author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN R. FOWLER, Defendant-Appellant.
    Second District
    No. 2—89—1327
    Opinion filed December 13,1991.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Marilyn Martin, of Chicago, for appellant.
    Roger T. Russell, State’s Attorney, of Belvidere, and Samuel J. Cahnman, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, John R Fowler, was charged with the offenses of intimidation and possession of a weapon without a valid firearm owner’s identification card. After a jury trial, defendant was convicted of the possession offense and sentenced to 90 days in jail, plus a $1,000 fine. In addition, the trial court ordered the forfeiture of defendant’s weapons. The trial court granted defendant’s pro se motion to reduce sentence and the defendant was released from custody. Defendant appeals his conviction and the order requiring forfeiture. We affirm.

On appeal, defendant contends: (1) his conviction should be reversed because the weapons introduced as evidence at his trial were seized without probable cause or, in the alternative, the conviction should be reversed and the cause remanded for a hearing at which the defendant may challenge the integrity of the affidavit supporting the search warrant; (2) the trial court abused its discretion in failing to inquire into defendant’s fitness after it was apprised of the defendant’s involuntary commitment; (3) defendant was deprived of a fair trial due to the prosecutor’s questioning of prospective jurors regarding mental institutions; and (4) the trial court lacked the authority to order the forfeiture of defendant’s weapons.

On April 3, 1989, a complaint was filed against the defendant, alleging he committed the offense of intimidation of Boone County deputy sheriff David Dylak. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 6(a)(1).) On April 3, 1989, a search warrant was issued based on the affidavits of Deputy Dylak and Boone County Sheriff Duane Wirth.

In Deputy Dylak’s affidavit, he stated that on the morning of April 1, 1989, the Blackhawk Moving Company requested a patrol car in the vicinity of Herbert Grainery in Herbert. Blackhawk was moving some furniture into a building on the property of the Herbert Grainery and anticipated some possible problems with the defendant, who lived in the immediate vicinity. As Deputy Dylak drove past the grainery, he observed in his rearview mirror a man with a rifle walk into the roadway. The man was accompanied by two large dogs which appeared to be Doberman pinschers. The dogs were growling and barking while attempting to approach the squad car, but the man in the road held them back.

Deputy Dylak continued to observe the armed subject as he reported the situation to the sheriff’s office over his police radio. Then he made a U-turn so that he was facing the armed individual, who was still standing on the road. He began to drive slowly toward the individual. As he came within approximately 30 to 50 feet of the armed subject, the subject set his rifle down behind a telephone pole located on the side of the road near the grainery.

The subject was again standing on the roadway with his dogs when Deputy Dylak made contact with him. The dogs were still behaving in a very aggressive manner. The subject inquired as to what Deputy Dylak wanted, peppering his comments with expletives. Deputy Dylak informed the subject that he was a police officer and that he was concerned about the fact that the subject was standing in the roadway "with a gun. The subject responded that it was his “f — ing right to bear arms in this country” and there was not a thing Deputy Dylak could do about it. When Deputy Dylak inquired into the subject’s name, the subject replied “Jack F — ing Fowler.” He then told Deputy Dylak to “get the f— out of here” and if Deputy Dylak got out of the car, he would “never see the f — ing road again.” Because of defendant’s aggressive and abusive behavior towards the Deputy, the immediate threat of the dogs, and the fact that there were other subjects approximately 50 feet from the roadway, Deputy Dylak decided to vacate the immediate area in the interest of officer safety.

Deputy Dylak reported the incident to his supervisor, Sheriff Duane Wirth. Sheriff Wirth drove out to the Herbert Grainery to speak with defendant regarding the incident later that morning. In his affidavit Sheriff Wirth stated that he spoke with John (Jack) Fowler about the confrontation that had occurred earlier that morning with Deputy Dylak. At that time defendant produced a pellet rifle which he claimed was the gun he displayed earlier to Deputy Dylak. The gun did not fit the description of the weapon Deputy Dylak had seen and reported to Sheriff Wirth. The sheriff stated that he believed that the gun actually used during the incident was hidden on John Fowler’s premises in close proximity to the area where the incident occurred. Those premises consisted of a grain elevator with attached buildings, a tin one-story building, a wooden one-story building, a motor home, a trailer house and several motor vehicles on the premises. In addition, the sheriff stated that his department ran defendant’s name through the State computer and found that he did not have a valid firearm owner’s identification card. Defendant’s card had expired November 14,1973.

A search warrant was issued on April 3, 1989, for the premises described in the sheriff’s affidavit. The search warrant described the weapon being sought as a rifle with full brown wood stock and heavy steel barrel with large open sights, in addition to a pellet rifle with forearm pump action. The execution of the warrant resulted in the seizure of three rifles, two shotguns, a pistol, a revolver, assorted ammunition and a pellet gun.

Defendant was arrested at the time of the search. After being admonished of his rights, defendant waived his right to counsel and elected to represent himself pro se.

After a preliminary hearing, the trial court found probable cause existed to support the offense of intimidation. The State filed an information charging defendant with the offenses of intimidation and possession of a firearm without a valid firearm owner’s identification card.

On May 30, 1989, the defendant failed to appear at a status hearing. The prosecutor informed the judge that defendant had been picked up by the De Kalb County sheriff’s office and taken to the Singer Mental Health Center by court order. The defendant was admitted May 22,1989, and released May 31, 1989.

The Illinois State Police informed defendant by letter dated June 2, 1989, that his firearm owner’s identification card had been revoked due to his ineligibility to possess the card as a person who had been committed to a mental health facility within the last five years.

The case proceeded to trial on September 5, 1989. After deliberation, the jury was unable to arrive at a verdict on the intimidation charge, but found the defendant guilty of the misdemeanor count of possessing a weapon without a firearm owner’s identification card. Defendant was sentenced to 90 days in jail and a $1,000 fine.

At that time the State requested the forfeiture of the weapons seized in the case. The trial court entered an order of confiscation and destruction of the weapons. The court granted defendant’s motion to stay the destruction of the weapons pending this appeal.

Defendant contends that his conviction must be reversed because the weapons introduced as evidence at his trial were seized without probable cause. The State contends that defendant has waived this issue on appeal because it was not raised prior to trial, at trial or in any post-trial motions filed by defendant. We agree with the State’s contention.

In People v. Caballero (1984), 102 Ill. 2d 23, our supreme court discussed the purpose of the waiver rule. The general rule followed by the courts is that failure to raise an issue in the written motion for a new trial constitutes waiver of that issue and it cannot be urged as grounds for reversal on review. (People v. Enoch (1988), 122 Ill. 2d 176; People v. Caballero, 102 Ill. 2d 23; People v. Pickett (1973), 54 Ill. 2d 280.) The court stated that when no post-trial motion has been filed specifying the grounds upon which the defendant relies for reversal, the trial court is denied an opportunity to grant a new trial, if warranted. (Caballero, 102 Ill. 2d at 31.)

“This casts a needless burden of preparing and processing appeals upon appellate counsel for the defense, the prosecution, and upon the court of review. Without a post-trial motion limiting the consideration to errors considered significant, the appeal is open-ended.” (Caballero, 102 Ill. 2d at 31.)

