text:
    Margaret T. Kugel and Peter A. Kugel, Appellees, v. Village of Brookfield, Appellant.
    Gen. No. 42,073.

      Heard in the second division of this court for the first district at the December term, 1941.
    Opinion filed March 8, 1944.

      Lawrence Morell Gross, of Chicago, for appellant; Francis M. Cooper and Reuel H. Grunewald, both of Chicago, of counsel.
    Guy C. Guerins of Melrose Park, and McKinley, Price & Quindry, of Chicago, for appellees; Guy C. Guerins, of Melrose Park, and Paul E. Price, of Chicago, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

This is an action at law brought by plaintiffs, Margaret T. Kugel and Peter A. Kugel, against defendant, Village of Brookfield, for the alleged wrongful creation and operation of a dump on their premises, whereon it deposited garbage and other waste materials, as a result of which it is claimed that their real estate depreciated in value and they were deprived of the enjoyment thereof. The jury returned a verdict which found defendant guilty and assessed plaintiffs’ damages at $4,000. Defendant’s motion for a new trial was overruled and on April 29, 1941 judgment was entered on the verdict. Defendant appeals from said judgment. The death of plaintiff Peter A. Kugel during the pendency of this appeal having been suggested and plaintiff Margaret T. Kugel having filed her appearance as his widow and Oliver H. Kugel and Delores Kugel Unger having filed their appearance as the heirs at law of said Peter A. Kugel, it was stipulated that the cause proceed in this court as now entitled.

Plaintiffs’ complaint, filed May. 26, 1939', alleged substantially that they owned certain real estate in the Village of Brookfield, Illinois, the greater portion of which was vacant, and that they resided on said property; that defendant, a municipal corporation, wrongfully caused a dump to be erected and maintained on portions of their premises and deposited on such dump “all of the rubbish, waste materials, garbage and refuse collected from the various streets and alleys” of the Village of Brookfield; that defendant carelessly and negligently managed and operated such dump by causing to be thrown and kept thereon the aforesaid materials from which vile odors emanated and “scattered in the air”; that “for more than one year prior to the filing of this suit defendant wrongfully commenced the dumping- of refuse towit: garbage, tin cans, and all refuse materials collected from the streets and alleys, which refuse was scattered in and about said premises of plaintiffs and the premises adjoining”; that said refuse and garbage “were allowed to decay and stand uncovered upon the aforesaid premises by reason of which a vile odor was scattered in and about the premises and in the immediate vicinity, and the aforesaid premises became infested with rats and other vermin”; and that by reason “of the wrongful acts of defendant in depositing and maintaining the aforesaid dump on plaintiffs’ property, the premises of plaintiffs depreciated in válue and became unfit for habitation, that plaintiffs became ill from the vile odors therein scattered and were deprived of the quiet and peaceful enjoyment of their property.”

Defendant’s answer, after denying all the material allegations of the complaint, averred that it did establish a dump on plaintiffs’ premises and deposited thereon street dirt and certain waste materials with the oral consent and permission and upon the invitation of plaintiffs.

During the course of the trial plaintiffs filed a reply to defendant’s answer, in which they admitted that they granted leave to defendant to deposit street dirt upon their premises and then alleged that such leave was revoked when defendant began to dump garbage and other waste materials and that “they never consented to the dumping of garbage, waste materials, refuse, tin cans and other materials on their property.”

Plaintiffs’ real estate in Brookfield, Illinois, which is involved herein, is 70 feet in width and 266 feet in depth. Its easterly' 196 feet was originally from 8 to 12 feet below the level of the westerly 70 feet. The westerly 70 feet of the lot was improved with a five room bungalow, which fronts west on Forest avenue and was occupied by plaintiffs during the period covered by the dumping in question. A creek known as “Salt Creek” is 100 or 125 feet east of the easterly line of plaintiff’s lot and the land between that line and the creek’s bank is owned by the City of Chicago. During the spring season of 1934 and previous years said creek overflowed and flooded the low area on the rear of plaintiffs’ lot and the two lots north of same, as well as the land owned by the City of Chicago, and when the overflow receded, water was left on portions of all of said low areas. The low portion of plaintiffs’ lot extended almost to their garage, which then stood on stilts about 25 feet directly southeast of their bungalow.

In 1935 defendant began to fill in the low areas on the “Effinger” and the “Nevsimal” lots immediately north of plaintiffs’ lot. It completed the filling of the Nevsimal lot in the spring of 1937, whereupon Mr. Nevsimal stopped the defendant’s use of his private drive, which was then the only available entrance to the entire area being filled. After Nevsimal prohibited the further use of his drive, plaintiffs authorized defendant in the spring of 1937 to build a road across their lot so that it might have access to the rear of the Effinger lot and to the property of the City of Chicago and also authorized it to- fill the easterly 196 feet of their lot to street level. According to Margaret T. Kugel it was then agreed that only street dirt should be dumped on the Kugel lot. Plaintiffs concede that the road constructed by defendant across their lot was built of street dirt. Although, in addition to street dirt, defendant admits that it deposited general rubbish or refuse, not including garbage, on plaintiffs’ premises since the inception of the dump thereon, they made no serious complaint as to the fill used on their lot during 1937 or until the summer or fall of 1938. When plaintiffs gave permission to defendant to build the road across their lot and to fill said lot, defendant was widening Prairie avenue, one of its streets, and, while the contractor was working thereon, he dumped 100 loads a day of street dirt and pieces of broken concrete on plaintiffs’ premises. Some large pieces of concrete were placed on the easterly 100 feet of the lot and practically brought that portion thereof up to street level. During the period when the concrete was being delivered, no objection was made thereto and, while Mrs. Kugel testified that she complained about the large pieces of concrete after they had been deposited on the lot, her objection at the time did not appear to be so much to the use of the concrete as fill, but rather that the large pieces thereof “looked terrible” and should be “fixed up.” When defendant’s mayor had the large pieces of concrete “knocked down” with a bulldozer, plaintiffs were apparently satisfied in this respect. In the summer of 1938 plaintiffs constructed a new studio directly behind their bungalow for use in their business. It was about 25 by 35 feet in size and cost $700. After constructing the studio they moved their garage to a site about 45 feet east of and directly in line with their bungalow and it was approximately 155 feet from the east end of the garage to the east end of their lot. It is not claimed that any improper material was used to fill the area where the studio and garage now stand and, according to plaintiffs’ son, those buildings stand on land filled in by defendant.

Other than the complaint heretofore referred to concerning the large pieces of concrete which were deposited upon their property, the record discloses that the only complaints ever made by plaintiffs to defendant or to any of its officials or employees were as to the dumping of garbage on their premises.

Mrs. Kugel testified that she made no complaint concerning the dumping of garbage until the summer or fall of 1938; that from that time she continuously complained about the dumping of garbage on plaintiffs’ lot until this suit was started on May 26, 1939; that defendant persisted with its garbage dumping, notwithstanding her repeated protests and complaints; that after defendant started to dump garbage on plaintiffs’ premises “thé flies were terrible, and then it started to burn and we got the smell of garbage burning and the smoke and rats- — the rats used to gather up there in the morning and they would come out in my yard and I would see rats lying at my door”; that rats got into her home; that the odors that came from the garbage were “continuous, there was a continuous burning and sour garbage, it was just unbearable and you couldn’t sit out in the yard, or have your windows open at night”; that the buildings on their premises “were only painted less than a year and they were all full of fly specks which we never had before, and smoke”; and that when they opened the windows of their studio, the “designs and things . . . just got terribly soiled.”

The testimony of Mrs. Kugel concerning the dumping of garbage on plaintiffs’ lot, her continuous complaints in regard thereto, the failure and refusal of defendant to cease dumping garbage, the vile odors that emanated from the exposed garbage, the garbage and rubbish fires and the obnoxious smoke that arose therefrom and spread over her premises-and the presence of rats and flies in large numbers was corroborated by the testimony of other witnesses. There was also testimony that plaintiffs on one occasion stopped and turned away two loads of garbage. However, there is no evidence in the record and it is not claimed that plaintiffs ever ordered defendant to stop filling their lot.

Defendant presented evidence that it never delivered or deposited garbage on plaintiffs’ lot and that all of its garbage was delivered to a stone quarry in Cicero, Illinois, where it paid for the privilege of dumping-same.

John J. Dreher, one of plaintiffs’ principal witnesses, who was a former employee of defendant and in charge of its dump, testified that the low area on the Kugel property was practically filled on May 1, 1939, that the fill was covered with some black dirt during- May 1939, and that at the time of the trial Kugel’s entire lot was at street level “with the exception of one or two slight depressions. ’ ’

Walter D. Wilson, a consulting engineer employed by defendant, testified that he had supervised the filling in of property as an engineer “innumerable times, probably 100 or 150 times”; that it was his opinion based on an examination shortly before the trial of the surface of the filled in portion of plaintiffs’ lot that “the material that was used to fill was reasonable and substantial fill because of the fact that there are no depressions”; that if “any appreciable amount of garbage” had been used for fill “there would be a great likelihood that the surface of the land, the property at this time would be depressed in places”; that his estimate of “the amount of black dirt top dressing that was put on that property” was “450 cubic yards,” averaging from one foot to one foot and one-half in depth; and that the material beneath the black dirt top dressing- had settled.

