author: MR. JUSTICE SEIDENFELD

text:
    Stanley J. Sims, Plaintiff-Appellee, v. Alfred G. Block and Mabel H. Block, Defendants-Appellants.
    Gen. No. 67-106.
    Second District.
    April 24, 1968.

      Reno, Zahm, Folgate and Skolrood, of Rockford, for appellants.
    Haye and Keegan, of Rockford, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

A suit was instituted by the plaintiff, a tenant, against defendants as his landlord, to recover damages for personal injuries sustained when the plaintiff fell on a ridge of ice and snow in a parking lot provided for the occupants of the defendants’ 48-apartment building. Trial by jury resulted in a verdict for plaintiff in the amount of $4,000. Defendants appeal from the judgment entered on the verdict. No question is raised on the pleadings.

Defendants raise as issues, whether the plaintiff was guilty of contributory negligence as a matter of law; whether defendants were guilty of negligence as a matter of law; and whether the jury was properly instructed.

On December 15, 1964, at 11:00 o’clock p. m., after parking his car in a parking space, the plaintiff was injured while alighting from his car. In so doing, he stepped from the driver’s side of his car onto a built-up ridge of ice and snow, causing him to fall and severely fracture his left leg. The space into which he drove his car was bare, evidently because another car had previously been parked there for some time.

The plaintiff and his daughter provided the only description of this built-up area of ice and snow. The plaintiff’s very brief account of his fall described how he slipped off a ridge of snow covered with ice. His daughter examined the area the afternoon following the accident and testified that she observed a 5 to 6-inch ridge of snow and ice along the left side of her father’s parked car, still located in the position it had occupied the evening before.

Three persons who had rendered immediate aid to the plaintiff after his fall, furnished no information about this snow and ice accumulation. The defendant and an employee, Mr. Ebert, testified they felt the lot was cleared of snow and ice “as much as possible,” by a snow plowing operation performed by Mr. Reali on December 5, 1964. This date was ten days prior to the plaintiff’s fall. Defendant, Alfred Block, conceded in his testimony that he was at the parking lot every day between December 5th and December 15th; that water and moisture drained to some extent from the surrounding higher ground to the east down into the parking lot; that on December 15th there were spots in the lot where the snow melted “and it might have been frozen.” He testified to some snow being left on the lot after the plowing.

Meteorological records revealed that a series of snowfalls ended on December 5, 1964, and as of that date the snow on the ground in the Rockford area measured eight inches. There had been no appreciable snowfall in the intervening 10 days, but warming weather and resultant thawing had reduced the ground snow cover to one inch by December 15, 1964. Defendant, Alfred Block, testified that in the interval between December 5th and December 15th there was a thaw and freeze which formed ice all over town.

In describing the manner in which he normally cleared the defendants’ lot, Mr. Reali stated he used a plow to push the snow into a pile in the center of the lot. The parking lot surface was crushed stone, and although dry wells had been installed, the drainage pattern was not depicted. Cross-examination of Reali and Ebert concerning the plowing procedure employed, reflected that if a parking stall was occupied by an auto at the time of plowing, the operator would simply plow around this parked car.

Although the snowplow was sketchily described, it is a fair inference from the record that the spillover of the snow as the plow skirted the parked car would have increased the depth of the snow at that location.

Turning first to the defendants’ contention that the plaintiff was guilty of contributory negligence as a matter of law, we note that the plaintiff admitted having two highballs after he left work at 10:30 p. m., after which he drove home and parked in the defendants’ lot. The plaintiff later told the hospital intern that he had consumed “several” drinks before he fell. The defense contended that because the plaintiff used the word “several” in another context as denoting a number as high as “4,” this point lends support to their theory that the plaintiff was intoxicated at the time of the occurrence. The defendants further contend that the court erred in refusing to give defendants’ instruction number 8, which is IPI number 12.01.

The basis for tendering this instruction can only be drawn from the plaintiff’s admission that he had had two drinks, plus the testimony of defendants’ witness Gary Boetcher. This witness testified that he helped plaintiff Sims into Boetcher’s car and together with two other men, drove the plaintiff to the hospital. Boetcher smelled alcohol on the plaintiff’s breath, and while in the parking lot, had noted the plaintiff’s conversation “wasn’t too clear.”

The defendants did not inquire whether this, witness held an opinion as to the plaintiff’s state of sobriety or intoxication. Although the burden is on the plaintiff to prove his due care, when, as here, defendants seek to refuse this claim by proving that the plaintiff was in fact intoxicated, they must do more than to simply show the plaintiff had been drinking.

The conversation in the parking lot occurred after the plaintiff had sustained a severe and painful injury. Therefore, under these circumstances we are not impelled to equate this single factor, i. e. lack of clarity of conversation, with intoxication. There must be proof of an impairment of mental and physical facilities with the resultant diminution in the ability to think and act with ordinary care. Shore v. Turman, 63 Ill App2d 315, 322, 210 NE2d 232 (1965); Kitten v. Stodden, 76 Ill App2d 177, 180, 221 NE2d 511 (1966). These cases hold that “drinking, standing alone, cannot be equated with intoxication,” where the fact of intoxication is not itself the ultimate issue. We believe this rule is applicable in the instant case, and where, as here, the defendants introduce insufficient evidence to warrant the giving of the intoxication instruction, the court may properly refuse it.

The defendants contend that the evidence demonstrates contributory negligence as a matter of law. However, we hold that the plaintiff was not negligent as a matter of law. It is not negligence per se to go upon dangerous premises. Considering the evidence and the reasonable inferences to be drawn therefrom, as we must, we cannot say that all reasonable minds would agree that plaintiff was guilty of contributory negligence. The question of contributory negligence was properly one for the jury to decide. Fitzsimons v. National Tea Co., 29 Ill App2d 306, 320, 173 NE2d 534 (1961); Durkin v. Lewitz, 3 Ill App2d 481,494,123 NE2d 151 (1954).

We turn now to the question of whether the defendants were guilty of any negligence which proximately caused the plaintiff’s injury. The many Illinois “snow and ice” cases reveal that each case turns largely on its own facts rather than on the manner in which the rule of law is stated.

Initially, we feel that the standard of care required of a landlord who provides a parking lot for the convenience of his tenants, in no sense varies from the standard of care applicable in those instances wherein a store makes a parking lot available for its customers.

In both cases the parking lot is a convenience designed to attract the customers to the store and the tenants to the apartments. We believe, therefore, that each relationship dictates the application of a similar rule as to the care required. Durkin v. Lewitz, supra, 485-486.

The defendants as owners-landlords retained control over the parking lot used in connection with the apartment which they leased, for the common use of the various tenants. They, therefore, had the duty of exercising reasonable care to keep the premises in a reasonably safe condition for use by tenants. We see no reason to except conditions of snow and ice from this general duty. However, as to conditions of purely natural origin, such as snow and ice, the rule has been differently stated

in various jurisdictions, and even in our Appellate Court opinions, in different districts. The so-called “Connecticut rule” has been applied in the first district case of Durkin v. Lewitz, supra, 491, while this court has applied the so-called “Massachusetts rule.” We have held that the owner or possessor of a parking lot used in conjunction with a business operation is not liable for injury sustained by a business invitee in a fall on ice in a parking lot where the condition is a natural one and not caused or aggravated by the owner or possessor of the lot. However, liability may be incurred when snow or ice is not produced or accumulated from natural causes, but as a result of artificial causes, or in an unnatural way, or by a defendant’s own use of the area concerned and creation of the condition, and where the condition had been there long enough to charge the responsible party with notice and knowledge of the dangerous condition. Fitzsimons v. National Tea Co., supra, 318; Zide v. Jewel Tea Co., 39 Ill App2d 217, 222-223, 188 NE2d 383 (1963).

There is a further rule of law which must be examined in its application to the facts of this case. The fact is that defendants did make an effort to remove the snow from the common parking lot, irrespective of any question of the original duty with which they might be charged. The law is clear, that having so acted, defendants became charged with the duty of exercising ordinary care in accomplishing the clearing of the lot. They are charged with liability, because, having chosen to perform, they have thereby become subject to a duty in respect to the manner of performance. Jordan v. Savage, 88 Ill App2d 251, 232 NE2d 580 (1967); Roesler v. Liberty Nat. Bank of Chicago, 2 Ill App2d 54, 59-60, 118 NE2d 621 (1954); Nelson v. Union Wire Rope Corp., 39 Ill App2d 73, 121-122,187 NE2d 425 (1963).

The opinion of this court in Cronin v. Brownlie, 348 Ill App 448, 456-457, 109 NE2d 352 (1952), cited by defendant, does not conflict with the general rule stated above. For in that case, liability was denied on the basis of the conclusion that, because the defendant at an entirely different, and past, time had voluntarily undertaken to remove ice and snow, the defendant was not charged with the duty to do so on the occasion in question where no duty to remove the snow and ice was found under the particular facts. Here the duty was undertaken in connection with the very condition charged by the plaintiff as the cause of his injury.

Applying these rules to the facts of this case, we find that there is sufficient evidence from which the jury might have found, as a question of fact, that the defendants were negligent. There was evidence of a 5 or 6-inch ridge of snow and ice along the left side of plaintiff’s parked car where he testified he fell. Defendants testified that there was some snow left after the plowing and that there were spots in the lot where the snow melted after the plowing, which might have been frozen. There was evidence of warming weather and resultant thawing sufficient to account for an icy condition. Defendant, Alfred Block, was present at the lot each day during the ten-day interval between the plowing of the lot and the fall of the plaintiff, charging him with knowledge of the condition of the lot. There is no evidence that defendants, in that interval, acted in any way to remedy the condition. The facts place this case within the purview of the Fitzsimons case, supra, and distinguish it from the Zide case, supra.