The court clarified the holding of Caballero in People v. Enoch (122 Ill. 2d 176), in which the court stated the presence of both a trial objection and a written post-trial motion raising the issue are necessary to preserve an issue for review.

In the present case, defendant failed to present the issue of lack of probable cause in a motion to suppress, as an objection at trial or in his post-trial motion. Accordingly, the issue is waived for the purposes of this appeal.

Defendant asks us to consider this issue under the plain error doctrine. (134 Ill. 2d R. 615(a).) However, we need not consider whether the issue is plain error because we conclude no error occurred.

Probable cause for the issuance of a search warrant exists if the facts set forth in an affidavit would cause a reasonable person to believe a crime has been committed and evidence of that crime is in the place to be searched. (People v. Stewart (1984), 104 Ill. 2d 463, 476.) Probable cause is not to be determined by a legal technician, but instead by a reasonable and prudent person dealing with the practical considerations of everyday life. (People v. Free (1983), 94 Ill. 2d 378, 400.) The issuing judge’s determination of probable cause for a search warrant should be paid a great deal of deference. People v. Gacy (1984), 103 Ill. 2d 1, 21; People v. McCoy (1985), 135 Ill. App. 3d 1059, 1064.

To determine probable cause, a sufficient nexus between the criminal offense, the items to be seized and the place to be searched must be established. (People v. McCoy, 135 Ill. App. 3d at 1066.) The evidence in this case supports the trial court’s finding of probable cause.

Deputy Dylak stated in his affidavit that the defendant had threatened him while defendant was standing on the roadway after placing his weapon behind a nearby telephone pole. The deputy stated that he was unable to exit his vehicle because of the threat to his safety posed by defendant and his dogs. The incident occurred near defendant’s residence. Deputy Dylak described the weapon he had seen to Sheriff Wirth. Sheriff Wirth visited defendant at his residence. Defendant showed the sheriff a weapon which he professed to be the one Deputy Dylak had seen. It did not fit the description the deputy had given Sheriff Wirth. In his affidavit, the sheriff stated that he believed the weapon involved in the intimidation incident was located somewhere at defendant’s residence. Later, Sheriff Wirth discovered defendant’s firearm owner’s identification card had expired November 14, 1973.

Under these circumstances, it was probable that the weapons would be located at defendant’s residence. We conclude that sufficient facts existed to cause a reasonable person to believe the guns would be found in defendant’s residence.

In the alternative, defendant contends the trial court erred in failing to hold a formal Franks hearing. (See Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674.) Franks requires a substantial showing that a false statement knowingly and intentionally or with reckless disregard for the truth was included by the affiant in the warrant affidavit before a defendant is entitled to a hearing. (People v. Garcia (1982), 109 Ill. App. 3d 142, 145.) However, that showing need only be preliminary, and, thus, the defendant is not required to prove his charge by a preponderance of the evidence before he is entitled to a hearing under Franks. (Garcia, 109 Ill. App. 3d at 145.) However, defendant must nonetheless make a preliminary substantial showing.

In the present case, defendant never moved to quash the warrant or to present evidence concerning his allegations that the affidavits of Deputy Dylak and Sheriff Wirth were knowingly and intentionally false. Defendant merely stated on the record his belief that the State’s Attorney and the law enforcement officers harbored a personal vendetta against him and that the conduct of the officers and prosecutors was motivated by a conspiracy to harass and defame him. At no time did defendant ask for a Franks hearing.

Although defendant appeared pro se at trial, a pro se litigant is not entitled to any special consideration. (People v. Davenport (1985), 133 Ill. App. 3d 553, 558.) A pro se litigant must comply with the rules of procedure required of attorneys, and a court will not apply a more lenient standard to pro se litigants. (People v. Bond (1989), 178 Ill. App. 3d 1020, 1023.) This is so because when a defendant represents himself, he assumes the responsibility for conducting his own defense and is not entitled to favored treatment. (People v. Amos (1990), 204 Ill. App. 3d 75, 80-81.) We cannot give defendant special consideration due to his failure to raise these allegations at the appropriate time and in the appropriate manner.

Defendant also asks the court to consider this issue under the doctrine of plain error. The plain error doctrine permits a court of review to notice waived errors if “either the evidence is closely balanced or ‘the error is so fundamental and of such magnitude that the accused was denied a fair trial’ and remedying the error is ‘necessary to preserve the integrity of the judicial process.’ ” (People v. Henderson (1990), 142 Ill. 2d 258, 311, quoting People v. Herrett (1990), 137 Ill. 2d 195, 210.) However, we conclude no plain error exists.

In order to overcome the presumption of validity with regard to the search warrant affidavit, defendant must make a substantial preliminary showing that false statements were deliberately included in the affidavit. (People v. Stewart (1984), 105 Ill. 2d 22, 39.) Defendant failed to make the threshold showing necessary under Franks that the affidavit contained intentional misstatements entitling him to a Franks hearing.

Next, defendant contends on appeal the trial court abused its discretion in failing to inquire into defendant’s fitness for trial after it was apprised of defendant’s involuntary commitment during the pendency of the proceedings against him. Although defendant failed to raise this issue in his post-trial motion, we will address it because it would violate the fundamental constitutional guarantee of due process to convict a defendant who is mentally unfit to stand trial. Pate v. Robinson (1966), 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836; People v. Eddmonds (1984), 101 Ill. 2d 44, 56; People v. Jones (1982), 109 Ill. App. 3d 120, 127.

Section 104 — 10 of the Code of Criminal Procedure of 1963 provides:

“A defendant is presumed to be fit to stand trial or to plead, and be sentenced. A defendant is unfit if, because of his mental or physical condition, he is unable to understand the nature and purpose of the proceedings against him or to assist in his defense.” (Ill. Rev. Stat. 1989, ch. 38, par. 104 — 10.)

The issue of defendant’s fitness for trial may be raised by the defense, the State, or the court at any time before, during or after trial. (Ill. Rev. Stat. 1989, ch. 38, par. 104 — 11(a).) Once a bona fide doubt of defendant’s fitness is raised, the court shall order a determination of the issue before proceeding further. Ill. Rev. Stat. 1989, ch. 38, par. 104 — 11(a).

The question of whether a bona fide doubt of fitness has been raised is largely within the discretion of the trial court. (People v. Eddmonds, 101 Ill. 2d at 56; People v. Murphy (1978), 72 Ill. 2d 421, 431.) Whether there is a bona fide doubt of fitness for trial depends on the facts of each case. (Murphy, 72 Ill. 2d at 435; People v. Lucas (1986), 140 Ill. App. 3d 1, 7.) The critical inquiry is whether the facts presented a bona fide doubt that defendant understood the nature and purpose of the proceedings against him and was able to assist in his defense. Lucas, 140 Ill. App. 3d at 7.