At the outset it should be pointed out that the complaint does not seek relief by reason of a nuisance created or maintained by defendant on any property adjacent to plaintiffs’. Defendant asserts that in the trial court plaintiffs’ counsel stated that “we claim a trespass” and therefore admitted that the theory of plaintiffs’ complaint was that defendant trespassed upon their property. Regardless of said statement of counsel, the trial of this case was conducted and the jury was instructed on the theory that the complaint charged defendant with creating and maintaining a nuisance on plaintiffs’ property. In our opinion the trial court properly construed the allegations of the complaint as charging defendant with creating and maintaining a nuisance on plaintiffs’ premises. The same rules of damages apply whether the action be in trespass or for a nuisance. (Sutherland on Damages, vol. 4, sec. 1036, p. 3845.)

Defendant contends that depreciation in the value of plaintiffs’ property was not a proper measure - of damages in this case and that the trial court erred in admitting evidence and instructing the jury in that regard.

Walter A. Huebsch, a real estate expert, testified on plaintiffs’ behalf that in May 1939 the fair and reasonable market value of the Kugel property “without any dump or garbage” thereon was $7,500 and that “with the dump on the property” the reasonable market value thereof was $4,500, or in other words that the property had depreciated $3,000 in value because some garbage and other alleged obnoxious materials had been included in the fill. It will be recalled that the jury awarded plaintiffs $4,000 damages and it seems to be assumed in both plaintiffs’ and defendant’s brief that $3,000 of that amount was for depreciation in the value of the Kugel property and the other $1,000 for plaintiffs’ inconvenience and loss of enjoyment of their property.

It must be conceded that the dump established on plaintiffs’ property by defendant was a private work and it has been repeatedly held that where a private structure or other work on land is the cause of a nuisance or other tort involving real estate, the law does not regard the same as permanent and damages therefor are recoverable only to the date of the commencement of the action. (Schlitz Brewing Co. v. Compton, 142 Ill. 511; Bailey v. Heintz, 71 Ill. App. 189; Racine v. Catholic Bishop of Chicago, 290 Ill. App. 284.) In the Schlitz Brewing Co. case it was held at p. 520:

“We think the correct rule upon this subject is stated as follows: ‘If a private structure or other work on land is the cause of a nuisance or other tort to the plaintiff, the law cannot regard it as permanent, no matter with what intention it was built; and damages can therefore be recovered only to the date of the action. ’ ”■

In Baker v. Leka, 48 Ill. App. 353, in defining the test tó be applied to determine the permanency of a structure the court said at pp. 358, 359:

“This is not to be determined from a consideration, alone of its enduring character, or that if not changed by the hand of man it would likely continue forever. To be permanent in a legal sense a structure must, in addition to being permanent or enduring within itself, be such that its continuation is lawful; because if it is not lawful it is subject to be removed or abated by a legal proceeding and therefore cannot be deemed permanent. K. & S. R. R. Co. v. Hanan, 131 Ill. 288.
" . . .
“A nuisance which may be abated by law is not regarded as a permanent source of injury but as a continuing nuisance. Successive actions may be maintained for it from time to time as such damages are inflicted. . . .” (Italics ours.)

In the instant case the complaint charges the defendant with wrongfully creating and maintaining a dump on plaintiffs’ premises and with being guilty of wrongful conduct in dumping garbage thereon. Under the principles announced in the foregoing cases neither the creation and maintenance of the dump nor the depositing of garbage thereon can be regarded as a source of permanent injury.

In respect to the principles of law under consideration the following statement is found in plaintiffs’ brief: “The cases cited in support of the foregoing proposition appear to lend support to the rule relied upon. However, the proposition relied upon is qualified by an exception to the effect that where the acts complained of are permanent in their nature the injured party has the option of treating the structures as a source of permanent injury and bring suit to recover both present and future damages, although the structure was unlawful and subject to abatement.” In support of their position in this regard plaintiffs’ cite Catello v. Chicago B. & Q. R. Co., 298 Ill. 248; Strange v. Cleveland, C., C. & St. L. R. Co., 245 Ill. 246; Kankakee & S. R. Co. v. Horan, 131 Ill. 288; Chicago & E. I. R. Co. v. Loeb, 118 Ill. 203; Illinois Cent. R. Co. v. Grabill, 50 Ill. 241; Baker v. Leka, 48 Ill. App. 353 and Chicago Forge & Bolt Co. v. Sanche, 35 Ill. App. 174. If by the foregoing statement counsel wish to be understood as contending that under the factual situation in the case at bar plaintiffs are entitled to recover damages both for depreciation in the value of their land and for loss of enjoyment thereof, there is no merit in such contention and it finds no support in any of the cases cited. It would serve no useful purpose to discuss said cases, inasmuch as it has always been the law of this State that damages for loss of enjoyment of property are not recoverable in cases where depreciation in the value thereof is the proper measure of the injury, since such loss of enjoyment is one of the elements to be considered in determining the extent of the permanent depreciation claimed and nothing may be allowed for, loss of enjoyment independently and apart from the depreciation in the value of the land. (Chicago Forge & Bolt Co. v. Sanche, supra.) If by the aforesaid statement counsel is contending that plaintiffs are entitled to recover damages for permanent depreciation in the value of their property, the difficulty with their position in that regard is that the dump in question was neither permanent in fact nor was it in its nature permanent so that it could be treated as permanent in law. There was nothing inherently enduring or permanent about the dump on plaintiff’s property, even though some garbage was deposited thereon. Neither plaintiffs nor defendant contemplated that the dump would be permanent in fact or in its nature permanent. Under the oral agreement between the parties the depositing of fill on plaintiffs’ property was to continue only until their lot was brought up to street level and at the time of the trial the dump was no longer in existence. Furthermore, the dump was a private structure or work.

Defendant next contends that “when a nuisance may be removed at any time or abated at the instance of the party aggrieved thereby, depreciation in the market or selling value of the land is not the proper measure of the injury; and that it is prejudicial error to admit evidence thereof in such cases as a ground of recovery.” In N. K. Fairbanh Co. v. Nicolai, 167 Ill. 242, the defendant was charged with creating and maintaining a nuisance for two years prior to October 23, 1894 and the declaration asked damages as for depreciation in the value of plaintiff’s property. Against the defendant’s objection , a witness was permitted to state that the property was worth nothing for residence purposes on account of the nuisance. Another witness was asked to state the value of said property on October 23, 1892 and also on October 23, 1894 — the beginning and end of the period covered by the suit — and, over defendant’s objection, he testified that in 1892 it was worth $7,000 and in 1894 hardly $1,000. The jury returned a verdict assessing plaintiff’s damages at $1,500 and in reversing the judgment entered thereon solely because of the admission of such evidence, the court there stated at pp. 246, 247:

“. . . The depreciation in the market or selling value of the premises was not the measure of damages, and evidence of such depreciation could only tend to mislead the jury. As to nuisances which may be removed at any time or abated at the instance of the party aggrieved, that is not the proper measure of the injury.
" . . .
“Conceding it was proper to show the character and value of the premises without the nuisance, to enable the jury to understand and estimate the amount necessary to compensate plaintiff for being deprived of the comfortable use and enjoyment of it as his home, it ivas not proper to show permanent depreciation in market value as a ground of recovery.” (Italics ours.)

The foregoing decision is conclusive that defendant’s instant contention is a meritorious one. If defendant had dumped garbage or other obnoxious materials on plaintiffs’ premises in violation of the agreement of the parties and the Kugels considered the dumping of such obnoxious materials as a nuisance, they could have had same abated at any time.