Under these circumstances the question of defendants’ negligence in creating an unnatural condition was properly one of fact for the jury to decide.

The judgment will be affirmed.

Judgment affirmed.

ABRAHAMSON, P. J. and MORAN, J., concur.


source: Caselaw Access Project

author: CULBERTSON, J.

license: Public Domain

text:
    Clyde Nielsen and Inger Nielsen Keesler, as Beneficiaries of the Will of Effie M. Gatrel, Deceased, Petitioners-Appellants, v. Germaine A. Duyvejonck, as Executor of the Will of James Frederick Gatrel, Deceased, Respondent-Appellee.
    Gen. No. 67-63.
    Third District.
    April 25, 1968.

      Joseph R. Rosborough, of Moline, for appellants.
    Myron Murphy, of Rock Island, for appellee.
   CULBERTSON, J.

This case presents as its principal issue the construction of the will of Effie M. Gatrel, deceased, and arises from a controversy between remaindermen and the executor of the estate of the life tenant.

The decedent, Effie M. Gatrel, died on March 21, 1944. By her last will, dated March 26, 1943, she first directed the payment of her funeral expenses and just debts, and then disposed of the balance of her estate as follows:

“All the rest, residue and remainder of my Estate, real, personal or mixed, and wheresoever situate, I give, devise and bequeath to my beloved husband, James F. Gatrel, to have, use and enjoy the same during the term of his natural life, with full power and authority to sell or dispose of any part thereof, whenever in his sound discretion he shall deem it necessary for his comfort and support.
“Upon the death of my said husband, if there shall be left any of my said Estate, I give, devise and bequeath ... (in shares to designated remainder-men) .”

It may be interjected at this point that the parties are in accord that the power to convey the fee annexed to the life estate did not enlarge the devise of the life estate into a fee. See: Rock Island Bank & Trust Co. v. Rhoads, 353 Ill 181, 140, 187 NE 139; Barton v. Barton, 283 Ill 338, 340,119 NE 320.

Effie’s will was admitted to probate on June 22, 1944, and the husband-life tenant qualified as executor. He was then just short of 60 years of age and was an employee of the Burlington Railroad. An inventory was filed, which fixed no values, and reflected that Effie’s personal property consisted only of a Hudson automobile, while her real property was comprised of two city lots in Rock Island. Both such lots were income properties, one being improved with a duplex residence and the other being partly occupied by a gasoline station. The station had been leased to Skelly Oil Company on September 2, 1939, for a ten-year period at a rental of $100. In addition, at the time of Effie’s death, the lot upon which the station was located was encumbered by a mortgage payable in monthly installments of $100. Just how, or where, Gatrel obtained funds to pay funeral expenses, debts (if any), and costs of administration in his wife’s estate does not appear in the record before us. In any event, on November 24, 1944, five months after the admission of the will to probate, Gatrel sold the duplex property for $8,500. The following day he paid the principal balance of $5,231.64 on the gas station mortgage.

Gatrel survived his wife by some 20 years and in that period the following events occurred: (1) On March 1, 1945, he reached age 60 and retired from the railroad. He received a monthly pension of $48 until 1956 or 1957, and $80.90 per month thereafter; he did not receive Social Security benefits. So far as the record shows, he was never again gainfully employed. (2) In March, 1949, he leased the gas station to Skelly for a five-year period at a rental of $175 per month, being required by the lease to pay taxes and to maintain the station and its equipment in a tenantable condition, except for painting. (3) The same year, on November 24, 1949, he sold the east 50 feet of the filling station lot for $4,000, his deed reciting: “This conveyance is made pursuant to the provisions of the second paragraph of the last will of Effie M. Gatrel, deceased, and the Grantor hereby certifies that he deems this conveyance necessary for his comfort and support.” (4) On September 26,1951, Gatrel entered into a contract to sell the balance of the station property to parties named Showalter for the sum of $12,000, payable $2,000 down and then at a rate of $125 or more monthly. Under the contract, Gatrel agreed to pay general taxes and to make ordinary repairs. (5) Two days later, on September 28, 1951, Gatrel mortgaged the filling station property for $10,000, an indebtedness he paid off at the rate of $125 a month, with the final payment being made in May, 1959. In their brief, petitioners suggest that Gatrel used the money realized from the mortgage to purchase some real property in Henry County; however, we find nothing in this record which permits us to conclude or infer that such was the case. Indeed, there is no proof as to when or how he acquired such property. (6) On December 31, 1958, Gatrel and the Showalters entered into a new lease with Skelly, this time at a monthly rental of $325, wherein the lessors were obligated to pay taxes and to maintain the premises and equipment. (7) Under date of February 15, 1959, he entered into a contract with parties named Herdt to sell the Henry County property, previously mentioned, for the sum of $9,655, payable at the rate of $80 per month. (8) Finally, on February 18, 1959, he conveyed the gas station lot to the Showalters “subject to the life estate of the grantor therein.”

Gatrel died testate on December 1, 1965, at the age of 80 years, and it appears that the last six months of his life had been spent in a hospital and a rest home. By his will, dated April 27, 1963, he disposed of his estate to persons other than the remaindermen named in his wife’s will and with its admission to probate the seeds for the present controversy were sown. Insofar as pertinent here, the inventory filed in his estate reflected personal property totalling approximately $14,200 as follows: (1) The sum of $1,397.29, being the principal balance due on the contract for the sale of the Henry County property; (2) a savings account of $12,391.75; and (3) a checking account of $400.24. His real property consisted of his home which he and his wife had owned as joint tenants at the time of her death. Having significance in light of later argument of the remaindermen, bank records show that there was but $7.43 in the savings account on the date of Effie’s death; that there was roughly $2,195 in it on November 20, 1944, when the duplex was sold; and $2,472 on February 18, 1959, when the gas station lot was conveyed. What the account balances were on September 26, 1951, when he entered into the contract to sell the gas station, and on November 24, 1949, when he sold the east 50 feet of the station lot, does not appear.

On July 21, 1966, the remaindermen named in Effie’s will, hereinafter referred to as petitioners, filed a pleading in Gatrel’s estate which was apparently intended to be a petition under section 187a of the Probate Act (Ill Rev Stats 1965, c 3, paragraph 187a), to recover personal property in the hands of Gatrel’s executor allegedly belonging to the petitioners. In substance, the issues and theories advanced by the petition were: (a) That there was no need, and thus no authority, for the life tenant either to resort to sale or to consume the proceeds thereof, and that his executor is therefore accountable, and his estate liable, for the total proceeds of the sales; or (b) that the $14,200 cash in Gatrel’s estate was in fact unused and unconsumed proceeds of the sales which were impressed with a trust for the benefit of petitioners as the remaindermen under Effie’s will. After the pleadings had been settled and after a hearing at which evidence was received, the Circuit Court of Rock Island County, treating the petition as one addressed to its general equity jurisdiction, resolved the issues for the respondent-executor, its order finding that there was no obligation upon the executor to account and that there was no property in Gatrel’s estate to which petitioners had right or claim. The petitioners have appealed, asserting that the trial court erred in refusing to order an account, and that the $14,200 should have been found to be impressed with a trust for their benefit.

In the brief filed in this court petitioners have abandoned their claim that the proceeds of the sales must be accounted for because Gatrel lacked authority to sell and, instead, now seek to base the accounting and their purported right to Gatrel’s entire estate upon a theory of trust, by extracting random trust principles from factually inapplicable decisions. Additionally, for the first time in their reply brief, petitioners seek to ground their right to relief on the theory that Effie’s will, while giving her husband the power of sale, did not give him authority to use or consume the proceeds of sale. (See: Barton v. Barton, 283 Ill 338, 119 NE 320; Frank v. Frank, 305 Ill 181,137 NE 151.) Although we are constrained to remark that we see little merit to either theory, particularly in view of the intent expressed in Effie’s will, it is sufficient to point out that they are not properly before us. It is well settled that a party cannot try a case on one theory in the trial court and on another theory in a court of review (Blanchard v. Lewis, 414 Ill 515, 521, 112 NE2d 167; Chicago Title & Trust Co. v. DeLasaux, 336 Ill 522, 529, 168 NE 640). Furthermore, we will not consider contentions made for the first time in a reply brief (Maca v. Rock Island-Moline City Lines, Inc., 47 Ill App2d 31, 197 NE2d 463; Posner v. Firemen’s Ins. Co., 49 Ill App2d 209,199 NE2d 44).

This leaves for our consideration the contention of petitioners that the $14,200 in Gatrel’s estate represents unused and unconsumed proceeds from the sales of the corpus of the life estate to which they are entitled under the terms of Effie’s will. While it may be agreed there are firm precedents upon which petitioners may base their claim to unconsumed proceeds (e. g., Bevans v. Murray, 251 Ill 603, 96 NE 546; Hollerich v. Gronbach, 342 Ill App 242, 96 NE2d 354), the issue before us is whether the proof is such that it may be concluded, or reasonably inferred, that the money in Gatrel’s estate is in fact, wholly or partially, unconsumed and unused proceeds of the sales.

Petitioners point to the circumstance that Gatrel’s savings account contained only $7.43 on the date of his wife’s death and, on such basis, insist that the money inventoried in his estate necessarily came “directly from his wife’s estate” and is therefore “the property of the petitioners.” There are, however, several basic fallacies and omissions in this argument, not the least of which is its apparent assumptions that Gatrel had no income of his own and that he was obligated to exhaust his own income and assets before using the proceeds from the sale of the trust corpus.