Fitness speaks only to a person’s ability to function within the context of a trial; it does not refer to sanity or competence in other areas. (Murphy, 72 Ill. 2d at 432-33; People v. Bivins (1981), 97 Ill. App. 3d 386, 389.) A person can be fit for trial although his mind may be otherwise unsound. (Murphy, 72 Ill. 2d at 432-33; Bivins, 97 Ill. App. 3d at 389.) No single factor in itself raises a bona fide doubt of a defendant’s fitness to stand trial. (Lucas, 140 Ill. App. 3d at 7.) Even the fact that defendant suffers some mental disturbance or requires psychiatric treatment does not necessarily raise a bona fide doubt. Bivins, 97 Ill. App. 3d at 389.

In the present case, defendant clearly understood the nature of the proceedings against him. He was able not only to assist in his defense but also to conduct his own defense in a competent manner. The record discloses that he effectively cross-examined the State’s witnesses and examined witnesses of his own. He also filed numerous motions with the court. In addition, he, himself, testified in a lucid and coherent manner concerning the events relating to the offense. The only evidence defendant now asserts raised a bona fide doubt as to his fitness is that he was involuntarily committed to a mental health institution on May 22, 1989. We do not believe this fact is sufficient to raise a bona fide doubt in light of the totality of the circumstances.

Although defendant went to trial on September 5, 1989, his earlier commitment was of limited duration. He was committed on May 22, 1989, and released May 31, 1989. Upon discharge, his condition was undiagnosed, and he was released to his own care. The record discloses that the De Kalb County court ordered his commitment because he had threatened his estranged wife in the presence of Genoa police officers. In People v. Shaw (1972), 6 Ill. App. 3d 540, the court found, under similar circumstances, the fact that defendant was hospitalized was not, in itself, sufficient to raise a bona fide doubt of fitness to stand trial. (Shaw, 6 Ill. App. 3d at 542.) Considering the facts of this case in totality, we cannot say a bona fide doubt as to defendant’s fitness to stand trial was raised. Accordingly, the trial court did not abuse its discretion in failing to order a fitness hearing.

Defendant also contends on appeal that he was deprived of a fair trial due to the prosecutor’s questioning of prospective jurors during voir dire regarding their experience with mental illness and mental institutions. Again, defendant failed to object to this question at trial and failed to include this issue in his post-trial motion. As we stated previously, a pro se litigant must comply with the rules of procedure required of attorneys, and a court will not apply a more lenient standard to pro se litigants. (People v. Bond, 178 Ill. App. 3d at 1023.) To preserve an alleged error in voir dire, a party must raise an objection and must also specify the objection in a written post-trial motion. People v. Enoch, 122 Ill. 2d at 187-88; People v. Tucker (1989), 186 Ill. App. 3d 683, 689.

Defendant made no objection to this question during voir dire, nor was the matter mentioned in defendant’s post-trial motion. Accordingly, defendant waived this issue for the purposes of review.

Nevertheless, defendant asks this court to consider the issue under the doctrine of plain error. We decline to do so because we find no reversible error occurred. Defendant made no showing of any resulting prejudice from the remarks. (Tucker, 186 Ill. App. 3d at 689.) Thus, the error was harmless in that defendant did not demonstrate how he was prejudiced by the remarks, other than the bald claim that he was prejudiced. See Tucker, 186 Ill. App. 3d at 689-90.

Lastly, defendant contends that the trial court lacked authority to order the forfeiture of defendant’s weapons. We disagree.

Section 24 — 6 of the Criminal Code of 1961 provides that upon conviction of an offense in which a weapon was used or possessed by the offender, any weapon seized shall be confiscated by the trial court. (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 6.) Thus, the question before this court is whether a conviction of the possession of firearms without a valid Illinois firearm owner’s identification card is “an offense in which a weapon was used or possessed by the offender.” We hold that it is.

In People v. Green (1977), 45 Ill. App. 3d 506, 509, the court stated that, by enacting section 24 — 6, our legislature is presumed to have determined that the retention of weapons used in the commission of certain crimes by persons convicted of those crimes is irresponsible and poses a danger to the public welfare. At that time, section 24 — 6 set forth specific crimes for which weapons could be confiscated. Section 24 — 6 was amended in 1981 to authorize the forfeiture of weapons used or possessed in all criminal offenses. See People v. Earl (1984), 121 Ill. App. 3d 254.

Possession of a firearm without a valid firearm owner’s identification card is a criminal offense, a violation of which is classified as a Class A misdemeanor punishable by up to one year in prison and up to $1,000 in fines. (Ill. Rev. Stat. 1989, ch. 38, pars. 83 — 2, 83 — 14.) In the present case, defendant was found guilty and sentenced to 90 days in jail and a $1,000 fine. Accordingly, the trial court had the authority to order the forfeiture of defendant’s weapons.

In addition, defendant argues that such an order violates the law against double jeopardy. However, defendant failed to raise this issue in his post-trial motion. Although it is waived for the purposes of this appeal, defendant asks this court to consider the issue under the doctrine of plain error. However, defendant failed to cite relevant authority to support his argument.

Supreme Court Rule 341(e)(7) requires that an appellant’s brief must contain citations to the relevant authority supporting the argument advanced on appeal. (134 Ill. 2d R. 341(e)(7); see also Village of Cary v. Jakubek (1984), 121 Ill. App. 3d 341, 345.) A court of review is entitled to have the issues clearly defined and to be cited pertinent authority. (Britt v. Federal Land Bank Association (1987), 153 Ill. App. 3d 605, 608; Fuller v. Justice (1983), 117 Ill. App. 3d 933, 942-43.) Defendant failed to cite any legal authority standing for the proposition that double jeopardy applies in a forfeiture situation. As such, we will not consider the issue on appeal.

The judgment of the circuit court of Boone County is affirmed.

Affirmed.

WOODWARD and GEIGER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WOODWARD

license: Public Domain

text:
    THE FOREST PRESERVE DISTRICT OF KANE COUNTY, Plaintiff-Appellant, v. JOSEPH F. ESTES et al., as Trustees, et al., Defendants-Appellees (Unknown Owners, Defendants).
    Second District
    No. 2—91—0222
    Opinion filed December 6,1991.
    Rehearing denied January 16,1992.

      Stephen Sullivan, of Batavia, for appellant.
    William E. Ryan and Timothy J. Ryan, both of Burke & Ryan, of Chicago, for appellees.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiff, Forest Preserve District of Kane County (the District), appeals from an order of the circuit court of Kane County which granted the traverse and motion to dismiss filed by defendants: Joseph F. Estes and Barbara H. Estes, as trustees under the Barbara H. Estes Land Trust, dated October 11, 1982, and the Joseph F. Estes Land Trust, dated October 11, 1982; and First National Bank of Elgin, as trustee under trust agreement dated May 24, 1954, known as trust No. 811. The District raises three issues on appeal: (1) whether defendants were precluded from filing their traverse and motion to dismiss because they had filed a cross-petition seeking damages to the remainder of the property; (2) whether the trial court’s finding that plaintiff lacked authority to proceed with the condemnation action pursuant to section 6 of “An Act to provide for the creation and management of forest preserve districts in counties having a population of less than 3,000,000” (Act) (Ill. Rev. Stat. 1989, ch. 961/2, par. 6309) was against the manifest weight of the evidence; and (3) whether an amendment to section 6 of the Act (Ill. Rev. Stat. 1989, ch. 961/2, par. 6309) which limited the District’s authority to condemn property is unconstitutional as special legislation. We affirm.