It has been shown that the structure or work involved herein was private rather than public, that the dump was neither permanent in fact nor in its nature permanent so that it could be treated as permanent in law, that it might well have been abated by plaintiffs at any time, and that it was alleged to be wrongful and unlawful rather than lawful. Therefore the alleged “nuisance and the resulting injury were of that class which the law denominates temporary, in contradistinction from permanent.” (Canteen Hunting & Fishing Ass’n v. Schwarts, 128 Ill. App. 224.) In the Schwarts case in pointing out the character and measure of damages properly allowable for injuries resulting from a permanent as distinguished from a temporary nuisance the court said at pp. 226, 227:

“Appellees rely upon the rule laid down in C. R. I. & P. R. R. Co. v. Carey, 90 Ill. 514. That case as explained and made clear in Schlitz Brewing Co. v. Compton, 142 Ill. 511 (516), holds no more than that where an injury is caused by a lawful public structure, properly constructed and permanent in character, it may be held to be a permanent injury. In the case at bar, if we assume the existence of all the other requisites, the structure complained of was not a ‘lawful public structure.’ Appellant did not have the right to eminent domain, the dam was not constructed or maintained for any public purpose, or devoted to any use in the service of the general public.
“In cases of a permanent injury of real estate the measure of damages is the depreciation in value of the plaintiff’s estate in the premises. . . . And in such case nothing can be allowed for damag.es to rental value, or damages to the right of use and occupation, or for anything pertaining to the realty, for these are all included in the depreciation in value of the premises. . . .
“In cases of temporary nuisance resulting, in injury, the right to recovery is a continuing one. . . . but nothing can be alloiued for 'depreciation of the market value of the premises. This (the value) is not affected, for the continuing right to recover particular damages as they may accrue, ‘runs with the land’ and compensates for the injury so long as it may continue, the presumption being that an illegal act will not continue forever.” (Italics ours.)

Was there any actual permanent depreciation in the value of plaintiffs’ property? Originally they had a lot about three quarters of which was from 8 to 12 feet below street level. This low area, as already shown, was 196 feet in length and 70 feet in width and a large portion thereof was said to be at times a slough. Now they have their entire lot level with the street and the filled in portion thereof covered with black dirt to an average depth of one or one and one-half feet. At the time of the trial there was nothing in or upon the property that constituted a nuisance. In our opinion the condition of plaintiffs’ lot was improved rather than depreciated in value.

Defendant criticizes three of the four instructions given to the jury at plaintiffs ’ request. While some or all these instructions are properly subject to attack on one or more of .the numerous grounds urged, we deem it unnecessary to discuss them, because they were predicated upon the erroneous theory as to damages upon which the case was tried. Upon the retrial qf this case plaintiffs ’ prcof as to damages must necessarily be restricted to their alleged loss of enjoyment of their property and it is fair to assume that the jury will be properly instructed as to the applicable measure of damages.

For theo reasons stated herein the judgment of the circuit court of Cook county is reversed and the cause is remanded for a new trial. •

Judgment reversed and cause remanded.

Friend, P. J., and Scanlan, J., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Dady

license: Public Domain

text:
    In re Estate of Rebecca E. Everly, Deceased. George Zimmerman, Appellant, v. Gumbart, Grigsby and Gumbart et al., Appellees.
    Gen. No. 9,405.

      Heard in this court at the October term, 1943.
    Opinion filed March 14, 1944.
    Leonard C. Berry, of Macomb, and Clarence W. Heyl, of Peoria, for appellant.
    C. G. Gumbart, E. D. Grigsby and J. C. Gumbart, all of Macomb, per se.

   Mr. Presiding Justice Dady

delivered the opinion of the court.

This is an appeal by George Zimmerman from an order of the circuit court of McDonough county dismissing his appeal from an order of the county court allowing appellees’ claim in the amount of $5,000 against the estate of Rebecca E. Everly, deceased.

On November 2, 1942, E. D. Grigsby, who is one of the appellees, filed in such county court his petition for admission to probate of an alleged "will of Rebecca E. Everly, wherein he alleged that she died on October 27,1942, leaving an instrument in writing purporting to be her will, duly attested by her; that in said will she nominated petitioner executor thereof; that she left personal estate of the estimated value of $300,000; and real estate of the estimated value of $250,000; that she left certain named persons, one being the appellant, and certain unknown persons as her heirs; and that she left certain named persons, including appellant, as her legatees and devisees. On December 4, 1942, on the hearing of such petition, such will was admitted to probate and E. D. Grigsby was appointed executor thereof.

Before the will was admitted to probate, and on November 16, 1942, the appellees filed in the county court the claim in question, which was for legal services alleged to have been rendered to the testatrix during her lifetime.

E. D. Grigsby was one of the claimants, and, because of his interest in the claim and his being executor, the county court on December 14, 1942, entered an order appointing a guardian ad litem to represent the estate in the matter of such claim. On December 15, 1942, the claim was heard and allowed by the county court.

Thereafter appellant duly perfected his appeal to the circuit court from the order of the county court allowing such claim. Appellees then filed in the circuit court their limited appearance and a verified motion to dismiss the appeal. Such motion alleged that the appellant was not aggrieved by the allowance of the claim, that the interest of appellant in said estate under the will was the sum of $166.67; that the total specific legacies provided by the will were the sum of $58,200, and that the costs of administration and claims “likely to be presented and allowed against said estate, including taxes, would not exceed $50,000.” Said motion to dismiss further alleged that the personal property belonging to the estate was worth approximately $300,000; that this was ample to pay all claims, taxes, costs of administration and specific legacies provided for by the will, and that no complaint to contest said will had been filed.

On the hearing of such motion, the circuit court entered an order dismissing the appeal. Appellant has perfected the present appeal from such order of the circuit court.

The first contention of the appellees is that the fact that the appellant is an heir gives him no right to appeal,-especially since he has made no effort to get the guardian acl litem to appeal from the order.

The record is silent as to whether the appellant made any effort to get the guardian ad litem to appeal. However, we consider this immaterial for in Pfirshing v. Falsh, 87 Ill. 260, the court held that, under a similar statute on the right to appeal, the guardian of a minor heir,' as an aggrieved person, had the right to appeal from an order of the county court allowing a claim against the estate of a deceased person notwithstanding the fact that the administrator took no appeal.

The nest and what we consider the main contention of appellees is that because the alleged will of the decedent had been admitted to probate, and the record does not show that the appellant has filed any suit to contest or set aside such will, and inasmuch as the undisputed allegations of fact in the verified motion to dismiss the appeal show that there will be more than ample assets of the estate to pay the legacy of the appellant,-it follows that the appellant is not an aggrieved person within the meaning of the statute and therefore does not have an appealable interest.

As far as we have been able to find, the precise question has not been passed upon by any of our courts of review.

Section 330 of the Probate Act (Ill. Rev. Stat. 1943, ch. 3, par. 484. [Jones Ill. Stats. Ann. 110.581]), provides that “An appeal from any other order, judgment, or decree of the probate court may be taken by any person who considers himself aggrieved to the circuit court by the filing in, and the approval by, the probate court of an appeal bond and the payment of the costs and fees of the appeal.” Section 2(a) of the same act provides that the words “Probate Court,” wherever used in such act, includes the county court "of any county not having a probate court.

Said section 330 further provides that the “bond (appeal bond) shall be filed and approved and the fees and costs paid within twenty days after the entry of the order . . . appealed from or within such further time, not to exceed sixty days after the entry of the order . . . appealed from, as the probate court may allow on application made within the twenty days.”

Although the appellant on Jarmar;/ 2, 1943, was allowed by such county court twenty days extension of time from January 2, 1943, within which to perfect his appeal, his receiving such extension of time was not a matter of right but was a matter within the sound discretion of the county court.

If the contention of appellees is correct, then it would seem to follow that a sole heir of a deceased testator, as such heir has no right to contest a claim filed against the estate of such decedent, and no right as an aggrieved party to appeal from an order allowing such claim, regardless of whether such sole heir is a nominal or substantial beneficiary or a nonbeneficiary under the will,-unless such heir has first filed in the circuit court a complaint to contest such will, and it would also seem to follow that before filing such a complaint in the circuit court such heir would not be in a position to ask the county court for an extension of time to perfect his appeal. If such contention is correct it might also be argued that even had the appellant or some other person first filed a complaint in the circuit court to contest the will, the possibility that the will might be set aside on a contest would be so remote and uncertain as not to form any basis for the appellant’s claim that he is an aggrieved party within the meaning of said section 330.

We do not agree with such contention of the appellees. Were it .not for the will, appellant, as an heir-at-law, would have had the right of appeal as an aggrieved person. (Pfirshing v. Falsh, 87 ILl. 260, 261, supra.) In Adams v. First M. E. Church of Irving Park, 251 Ill. 268, it was held that a beneficiary under a prior will, though such will was not admitted to probate, had a right as a person interested to file a complaint to contest a subsequent will.

Inasmuch as the appellant as an heir-at-law had the statutory right to file a complaint to contest the will of the decedent at any time within nine months after the admission of the will to probate (see section 90 of same Probate Act), and inasmuch as it does not appear that he has elected not to file such a contest, it is our opinion that at all of the times in question appellant had the right, as an heir-at-law and therefore an aggrieved party within the meaning of said section 330 of the Probate Act, to perfect such appeal to the circuit court.

It is therefore our opinion that the circuit court erred in dismissing such appeal.

The foregoing makes it unnecessary for us to discuss or pass upon the question of whether or not the appellant as a beneficiary under the will would have the right of appeal.

The judgment of the circuit court is reversed and the cause is remanded to such court with directions to deny the motion to dismiss the appeal, and for further proceedings consistent with this opinion.