Effie’s will contains no direction, express or implied, that her husband had to exhaust his own assets before he could invade the corpus of the life estate (c. f. Hart v. Connors, 85 Ill App2d 50, 228 NE2d 273), but gave to him “full power and authority to sell and dispose of any part thereof, whenever in his sound discretion he shall deem it necessary for his comfort and support.” Quite obviously it was her primary purpose to provide for the comfort and support of her husband, and her intent that he should determine the amounts of corpus that would be required for his comfort and maintenance. He alone was to determine the need for sale and consumption and, except for the element of good faith, his judgment was not subject to the control of, or review by, the courts or questioned by the remaindermen (Rock Island Bank & Trust Co. v. Rhoads, 353 Ill 131, 141, 187 NE 139; 96 CJS, Wills, § 1067, p 712). Where the power to invade the corpus for maintenance and support creates an absolute charge on the corpus, and we think an absolute charge was intended by the testator here, it is held that the donee of the power is entitled to look solely to the corpus for maintenance and support, notwithstanding that such donee may have income and assets of his own. (In re: Walsh’s Will, 85 NYS2d 207; In re: Smith’s Will, 170 Misc 556, 11 NYS2d 945; In re: Workman’s Estate, 231 Iowa 1351, 4 NW2d 373; Attebery v. Prentice, 158 Neb 795, 65 NW2d 138.) Stated in another way, a life tenant whom the testator intends to have an absolute power to sell and consume, is under no obligation to deplete his own assets or income before exercising his power.

Analyzing the record of the present case in light of the foregoing principles and Effie’s expressed intent, it appears that Gatrel sold the corpus for $24,500 by three sales spread over a fifteen-year period starting shortly after his wife’s death, the fifteenth year ending on March 18, 1959, when the contract for the sale of the gas station property was apparently paid up and a deed delivered. Of the total received, the sum of $5,231.64 was used to retire the mortgage on the gas station, so that the actual amount he received for the sales of the corpus was $19,268.36. Averaged over the fifteen-year period between the first sale and the completion for the contract for the sale of the gas station, this comes to about $1,285 per year. During each of those fifteen years, as the trial court aptly pointed out, Gatrel not only had the expense of his own cost of living, but had the burden of paying taxes and maintenance on the gas station as well. And while the record does not show the total of such expenses, it is reasonable to infer that they were in excess of $1,285 per year and that none of the proceeds of sale were left unused or unconsumed. Turning to the savings account, the bank records show that the bulk of it was amassed between January 1, 1959, on which date it was $2,192.89, and Gatrel’s death in December, 1965, when it totalled $12,391.75. This represents an increase of $10,198.86 over the last six years of his life, and an average monthly deposit of about $141. Significantly, during the same six-year period Gatrel had a monthly income of $80.90 from his railroad pension, and was receiving $80 per month from the sale of his Henry County property, the total of which exceeded his average monthly deposits, and could alone account for the accumulation existing at the time of his death. We concur with the trial court that the evidence fails to show that the cash in Gatrel’s estate was, in whole or in part, unused or unconsumed proceeds of sale.

Nor, in our opinion, does petitioners’ proof permit a finding that Gatrel lacked good faith, or that he exercised his power of sale and consumption solely to deprive the remaindermen of their interest, so as to put his executor to the burden of accounting for the sums he realized. (See: Lord v. Roberts, 84 NH 517, 153 A 1; 19 ILP, Fraud, § 41.) There is no showing that he diverted the sales proceeds to purposes other than his comfort and support, and neither is there proof that he increased his style of living. (See: 96 CJS, Wills, § 1067, p 710.) In light of his age, his meager pension income and the probability that he would never again be gainfully employed, most certainly Gatrel could derive comfort in the fact that the sale of the properties would permit him to retain and save his own modest income for use in the event of emergency brought about by economic change, illness or death. All of his transactions, we believe, were consistent with the dominant intent of Effie’s will to give him the power and means to secure comfort and support out of her estate.

The judgment of the Circuit Court of Rock Island County was correct, and is therefore affirmed.

Judgment affirmed.

ALLOY, P. J. and STOUDER, J., concur.


author: STOUDER, J.

text:
    Mary Katherine Quagliano, Plaintiff-Counter-Defendant, Appellee, v. Francisco V. Quagliano, Defendant-Counter-Plaintiff, Appellant.
    Gen. Nos. 67-40, 67-74. (Consolidated.)
    Third District.
    April 25, 1968.

      William E. Steward, of Kewanee, for appellant.
    D. J. McRae, of Kewanee, for appellee.
   STOUDER, J.

In June, 1966, Plaintiff, Appellee, Mary Katherine Quagliano, brought this action in the Circuit Court of Henry County seeking a divorce on account of the physical cruelty of her husband, Francisco V. Quagliano, Defendant, Appellant. A temporary order granted custody of the minor children of the marriage to plaintiff and provided temporary support for plaintiff and the children. Defendant counterclaimed for divorce on the grounds of adultery. The issues were determined by the court without a jury and resulted in a decree finding that the allegations of neither the complaint nor counterclaim had been proved and both were dismissed. No appeal has been taken from the dismissal of the complaint but the defendant has appealed from the dismissal of his counterclaim.

The allegations of misconduct relied upon by appellant are contained in the following two paragraphs of his amended counterclaim. “5a. That during the years of 1960, 1961, 1962, and on or about March 1963, and at other times thereafter during the year 1963 at a trailer on Goodrich Street in Kewanee, Illinois, and at the premises known as 523 Tenney Street, Kewanee, Illinois, the latter premises being the home of the plaintiff and defendant, plaintiff in utter disregard and in violation of her marriage duties and obligations committed acts of adultery and had carnal knowledge with a certain male person, to-wit, Richard P. Anthony of Kewanee, Elinois, which acts of adultery were not known to the defendant until after the commencement of this action and which acts of adultery were not condoned by the defendant inasmuch as he had no knowledge of them at the time the defendant and the plaintiff were cohabiting as husband and wife. 6. That on or about the 31st day of May, 1966, at Kewanee, Elinois, and at a cabin at New Boston, Ill., and at various other times and places, since the said marriage, plaintiff in utter disregard and in violation of her marriage duties and obligations committed adultery and had carnal knowledge with a certain male person to-wit: Oliver D. Johnson of Kewanee, Illinois, and that defendant is informed and believes that said plaintiff has at divers other times and places unknown to defendant committed adultery with divers other persons unknown.” The appellee in her answer in response to Paragraph 5a. alleges “That any acts alleged in Paragraph 5a. were fully condoned by the defendant Francisco Quagliano, who on and subsequent to March of 1963 cohabitated in the same house with the plaintiff at 523 Tenney Street, Kewanee, Illinois, had customary marital relations with her and frequent sexual intercourse, resulting in her pregnancy in the summer of 1965, all of which course of conduct continued until the separation of parties about May 31, 1966, as mutually alleged by the parties.” The allegations in paragraph 6 of the counterclaim were denied by appellee in her answer thereto.

Appellant argues first that no act of adultery by appellee was condoned, second that adultery with Johnson as alleged in paragraph 6 of the counterclaim was proved and third that the acts of adultery admitted in the pleadings, if condoned, were revived by later misconduct.

Condonation, in the law of divorce is the forgiveness of an antecedent matrimonial offense on condition that it shall not be repeated and that the offender shall thereafter treat the forgiving party with conjugal kindness. Oilman v. Oilman, 396 Ill 176, 71 NE2d 50.

Paragraph 5a. of the counterclaim set forth above, was appellant’s third effort to set forth charges based on infidelity with Anthony. By such third amendment appellant for the first time alleged that the infidelity of his wife as alleged was without his knowledge and it was by virtue of this allegation that the counterclaim was permitted to stand. Appellant contends that a spouse cannot condone misconduct of which such spouse is unaware. Such argument assumes as its major premise that ignorance of any infidelity on the part of his wife is undisputed. Such assumption is not supported by the evidence.

According to appellant’s own testimony on an occasion sometime prior to March, 1963 he “corrected” his wife by beating her on the legs with his belt because of her relationship with Anthony. In March, 1963, he came home and found Anthony at his home and on this occasion he beat Anthony with a board. On the latter occasion it does not appear that anything improper was going on or that Anthony’s presence in the home was other than as a social guest. After the beating of Anthony, appellant left home for a few days but thereafter returned. The ensuing discussions between appellant and appellee concerning the incident satisfied appellant. Marital relations were resumed and according to appellant the parties were very happy until May, 1966. During such period appellee became pregnant although the pregnancy terminated in a miscarriage.

We believe the beating of appellee, the beating of Anthony, the subsequent separation and the resumption of the marital relation after discussions relating to the Anthony incident are indicative of appellant’s belief in his wife’s infidelity, and, judging from appellant’s conduct, a rather strong belief. Such circumstances and conduct are incompatible with appellant’s assertion of complete ignorance. The essence of condonation is the recognition that problems affecting the continuance of the marriage have arisen and notwithstanding the mistakes or misconduct which have occurred there is understanding and forgiveness sufficient to provide an appropriate basis for continuing the marriage. Condonation is not conditional upon the completeness of the disclosure made or the extent of knowledge possessed by the party alleged to be injured. If such were the case the beneficial results to the continuance of marriages deemed to derive from condonation would be frustrated since such condition could be said to exist in practically any case where the issue was raised. Rather we believe that where reconciliation has taken place based on the general or apparent belief in the infidelity of one or both of the partners to a marriage such reconciliation or condonation is completely effective. Moor-house v. Moorhouse, 90 Ill App 401. The court did not err in concluding that the infidelity with Anthony as alleged was condoned.

With respect to appellant’s argument that the evidence proves that his wife was guilty of adultery with Johnson as alleged in paragraph 6 of the counterclaim, we believe the trial court’s determination to the contrary is amply supported by the evidence. Appellant concedes there is no direct evidence of such adultery but seeks to elevate meager circumstantial evidence to a position of conclusive presumption. Adultery need not be proved by direct evidence but may be proved by circumstances from which such fact may be inferred as a necessary conclusion. Carter v. Carter, 152 Ill 424, 28 NE 948. The principal circumstance relating to any inference of appellee’s infidelity with Johnson is that his wife was in the company of Johnson from the early morning hours of Memorial Day, 1966, until about 11 o’clock the same night without the knowledge and consent of appellant. Appellee denied any misconduct with Johnson and the evidence offered in opposition to the circumstantial evidence is sufficient to support the court’s conclusion that no adultery occurred.