Plaintiff filed an eminent domain action on January 13, 1989, seeking to acquire by condemnation certain property belonging to defendants. On February 21, 1989, defendants filed a cross-petition which alleged that the property sought to be taken was part of a larger tract of land. They requested that damages be assessed for the damage to the remainder of the tract.

Subsequently, on November 3, 1989, defendants filed their traverse and motion to dismiss. They alleged that section 6 of the Act was amended, effective August 21, 1989, to provide that the District was required to receive the concurrence or approval of the governing body of the township within which the property is located in order to have the authority to condemn property for a linear park or trail. They further alleged that, as the District did not receive the concurrence or approval of the governing body of Dundee Township, it was without authority to acquire the property. They asked that the condemnation action be dismissed.

The District filed a motion to strike the traverse and motion to dismiss, arguing that defendants failed to allege that the property was being condemned for a linear park or trail. Defendants were granted leave to file an amended motion and included an allegation that the District was acquiring the property for a linear park or trail. The District filed a response to the motion on January 24, 1990, and denied that the property was being acquired for a linear park or trail.

A hearing was held regarding defendants’ motion on October 9, 1990. At the beginning of the hearing, the District orally moved to strike the traverse and motion to dismiss, arguing for the first time that defendants were precluded from filing the traverse because they had previously filed a cross-petition for damages to the remainder. Defendants then requested leave of court to withdraw their cross-petition, which the court granted. A hearing regarding defendant’s motion then proceeded.

At the hearing, numerous exhibits were admitted by stipulation of the parties. Philip B. Elfstrom, president of the District and member of the Kane County Board, testified on behalf of the District. He stated that the property sought to be acquired was referred to as the Haeger-Estes property and consisted of approximately 40 acres. He identified a map of Dundee Township which showed that the subject property is a narrow strip of land on the west side of the Fox River. Elfstrom also identified a survey of the property by which the surveyor identified a parcel from the river’s edge on the east to the top of the hill on the west and a wider portion of property which is a flat plain by Jelke’s Creek. He testified that land acquisition along the Fox River is the highest priority of the District. Elfstrom stated that the property is located in unincorporated Dundee Township and that the District had not obtained the concurrence of the Township with regard to the acquisition.

Elfstrom identified defendants’ exhibit No. 3 as the grant application with which the District was successful in obtaining a grant from the Department of Conservation for the acquisition of the HaegerEstes property. The application stated that the project would be developed as a link in the Fox River trail system and would be used for a bicycle trail, fishing, boating and picnicking. Elfstrom testified that the statements in the application were correct to the best of his knowledge. The drawing of the property included in the application shows a trail from one end of the property to the other. Elfstrom stated that South End Park is north of the subject property and Voyager’s Landing Forest Preserve is south of the property.

Richard N. Young testified that he was a consultant to the Kane County Development Department Forest Preserve. He testified regarding his education and experience and stated that he was well-versed with respect to natural areas, plants, flora and fauna in Kane County. He stated that he found approximately 225 different native plants growing on the subject property and that the property was unique in Kane County. He testified that, even if no improvements were made to the property, it would be an ecologically significant acquisition for the District. He also identified a letter which he wrote to the Kane County Board which stated that the property would not be disturbed by a meandering trail along the field edge at the top of the bluff.

John J. Duerr, assistant superintendent of the District, testified that he developed properties acquired by the District and had developed five trails. Those five trails were in connection with property that had once been owned or used by railroads. He testified that the trail proposed to be placed on the subject property would be located on the top of the ridge on the existing edge of the property. The purpose of the trail would be to link the property to the existing forest preserve property to the south and make it accessible to the public. Duerr testified that there was a distinction between the development of properties on former railroad rights-of-way and the development of property such as the subject property upon which access trails would be constructed. He was asked to explain the difference and stated:

“Basically, a railroad right-of-way and other ranged easements are designed for the specific use as a trail or passageway through them. The boundaries of those were set in either, for political and/or convenience reasons. The hundred — classic example, of course, is the hundred foot standard right-of-way of a railroad as passage through a landscape and this [sic] an artificial manmade [sic] boundary as such.
In the case in point, as well as other properties, we are following more of a natural boundary. The upper edge of this property was, is flatter, of course, and had been row cropped and used very extensively for agricultural purposes through the years.
There would be little value, per se, in that acquisition as far as saving a natural world because much of that had been destroyed. The boundary was established and does move around a bit. It’s not a very, one could not really draw a laser-sharp line along the top here because there is a variation based on the topography of that particular site.”

Thompson A. Dyke, a private planning and zoning and park planning consultant, then testified on behalf of defendants. He identified a topographic map of the eastern portion of the Haeger-Estes property and stated that the property has 6,500 lineal feet of frontage on the Fox River. He stated that the property sought to be acquired by the District consists of roughly 200 feet of property measured from the river’s edge. He testified that the use of the property proposed by the District was a linear park and trail connecting the city park to the north of the property with Voyager’s Landing on the south. Dyke testified that a linear park is a long and narrow parcel of land which connects other parcels and forms a linkage between those parcels. Normally, a linear park has a trail. Dyke based this definition on an accepted definition of linear park prepared by the National Park and Recreation Association. Dyke further testified that a trail is a pathway for essential pedestrian movement and would typically be for hiking, walking or jogging but may also allow snowmobiling, cross-country skiing or horseback riding. A trail often connects other parks and community facilities.

Dyke stated that he had designed eight or nine linear parks or trails. He testified that' quite often a linear park is also a former railroad right-of-way, but linear parks may also follow along a natural corridor like a river.

During closing argument, the court asked the District’s attorney if the District was raising an issue with regard to the constitutionality of the statute. The attorney responded that no constitutional issue had been raised at that point because it was the District’s position that the statute did not apply to the subject property.

The court took the matter under advisement, and written memoranda were submitted by the parties. An order was later entered, on November 13, 1990, which stated that the court found that the District did not meet its burden of proof and did not establish a prima facie case on the matters raised in defendants’ traverse and motion to dismiss. Particularly, the court found that the District did not prove a prima facie case of authority to condemn the property in question because, giving the words “linear park or trail” their commonly understood meaning, the concurrence of Dundee Township was necessary for this acquisition under the requirements of section 6 of the Act (Ill. Rev. Stat. 1989, ch. 961/2, par. 6309). Defendants’ motion was therefore granted.

The District filed a motion asking that the court reconsider its ruling which was denied on January 23, 1991. This timely appeal followed.

The District first argues that the trial court abused its discretion when it allowed defendants to withdraw their cross-petition and proceed with their traverse and motion to dismiss. It contends that the filing of a cross-petition precludes a defendant from contesting the conditions precedent to the filing of a petition to condemn. The District cites County of Fayette v. Whitford (1936), 365 Ill. 229, Ward v. Minnesota & Northwestern R.R. Co. (1887), 119 Ill. 287, and two additional cases which were decided in the early 20th century in support of its position.

In response, defendants argue that the cases cited are distinguishable and that, based on the circumstances here, there was no abuse of discretion on the part of the trial court. We agree.