Judgment reversed and cause remanded.


author: Mr. Justice Riess Mr. -Presiding Justice Dadt

text:
    Hans J. E. Banck, Appellee, v. Tannie G. Banck, Appellant.
    Gen. No. 9,397.

      Heard in this court at the May term, 1943.
    Opinion filed March 14, 1944.
    Harry I. Hannah and Thomas R. Figenbaum, both of Mattoon, for appellant.
    Brown, Hay & Stephens, of Springfield, for appellee ; Robert A. Stephens, Jr., of Springfield, of counsel.
   Mr. Justice Riess

delivered the opinion of the court.

By this appeal, the defendant seeks to reverse an order of the circuit court of Sangamon county modifying a decree for the payment of alimony.

It appears from the record that on May 20, 1941, defendant appellant obtained a decree of divorce from plaintiff appellee upon her uncontested counterclaim, on the statutory ground of wilful desertion: The decree provided, inter alia, “that the parties herein have mutually agreed upon a property and alimony settlement by virtue of which, it has been agreed that the defendant henceforth own the dwelling house in which she is now living and described as 1524 Dial Court, Springfield, Illinois; that the said plaintiff execute his quit-claim deed to her therefor; and that he further pay and discharge the mortgage thereon now existing; that the said defendant shall have all the furniture now contained in said real estate, and also a certain Lincoln automobile; that in addition thereto, said plaintiff shall pay the said defendant the sum of $4,500 as gross alimony as follows, to-wit: $500 upon the rendition of this decree and the balance in monthly instalments of $100 each payable on the first day of each and every month hereafter, commencing the first day of June A. D.. 1941 and that he further pay to her the sum of $500 for solicitors’ fees in and about prosecuting her suit herein; that the said defendant convey by her quit-claim deed all of her right, title and interest in and to all the remainder of the real estate owned by the said plaintiff. ’ ’ The decree further provided “that said property and alimony settlement heretofore referred to shall be, and the same is hereby approved” and that the decree remain a lien upon the real estate of plaintiff until he shall have paid the “gross alimony” and solicitors’ fees and in case of his default, the said real estate shall be sold to pay the same. Certain personal chattels and securities were awarded to the plaintiff and the property of each party was decreed to be owned and held free and clear of all claims or demands of the other party resulting from the marriage relationship, including dower, homestead, award and alimony. The decree further found that the husband then earned $600 per month and that the wife was not employed and had no means of support.

Thereafter, said $500 lump sum and all subsequent $100 monthly instalments of alimony were paid by the plaintiff to the defendant as they became due according to the terms of the decree, to the date of September 28, 1942, on which latter date the defendant appellant intermarried with one Elmer Allison, in Hannibal, Missouri. Plaintiff appellee thereupon petitioned the court to be relieved from further payments of alimony accruing after said date under and by virtue of the provisions of sec. 18, ch. 40, Ill. Rev. Stat. 1941 (Jones Ill. Stats. Ann. 109.186), being an amendment enacted in 1933 to said section 18 of the Divorce Statute, which amendment provided “that a party shall not be entitled to alimony and maintenance after remarriage.” The petition to modify the decree was duly heard and a decree was entered by the chancellor granting the prayer of the petition and releasing plaintiff from further payments of alimony to the defendant' and also discharging and releasing plaintiff’s real estate from any lien for the payment thereof; the chancellor expressly finding that by reason of said remarriage, “the plaintiff is entitled to be relieved of all payments of alimony after September 28, 1942.” After motion to set aside said order, which was denied, the defendant perfected her appeal to this court.

Defendant appellant assigned the following errors as grounds for reversal, vis: (1) lack of jurisdiction of the court over the cause or subject matter; (2) that the right of gross alimony was a vested right over which the court has no jurisdiction; (3) error in holding that defendant’s remarriage terminated her right to receive the total amount of gross alimony settlement; (4) error in terminating plaintiff’s obligation to pay the unpaid instalments of alimony accruing after defendant’s marriage.

The above section 18, as so amended, provides as follows':

“When a divorce shall be decreed^ the court may make such order touching the alimony and maintenance of the wife or husband, the care, custody and support of the children, or any of them as, from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just; and order the Defendant to give reasonable security for such alimony and maintenance, or may enforce the payment of such alimony and maintenance in any other manner consistent with the rules and practice of the court, where a party wilfully refuses to comply with the court’s order to pay alimony and maintenance, provided that no alimony or separate maintenance shall accrue during the period in which a party is imprisoned for failure to comply with the court’s order, and provided further that a party shall not be entitled to alimony and maintenance after remarriage. And the court may, on application, from time to time, make such alterations in the allowance of alimony and maintenance, and the care, custody and support of the children, as shall appear reasonable and proper.”

The decree, in so far as it concerns a property settlement and the payment of immediate and subsequent periodic alimony payments, was entered by the consent of the parties and there is no controversy concerning the facts. Appellant contends, as a matter of law, that the right of defendant to receive the unpaid instalments for the balance of “gross alimony” became and is a vested right, by virtue of the terms of the property settlement and consent decree which she was entitled to receive in periodic payments as the same fell due on dates subsequent to the date of her remarriage and that the above provision of the statute is not applicable to the facts herein.

Appellant’s uncontested counterclaim first sought a decree of separate maintenance and was later amended to pray for an absolute divorce, containing and retaining, however, the specific prayer “that she may be awarded alimony to maintain herself according to his (the husband’s) station in life.” The above specific prayer of the amended petition, the language of the decree granting the same and the express understanding of the chancellor, who heard the testimony and granted both the original decree and the subsequent order modifying the decree, persuasively evidence the meaning and intent thereof and the understanding of all parties in relation thereto. The alimony previously agreed upon by the parties became merged in and was set forth in the decree itself, which expressly found the defendant to be without means “to provide support for herself” and provided for the periodic monthly payments in question extending over an approximate five year period granting an allowance to be awarded as “alimony to maintain herself” according to the husband’s station in life, which terms were duly complied with from the date of the decree on May 20, 1941 to the date of appellant’s marriage to a second husband on September 28, 1942.

The chancellor below, who heard the case and .entered both the original and modified decrees, in a short opinion filed with the latter, stated: “The decree in question is a decree for alimony. The decree so recites it. The court fixed the maximum payments at the sum of $4500 and provided it should be paid in monthly instalments of $100 apiece. The court might just as well have said that the maximum should be five years instead of $4500. In either case, it must be understood that the decree of the court had in it the express mandatory language of the statute, even though it was not specified in said decree . . . .” The court" further said that “Counsel for respondent has laid great stress on the finding of the court and that this was a decree for money in gross. It was alimony, however, and was to be paid on the instalment plan.” Clearly, the alimony provisions so agreed upon by the parties, so prayed for in the counterclaim, so allowed and ordered by the court to be paid on terms set forth in the decree for defendant’s maintenance, became thereby merged in and was controlled by the terms of said decree and the statutory provisions applicable thereto.

The application of the amendatory language of the above statute providing for nonpayment of alimony and separate maintenance after remarriage has been construed by the courts of review of this State in a number of cases. While the decisions in Illinois are not in entire, harmony upon the right of the chancellor to modify a decree for alimony awarded in gross, since each case depended upon the particular facts and circumstances presented for review under the decree in question, the courts have uniformly "held that as be-

tween the parties, the mandatory language of section 18 depriving the recipient of further alimony payments in the event of remarriage is binding both upon the parties and the court and becomes by implication a part of the decree. The payment of $4,500 in periodic payments over a period of 40 months was referred to by the parties and designated in the original decree as “gross alimony.” The language of the statute makes no distinction between a decree for a lump sum payable in instalments and a decree for periodic payments. The chancellor held under the facts presented “that in this case an event happened, to-wit: the marriage of recipient, that makes it mandatory upon the court to stop further periodic payments upon application of the person aifected.” Our Supreme Court, in the recent case of De La Cour v. De La Cour, 363 Ill. 545, 2 N. E. (2d) 896, likewise treated a decree for alimony awarded in a lump sum of $3,000 payable in $50 monthly instalments over a period of five years, thereby fixing both the gross sum awarded and the limited and certain time for making each of such payments, as a decree for periodic payments, subject to modification by the court under the provisions of section 18, supra; citing in support of the continuing equitable or statutory power of the court to modify the decree under section 18 of the Divorce Act, the cases of Maginnis v. Maginnis, 323 Ill. 113, 153 N. E. 654; Bobowski v. Bobowski, 242 Ill. 524, 90 N. E. 361; Welty v. Welty, 195 Ill. 335, 63 N. E. 161; Cole v. Cole, 142 Ill. 19, 31 N. E. 109; the court saying (pp. 117, 118) that “An express reservation of the power in the decree is unnecessary for the power exists and may be exercised irrespective of whether so reserved.” Maginnis v. Maginnis, supra.