During the pretrial activities which were extensive, appellant requested an admission of facts under then Rule 18 of the Supreme Court Rules. Such request for admission included the fact that appellee had sexual intercourse with Johnson during the Memorial Day weekend of 1966. No denial of such fact was filed within 10 days as required by the rule and appellant now claims as required by such rule such fact stands admitted and establishes the infidelity of appellee with Johnson as a matter of law. We do not agree with this contention. It is true that no response to the request for admissions of fact was filed within 10 days as required by rule. However it also appears from the record that interrogatories had been served upon appellee containing questions of similar import to which objections had been filed. The propriety of the objections to the interrogatories was not determined until after expiration of the period for responding to the request for admissions. Subsequently the objections to the interrrogatories were overruled and thereafter appellee filed objections to the request for admissions which objections were later withdrawn and a denial of the facts alleged in the request for admission of facts was filed. Appellee did not apply for or secure any extension of time in which to respond to the request for admission of facts and did not seek or secure leave of court to file such denial. Appellant did not seek to strike such denial. On November 2, 1966, approximately two weeks before the evidence was heard by the court on the issues raised by the complaint and counterclaim, a docket entry indicates the request for admissions of fact was dismissed after hearing held. Appellant argues that this order was entered on the court’s own motion, was not pursuant to notice and no hearing was held. Much of appellant’s argument is outside the record, is contradicted by the record and fails to show why he did not seek to reverse or correct the order if in fact the order was improper as he argues. However in our view of the case the propriety of the order is immaterial. One of the purposes of the pretrial discovery procedure is the ascertainment of facts by admission or statement of a party or witness thereby reducing the likelihood that such fact will be a disputed issue requiring resolution by the court. So far as the record is concerned, the facts with respect to which admission was sought stand denied. Under such circumstances the admission of facts procedure cannot and does not affect the propriety of the decree.

Appellant next argues that even though the adultery of appellee with Anthony before March, 1963, be deemed to have been condoned nevertheless the conduct of appellee with Johnson in May, 1966, is sufficient to revive the original charges. This argument might be answered by simply saying that this issue is not raised by the pleadings since paragraph 5a. of the counterclaim alleges only that the acts were not condoned. It appears from the counterclaim that appellant was relying on two independent grounds for the relief sought namely either adultery with Anthony or adultery with Johnson and as we have heretofore held in this opinion we approve the trial court’s conclusion that any misconduct with Anthony was condoned and that with Johnson not proved. In view of the paramount interest of the state in matrimonial matters, issues not raised by the pleadings may be considered on review. Oilman v. Oilman, 396 Ill 176, 71 NE2d 50. However this rule has been applied in furtherance of the preservation of the marital relationship and no case has been called to our attention approving the consideration of grounds for divorce not urged in the pleadings.

Were the issues properly before us we believe nevertheless that a reversal of the decree is not required. It is true that the conditional bar of condonation may be removed where subsequent misconduct is shown even where such subsequent misconduct is insufficient to independently establish a grounds for divorce. Young v. Young, 323 Ill 608, 154 NE 405. However, such subsequent misconduct should be serious and substantial, otherwise the effects sought to be accomplished by the principles of condonation would be of little significance. We believe that the party seeking to remove the bar of con-donation in order to revive antecedent misconduct must show that the subsequent misconduct was not provoked by him. This we believe the evidence fails to show. In fact the evidence appears to be to the contrary. The incident with Johnson on Memorial Day appears to have been precipitated by a quarrel between the parties resulting in appellee running from the club followed by appellant yelling or shouting obscenities. Under such circumstances we do not believe that such conduct requires us as a matter of law to hold that a bar of condonation has been removed.

Appellant has argued at some length in his brief questions relating to the custody of the children of the marriage. Since we find no error in the trial court’s order denying a divorce to appellant and since the order denying a divorce to appellee is final no questions relating to custody of the children are presented.

The foregoing opinion relates to Appellate Court Case Number 67-40. After appellant had perfected his appeal from the order of the Circuit Court dismissing his counterclaim for divorce, appellee in the same proceedings in the trial court filed a petition requesting that appellant be ordered to pay reasonable attorney’s fees for defending the appeal. The Circuit Court ordered the appellant to pay $1,000 for such attorney’s fees and appellant has perfected a separate appeal from such order in Appellate Court Case Number 67-74, which cases have been consolidated for hearing and opinion.

The allowance of attorney’s fees on appeals in divorce matters is governed by Ill Rev Stats 1965, c 40, § 16, which provides, “. . . In cases of appeal by the husband or wife, the court in which the decree or order is rendered may grant and enforce the payment of such money for her or his defense and such equitable alimony during the pendency of the appeal as such court should deem reasonable and proper . . . .” Although appellant concedes that the allowance of attorney’s fees is discretionary with the court he insists that the trial court erred in awarding such attorney’s fees to appellee. We find appellant’s arguments unconvincing.

Berg v. Berg, 85 Ill App2d 98, 229 NE2d 282, and Jones v. Jones, 48 Ill App2d 232, 198 NE2d 195, are not authority for the proposition that findings of fact relating to petitioner’s financial inability to pay attorney’s fees or the ability of the respondent to do so are required if an order allowing attorney’s fees is to be deemed valid, rather these cases support the conclusion that hearings should be held if requested and that findings of fact may supply deficiencies which otherwise might exist.

In the instant case a full hearing was held on appellee’s petition for allowance of attorney’s fees. Evidence was heard on appellee’s financial needs, appellant’s ability to pay and the reasonableness of the attorney’s fees. We find it unnecessary to discuss the evidence in detail and need only say it is conflicting, that conflicting inferences can be drawn from the evidence and that the decision of the court is amply supported by the evidence.

For the foregoing reasons the decrees of the Circuit Court of Henry County are affirmed.

Decrees affirmed.

ALLOY, P. J. and CULBERTSON, J., concur.


author: MR. JUSTICE DAVIS

text:
    Kenneth Horcher, Plaintiff-Appellant, v. Mary E. Guerin, et al., Defendants-Appellees.
    Gen. No. 67-143.
    Second District.
    April 26, 1968.

      Frank M. Daly and William G. Rosing, of Waukegan, for appellant.
    Hall, Meyer, Fisher, Holmberg, Snook & May, of Waukegan, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

Kenneth Horcher, plaintiff, brought this action for injuries which he sustained while fighting a fire on premises owned by the defendants. The jury returned a verdict for the plaintiff; the trial court subsequently rendered a judgment for the defendants notwithstanding the jury verdict, and, in the alternative, ordered a new trial.

The plaintiff contends that the defendants were guilty of negligence in leaving their premises in a state of disrepair and in not demolishing the building; and that under the authority of Dini v. Naiditch (20 Ill2d 406, 170 NE2d 881 (I960)), they are, therefore, liable to the plaintiff.

The building owned by the defendants contained two stories. The first floor was occupied by a tire store; the second floor housed two apartments. In August of 1962, the defendants were notified by the City of Waukegan that the building was in a dangerous and unsafe condition, in violation of certain city ordinances, and that it either should be repaired or demolished. After such notice, the tenants moved out and the building was not thereafter leased to anyone. The owners advised the City that they were attempting to sell the building, and no repairs were made.

In April of 1963, the City sent another letter to the defendants and again repeated the ordinance violations, and directed the repair or demolition of the building. The electricity, gas and water services were disconnected, and the lower floor windows and doors boarded up.

The building caught fire on December 25, 1963, and the plaintiff, along with other city firemen, was called. He testified that while he was on the second floor of the building, he attempted to open the windows on the south side; that the windows were stuck; and that he was unable to open them.

The fire chief testified that he directed the fire fighting from inside the building; that it was not advisable to ventilate the building while the firemen were inside; and that he had not instructed the plaintiff to ventilate the building by opening the windows. He further stated that any ventilation would have accelerated the fire.

The fire chief also testified that when he directed his men to abandon the second floor of the building, he had decided to let the building bum and to control it from the outside. It then became advisable to ventilate the building. The plaintiff and another fireman commenced to break the second-story windows by ramming a ladder through them from the outside. While the ladder was being withdrawn from one of the windows, a particle of glass was pulled outwardly and struck the plaintiff in the eye. As a result of this injury, the plaintiff lost the eye in question. There was evidence as to whether or not the ladder was the proper tool for use in breaking the windows, and whether the procedure followed by the plaintiff was an accepted one.

While the Supreme Court in Dini v. Naiditch, supra, did not define the status of a fireman while on the property of another fighting a fire, at page 416 it refused to treat the fireman as a “licensee.” Rather, at pages 416 and 417, it expressed approval of the theory of the court in Meiers v. Fred Koch Brewery, 229 NY 10,127 NE 491 (1920), and stated: . . an action should lie against a landowner for failure to exercise reasonable care in the maintenance of his property resulting in the injury or death of a fireman rightfully on the premises, fighting the fire at a place where he might reasonably be expected to be.”

Whether the status be defined or whether a fireman entering the premises of another in the discharge of his duty be described as sui generis (see: Krauth v. Geller, 31 NJ 270, 157 A2d 129, 130 (1960)), the duty owed to the fireman as set forth in Dini, is the same as that owed to an invitee. Driscoll v. Rasmussen Corp., 35 Ill2d 74, 77, 219 NE2d 483 (1966); Netherton v. Arends, 81 Ill App 2d 391, 396, 225 NE2d 143 (1967).

