife from the portion which conditioned the bequest upon the son’s separation from his wife.

On tire contrary, in Winterland v. Winterland the supreme court (in 1945) determined that the vesting of the estate in George Winterland upon his survival of the death of his wife was a lawful contingency since “It is a common provision in wills that a devise or bequest shall vest in certain beneficiaries upon the death of a person named.” (389 Ill. at 388.) Deciding then that the testator had set out two separate and independent conditions precedent (one valid, the other invalid), the court concluded that the valid condition had become impossible of fulfillment upon George’s death during his wife’s lifetime, and the alternative contingent remainder created by the codicil vested in the named contingent beneficiaries. Cognizant of this conflict, the court in Winterland briefly stated:

“It is insisted by appellee that a contrary doctrine has been announced by this court in the case of Tripp v. Payne, 339 Ill. 178. It is apparent from a reading of the opinion in that case that the questions which we have discussed and upon which we are basing our decision here were not presented to and evidently not considered by the court in its decision.” 389 Ill. at 389.

Mr. Justice Gunn wrote a dissenting opinion in Winterland in which Mr. Justice Stone and Mr. Justice Wilson both concurred. He there maintained that tire legal and the illegal provisions were so closely connected, “* 9 9 both in grammatical form as well as in thought and implication” as to render the entire codicil void as contrary to public policy. 389 Ill. at 389.

The opinions of the courts of the State of New York evidence the adoption of a public policy reflecting our own prohibition of conditions annexed to gifts that encourage disruption of the marriage relationship. (In re Agnew’s Estate, supra; In re Blind’s Will (1954), 138 N.Y.S.2d 210; In re Onora’s Will, supra; Cruger v. Phelps (1897), 21 Misc. 252, 47 N.Y.S. 61.) Likewise, the New York courts have held, as Mr. Justice Gunn suggested, that, since a provision conditioning a gift upon dissolution of a marriage is void, the provision creating the trust is also ineffective (In re Agnew’s Estate, supra). Holding that, in such a case, the beneficiary takes the gift as if there had been no condition, the court in In re Agnew’s Estate explained its conclusion by quoting from an opinion of the New York Court of Appeals:

“‘9 9 9 To give the rule less force; to declare the condition void without at the same time giving effect to the gift made upon the void condition, would be a mockery of the beneficiary and by indirection would permit a testator to accomplish a result which we hold contrary to the “common weal.” * * ®\” 174 N.Y.S.2d at 1011.

Yet despite that line of New York cases, the case of In re Dunbars Will (1947), 189 Misc. 687, 71 N.Y. S.2d 287, supports the validity of the alternative condition precedent of a death termination of the marriage where alternative conditions precedent similar to those in the instant case were attached to the corpus interest only. In that case, a close study of the wording of the trust provision itself indicates that the divorce condition precedent, though itself void, may have been intended to protect the life beneficiary in the event that her husband, Ralph, divorced her, so that the wording of the divorce termination alternative condition precedent does not indicate that the testatrix’s primary intent was to seek to induce the life beneficiary to divorce her husband.

Article 4.4 provides that the trust shall terminate upon the happening of either of two contingencies, viz., tire petitioner’s survival of the death of his wife or his becoming divorced from his wife and remaining divorced for a period of 2 years. We hold the latter contingency to be invalid, but no one has suggested that the former contingency is invalid per se. We believe that a testator has a legal right to direct that a trust of this type may terminate upon the death of a person, even though that person may be the wife of the testator’s son. For the reasons expressed herein, we believe the two contingencies are separable — by deleting the underscored words from Article 4.4 — and the remaining language constitute a valid and enforceable provision. See Bogert, Trusts and Trustees, at 433-34 (2d ed.); Winterland v. Winterland, supra, at 388.

Thus we give effect to the intention of the testator, as determined from the entire will, except as to that language which is contrary to the law. See Wiener v. Severson (1957), 11 Ill.2d 347, 349, 143 N.E.2d 225.

IV.

Lastly, we shall dispose of an issue not raised by respondents until their oral argument before this court when they there urged, for the first time, that the cause be remanded to the probate court in order to ascertain the circumstances which prompted the testatrix to pimtide for the distribution of the entire trust corpus to appellant upon the termination of his marriage to Arlie Gerbing.

Our search of the record reveals that respondents made no such request of the probate court. The pleadings before the court at the time it ruled Article IV valid included petitioner’s petition for instructions and respondents’ reply. In the former, petitioner requested that the court instruct him as to the validity of the trust, alleging his belief that it might be contrary to public policy and void as an inducement to obtain a divoice. Respondents responded with their denial of this allegation stating that * * by law the conditions precedent set forth in Paragraph 4.4 * * * are valid and enforceable.”

Thus, it is apparent that the only theory argued by the respondents in the lower court was that the Rust provisions were valid as a matter of law. Having failed to request a factual inquiry in the probate court, respondents are precluded from doing so for the first time on appeal. Woman’s Athletic Club v. Hulman (1964), 31 Ill.2d 449, 454, 202 N.E. 2d 528; Exchange National Bank v. Behrel (1972), 9 Ill.App.3d 338, 341, 292 N.E.2d 164.

For the reasons set out herein the orders of the circuit court of Cook County dated February 8, 1973, and March 19, 1973, insofar as they conflict with this opinion are hereby reversed and the cause is remanded for such proceedings as are consistent with the views expressed herein.

Reversed and remanded.

HAYES, P. J., and STAMOS, J., concur.

       Exchange National Bank of Chicago, as trustee under the will, in its statement in lieu of brief filed in its capacity as successor trustee, adopts respondents’ position but, likewise, fails to cite any authority.

       It should be noted that we are not holding that an executor who seeks instructions from a probate court has no right to appeal from the instructions which he thereupon receives. That issue might have been involved, had this appeal been taken by petitioner-executor in his capacity as executor.

       We note that the fact that the alternative conditions precedent are attached to the corpus interest only (so that the beneficiary has the unconditional life interest and in this case also had a limited power to invade corpus with an additional discretionary power in the trustee to invade corpus in favor of the beneficiary) diminishes significantly the motivation offered to the beneficiary to divorce his spouse.