In the case of Morgan v. Lowman, 80 Ill. App. 557, 559, this court held that “Where a divorced wife remarries, the divorced husband is absolved from the burdens of a decree requiring him to pay alimony. She has a vested right only in that which has accrued up to the date of the second marriage. It is her privilege to abandon the provision which the decree of the court makes for her support by entering into marriage with another man, thereby seeking her support from another direction, but when she does so the law will require her to' abide her election.” Alimony past due under a decree is a vested debt and cannot be set aside nor can payment of amount past due thereunder be changed by a subsequent order of court. Craig v. Craig, 163 Ill. 176, 45 N. E. 153; Cooper v. Cooper, 185 Ill. 163, 56 N. E. 1059; McAdams v. McAdams, 267 Ill. App. 124; Herrick v. Herrick, 319 Ill. 146, 149 N. E. 820; Bush v. Bush, 316 Ill. App. 295, 302, 44 N. E. (2d) 767. But as to alimony payments accruing in the future she has no vested rights. Adler v. Adler, 373 Ill. 361, 373, 26 N. E. (2d) 504. Morgan v. Bowman, supra.

In the oft cited case of Stillman v. Stillman, 99 Ill. 196, 202, it is said concerning the wife’s 'support that “It is unreasonable that she should have the equivalent of an obligation for support by way of alimony from a former husband, and an obligation from a present husband for an adequate support at the same time. . . . It is her privilege to abandon the provision the decree of the court made for her support under the sanctions of the law, for another provision for maintenance which she would obtain by a second marriage, and when she has done so the law will require her to abide her election.”

The above equitable principle, repeated and applied at intervals and without exception by our courts of review, is based upon sound public policy and was crystallized into a statutory enactment by the amendinent to section 18 in 1933; which, among other provisions, specifically provides “that a party shall not be entitled to alimony and maintenance after remarriage.” Concerning this amendment, the Supreme Court, in the case of Adler v. Adler, supra, p. 373 said, “The amendment merely adopted the general rule and made it mandatory upon the court to cancel alimony payments in all cases where the recipient had remarried, regardless of whether or not there had been a change in the financial condition of the former husband.”

In the case of Miller v. Miller, 317 Ill. App. 447, 448, 46 N. E. (2d) 102, wherein the appellant contended that the decree provided a gross alimony payable in future instalments, in which she held a vested interest, and wherein the decree recited, as in the instant case, that the parties “had entered into an agreement regarding the question of alimony and adjustment of property rights,” it was held that the court had the power to modify the decree under section 18 of the Divorce Act, as amended. By incorporating an agreement between parties in a divorce decree, the same becomes merged in the decree and the parties make such decree subject to the statutory provisions and continuing power of the court to modify the same as therein provided. Adler v. Adler, supra; Cahill v. Cahill, 316 Ill. App. 324, 45 N. E. (2d) 69. The purpose of alimony payments has always been construed by our courts of review as the equivalent of the husband’s obligation for support which arose in favor of the wife out of the marriage contract and which obligation ceased when the wife again married and thereby obtained the" same obligation for support from her second husband. “Alimony does not arise from any business transaction but from the relation of marriage. It is not founded on contract but on the natural and legal duty of the husband to support the wife.” The general obligation to support is made specific by the decree of the court of appropriate jurisdiction. Generally speaking, alimony may be altered by the court at any time as the changing circumstances of the parties may require. Her rick v. Herrick, supra, p. 151; Audubon v. Shufeldt, 181 U. S. 575; Barclay v. Barclay, 184 Ill. 375, 56 N. E. 630; Welty v. Welty, 195 Ill. 335; Silber schmidt v. Silberschmidt, 112 Ill. App. 58; Cahill v. Cahill, supra.

In the case of Thompson v. Mentser, 216 Ill. App. 470, the complainant was granted a decree of divorce on the ground of wilful desertion, and the custody of a 17 year old son was granted to her. . By consent, alimony was granted as follows: $5,000 cash and $30 per month beginning on the first day of May, 1916, and the first of each month thereafter during the life of Joseph Arnold, father of complainant, and until the minor son should arrive at the age of 21 years. Both the lump sum and monthly alimony payments were made to the appellant until April 1918, when she remarried, whereupon the defendant prayed that he be released from further payments, which decree was. granted. Further payments on the son’s account were not in issue, as he had lived with and been supported by his father. The court said (p‘. 473) that “It is further urged that the modification of the decree was wrong for the reason that the alimony awarded was for a gross sum and that the court was without jurisdiction to modify it at a subsequent term. We think it clear that since the decree provided for monthly payments it cannot be said that the alimony was for a gross sum. ... By remarrying, complainant voluntarily waived her right to alimony after the date of her remarriage. ” Morgan v. Lowman, 80 Ill. App. 557; Stillman v. Stillman, 99 Ill. 196.

In the case of Welty v. Welty, supra, the terms of the decree awarding alimony provided that the plaintiff, Catherine Welty, have the sole care, custody and education of the three children and that the defendant, Robert Welty, pay her $25 on the first day of each month for a period of eight months, commencing with June 1st, “and continue until the sum of $200 is paid, said sum to be in lieu of and in full for alimony and in full of all other claims of any kind or nature,” etc., thereby fixing the gross sum as well as the number, time and amount of eight periodic monthly alimony payments. The court, on page 337, said: “Appellant complains that the decree of June 9, 1899 was not a decree for alimony, but was a decree for a specific sum in lieu of alimony, his idea being that the court, by the use of the words fin lieu of,’ eliminated from the decree any requirement to pay money for alimony as such, and made it an ordinary decree for the payment of money. This contention is without force. The whole decree, when all of its parts are read together, is a decree for the payment of so much money for alimony, and shows upon its face that such sum of money was to be paid for the support of the appellee and for the care, custody and education of the children.” The chancellor,below expressed a similar opinion in the instant case. In the Welty case, the court then discusses and affirms the continuing jurisdiction and exercise of discretionary powers granted to the chancellor by the statute.

As stated in Adler v. Adler, supra, p. 373, “Her rights became fixed as to accrued payments, but as to all payments maturing in the future she had no vested right. . . . The amendment of 1933 to section 18 of the Divorce Act does not affect any vested rights of respondent.” That case involved the creation of a considerable trust estate to secure the payment of alimony provided for in the decree, and'the court held the supplemental trust indenture and agreement in question which recited that “for the purpose of making full and final provision for the maintenance and support of said Sara Adler, and for alimony, dower, and right of dower, and all claims and property rights, and rights of every kind and nature of second party against first party, a supplemental trust indenture has been entered into . . that the agreement has become merged in the decree, and that as such, the statute by implication becomes a part of the decree and the provision for alimony became subject to modification. Maginnis v. Maginnis, 323 Ill. 113, 117, 153 N. E. 654., Where the decree awards a gross fixed sum in full settlement of all alimony claims, the same, when free of fraud, becomes final and its payment precludes the parties, but where the decree takes the form of a periodic allowance of future payments, it is controlled by and deemed to have been made in view of the provisions of section 18 of the statute concerning remarriage of the recipient. Maginnis v. Maginnis, supra; Herrick v. Herrick, 319 Ill. 146, 149 N. E. 820; Smith v. Smith, 334 Ill. 370, 166 N. E. 85; Adler v. Adler, supra. In Adler v. Adler, supra, and Miller v. Miller, supra, it was also provided in the agreement and decree that the former husband was to continue -"the payment of unpaid alimony unaffected by the remarriage. The latter provision was held in both cases to be a nullity, as contravening the express provisions of the statute. The courts of review affirmed the holding of the chancellor below in both cases and held it to be mandatory on such court to cancel the alimony payments falling due after remarriage. While it was clearly pointed out in the opinions and we hold herein that the statute does not apply to vested rights, it was also held, as we hold herein, that under the provisions' of the decree and facts presented, the remarriage statute did apply. An intermingling of the language concerning settlement of property rights and the expression “gross alimony” or provision for a lump sum, when payable in future instalments, does not ordinarily take the provision for the payment of alimony or support money out of the provisions of the statute nor render same inapplicable upon remarriage of the defendant. Miller v. Miller, 317 Ill. App. 447; Welty v. Welty, 195 Ill. 335; De La Gour v. De La Gour, 363 Ill. 545.

No precise nor hard and fast rule can be laid down for determining whether the right to alimony has become vested under the provisions of a decree embodying therein the terms of an agreement between the parties. Each case must be determined in accordance with the varying facts and circumstances presented by the entire language and provisions of the decree. Unless lawful provisions of the contract in question which becomes merged in the decree and the specific provisions of the decree itself, when so construed as a whole, make it clear and unambiguous that the statutory provisions are not applicable, the express discretionary or mandatory provisions of section 18 of the Divorce Act, as amended, will control, and will by implication become a part of the decree. Any other rule would tend to impair the salutory provisions and purposes of the statute as amended and would restrict the continuing discretionary powers and affirmative duties now lodged in courts of chancery by express legislative enactments.