In Meiers, the New York court imposed liability upon a landowner for failure to provide adequate lighting or a safe passageway for a fireman who, while responding to a fire call at night, fell into an unguarded coal hole on the landowner’s private drive. The New York rule with reference to the duty owed to a fireman while on a landowner’s premises in answer to a fire call, required the landowner to keep the means of access thereto in a reasonably safe condition, and to warn firemen coming thereon of unusual hazards on the premises. 86 ALR2d 1205, 1216.

This is not unlike the duty owed to an invitee under Illinois law, where the landowner in exercising reasonable care for the safety of an invitee must remove hidden dangers from the premises or give adequate warning thereof. Beccue v. Rockford Park Dist., 94 Ill App2d 179, 236 NE2d 105 (1968); Altepeter v. Virgil State Bank, 345 Ill App 585, 598, 104 NE2d 334 (1952).

We do not read Dini, however, to stand for the proposition that the landowner may be held liable to a fireman for negligence in causing the fire which brought the fireman to the premises. It is held, almost without exception, that a landowner or occupier is not liable in such case. Jackson v. Velveray Corp., 82 NJ Super 469, 198 A2d 115, 118 (1964); Krauth v. Geller, supra, 130, 131; 35 Am Jur2d, Fires, § 45. As to the fire itself, it is the fireman’s business to deal with this particular hazard. He is trained and paid for this. Undoubtedly, most fires can be attributed to negligence of some nature. Therefore, public policy dictates that a landowner does not owe a duty to firemen, upon which liability may be predicated, to exercise care that a fire does not occur on his premises. The exposure to liability which would result from such rule would impose an unreasonable burden upon a person who owned or occupied improved land.

The duties of a fireman expose him to risk of harm from fire: this is a reasonable risk of his occupation. The landowner owes a fireman, as well as an invitee, a duty not to expose him to an unreasonable risk of harm — - that is, a duty to remove hidden, unusual or not to be expected dangers from the premises, or to give adequate warning thereof. Beccue v. Rockford Park Dist., supra; Netherton v. Arends, supra, 396; Mick v. The Kroger Co., 73 Ill App2d 155, 159, 218 NE2d 654, 1960 (1966).

The plaintiff’s complaint charged the defendants with the violation of three ordinances — relating to fire prevention, rooming houses and the building code. It further stated that the specific violations were the direct and proximate cause of the fire. As we have indicated, negligence, whether arising under the common law or by reason of the violation of a statute or ordinance, which causes a fire, does not give rise to a cause of action. By an amendment to the complaint, the plaintiff further charged that the violations of the ordinances were the proximate cause of the injury.

The various violations charged were permitting: (1) the foundation walls to be in a state of disrepair; (2) the presence of rats and vermin; (3) broken and inoperative windows; (4) broken and cracked walls; (5) sagging floors; (6) an inadequate and defective electrical system; (7) improper space heaters; and (8) a general dangerous, unsafe, dilapidated and unsanitary state of repair.

A number of the purported violations could only relate to possible causes of the fire and would not support a cause of action. Others, such as the presence of rats and vermin, have no relevancy to the issues before us. The only ordinances having a possible connection with any alleged breach of duty owed by the defendants to the plaintiff, as a fireman, were the Rooming House Ordinance, or Building Code, with reference to the inoperative windows. The violation of an ordinance designed for the protection of human life or property is prima facie evidence of negligence, and one injured thereby may have a cause of action if he comes within the purview of the particular ordinance, and the injury has a direct and proximate connection with the violation. Dini v. Naiditch, supra, 417, 418; Schwartz v. City of Chicago, 63 Ill App2d 416, 422, 211 NE2d 477 (1965). Even if we concede that the plaintiff, as a fireman, was within the purview of the ordinances relating to inoperative windows— particularly, the provision of the fire prevention code prohibiting obstruction to windows — we cannot conceive how this directly and proximately contributed to his injury.

The fire chief testified that he was in charge of fighting the fire; that he gave no orders to ventilate while the firemen were in the building; and that the order to ventilate was given after the firemen vacated the building and after his decision that the building could not be saved. It was then that the windows were broken. The plaintiff chose to use a ladder for this purpose. There were then no firemen on the second floor and no attempt was then made, or could have been made, to open the second story windows from the inside.

The testimony clearly indicated that both the top and bottom window panes were broken. Even if the windows had been opened, it is obvious that the glass in them would have to be broken to accomplish full ventilation. Thus, it is evident that if there were negligence in permitting the windows to be stuck or inoperative, the requisite causal connection between such negligence and the injury — for liability to be imposed — is absent. See dissenting opinion of Mr. Justice Klingbiel in Dini v. Naiditch, supra, 436.

As we view the evidence, tested by the standards set forth in Pedrick v. Peoria & E. R. Co., 37 Ill2d 494, 510, 299 NE2d 504 (1967), we believe the trial court was correct in granting the judgment notwithstanding the verdict.

Accordingly, the judgment notwithstanding the verdict is affirmed.

Judgment affirmed.

ABRAHAMSON, P. J. and MORAN, J., concur.


author: STOUDER, P. J.

text:
    William Bouris, Plaintiff-Appellee, v. William Largent, et al., and Arlann Lake Home Owners Association, a Corporation, Defendants-Appellants.
    Gen. No. 66-100.
    Third District.
    January 18, 1968.
    Rehearing denied and opinion modified April 26, 1968.

      Cassidy, Cassidy, Quinn & Lindholm, of Peoria, for appellants.
    Mathis, Sloan & Littler, of Peoria, and Sidney D. Davidson, of Peoria, for appellee.
   STOUDER, P. J.

Plaintiff-Appellee, William Bouris, commenced this action in the Circuit Court of Tazewell County against William Largent, John Clark, Robert Taylor and Arlann Lake Home Owners Association, Defendants-Appellants, seeking a mandatory injunction to require Defendants to remove a dam. Defendants counterclaimed for the cost of building the dam. The trial court, sitting without a jury, determined the issues in favor of Plaintiff on his complaint and against Defendants on their counterclaim and the Defendants have appealed from these judgments.

Subsequent to our decision affirming the action of the trial court a petition for rehearing was filed with this court. Although we find no reasons for granting such rehearing and such petition is accordingly denied we have modified our opinion in some respects.

Defendants are the owners of improved, subdivided property abutting on Lake Arlann, a small lake in Tazewell County. In 1958-1959, Plaintiff purchased a tract of land lying generally south of Lake Arlann. A body of water known as South Lake is located on this tract. An area of about thirty feet separates the two lakes which area is characterized variously as a causeway, bank, channel or dam. In December, 1963, Defendants caused an earthen dam to be constructed on their land across the southern portion of Lake Arlann and it is the construction of the dam which precipitated this controversy. The natural flow of water in the area is from north to south and the purpose and effect of the dam was to withhold water in Lake Arlann thereby increasing its level about one foot and decreasing the level of water in South Lake. Prior to the construction of the dam a portion of Plaintiff’s property abutted Lake Arlann and formed a portion of the south bank thereof. After the construction of the dam the property of Plaintiff no longer abutted on Lake Arlann.

In seeking to reverse the judgments of the trial court, Defendants do not contend that there was any error in the admission of evidence or in specific rulings of the court but that the trial court misapplied the law to the facts. The principal issues arise from the relation of the two lakes and the rights of the property owners incident thereto.

The first question we shall consider is whether the Plaintiff has a right to the unobstructed flow of water from the main body of Lake Arlann. There is no doubt that the dam interfered with the free flow of water. Whether it is claimed that the effect and purpose of the dam is that of maintaining the level of water or some other purpose, the purpose and effect is lawful only if and to the extent that it does not violate the rights of others. We believe that the rights of the parties may be appropriately resolved by applying the principles applicable to riparian rights. The bodies of water are more or less permanent in nature and to a large extent the water has lost its character as surface drainage. The riparian rights of a shore owner have been defined as the right of accretion and right of access to the water from the land. Miller v. Lincoln Park Com’rs, 278 Ill 400, 116 NE 178, and Bowes v. City of Chicago, 3 Ill2d 175, 120 NE2d 15. The right of access to the water includes the right to use such water. The riparian rights of property owners abutting on the same body of water are coequal. Such rights being equal, the general rule is that no riparian owner can exercise his riparian rights in such a way as to prevent the exercise of the same right by the owners of other riparian rights. That this principle cannot be applied in the literal sense is obvious. To the extent that there is any use of water by one, such use diminishes the quantity or quality of a like use by another. Tetherington v. Donk Bros. Coal & Coke Co., 232 Ill 522, 83 NE 1048. Accordingly it is the reasonableness of the use, together with the absence of unreasonable effect upon others, with which we are concerned. Defendants claim there is a distinction between artificial and domestic uses of water and that only in the former case is the reasonableness of the use or the injurious effect on other riparian owners material, (citing Evans v. Merriweather, 3 Scam (4 Ill) 492). Such distinction does not support Defendants’ right to maintain the water level in Lake Arlann to the injury of other riparian owners since the use of the water by Defendants is artificial and is not domestic, natural or necessary within the terms of the Evans case.

Defendants also assert that any rights of the Plaintiff must be determined as of 1958-1959, when the Plaintiff acquired his property. We are aware of no authority for such assertion since we believe the general rule to be that the acquisition of property carries with it the rights of the former owners thereof. 93 CJS 1063.

We perceive no misapplication of the law by the trial court to the facts. Defendants’ arguments are primarily directed towards issues of fact which were resolved by the trial court in favor of the Plaintiff. Such resolution is amply supported by the evidence.