In Ward, a trial was held regarding the issue of damages owed the defendant for land condemned by a railroad. On appeal, the defendant argued that the railroad did not present any proof that it was a legally existing corporation or that it possessed any right or authority to condemn land. The court held that the defendant waived this issue by proceeding to trial on the merits and also determined that there was some proof that the railroad was a de facto corporation. In addition, the court stated that “[b]y filing a cross-petition, asking to have damages assessed for the injury done to his lands not taken, defendant admits petitioner has the right to exercise the right of eminent domain.” (Ward, 119 Ill. at 292.) In the other cases cited by the District, the defendants were held to have waived any issue as to whether there had been a failure to agree upon compensation, a necessary element to a condemnation action, by filing a cross-petition for damages to land not taken. See County of Fayette v. Whitford (1936), 365 Ill. 229, 232; Chicago North Shore & Milwaukee R.R. Co. v. Chicago Title & Trust Co. (1928), 328 Ill. 610, 617; Alton & Southern R.R. v. Vandalia R.R. Co. (1916), 271 Ill. 558, 566.

Defendants point out that, in all four cases cited by the District, a trial on the merits of the condemnation proceeding took place. We conclude that the determinative distinction, however, is that defendants sought and were granted leave to withdraw their cross-petition. The District acknowledges that the applicable standard is whether the trial court abused its discretion when it allowed the withdrawal of the cross-petition, but contends that there was an abuse of the court’s discretion in this case. We cannot agree.

Here, defendants filed their cross-petition in February 1989. At that time, defendants had no basis under section 6 of the Act to challenge the District’s authority to condemn the property. Section 6 of the Act (Ill. Rev. Stat. 1989, ch. 961/2, par. 6309) was amended, however, effective August 21, 1989, to require the concurrence of a township prior to condemnation in some circumstances. Defendants filed their traverse and motion to dismiss approximately months later, on November 3, 1989, challenging the District’s authority to condemn the property based on the amendment to the statute. The District did not argue that the traverse and motion to dismiss were precluded by the cross-petition until October 9, 1990, the date of the hearing. Under these circumstances, the trial court did not abuse its discretion in allowing defendants to withdraw their cross-petition and proceed with their traverse and motion to dismiss.

The District next argues that the trial court’s finding that it lacked authority under the statute to proceed with the condemnation was against the manifest weight of the evidence. We disagree.

Section 6 of the Act relates to the acquisition and disposal of property by forest preserve districts in counties having a population of less than 3 million. Section 6 was amended by Public Act 86 — 267 to provide, in pertinent part:

“No district with a population of less than 600,000, located in a county which is contiguous to a county with a population over 2,000,000 and also located in a county which is not contiguous to either the State of Wisconsin or the State of Indiana, shall *** have the power to purchase, condemn, lease or acquire an easement in property *** for a linear park or trail in an unincorporated area without the concurrence of the governing body of the township within which the property is located.” (Ill. Rev. Stat. 1989, ch. 961/2, par. 6309.)

Public Act 86 — 267 provided that “[t]his Act takes effect upon becoming law and applies to all pending actions as well as those filed on or after its effective date.” Pub. Act 86 — 267, eff. August 21, 1989.

This portion of section 6 was further amended by Public Act 86— 1387, effective September 10, 1990, to state that the new requirement of township concurrence applied to counties “not contiguous to the State of Wisconsin” rather than to counties “not contiguous to either the State of Wisconsin or the State of Indiana.” (Pub. Act 86 — 1387, eff. September 10,1990.) This change does not affect this cause.

Based on the statute, therefore, forest preserve districts which fit into the description provided may not condemn property “for a linear park or trail in an unincorporated area without the concurrence of the governing body of the township within which the property is located.” (Ill. Rev. Stat. 1989, ch. 961/2, par. 6309.) The District has not disputed that it fits into the description in the statute.

A traverse and motion to dismiss challenge the right of a petitioner to condemn and will result in dismissal when the petitioner cannot show its right to condemn by proper proof. (Lake County Forest Preserve District v. First National Bank (1987), 154 Ill. App. 3d 45, 49.) A corporation or department of the government only has such powers of eminent domain as are conferred upon it by the legislature, and the law conferring the authority must be strictly construed. (Department of Transportation v. First Galesburg National Bank & Trust Co. (1990), 141 Ill. 2d 462, 468-69; see also County of De Kalb v. Smith (1991), 213 Ill. App. 3d 775, 777.) Eminent domain statutes are strictly construed to protect the rights of property owners. (City of Oakbrook Terrace v. La Salle National Bank (1989), 186 Ill. App. 3d 343, 348.) “When a motion to dismiss is filed challenging the authority to condemn, the burden is on the petitioner to make a prima facie case of the disputed allegations.” Department of Transportation, 141 Ill. 2d at 469.

There is no dispute that the subject property is a long, narrow parcel along the Fox River. There is also no dispute that the District’s plans for the parcel include a trail along the entire length of the property. Nevertheless, the District contends that it presented a prima facie case, which was not rebutted by defendants, that this acquisition was not for a linear park or trail so that the statute requiring the concurrence of the township did not apply. It points out that the terms “linear park” and “trail” are not defined in the statute, meaning that they must be given their ordinary meanings. The District argues that Duerr’s “uncontroverted testimony” established that a linear park was a man-made creation, such as a converted railroad right-of-way, and not a natural creation, such as land adjacent to a river. It also asserts that the testimony of its witnesses established that the property was sought for the purpose of preserving and protecting its unique characteristics and contends that any reference to the word “trail” in the documents and plans was for access purposes and not as a primary purpose of the acquisition. In its reply brief, the District argues that a trail is not a trail when it is the type of trail that allows the public access to the piece of property and is not the primary purpose for the acquisition.

We agree with the District that, if words within a statute are undefined, they must be given their ordinary and popularly understood meanings. (Ruva v. Mente (1991), 143 Ill. 2d 257, 263.) In construing a statute, a court should also consider the reasons for the law, the evil to be remedied, and the objects and purposes to be obtained. (Ruva, 143 Ill. 2d at 263.) It is obvious that the purpose of the amendment to section 6 of the Act was to restrict the authority of certain forest preserve districts to acquire certain types of property.

The District’s argument essentially is that it met its burden to establish that the statute does not apply to this property because a “linear park” can only be a man-made creation and a “trail” is not an access trail. There are numerous problems with these arguments. First, the District has totally mischaracterized Duerr’s testimony. He did not testify that a linear park is only a man-made creation. It is difficult to discern what Duerr was saying during his testimony regarding the distinction between the subject property and properties developed on former railroad rights-of-way. However, he never clearly stated that the distinction was whether the property was a man-made creation. Also, whatever Duerr’s testimony was, it was certainly not “uncontroverted.” Dyke clearly testified that a linear park can follow along a natural corridor like a river. Second, the District has cited no authority to support its unusual interpretation of the terms at issue. Third, to interpret the terms so restrictively would be to ignore the intent of the legislature to limit the authority to condemn property and to ignore the need to “strictly construe” a petitioner’s authority to condemn.