Without unduly lengthening this opinion, we cannot undertake to comment on a number of cases cited by the defendant in an earnest effort to avoid the mandatory effects of the statute, which we do not deem to be parallel in fact nor controlling in principle under the specific facts and provisions appearing in the decree herein. The bankruptcy case cited by appellant concerning vested interests did not involve the subsequent marriage of the wife nor the mandatory effects of the remarriage statute as between the parties. The case of Smith v. Smith, supra, also dited by the appellant has been clearly distinguished from the applicable rule herein by the Appellate Court in its opinion in the case of Joachim v. Joachim, 267 Ill. App. 237, wherein the right to modify the decree was sustained and the decree affirmed. In the Joachim case, the original decree granted a divorce and provided that “pursuant to an agreement heretofore entered between the parties hereto, settling and forever disposing of their financial rights and obligations due to the marital relations between them, that the defendant shall pay to the complainant the sum of $325 per month from the entry of this decree up to and including the month of September, 1928, and that the defendant shall thereafter pay to the complainant the sum of $300 per month, beginning with the month of October, 1928, and every month thereafter until and up to the time of the complainant’s death or remarriage.” Then followed provisions for payment of certain moneys and delivery of certain furniture, chattels and $5,000 in bonds to the wife. Subsequently, a verified petition under section 18 of the Divorce Act, supra, was filed on November 13, 1931, setting forth the changed income and financial condition of the defendant, owing to his “ unemployment and his depleted financial condition,” and praying for modification of the decree so as to reduce the subsequent payments to $50 per month. There, as here, it was contended that ‘‘the court, pursuant to the agreement of the parties, embodied in its decree the terms of the financial settlement between them”; and that “the court had no jurisdiction to hear the petition of the defendant, hear evidence thereon and determine the issues, and modify the alimony terms entered by agreement of the parties and embodied in the original divorce decree. ’ ’ The court held, however, that ‘ ‘ This contention has been settled, and adversely to complainant in Herrick v. Herrick, 319 Ill. 146, 149 N. E. 820” and other cited cases. In distinguishing the Smith case, the court in the Joachim case, pointed out that the Smith ease, in holding that the first decree was res judicata as to previous conditions authorizing alimony in the decree and that only a change in conditions would justify a modification of the decree, under the statute, had thereby expressly approved the ruling in case of Herrick v. Herrick, supra, and further stated that because the petition in the Smith case made charges of fraud in respect to procurement of the agreement in regard to alimony embodied in the decree, and sought to have the same reviewed by petition under section 18, the court held that charges of fraud were not subject to review under section 18 and that if petitioner felt that she was entitled to relief from the agreement as to alimony, embodied in the decree on such grounds, she should seek relief under the general equity powers of the court.

While appellant has further stressed the fact that she released an inchoate dower interest in appellee’s remaining real estate or lots, the value of which is not shown by the record, the fact also remains that by the executed property settlement, -she received valuable real estate free of all incumbrances, which were assumed and subsequently paid by the husband, together with valuable personal property free and clear of any claim of the husband, in addition to the payment of all accrued alimony which had vested in or become due and payable to her prior to the date of her remarriage, and that each relinquished all rights and claims in and to the property of the other growing out of prior marital relationship. As in Adler v. Adler and other cases cited, supra, similar provisions providing for release of dower or other marital rights were set forth in agreements and merged in the decrees but the mandatory provisions of amended section 18 concerning remarriage, were held to apply and to be controlling therein.

Appellee’s contention that the financial condition of the parties had materially changed and that his income and assets had greatly shrunken since the original decree was entered would only become material if he sought a modification of the allowance under the sound discretionary powers lodged in the chancellor by applicable provisions of section 18 of the statute, supra. Such facts are not material under the 1933 amendment to that section concerning the mandatory effect of remarriage upon all future alimony-payments. Adler v. Adler, 373 Ill. 361.

We hold herein that the right of the defendant to payments due and accruing prior to the date of her remarriage became a vested right which could not be changed nor modified by the court under section 18 of the Divorce Act, but that future accruing payments which became due and payable under the terms of the decree subsequent to the date of her remarriage were not vested rights but were held subject to and controlled by the specific provisions of section 18 of said act, as amended, which became binding both upon the parties to the decree and upon the court herein and by implication a part of the decree. Adler v. Adler, supra; Miller v. Miller, supra; Welty v. Welty, supra; Bush v. Bush, supra; Craig v. Craig, supra. The terms of the decree as to the property rights having been fully executed by the parties and all payments of alimony which accrued and became vested thereunder, having likewise been paid to the date of defendant’s remarriage, the trial court properly held and decreed that subsequent instalments or periodic payments were discharged by the terms of the statute.

The chancellor below did not err in releasing and absolving plaintiff from, the payment of the instalments of alimony which fell due or became payable and remained unpaid subsequent to the date of September 28, 1941 when the defendant appellant remarried, nor in releasing and discharging his real estate from any lien for the payment thereof. We find no error in the record and the order appealed from is affirmed.

Order affirmed.

Mr. -Presiding Justice Dadt

Dissenting : I do not agree with the majority opinion.

In the present case the parties were married in 1912 ' and lived together until 1940. Two. children were born of the marriage, aged respectively 28 and 26 years at the time of the decree. Apparently the husband had accumulated and had considerable property. The decree found that the wife was not employed and was ‘ devoid of any financial means wherewith to provide support for herself,” but that the husband was gainfully employed and received from such employment $600 per month. While the record is silent as to whether the wife contributed any moneys, I believe it is a reasonable presumption that she looked after the household duties including the care of the children, thereby better enabling the husband to accumulate such property. In this situation the wife obtained a decree of divorce which adjudicated the husband guilty of desertion. The record is silent as to the value of the property owned or retained by the husband, and does not show the value of the home conveyed to the wife.

Under the terms of the property settlement agreement, made by the parties and approved by the decree, the wife was to receive a deed to the dwelling occupied «by her, freed from an existing mortgage; the husband agreed to pay her the sum of $4,500 as “gross alimony,” $500 upon the rendition of the decree and the balance in monthly instalments of $100 each; and the wife was to convey to the husband all of her right and interest in and to all of the remainder of the real estate owned by the husband; and the decree provided that all property then owned by the parties should be owned by them respectively “free and clear of all claims and demands of the other whatsoever including dower, homestead, widow’s award or alimony. . . ."

It is conceded that the decree was a consent decree so far as the question of the settlement of property rights was concerned.

Apparently all of the decree has been executed in full except as to the provision for the $4,500 payment to the plaintiff, on which the sum of $2,100 had been paid at the time of the filing of the petition.

The first and principal question is whether the proviso added to section 18 of the Divorce Act by the 1933 amendment which provided “that a party shall not be entitled to alimony and maintenance after remarriage,” properly applies to the portion of this decree providing for the payment by the husband of the sum of $4,500 to the wife as gross alimony. The entire case of the appellee depends upon what construction is to be given to the words contained in such proviso, and particularly on what meaning is to be given to the word “alimony” as so used. If by such use of the word “alimony” the legislature did not mean or refer to alimony in gross, but merely meant a periodic allowance made to a woman on a decree of divorce for her support out of the estate of her husband, then in my opinion the husband has no standing in court in this proceeding, and the judgment of the trial court should be reversed.

Alimony has been defined to be “that allowance which is made to a woman on a decree of divorce for her support out of the estate of her husband.” (Stillman v. Stillman, 99 Ill. 196, 201; Adler v. Adler, 373 Ill. 361.) Alimony is an allowance out of her husband’s estate made for the support of a woman legally separated from him. (Webster’s Dictionary.) It generally takes the form of periodic payments which continue until some change in circumstances makes future support unnecessary. Where alimony takes the form of periodic payments only, the remarriage of the party entitled to such payment, even prior to the 1933 amendment to section 18 of the Divorce Act, was generally considered a sufficient reason to relieve the other party from continuing further payments. (Stillman v. Stillman, supra). The amendment simply embodied the practice as it theretofore existed. (Adler v. Adler, supra.) Alimony is not founded on a contract express or implied, but on the natural and legal duty of the husband to support the wife. (Audubon v. Shufeldt, 181 U. S. 575; Tuttle v. Gunderson, 254 Ill. App. 552.)

Applying to the decree in question the foregoing definitions and rules of law concerning alimony, it is my opinion that the allowance of “$4,500 as gross alimony” was not in fact alimony as defined by our courts of review or as meant by the legislature in such proviso in section 18 of the Divorce Act, for the reason that the decree as to so-called alimony did not provide for a mere allowance for the support of the wife, and for the reason that, although the contract was merged in the decree, yet the provisions of the decree as to alimony were in fact founded on the contract, and for the further reason that on the record as presented in this case the trial court, in the absence of the contract, could not properly have made a decree giving the wife either such lump sum in money or tlie dwelling house in fee. (See Bissett v. Bissett, 375 Ill. 551.) If such provision were for mere alimony as so defined and used, that is merely for the support of the wife, then why did the court order him to convey to her the house and to pay her $4,500 regardless of whether she might survive him and regardless of how long she might live ?