Each party presented a disinterested witness familiar with the area for more than thirty years and each party introduced aerial photographs purporting to establish the prior relationships of the bodies of water. Donald Potts testified on behalf of Defendants that during the period he was familiar with the area the lakes were separate, that water did not usually and customarily flow between them and except at times of high water the lower lake was dry. Joseph Galvin testified on behalf of Plaintiff that during the period of thirty years during which he was familiar with the area, conditions were to the contrary. He testified that usually and customarily, water flowed freely between the two lakes. In addition he testified that in 1954 he was employed by the Defendants to construct a dam some distance south of the present dam. The dam constructed in 1954 was constructed on the property presently owned by Plaintiff without the consent or authority of Plaintiff’s predecessor in title. Galvin testified that the then owner of the property came to the work site and threatened to arrest him for trespass but did not do so because the witness’s crane had been removed from the job site an hour before.

It appears that the 1954 dam washed out by natural causes in either 1960 or 1961 and the present dam, constructed in December, 1963, is located some twenty feet north of the south boundary line of Defendants’ property. We believe that such evidence amply supports the conclusion of the trial court that prior to the construction of the dam, water freely flowed between the bodies of water and that the dam was an unreasonable interference or obstruction of such flow.

The judgment of the trial court is also supported by evidence that the construction of the dam at its present location was violative of plaintiff’s rights. One of Defendants’ own witnesses testified that when the Defendants’ property was surveyed, prior to construction of the dam, it appeared that the southern property line of the Defendants went through the waters of Lake Arlann and the rods designating such property line were partly submerged.

The riparian right of access to a body of water depends on whether the property touches the water thereby enabling access to the water to be gained without going over property of others. Such right of access does not depend upon ownership of or title to the submerged land. Consequently such right is not affected by description of the property unrelated to the body of water. It is only necessary that the description of the property include or encompass the shore line. In this respect the riparian right of access differs from the riparian right of accretion, the latter right not extending beyond the boundaries of the property where ownership of the property beyond such boundaries is calimed by another. Bristol v. Carroll County, 95 Ill 84.

The sole issue before us is whether defendants had the right to reconstruct the dam. We have determined that issue in favor of plaintiff. It follows that if the Defendants had no right to construct the dam the Plaintiff is not liable for the costs thereof and the counterclaim was properly dismissed for want of equity. Finding no errors in the judgments of the Circuit Court of Tazewell County said judgments are affirmed.

Judgments affirmed.

ALLOY, P. J. and SCHEINEMAN, J., concur.


author: PRESIDING JUSTICE ABRAHAMSON.

text:
    Everett Ledbetter and Kathleen Ledbetter, Appellees, v. Charles Rivers Aiken, Appellant.
    Gen. No. 67-44.
    Second District.
    March 22, 1968.
    Rehearing denied and supplemental opinion June 24, 1968.
    Vincent D. McConnell, of Chicago, for appellant; Carbary, Carbary and Chap ski, of Elgin, for appellees.
   Opinion by

PRESIDING JUSTICE ABRAHAMSON.

Not to be published in full.


text:
    Mabel E. Mueller and Vern P. Vandell, Plaintiffs-Appellees, v. Gladys M. Forsyth, Rena Forsyth, and Lenora Cummings, as Administrator of the Estate of Charles P. Riner, Deceased, and Individually, Defendants-Appellants.
    Gen. No. 67-37.
    Third District.
    March 28, 1968.

      Welch & Blachinsky, of Kewanee, Reynolds M. Everett, of Galva, and Cline, Williams, Wright, Johnson, Old-father & Thompson, of Lincoln, Nebraska, for appellants.
    Andrews & Andrews, of Kewanee, for appellees.
   STOUDER, J.

This is an action commenced in the Circuit Court of Henry County for partition and for construction of a will.

Mina Riner died testate on September 9, 1939, owning an undivided interest in each of three parcels of land in Henry County, Illinois. In her will which was duly admitted to probate, she provided in paragraph 4 for a life estate in all of her real property to her husband, Charles Riner. Paragraph 5 provided, “upon the death of my said husband, Charles P. Riner, or upon my own death, should I survive him, I direct that my lands and real estate be sold within such time after the death of the survivor of us as shall not result in a material sacrifice to my estate, either at public or private sale, and the proceeds of such sale, after deducting therefrom reasonable expenses incident thereto, be divided in the following proportions among the following named persons:

“One-Sixth thereof to my niece, Mabel E. Mueller, and in case of her predecease, then in equal parts to her children.
“One-Sixth thereof to my nephew, Vern P. Vandell, and in case of his predecease, then in equal parts to his children.
“Two-Sixths thereof to my sister, Mary E. Nostrom, and in case of her predecease, then in equal parts to my sister, Julia E. Forsyth, and my niece, Mabel E. Mueller, and my nephew, Vern P. Vandell.
“Two-Sixths thereof to my sister, Julia E. Forsyth, and in case of her predecease, then to her son, Evald M. Forsyth.”

Charles Finer, life tenant and husband survived the Testatrix but died December 2, 1962. Mabel Mueller and Vern Vandell, Plaintiffs-Appellees herein, survived both Testatrix and Charles Finer. Mary E. Nostrom predeceased Testatrix, Julia E. Forsyth died intestate on December 30, 1940, leaving no surviving spouse and leaving her son, Evald E. Forsyth as her only heir. Evald died intestate on December 9, 1947, leaving Defendants-Appellants, his widow Gladys M. Forsyth and his daughter, Fena Forsyth Dean, as his only heirs at law.

Plaintiffs-Appellees, Mabel Mueller and Vern Vandell, allege in their complaint for partition, that they are the sole surviving beneficiaries under paragraph 5 of the will and therefore entitled to the interest of the Testatrix and the property sought to be partitioned. Defendants-Appellants, Gladys Forsyth and Fena Forsyth, deny such allegation and by way of answer and counterclaim for partition allege that by virtue of paragraph 5 of the will, Evald Forsyth had an interest in the property on the date of his decease to which interest they succeeded, or, in the alternative that the devise to Evald Forsyth lapsed and descended to heirs of Mina Finer as intestate property, there being no residuary clause in her will.

After a hearing, the trial court found, “It is the opinion of this court that the fifth paragraph of the will in question is ambiguous and therefore the real estate involved would vest at the death of the life tenant, Charles P. Finer.

“It is further the opinion of this court that the actions of the parties hereto were not sufficient to be considered a practical construction of the said will so as to vest said real estate as of the death of the testator.” The decree of partition prepared by the Plaintiffs at the direction of the court found “. . . the interest of Julia E. Forsyth and Evald M. Forsyth as beneficiaries under the fifth paragraph of said will lapsed upon their respective deaths, and that Plaintiffs, Mabel E. Mueller and Vern P. Van-dell, are entitled in equal shares to all of the proceeds of the sale of the land owned by the said Mina L. Riner at her death, . . .”

Appellants in seeking to reverse the decree of the trial court contend paragraph 5 creates an interest of inheritance in the substitute or alternative beneficiaries Julia Forsyth and Evald Forsyth, to which they succeed as heirs at law.

Appellees, in support of the decree of the trial court, contend paragraph 5 of the will requires the initial beneficiaries i. e., Mary Nostrom and Julia Forsyth, or the alternative beneficiaries i. e., Julia Forsyth or Evald Forsyth, to survive the life tenant. The contingency of survival of the life tenant not having occurred with respect to any such persons the gifts to each of them lapsed. A lapse having occurred, such interest goes to the Appellees as the only other persons specifically named in such paragraph.

The cardinal rule of testamentary construction, to which all other rules must yield, is to ascertain the intention of the testator from the will itself, and to give effect to this intention, unless contrary to some established rule of law or public policy. Harris Trust & Savings Bank v. Jackson, 412 Ill 261, 106 NE2d 188.

In Gray on perpetuities, the distinction between a vested remainder or a contingent remainder is precisely stated as follows, “Whether a remainder is vested or contingent depends upon the language employed. If the conditional element is incorporated into the description of, or into the gift to, the remainderman, then the remainder is contingent; but if, after words giving a vested interest, a clause is added divesting it, the remainder is vested. Thus on a devise to A. for life, remainder to his children, but if any child dies in the lifetime of A. his share to go to those who survive, the share of each child is vested, subject to be divested by its death. But on a devise to A. for life, remainder to such of his children as survive him the remainder is contingent.” Danz v. Danz, 373 Ill 482, 26 NE2d 872, and Baker v. Bates, 76 Ill App2d 30, 221 NE2d 302. Within the meaning of this rule no conditional elements are incorporated into the description of, or gifts to, Julia Forsyth and Mary Nostrom. The gift to such beneficiaries vests, subject to being divested “in case of the predecease” of either. Danz v. Danz, supra. The occurrence of the condition subsequent i. e., the death of the first taker of the remainder, divests the interest of the first taker, and by executory gift vests the interest in the alternative or substitute beneficiaries. Phelps v. Seeley, 3 Ill2d 210, 119 NE2d 923. Such alternative gift would be an interest of inheritance unless some additional condition is imposed. In this connection it is noted that Mary Nostrom died before the Testatrix, and Julia Forsyth after the Testatrix, but such difference does not give rise to any legal distinction since the issue is the same in each instance, namely the effect of the death of the substitute beneficiary before the death of the life tenant. In Baker v. Bates, supra, a gift of the remainder provided for alternative gifts in the event the first taker not be alive at the death of the life tenant. One of such alternatives being that the property would go to the children of the first taker if he left children surviving. The court concluded that an inheritable interest was created in the surviving children of the first taker even though such survivor died prior to the life tenant.

In opposition to this view, Appellees, in relying on Comisky v. Moore, 26 Ill2d 494, 187 NE2d 256, and O’Connell v. Gaffney, 23 Ill2d 611, 179 NE2d 647, argue that because the condition of death or survivorship as related to the first taker of a remainder, means death at any time prior to the termination of the life estate, no interest can vest prior to the death of the life tenant. Although we agree the rule is, unless there are clear provisions to the contrary, the death of the first taker does relate to death at any time prior to the life tenant, this rule means only that the first taker’s interest does not become indefeasible because of his survival of the testator. The rule relating to vesting and divesting of determinable interest does not depend upon or contemplate an indefeasible vesting based on survivorship of the testator but gives effect to alternative or substitute provisions. Harris Trust & Savings Bank v. Jackson, 412 Ill 261, 106 NE 2d 188.