We therefore must agree with the trial court that the District did not establish a prima facie case. We conclude that the ordinary meaning of “trail” is “trail” whether or not it is an “access trail.” Even without considering Dyke’s testimony, then, the District totally failed to prove that the long, narrow parcel of land along the Fox River on which it planned to place a trail which would link Voyager’s Landing to the south with South End Park to the north was not being acquired for a trail. The fact that there was testimony that the District’s purpose in acquiring the property was to preserve and protect the property’s unique characteristics cannot change this conclusion as that would generally be the case. (See Ill. Rev. Stat. 1989, ch. 96½, par. 6308.) As we have concluded that the subject property was being acquired for a trail, we do not need to determine if it was also being acquired for a linear park. We note, however, that Dyke’s definition of linear park would seem to comport with the ordinary and popularly understood meaning of the term.

The District finally argues that the amendment to the statute is unconstitutional as special legislation. It acknowledges that this issue has been raised for the first time on appeal but contends that it should be allowed to raise the issue as the issue is one of public importance, citing Cronin v. Lindberg (1976), 66 Ill. 2d 47. The District has been granted leave to supplement the record on appeal and has submitted a copy of an order entered by the circuit court of Kane County in case No. 90 — MR—0045, which found the amendment to section 6 of the Act unconstitutional. It has also submitted a copy of a notice of direct appeal to the Illinois Supreme Court in that case.

It is well settled that issues not raised in the trial court, including constitutional questions, are waived and may not be raised for the first time on appeal. (In re Liquidations of Reserve Insurance Co. (1988), 122 Ill. 2d 555, 567-68; Premo v. Falcone (1990), 197 Ill. App. 3d 625, 633.) We are not persuaded that we should consider this issue as a matter of “public importance.” The court in Cronin considered a question of statutory interpretation, even though it was not ruled on by the trial court, because of its public importance and because “the facts necessary to its determination are in the record before us.” (Cronin, 66 Ill. 2d at 61.) In this case, the constitutional issue is not one of statutory interpretation; the District has not explained why this is an issue of public importance, and no facts necessary to the determination of the constitutional issue are included in the record. Also, the fact that a trial court in Kane County has found the amendment to the statute unconstitutional has no bearing on this case. “[I]t is axiomatic that an unpublished decision of a trial court in another case does not bind this court in any way.” (Home Indemnity Co. v. General Accident Insurance Co. of America (1991), 213 Ill. App. 3d 319, 324; see also Kennedy Brothers, Inc. v. Property Tax Appeal Board (1987), 158 Ill. App. 3d 154, 165.) Because the issue has been waived by failing to raise it in the trial court, we do not consider it.

For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

REINHARD, P.J., and GEIGER, J., concur.


author: JUSTICE UNVERZAGT

text:
      In re ESTATE OF FREDERICK B. BRAUN, Deceased (The First National Bank of Chicago et al., Ex’rs, Petitioners-Appellees, v. Susan Braun, n/k/a Susan B. Rozinski, Claimant-Appellant).
    Second District
    No. 2—91—0149
    Opinion filed December 6, 1991.

      Grossman & Friedman, of Chicago (John A. Simonetti, of counsel), for appellant.
    Penny Brown, of Much, Shelist, Freed, Denenberg, Ament & Eiger, P.C., of Chicago (Howard M. Cohen, of counsel), for appellees.
    Ernest R. Blomquist, of Massucci, Blomquist, Brown & Judson, of Arlington Heights, for amicus curiae.

   JUSTICE UNVERZAGT

delivered the opinion of the court:

Susan Braun appeals from the judgment of the circuit court of Lake County denying her claim that certain contractual obligations arising from a marital settlement agreement between her and decedent, Frederick Braun, could be enforced against the estate of decedent.

On appeal, Susan raises five contentions of error: (1) that the trial court erred in denying her claim for unallocated family support; (2) that the trial court erred in denying her claim for reimbursement of medical insurance premiums paid by her on behalf of the minor; (3) that the trial court erred in denying her claim to $50,000 in life insurance proceeds designated for the benefit of the minor; (4) that the trial court erred in denying her claim for payment of expenses associated with the minor’s secondary and college education; and (5) that the trial court erred in denying her claim for reimbursement of attorney fees and costs incurred in providing a defense for the minor, in connection with the charge of murdering Frederick.

Susan and Frederick were married on November 23, 1967. One child, Roger Tracy Braun, was born to the marriage on June 5, 1973. On October 11, 1983, the Brauns were divorced. Incorporated into the judgment for dissolution of marriage was a marital settlement agreement (the agreement).

On December 18, 1988, Frederick was found shot to death. Roger Tracy, Frederick’s minor son, was arrested for the murder and charged as an adult with first degree murder. Roger Tracy pleaded guilty. He was sentenced to 32 years’ imprisonment in the Department of Corrections.

Shortly after the murder of Frederick Braun, petitioners, the First National Bank of Chicago and Gloria Haffer, co-executors of decedent’s will, sought to have the will admitted to probate. A provision of the will provided that if Roger Tracy Braun predeceased Frederick, the bulk of Frederick’s estate would be distributed to the son’s living descendants, or if no living descendants, in equal shares to decedent’s brother, Shepard Braun (amicus curiae in this court to petitioners), and decedent’s former wife, Susan. The will was admitted to probate on January 6, 1989.

On May Í, 1990, petitioners filed in probate court a petition for instructions, requesting the court to enter a declaratory judgment as to certain provisions of Frederick’s will and for instructions as to the disposition of certain assets collected by petitioners. Specifically, petitioners asked the court to declare that because Roger Tracy intentionally and unjustifiably caused the death of Frederick, the minor, for purposes of section 2 — 6 of the Probate Act of 1975 (Probate Act) (Ill. Rev. Stat. 1987, ch. 110½, par. 2 — 6), was deemed to have predeceased Frederick. Petitioners asked the court to authorize them to distribute Frederick’s personal effects and the residue of his estate in equal shares to Shepard and Susan as well as $300,000 in life insurance and accidental death proceeds and more than $24,000 in United States savings bonds.

On May 3, 1990, Susan filed her claim in probate court against Frederick’s estate seeking to enforce certain alleged contractual obligations under the marital settlement agreement. Specifically, Susan sought the costs of Roger Tracy’s secondary education and half of the cost of his college education, unallocated support at $400 per month from December 1, 1988, through June 30, 1990, reimbursement for medical premiums paid by Susan on behalf of Roger Tracy after he had committed the murder, payment of the proceeds of a life insuranee policy on Frederick’s life of which Roger Tracy was the sole beneficiary, and reimbursement of the monies expended by Susan for attorney fees for the minor in the criminal proceeding. Susan sought a total of $288,912.41 from the estate.

Shepherd Braun, as cocontingent beneficiary of Frederick’s will, filed objections to Susan’s claims under the agreement and asked the court to dismiss the claims against the estate. Petitioners filed their answers and affirmative defenses to Susan’s claims, asking the court to deny all the claims. Susan filed a reply to Shepard Braun’s objections and a reply to petitioners’ answers and affirmative defenses. At the same time, Susan filed her response to petitioners’ petition for instructions, requesting that the court enter a declaratory judgment declaring that the residue of Frederick’s estate, the life insurance and accidental death proceeds under the policy on Frederick’s life, and the United States savings bonds registered in decedent’s name be distributed in equal shares to Susan and Shepard Braun.