All of these considerations indicate that the provision for the $4,500 payment was not a mere alimony provision to provide for the future support of the wife by means of periodic payments, but that such provision was an integral and inseparable part of a property settlement under which the husband among other things irrevocably bound himself to pay his wife the sum of $4,500.

The majority opinion refers to the provision for the $4,500 payment to the wife as “ ‘alimony to maintain herself’ according to the husband’s station in life.” As a matter of fact the decree clearly refers to the gross alimony in question as being an integral part of a property settlement. The language of the decree is plain and unambiguous, and of course the words used therein must therefore speak for themselves, regardless of any undisclosed intention of the litigants or of the chancellor who adopted and approved the words chosen by the litigants. (See Ford v. Witwer, 383 Ill. 511, 515.)

From my examination of the authorities it appears to me to be the settled law of this State that where a decree incorporates a property settlement agreement which, as a part thereof, provides for the payment of alimony in a definite gross or lump sum, such decree is final and not subject to modification under section 18 of the Divorce Act.

One of the earliest cases announcing this principle is Plaster v. Plaster, 47 Ill. 290 (1868) in which the trial court found “that the defendant was at that.time worth one thousand dollars, one-fourth of which was decreed ‘to the wife’ as her absolute property, and as alimony.” Several years later the wife filed a petition asking that she be allowed additional money for the support of her child and for further alimony. The former husband filed a demurrer which was sustained and the petition was dismissed. On the question of further alimony for the support of the former wife the court said: “As to the question of further alimony, we are aware of no principle of law which would authorize it. At the time the divorce was granted, plaintiff in error received one-fourth of the value of the entire property of her husband, as her sole and separate property, as her alimony. The division was liberal, and being in gross, it must be held to be in full of all claims of alimony. Had it been a yearly sum then the alteration of the circumstances of the parties might, in many cases, be such as would require its reduction or increase in amount. But, where a gross sum is decreed and received for, or in lieu of, alimony, it must be held to be in full discharge and satisfaction for all claim for future support of the wife. When they are divorced, they, from that time forward, cease to have claims on each other, and all marital rights and duties are at an end. Having discharged the duty of her support, by paying to his former wife the gross sum decreed in lieu of alimony, she ceased to have any more claim on her former husband for her support, than she has on any other man in the community. The decree fully terminated the relation, and with it, its rights, duties and obligations.”

In Buck v. Buck, 60 Ill. 241, a consent decree awarded the wife, among other things, $12,000 as gross alimony. The husband appealed and the Supreme Court said: “It sufficiently appears from the recitals in the decree, that the whole question of alimony was fixed and settled by the agreement of the parties, . . . Having consented to these provisions of the decree, the plaintiff in error can have no relief against the force of his own voluntary agreement. Whether the alimony is too high, . . . it is not now necessary for us to express an opinion. It was competent for the plaintiff in error to consent to such a decree and having done so, it must remain forever binding on him.”

In Maginnis v. Maginnis, 323 Ill. 113, the court said: “Where the decree of divorce awards a sum in gross for or in lieu of alimony the decree will be regarded as final, and the gross sum, when paid, will operate as a discharge and satisfaction of all claim for future support by the wife, . . . but where the provision for alimony in the decree takes the form of a periodic allowance, section 18 of the Divorce Act . . . provides that 'the court may, . . . make such alterations in the allowance of alimony and maintenance, ... as shall appear reasonable and proper.'”

In Smith v. Smith, 334 Ill. 370, under the terms of a consent decree adjusting the property rights of the parties, it was provided that the husband on the entry of the decree was to pay the wife the sum of $3,000 in cash, to sign over to her a first mortgage for $6,500, and also to pay her the sum of $250 per month so long as she lived and remained unmarried. Four years later the wife filed a petition for modification of the decree, alleging among other things that she had been fraudulently induced to accept a smaller sum of alimony per month than she would have otherwise accepted. After a hearing the trial court entered a decree increasing the monthly payments from $250 to $400 per month. On appeal the Supreme Court said: “The decree for support and maintenance was a consent decree, and as such must be regarded as a contract between the parties to the suit. . . .

While husband and wife may not enter into an agreement for divorce, yet the amount of alimony the husband shall pay to the wife, the terms of the payment and the length of time payment is to be made may be arranged between them by consent. When they agree upon alimony the court will embody the agreement in its decree, and it will thereafter conclude the parties. . . . The consent decree did not affect the question of divorce, which is beyond the power of the parties to adjust by agreement or collusion. As a contract it is binding on the parties unless induced by fraud. If so, it must, like any other contract, be attacked by some method recognized by courts of equity for re-, lief from fraud. ... It is presumed, and from the negotiations it is clear, the defendant would not have parted with the items composing the settlement if as compensation he was not assured that the gross payment and the trust agreement were in full settlement of all claims on her part for alimony. The parties did not rely upon the equity powers of the court for the adjustment of their marital rights so far as property was concerned. They did what they had a legal right to do — adjusted those rights by mutual agreement. Like any other agreement upon full consideration, the parties are concluded hy it in the absence of fraud, and that question is not open for consideration in this proceeding.”

The only distinction I can perceive between the case before us and the foregoing cases is that the husband in this case was permitted, by the terms of the agreement and decree, to pay the gross or lump sum settlement in convenient instalments. This presents the question whether the otherwise final nature of the decree was changed by reason of the fact that the gross alimony awarded to the wife was made payable in instalments.

This precise question was passed upon in McKey v. Willett, 248 Ill. App. 602. In that case the divorced wife became a voluntary bankrupt and assigned to the trustee in bankruptcy $6,000 which was to become due to her from her former husband as alimony under the provisions of a decree entered by agreement in a divorce proceeding. The decree provided that the husband, in settlement of all claims the wife might have against him, pay to the wife certain payments including three $2,000 instalments, due one, two and three years respectively from the date of the decree, which were the payments involved in the bankruptcy proceeding. The trial court held that the assignment which the wife had made of these payments to the trustee in bankruptcy was void. On appeal the Appellate Court reversed the trial court, holding that the alimony though not yet due was alimony in gross and was vested and passed to the trustee under the assignment. The court there said at page 605:1 ‘ There is a well-recognized distinction, under - decisions in Illinois and elsewhere regarding awards of alimony, between those ‘in gross’ and those where periodic payments (monthly, quarterly or yearly) are ordered made to the wife within the joint lives of the parties or until the wife remarries. . . . And it is the law that ‘where, a sum in gross is allowed, it may be made payable in instalments.’ (19 C. J. 261, 608; Winemiller v. Winemiller, 114 Ind. 540, 541; Bassett v. Waters, 103 Kan. 853, 855; Smith v. Rogers, 215 Ala. 581, 112 So. 190, 192.) ”

The McKey v. Willett case was followed by the U. S. Circuit Court of Appeals (7th circuit) in another bankruptcy case, In re Fiorio, 128 F. (2d) 562, decided in 1942.

In both of such cases it was necessary for the court to determine that the decree in question was final and not subject to modification in order to conclude that a vested property right passed to the trustee.

Other courts of respectable authority have expressly held that an award of alimony in gross is not transmuted into an ordinary alimony decree because the decree permits the gross sum to be' paid in instalments.

In Jones v. Jones, 216 Ky. 810, 288 S. W. 737, the court said: “It will be observed that by the judgment the wife was allowed a lump sum by way of alimony. The fact that this lump sum was to be paid at the rate of $25 a month until satisfied did not make it any the less a permanent allowance for alimony. The wife being divorced from the bonds of matrimony, the allowance to her represented all interest she had in her husband’s estate. It was not a mere allowance for support, it was an allowance in lieu of the interest she had in her husband’s estate as his wife. If he, after the judgment, had become a millionaire, or if she had failed in health, or lost all the property she had at the time of the judgment, neither event would have affected the • rights of the parties, for their rights were fixed by the final judgment entered pursuant to the mandate of this court. Whether she remained single or married again was immaterial.”

In Smith v. Rogers, 215 Ala. 581, 112 So. 190, it was held that an allowance in gross, without reservation of power to modify, became a vested right entitling the wife, upon the husband’s decease to recover the unpaid amount from his estate. The court said: “There is no escape from the conclusion that a decree for alimony in gross, if without reservation, becomes a vested right from the date of its rendition and survives the death of the husband. Differing from a mere periodic allowance for current and continuous support, it is intended to effect a final termination of the property rights and relations of the parties, and is an approximate appraisal of the present value of the wife’s future support, and, in a measure, a compensation for her loss of inchoate property rights in her husband’s homestead and other estate given to her by statute in case of her survival. . . . The decree, therefore, has the effect of a final judgment for the payment of money, and is as binding upon the estate of the husband as upon himself while living. The fact that the decree allows the award in gross to be paid in installments does not change its nature or effect. The decree in this case might have been for the present payment of the whole amount. The concession of payment in five installments was for the convenience and benefit of the husband, merely, and the chance circumstance of his death before all were paid cannot, in justice or reason, absolve bim from the obligation to pay, through his personal representative, or through the judicial enforcement of the decretal lien fastened on his property, when and as the deferred payments became due. . . . We need not, and do not, consider what the rule would be where the decree is for periodic payments for an- indefinite period, for the care and support of the wife.”