This leaves us with the question whether there is any other language in the will from which it can be concluded the alternative beneficiary is required to survive the life tenant. We find nothing in the will requiring such survival. Words such as “upon death” or “after death” in a gift of a remainder refer not to the time when the remainder is to vest in interest, but to the time when it is to fall into possession of the remainderman. Such language is deemed related to the termination of the life estate and not to the character of the interest of the remainderman.

In support of the contention that the gifts to Julia Forsyth and Evald Forsyth lapsed because of failure to survive the life tenant, appellees contend that such result is required by the application of the doctrine of equitable conversion, citing cases such as Joslin v. Ashelford, 29 Ill App2d 202, 172 NE2d 806; In the Matter of Corrington, 124 Ill 363, 16 NE 252; Lash v. Lash, 209 Ill 595, 70 NE 1049; Wattjes v. Faeth, 379 Ill 290, 40 NE2d 521 and Darst v. Swearingen, 224 Ill 229, 79 NE 635. While it may be said that such cases support the proposition that a direction and power to sell real estate converts such real estate into personal property such cases do not support a conclusion that there is any difference in the vesting of an interest depending upon whether such interest is in personal property or real estate. Nor do such cases support the proposition that the direction to sell and distribute the proceeds, standing alone, determines the vesting of interest in the persons entitled to receive such proceeds. Where the direction for sale and distribution is accompanied by language describing the recipients with reference to survivorship at the date of distribution, such survivorship is required. In Barnes v. Johnston, 233 Ill 620, 84 NE 610, reliéd upon by Appellees, the will provided for the sale of both real and personal property and successive distribution to three classes of beneficiaries depending upon the facts existing at the time of distribution. The Court’s conclusion in the Barnes case that the substitutionary provisions became effective does not support Appellees’ contention in this case that the absence of substitutionary provisions or the absence of conditions relating to the deaths of Julia Forsyth or Evald Forsyth thereby require that they survive the life tenant.

For the foregoing reasons we believe the substitutionary gifts to Julia Forsyth and Evald Forsyth were gifts of inheritable interest not subject to further limitation and not subject to any requirement of survival of the life tenant. Such interest therefore descended to the heirs at law. Accordingly, we believe the court erred in determining that the appellants were not entitled to the interest vested in Julia Forsyth and Evald Forsyth.

It has also been brought to the court’s attention that the decree for partition failed to properly set forth an interest of the parties unrelated to any interest derived from the estate of Mina Riner and upon remandment such error should be corrected.

For the foregoing reasons the decree of the Circuit Court of Henry County is reversed and remanded with directions to proceed in accord herewith.

Decree reversed and remanded.

ALLOY, P. J. and HOFFMAN, J., concur.


author: MR. JUSTICE MORAN

text:
    People of the State of Illinois, ex rel. William I. Landwer, Plaintiff-Appellee, v. Village of North Barrington, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 67-101.
    Second District.
    April 4, 1968.
    Rehearing denied June 19,1968.

      King, Robin, Gale and Pillinger, of Chicago, and Snyder, Clarke, Dalziel, Holmquist and Johnson, of Waukegan, for appellant.
    Eva Schwartzman, of Libertyville, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

In September, 1963, a petition was filed in the then County Court of Lake County seeking the annexation of certain territory to the Village of North Barrington. Notice of the filing and the date of hearing was published in the Frontier Enterprise, a newspaper published in Lake Zurich, Illinois. No objections were filed and the county judge entered an order referring the matter to the corporate authorities of the Village for consideration of the question. The corporate authorities subsequently annexed the property.

In April, 1965, the plaintiff, after making a demand upon the Attorney General of Illinois and the State’s Attorney of Lake County and being refused, filed this petition seeking leave to file an action in Quo Warranto challenging the validity of the annexation.

The trial court granted leave to file the petition and, subsequently, entered a judgment of ouster. The Village brings this appeal raising various points which will be discussed in turn.

The property in question consists of various tracts, some of which are connected by that owned by the plaintiff, containing 160 acres. However, only some 18.2 acres of plaintiff’s land were included in the annexation. That part of the plaintiff’s property which is included in the annexation is a strip measuring 2,640 feet long and 300 feet wide. The tract is vacant and apparently devoted to farming purposes.

The first and principal issue raised by this appeal is whether or not the notice published in the Frontier Enterprise was valid so as to vest jurisdiction in the then County Court. It is conceded that no newspaper is published in the municipality. The statute, in effect at the time, provided “This notice shall be given by publishing a notice thereof at least once in one or more newspapers published in the annexing municipality, or, if no newspaper is published therein, then in one or more newspapers with a general circulation within the annexing municipality and territory.” (Ill Rev Stats 1963, c 24, § 7-1-2.)

A good deal of the argument is directed to the question of whether or not the Frontier Enterprise is a newspaper of general circulation in the annexing municipality and the territory. The trial judge found, in his opinion “. . . that the Frontier Enterprise was a newspaper of general circulation in the ‘Annexing Village and territory’ within the meaning of the Illinois statute,” but went on to state that even though there had been technical compliance with the statute, it was the intention of the Legislature that the notice given be one that was calculated to reach the parties interested in the matter. The court further held that this interpretation was in compliance with the requirements of due process, citing the case of Mullane v. Central Hanover Bank & Trust Co., 339 US 306, 94 L Ed 865, 70 S Ct 652 (1950). In this connection, the court said “The statutory notice given in this case is inadequate and fails to meet the statutory intent of such notice not because it failed to notify Landwer, but because under the circumstances it is not reasonably calculated to reach him or to inform him that his property is to be annexed.”

The court has thus read into the statute a requirement that the notice not only meet the technical provisions, but that the notice also be reasonably calculated to reach the parties in interest, and concluded that this requirement was based upon the due process provisions of the Federal Constitution.

A proper consideration of this matter requires us to examine the nature of municipalities and their boundaries and the relationship between municipal boundary changes and the guarantees set forth in the Federal Constitution, if, indeed, there is any relationship between the two.

It is fundamental that municipalities are creatures of the Legislature and entirely subject to the legislative will. In the case of Hunter v. Pittsburgh, 207 US 161, 52 L Ed 151, 28 S Ct 40 (1907), the United States Supreme Court said at pages 177-179: “. . . This court has many times had occasion to consider and decide the nature of municipal corporations, their rights and duties, and the rights of their citizens and creditors . . . (Citations omitted.) We think the following principles have been established by them and have become settled doctrines of this court to be acted upon wherever they are applicable. Municipal corporations are political subdivisions of the state created as convenient agencies for exercising such of the governmental powers of the state as may be entrusted to them . . . the number, nature and duration of the powers conferred upon these corporations and the territory over which they shall be exercised rests in the absolute discretion of the state . . . The state, therefore, at its pleasure, may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In all these respects the state is supreme, and its legislative body, conforming its action to the state Constitution, may do as it will, unrestrained by any provisions of the Constitution of the United States. Although the inhabitants and property owners may, by such changes, suffer inconvenience, and their property may be lessened in value by the burden of increased taxation, or for any other reason, they have no right, by contract or otherwise, in the unaltered or continued existence of the corporation or its powers, and there is nothing in the Federal Constitution which protects them from these injurious consequences.”

The court has followed this doctrine in many cases, among them Reynolds v. Sims, 377 US 533, 575, 12 L Ed 2d 506, 84 S Ct 1362 (1964). An exception to this rule is found in those cases where the state uses its power of municipal boundaries to circumvent a Federally protected right, such as the gerrymandering of voting districts so as to discriminate against negro voters, as was the case in Gomillion v. Lightfoot, 364 US 339, 5 L Ed2d 110, 81 S Ct 125 (1960). However, there is no such “Federally protected right” in this case.

The Illinois Supreme Court has taken the same position in the case of School Districts and other municipal corporations. In the case of People v. Deatherage, 401 Ill 25, 81 NE2d 581 (1948), the court said, at page 31: “A community unit school district, like any other school district established under enabling legislation, is entirely subject to the will of the legislature thereafter. With or without the consent of the inhabitants of a school district, over their protests, even without notice or hearing, the State may take the school facilities in the district, without giving compensation therefor, and vest them in other districts or agencies. The State may hold or manage the facilities directly or indirectly. The area of the district may be contracted or expanded, it may be divided, united in whole or in part with another district, and the district may be abolished. All this at the will of the legislature.”

The Illinois Supreme Court has consistently adhered to this rule. Indeed, it recently said “These are no longer fairly debatable constitutional questions.” Board of Education of Spaulding School Dist. No. 58 v. Special Charter School Dist. No. 61, 32 Ill2d 342, 344, 205 NE2d 459 (1965).

If the Legislature can change municipal boundaries without any notice or hearing, without consent, and even against the protests of the inhabitants, and still not violate any constitutional provision, then it follows that the Legislature may prescribe the notice that is to be given in making a boundary change.

In this case, the Legislature has clearly provided for one notice to be published in a newspaper having a general circulation in the annexing municipality and the territory. The trial judge specifically found that the newspaper in question and the notice given, complied with the statute. There is no requirement that personal notice be given and we cannot go beyond the legislative directive. The trial judge was in error in requiring more notice than that required by statute.

It may well be that additional notice should be required and, within the foregoing authorities, the Legislature had every right to require further notice and even consent. The simple fact is that it has not done so. A petition for more or better notice must necessarily be addressed to the Legislature and not to the courts.