On or about October 15, 1990, the court heard petitioners’ request for instructions. Because Roger Tracy intentionally and unjustifiably caused the death of his father, the court ordered that he was not entitled to receive any property benefit or other interest from his father and was deemed, under section 2 — 6 of the Probate Act (Ill. Rev. Stat. 1987, ch. 110½, par. 2 — 6), to have predeceased Frederick. Petitioners, as co-executors of Frederick’s will, were authorized to distribute the residue of Frederick’s estate in equal shares to Susan and Shepard Braun. Additionally, petitioners were authorized to collect the life insurance and accidental death proceeds and the United States savings bonds and to add them to the residue for distribution as part of the residue.

Subsequently, a hearing was held on Susan’s claims against the estate. Prior to entering its rulings, the court noted that it had considered a stipulation of facts entered into by the parties: the exhibits appended to the stipulation, including the judgment for dissolution, the marital settlement agreement, Frederick’s will, and the mittimus of judgment and sentence related to Roger Tracy, and the pleadings filed by the parties as well as the objections filed by the cocontingent beneficiary, Shepard Braun.

The court further noted that, as to each of her claims, Susan posited that the marital settlement agreement was controlling and that the agreement was for her specific benefit. The court disagreed, stating that the agreement was designed to meet the specific needs of Roger Tracy and not the needs of Susan. Taking this fact into consideration along with the fact that Roger Tracy caused his father’s death, the court stressed that it could not merely consider Susan’s claims in terms of the marital settlement agreement but also must consider them in relation to section 2 — 6 of the Probate Act (Ill. Rev. Stat. 1987, ch. 110½, par. 2 — 6). The court acknowledged that, normally, the obligations of a decedent would survive his death but that “this is not a normal situation.”

The court addressed each of Susan’s claims separately, noting the parties’ opposing positions. The court denied each claim, setting forth the specific reasons for each decision. This appeal followed.

The judgment for dissolution of marriage entered into by Susan and Frederick contained a provision providing, in pertinent part, that the marital settlement agreement shall not be merged into the judgment but “shall continue to have independent legal significance and shall be subject to enforcement by either party as in the case of any other contract or agreement.” The agreement provided that “it shall be binding upon and inure to the benefit of the heirs, executors, administrators, assigns, devisees, and grantees of the parties hereto.” Susan relies on this latter provision to argue that the estate is bound to fulfill certain obligations of the decedent set forth in the agreement. Petitioners maintain, however, that public policy prevents Susan from recovering on any of her claims against the estate. We first consider petitioners’ position.

Although the law looks with favor upon settlement agreements, the terms of an agreement will not be given effect if procured by fraud or coercion or if contrary to any rule of law, public policy, or morals. (In re Marriage of Lorton (1990), 203 Ill. App. 3d 823, 825.) This State’s public policy is reflected in its constitution, its statutes, and its judicial decisions. (O’Hara v. Ahlgren, Blumenfeld & Kempster (1989), 127 Ill. 2d 333, 341.) In deciding whether an agreement that is not otherwise prohibited by law, such as the marital settlement agreement here, violates public policy, the courts must determine whether the agreement is so capable of producing harm that its enforcement would be contrary to the public interest. (O’Hara, 127 Ill. 2d at 342.) Such a determination depends on the peculiar facts and circumstances of each case. 127 Ill. 2d at 341-42.

In the instant case, Frederick’s minor son pleaded guilty to the charge of first degree murder of Frederick and was sentenced to 32 years’ imprisonment. Whether one who intentionally and unjustifiably causes the death of a party to a marital settlement agreement is entitied to receive the benefits of that agreement is a question of first impression in Illinois.

The public policy of this State precludes a wrongdoer from profiting from an intentionally committed wrongful act. (State Farm Life Insurance Co. v. Davidson (1986), 144 Ill. App. 3d 1049, 1050.) Here, that public policy is reflected in a statute precluding the minor from receiving any property or benefit by inheritance or “any other circumstance” from the one whose death the minor intentionally caused. (Ill. Rev. Stat. 1987, ch. 1101/2, par. 2 — 6.) That statute, section 2 — 6 of the Probate Act, provides in relevant part:

“A person who intentionally and unjustifiably causes the death of another shall not receive any property, benefit, or other interest by reason of the death, whether as heir, legatee, beneficiary, joint tenant, survivor, appointee or in any other capacity and whether the property, benefit, or other interest passes pursuant to any form of title registration, testamentary or nontestamentary instrument, intestacy, renunciation, or any other circumstance. The property, benefit, or other interest shall pass as if the person causing the death died before the decedent ***. *** A person convicted of first degree murder or second degree murder of the decedent is conclusively presumed to have caused the death intentionally and unjustifiably for purposes of this Section.” Ill. Rev. Stat. 1987, ch. 110½, par. 2 — 6.

Although no provision in the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 101 et seq.) excludes a person who intentionally and unjustifiably causes the death of a party to a marital settlement agreement from receiving the benefits of that agreement, we believe the public policy set forth in section 2 — 6 of the Probate Act, which prevents a wrongdoer from receiving any property, benefit, or other interest from his intentionally committed wrongful act, must be regarded as incorporated in the dissolution legislation. (Cf. Bailey v. Retirement Board of the Policemen’s Annuity & Benefit Fund (1977), 51 Ill. App. 3d 433, 437-38.) We find, therefore, in light of section 2 — 6, that the minor, as a result of his intentional and unjustifiable act of murdering decedent, is considered to have predeceased decedent and is not entitled to any benefits of the marital settlement agreement.

Susan, however, bases her claims against the estate on the theory that Frederick’s contractual obligations under the marital settlement agreement were for her benefit and not for Roger Tracy’s benefit and, therefore, are binding upon the estate. Susan maintains the agreement did not inure to Roger Tracy’s benefit because he neither signed the agreement nor was involved in negotiating it. Susan theorizes that because the agreement was for her benefit and because Roger Tracy and not she caused the death of Frederick, the estate is obligated to Susan for the monies sought by her under the terms of the agreement.

Those monies included: monthly family support payments of $400 per month from December 1988, the month of decedent’s death, through June 1991, the month in which the minor became 18; an estimated $5,000 for the minor’s completion of his secondary education and an estimated $40,000, representing half of the cost of his future college education; reimbursement in the amount of $1,282.81 for medical insurance payments paid by claimant on behalf of the minor from December 1988 through March 1990 when the Department of Corrections assumed medical coverage; proceeds from the life insurance policy on decedent’s life in the amount of $50,000 for the use and benefit of the minor as irrevocable beneficiary; and attorney fees totaling more than $180,000 incurred by Susan on behalf of her son.

Susan asserts that the trial court’s denials of these sums of money amounted to error and must be reversed. As much of the same reasoning applies to each of Susan’s contentions, we consider them collectively.