In Beard v. Beard, 57 Neb. 754, 78 N. W. 255, wherein a lump sum in money had been allowed the divorced wife, payable in instalments, the court said: “The alimony awarded the wife in this divorce suit was a sum in gross, meant and intended by the court to be in lieu of her dower, homestead, and all her other rights and claims against the property of her husband. It was, in effect, a decree awarding the wife a money judgment for her share of the common property of the husband and wife upon the dissolution of the marriage. . . . Such a judgment becomes a positive, final, and conclusive one, and cannot be changed or modified after the term at which it was rendered except for the causes and in the same man-, ner that other judgments may be modified.”

The appellee relies and the majority opinion is based principally on the cases of Adler v. Adler, 373 Ill. 361; De La Cour v. De La Cour, 363 Ill. 545; Herrick v. Herrick, 319 Ill. 146; Welty v. Welty, 195 Ill. 335; Thompson v. Menteer, 216 Ill. App. 470; and Miller v. Miller, 317 Ill. App. 447.

In Adler v. Adler, 373 Ill. 361, the court did not pass upon the question of whether a final settlement in gross, as in the present case, is such a settlement as is beyond the power of the court to modify or change, for, on page 363 of the opinion the court said: “The question presented is whether the provision in the supplemental instruments of December 1, 1922, and the decree of December 2, for the quarterly payment of $1150, was an allowance of alimony and subject to modification under section 18 of the Divorce Act, or was it a final settlement in gross, of all the interest of the parties arising out of the marital relation,' and, therefore, beyond the power of the court to modify or change.’.’ In deciding this question the court said at page 371: “Respondent urges it was a settlement in gross and therefore not subject to modification. The answer is that the number of quarterly payments petitioner would be required to make was uncertain for it was dependent upon the date of death of respondent, and not upon their total reaching a predetermined sum.’’ While the court did not there expressly say what its position would have been if the amount had been for a definite lump sum, payable on a definite date or dates as in the case before us, yet if there is any inference to be drawn from such lan.guage, I believe the inference is that a settlement in gross is not subject to modification.

In De La Cour v. De La Cour, 363 Ill. 545, the decree provided for the payment of the sum of $3,000 in monthly instalments of $50 each. No other portions of the decree are set out in the opinion and it is impossible to determine therefrom whether this sum was to be paid as a part of a final property settlement or not. Several months after the entry of the decree, the divorced husband filed in the same proceeding a petition asking that the trial court find that he had made all monthly payments up to a certain date, and asking that the divorced wife be restrained from interfering with his personal liberties. The trial court “entered an order that the divorce decree, to the extent it provided for payments of alimony in instalments, be satisfied of record, to and including the payment due on” a specified date, and enjoining the wife from interfering with the personal liberties of the husband. The Supreme Court affirmed such order of the trial court, holding that the trial court had continued jurisdiction under section 18. I do not consider this decision in point for the reason that the provision of the original decree for the payment of a lump sum, payable in monthly instalments, was not disturbed and was not attempted to be disturbed.

In Herrick v. Herrick, 319 Ill. 146, a property settlement agreement was incorporated in the decree, which, among other things, provided that the husband should pay the wife $300 per month during her lifetime for her support and maintenance. Bight years thereafter the husband filed a petition setting forth a change in circumstances and asking that the court modify the provision for alimony. The trial court granted this relief and the Supreme Court affirmed such action, holding that the trial court had continued jurisdiction under section 18. It will be noted from a reading of the case that the question of the power of the court to modify a decree for a definite gross lump sum was not in issue and was not discussed. It will also be noted that the amount awarded was not for a definite lump sum, for, as said in the Adler case, “the number of . . . payments . . . was uncertain for it was dependent upon the date of the death of” the wife “and not upon their total reaching a predetermined sum. ’ ’

In Welty v. Welty, 195 Ill. 335, the decree provided “That complainant, Catherine Welty, shall have the sole care, custody and education of their children, Robert, Matthew and Leslie Welty; that the defendant, Robert A. Welty, shall pay to the said Catherine Welty $25.00 on the first day of each month for a period of eight months, commencing June 1, A. D. 1899, and continue until the sum of $200.00 is paid, said sum to be in lieu of and in full for alimony and in full of all other claims of any kind or nature.” The husband attempted to escape a contempt order by contending that this was an ordinary decree for the payment of money rather than a provision for the payment of alimony. The court found this contention to be without force stating that the “whole decree, when all of its parts are read together, is a decree for the payment of so much money for alimony, and shows upon its face that such sum of money was to be paid for the support of the appellee and for the care, custody and education of the children.” By reason of the fact that the payments in the Welty case were to be used for the support of the children as well as that of the wife, the court would have had a continuing power to change this provision of the decree irrespective of the provisions of section 18.

In Thompson v. Menteer, 216 Ill. App. 470, there was involved only the question of the payment of $30 per month during the life of the father of the wife, and until a minor son of the parties should arrive at the age of 21 years. This was for an indefinite period or a period that could not be determined at the time of the entry of the decree, and the gross amount of such payments could not be, and were not, by the decree determined as being for any definite lump sum. The court said: “We think it clear that since the decree provided for monthly payments it cannot be said that the alimony was for a gross sum.”

In Miller v. Miller, 317 Ill. App. 447, although it appeared that the parties had entered into an agreement regarding the question of “alimony and adjustment of property rights,” -which was incorporated in the decree, the opinion of the court does not show what property rights were actually involved in the settlement, or whether the wife released any property right, such as inchoate dower. The decree ordered the husband to make monthly payments of $175 per month for a specified time, and thereafter $150 per month for a specified time, $15 per week of such payments to be for the support of a minor child. The agreement provided that the payments between March 1940, and September 1943, were not to be affected or modified by the remarriage of the wife. The wife remarried on May 30, 1941, and on June 23 following, the husband filed a petition praying that the decree of divorce be modified so as to relieve him from further payments of alimony after his wife’s remarriage. The Appellate Court held that section 18 of the Divorce Act applied and that the alimony awarded was not for a gross sum, saying that the decree provided that the payments were “for alimony and support,” and saying, “we think it clear that this was not alimony awarded for a gross sum.”

In the Miller case, there was no reference in the decree to “gross alimony” and the amount to be paid was not expressly set at a lump sum by the terms of the decree.

If the law in this State is that where a definite gross allowance of alimony is made payable in instalments, it is thereafter subject to modification because of the remarriage of the wife, then it would seem to follow that a wronged wife whose husband is unable to make immediate cash payment, cannot safely agree to have an extension of the time of payment of gross alimony incorporated in a decree, and such wife cannot get the same relief as a wife whose husband is able to pay cash, and that this is true whether such wronged wife thereafter remarries or remains single. Such a rule does not appear to me to be based on sound principles of law or equity. If such is the law, then it would also seem to follow that, regardless of the question of remarriage, any decree for gross alimony payable in future instalments, is subject to modification so that the wife may get more or the husband pay less because of changed conditions of either party. Undoubtedly a great many decrees have been entered in this State for gross alimony payable in instalments where payment in full has not yet been completed. If the majority ruling is the law it would also seem to follow that if the beneficiary under such a decree dies before payment is fully made then the unpaid balance will not be an asset of the estate of such beneficiary and the husband will be relieved from further payment under said section 18. I do not believe that the legislature intended any such results by the use of any of the language used in section 18. When the literal enforcement of a statute will result in great injustice and lead to consequences which the legislature could not have contemplated, the courts are bound to presume that such consequences were not intended and adopt a construction that it may be reasonable to presume was contemplated by the legislature. (Hoyne v. Danisch, 264 Ill. 467, 484.)

It is my conclusion that the proviso to section 18 of the Divorce Act was not intended to and does not apply to a definite lump sum allowance of alimony made as part of a property settlement agreement incorporated in the decree; that this is true whether the money is payable on the entry of the decree -or in future instalments for the convenience of the parties ; and that the legislature meant only that a divorced wife after her remarriage should not be entitled to receive mere periodic payments of alimony which would otherwise accrue after such remarriage. In this case, in my judgment, no part of the $4,500 liability accrued after the entry of such decree, but the obligation to pay such sum of $4,500 became a debt accruing to the wife immediately on the entry of the decree, although payable in future instalments, and in my opinion this sum was not, nor was any part of it, alimony as that term is used in section 18.