The interpretation of a marital settlement agreement raises a question of law, and the same rules that apply to the construction of contracts govern such interpretation. (Rimkus v. Rimkus (1990), 199 Ill. App. 3d 903, 906.) In interpreting the agreement, the court seeks to give effect to the intention of the parties. 199 Ill. App. 3d at 906.

It is clear from the provisions of the agreement relied upon by Susan (articles 11(c), III, V, VI, and VII) that Frederick and Susan intended the provisions for the direct benefit of Roger Tracy. His educational needs were provided for in article 11(c) and article VII of the agreement. Under article 11(c), Frederick was to pay for Roger Tracy’s secondary education at a private institution. Under article VII, Frederick and Susan were to share Roger Tracy’s college expenses. These provisions directly benefited Roger Tracy because they ensured that he would receive the education Susan and Frederick intended him to have and that the costs of that education would be assumed by them.

Article V of the agreement provided that Frederick “shall maintain medical insurance for the benefit of the minor.” The very terms of this provision demonstrate that it was strictly for Roger Tracy’s benefit. Article VI provided that Frederick would maintain a $50,000 insurance policy on his life for the use and benefit of Roger Tracy as irrevocable beneficiary. Because this article also designated Susan as trustee of the insurance proceeds for Roger Tracy until he attained majority or discontinued or completed his college education, Susan maintains that, upon Frederick’s death, she should have had the use of those proceeds for Roger Tracy. However, this theory, like Susan’s other theories, presupposes that Roger Tracy outlived Frederick. Such is not the case here where public policy considers Roger Tracy predeceased Frederick. Since Roger Tracy was not entitled to the proceeds, Susan was not entitled to the use thereof.

In a normal situation, Roger Tracy would have had the right to sue the parties or their estates, as third-party beneficiary, to enforce those obligations under the marital settlement agreement which were not fulfilled. (See Miller v. Miller (1987), 163 Ill. App. 3d 602.) Thus, the provisions concerning the minor’s education and his medical insurance as well as the provision providing for a life insurance policy on the decedent’s life were specifically intended for the benefit of the minor, and the court did not err in denying Susan’s claims based on her theory that these provisions inured to her benefit.

Nevertheless, even if these particular provisions were intended for Susan’s benefit, she would be unable to collect the monies sought under them. Any obligation Frederick’s estate had pertaining to the future costs of Roger Tracy’s education, the cost of medical insurance for the minor, or the distribution of insurance proceeds on Frederick’s life ceased at the time of Frederick’s death because Roger Tracy, having taken Frederick’s life, was already considered “dead” in the eyes of the law. Consequently, the possibility of Roger Tracy’s continuing education was nonexistent. Likewise, medical insurance coverage for Roger Tracy and the distribution of life insurance proceeds to Susan for Roger Tracy’s use and benefit were unnecessary.

For the estate to be bound to Susan for her past expenses and future costs on behalf of Roger Tracy as well as for the proceeds of the life insurance policy on Frederick’s life, the son had to have outlived his father. That is simply not the case here where public policy considers that Roger Tracy predeceased Frederick. Consequently, the trial court did not err in denying Susan’s claims for reimbursement of medical insurance premiums paid by her on Roger Tracy’s behalf, for the future costs of Roger Tracy’s secondary and college education, and for life insurance proceeds, amounting to $50,000, for the benefit of Roger Tracy.

Susan also claims, under article III of the agreement pertaining to family support, that the estate owes her $12,000. The pertinent portion of that article provided:

“The Husband agrees to pay and the Wife agrees to accept from the Husband as and for the support of herself and the minor child of the parties, the unallocated sum of Four Hundred Dollars ($400.00) per month.”

Susan maintains that the estate owes her the $400 monthly allotment from December 1, 1988, through June 30, 1991, the month in which Roger Tracy would have become 18, or emancipated. While at first glance it appears that Susan might be entitled to at least her portion of the monthly sum, closer scrutiny shows that the provision provides that the $400 is for the support of both Susan and Roger Tracy and that the sum is to be unallocated. That the monthly amount was never intended for Susan’s use alone is supported by article VIII of the agreement. Article VIII provides in pertinent part:

“The parties hereto mutually agree to waive any and all right to maintenance and support each may have against the other and each is forever barred from same.”

Consequently, Susan could not claim the monthly $400 sum for her support alone. Moreover, Susan in her brief admits that the monthly support money was for the benefit of her and Roger Tracy “jointly and together.”

The fact that article III is entitled “Family Support” implies that to be eligible for the $400 monthly sum Susan and Roger Tracy needed to be residing together as a family unit or that Roger Tracy was in Susan’s care. Neither situation existed for the time period in question. The record indicates that at the time of Frederick’s death in December 1988 Roger Tracy had been living with Frederick for nearly one year and that, following his arrest on December 21, 1988, Roger Tracy remained in the custody of law enforcement officials. As Roger Tracy never resided with Susan during the period for which she seeks the family support monies, she was not entitled to the monies.

Also, because Roger Tracy, in law, predeceased Frederick, neither Frederick nor the estate would have been obligated to make the family support payments for the period in question. The trial court did not err in denying Susan’s claim for past family support payments.

Susan also maintains, under article V of the agreement, that she is entitled to reimbursement for the more than $180,000 in attorney fees she incurred for Roger Tracy’s defense on the charge of murdering Frederick. Article V is entitled, “Medical, Extraordinary and Dental Expenses,” and provides:

“The parties hereby agree that the Husband shall maintain medical insurance for the benefit of the minor child. The parties further agree that the Husband shall be responsible for the extraordinary medical and dental expenses (including, but not limited to, orthodontia), of the minor child.”

Relying on this provision of the agreement, Susan argues that attorney fees are “extraordinary” expenses for which Frederick would have been responsible and for which the estate is now bound to pay.

The mere idea that a murder victim or his estate should be obligated to pay the attorney fees of the victim’s murderer is unconscionable. Nevertheless, it is apparent from the very terms of article V that the only extraordinary expenses covered by the provision are the “extraordinary medical and dental expenses” of the minor. The provision is silent as to attorney fees incurred on the minor’s behalf. As the court will not add language or matters to a contract about which the document is silent (Gordon v. Bauer (1988), 177 Ill. App. 3d 1073, 1088), the trial court was correct in finding that the agreement did not allow for reimbursement of the monies expended by Susan for Roger Tracy’s defense.

Generally, a contract survives the death of a party thereto except where the contract requires the continued existence of a particular person or thing for its performance. (In re Estate of Bajonski (1984), 129 Ill. App. 3d 361, 366-67.) Here, where the contract, or marital settlement agreement, specifically provided that the estates of the parties were to be bound by the provisions of the agreement, the parties intended that Frederick’s obligations under the agreement would survive his death. This intention, however, presupposed that the one to benefit from the obligations would outlive the decedent. Where the one to benefit is considered to have predeceased Frederick, as in the instant case, those obligations become nonexistent. Accordingly, the trial court did not err in finding that contractual obligations, arising from a marital settlement agreement between Susan and Frederick, for the benefit of Roger Tracy could not be enforced against the estate of Frederick.

The judgment of the circuit court of Lake County is affirmed.

Affirmed.

WOODWARD and GEIGER, JJ., concur.

      $180,629.60. The minor pleaded guilty prior to trial.