The trial court relied upon the case of Mullane v. Central Hanover Bank & Trust Co., supra. That case involved published notice to beneficiaries of a trust of the final proceedings to determine an accounting on their behalf. The proceedings were final and, of course, that is not true in this case; witness, this action of Quo Warranto being brought some 18 months after the original annexation proceedings became final. In addition to that, a change in municipal boundaries, as we have noted, is uniquely and entirely subject to the legislative will and not subject to any constitutional protection or restraint, absent the violation of a “Federally protected” right.

Since we have determined to reverse and remand the case, we will consider additional points raised by the plaintiff on appeal in support of the order of the trial court. The plaintiff alleged that there was a deliberate scheme by the petitioners and their attorneys to comply with the statute but to do so in a manner contrary to the spirit of the statute and so as to constitute a fraud upon the court and the plaintiff. In support of this contention, the plaintiff cites the case of In re Petition To Annex Certain Territory to Village of Willowbrook, 37 Ill App2d 393, 185 NE2d 696 (1962), as authority for the proposition that a fraud has been practiced. It is sufficient to say that this issue was never adjudicated. As a matter of fact, the trial court in its memorandum of decision, which was made a part of the order entered, expressly excepted this claim in arriving at its conclusion when it stated, “However, the Court deems it unnecessary to decide this issue (fraud) to dispose of the case, and hence makes no decision with respect to this matter.”

The last issue raised by the plaintiff is that the ordinance of annexation was adopted at a special meeting of the board of trustees. This issue was not raised until after the proofs were closed, whereupon the plaintiff asked leave to file Count II of his Second Amended Petition. The trial court originally granted leave but subsequently changed his view and denied leave to file Count II of the Second Amended Petition. There was no cross-appeal from this order and so the matter is not properly before us.

In conclusion it appears to us from the memorandum decision that there was a fundamental misunderstanding of the nature of municipalities and their boundaries. Municipalities are mere creatures of the Legislature, created for convenience in the handling of day-to-day local problems. The Legislature has complete authority over them and may change them from time to time; it may expand, contract or even abolish them, with or without notice, consent, and even against the protests of persons interested in the matter, all without transgressing any constitutional provisions. It follows that, if the petitioners for annexation comply with the technical requirements of the statute, then the court must uphold the annexation.

The Legislature has the power to provide more and perhaps better notice; it has the power to grant home rule to municipalities so that these matters may be decided locally. It has not done so.

The judgment is therefore reversed and the case remanded to the trial court with instructions to dismiss the petition.

Reversed and remanded with instructions.

ABRAHAMSON, P. J. and DAVIS, J., concur.


text:
    Claresa F. Armstrong Brown, Defendant, Cross-Complainant, Counter-Claimant, Appellant, and Cross-Appellee, v. Commercial National Bank of Peoria, a National Banking Association, as Trustee, etc., et al., Plaintiff, Cross-Defendants, Appellees1, and Cross-Appellants.
    Gen. No. 67-16.
    Third District.
    April 17, 1968.
    Rehearing denied and petition for certification of import June 7, 1968.

      Robert L. Burhans, of Peoria, and King, Robin, Gale & Pillinger, of Chicago, for appellant.
    Kavanagh, Scully, Sudow & White, Harry B. Hoffman, and Arleigh Davis, of Peoria, for appellees.
   STOUDER, J.

This case, arising from the Circuit Court of Peoria County, involves the validity of three inter vivos irrevocable trusts created by Clara K. Meyer, now deceased.

The Settlor was a major stockholder and depositor with the Commercial National Bank of Peoria, had been on the board of directors prior to the consolidation which resulted in the establishment of Appellee Bank in its present form in 1961 and had engaged in many business dealings with the bank over a long period of time. In 1946, Clara Meyer created a revocable trust naming the bank as trustee which trust was in effect at the date of the Settlor’s death but is not involved in this litigation. In 1960, the Settlor created an irrevocable trust, the Appellee bank being trustee, her grandchildren being the principal beneficiaries and referred to herein as the grandchildren’s trust. Two other irrevocable trusts were created in January, 1962, designating the bank as trustee, her son Richard Meyer being the principal beneficiary of one trust, herein referred to as the Richard trust and her daughter, Claresa Armstrong Brown, being the principal beneficary of the other trust, herein referred to as the Claresa trust. Securities from the 1946 revocable trust were transferred to the three irrevocable trusts. Clara Meyer, at the age of 87, died testate, February 19, 1964.

A disagreement between the bank and Claresa resulted in the commencement of this suit by the bank for approval of its accounts and investment policies. An order was entered from which no appeal has been taken and we are not concerned with such order in this appeal. Claresa Brown counterclaimed against the bank as trustee and the beneficiaries of the three irrevocable trusts seeking to set aside such trusts. The issues created by the counterclaim were determined by the court sitting without a jury and resulted in an order dismissing the counterclaim for want of equity. This appeal follows. The trial court also fixed and allowed trustee’s fees and fees for the attorneys of the trustee and the beneficiaries allocating such costs against the principal of the three trusts involved. Although no question is raised concerning the reasonableness of the fees allowed, the bank as trustee and the beneficiaries have cross appealed questioning the propriety of assessing such fees against the principal of the trusts rather than against the income of Claresa Brown.

The allegations of the counterclaim are in substance that Clara Meyer was mentally and physically enfeebled by old age and cerebral arteriosclerosis; that a fiduciary relationship existed between the bank and Clara Meyer at the time the trust agreements were executed, the bank exercising a dominant influence with respect to Clara Meyer’s enfeebled condition; that Clara Meyer did not understand the trust agreements entered into; that she did not receive independent legal advice concerning such agreements and that the bank conspired with Richard Meyer to deprive Clara Meyer of independent legal advice. It should be noted that the counterclaim does not allege actual fraud or mistake.

The evidence, which is voluminous, was presented during hearings lasting nearly four weeks and relates primarily to two issues, the circumstances of the execution of the trust agreements and the mental and physical condition of Clara Meyer.

The Settlor was advised in legal matters up to and including the time of execution of the grandchildren’s trust in 1960 by one John M. Elliot, an attorney. However when the Claresa and Richard trusts were executed in 1962, the only attorney involved was a Boyd Goldsworthy. Mr. Goldsworthy had been Richard’s attorney in other matters and the evidence is conflicting as to whether the Settlor requested to have Mr. Goldsworthy represent her or whether she indicated any desire to have other representation or exactly whom Mr. Goldsworthy did represent. It does appear that Goldsworthy conferred with Clara Meyer prior to the execution of the Richard and Claresa trusts although an officer of the bank was also present. It also appears that Goldsworthy submitted hist bill for services to Clara Meyer which bill was paid. Furthermore it can be said that there is little evidence from which it can be inferred that with respect to the trust agreements, Goldsworthy represented anyone other than Clara Meyer. The evidence is also in dispute as to how thoroughly the Settlor understood the somewha4" involved trust instruments.

Claresa was acquainted with the terms of the trust agreement, a copy of the Claresa trust was made available to her and her attorney and she took advantage of some of the trust benefits both prior and subsequent to the death of the Settlor.

The mental capacity of the Settlor is also in dispute. Appellant makes no claim that the Settlor was mentally incompetent prior to 1963 but, as we understand her argument, that Settlor’s mental ability was progressively impaired due to cerebral arteriosclerosis over a long period of time resulting in incompetency sometime in 1963 and death in February of 1964. The evidence also shows that the Settlor was a director of the bank until the 1961 consolidation, regularly attended meetings and conducted her own business affairs as well as some for her daughter until sometime in 1962 after the execution of the Claresa and Richard trusts.

While appellant alleges that Richard conspired with the bank to accomplish the execution of the trusts, the record does not factually support such allegation nor does appellant make further argument on this point.

In order that these trusts may be set aside it must be shown either that the Settlor was incompetent at the time they were executed or that a fiduciary relationship existed between the bank, or one of the beneficiaries, and the Settlor, that the person other than the Settlor was the dominant party and by unfair tactics induced the Settlor to enter into a transaction from which the dominant party appears to gain at the expense of the dependent party. Works v. McNeil, 1 Ill2d 47, 115 NE2d 320; Turner v. Black, 19 Ill2d 296, 166 NE2d 588 and Boryca v. Parry, 24 Ill2d 320, 181 NE2d 124.

Appellant’s facts concerning senility being a progressive attribute of human nature are most interesting or would be had there been considerably fewer of them. However this court is fully prepared to recognize the fact that senility accompanies life, that it is indeed progressive and, in fact begins with the onset of life and progresses until life is terminated. Unfortunately Appellants’ voluminous facts, figures, documents and charts failed to establish the Settlor’s incompetence prior to 1963.

Appellant, herself a psychiatrist, makes no claim that the Settlor was legally incompetent at the time the trusts were executed but only that the mental ability of the Settlor had become so impaired by senility that she depended upon the bank for advice in business matters and could not understand the import of the trust agreements without independent, competent legal advice. This argument itself assumes that the Settlor was capable of understanding advice and counsel albeit from someone other than the bank. Accordingly we do not believe the trusts can be deemed invalid on account of the Settlor’s incompetency.

This leaves us with the following argument for appellant. The relationship between the bank and the Settlor was a fiduciary relationship. The bank was the dominant party due to the mental impairment of the Settlor and that the bank induced the execution of the trust agreements for its own gain. Based on these propositions, appellant would have this court announce as a rule of law that in any case where a fiduciary relationship exists and the parties to the relationship enter into a business transaction, that transaction must be set aside unless the transaction be affirmatively shown to be fair by proof that the dependent party was represented by independent legal counsel. This we do not conceive to be the law of this state nor are we prepared to announce it as such in this case.

It is true that where a fiduciary relationship exists and a transaction is entered into whereby the dominant party appears to gain at the expense of the dependent party, the transaction will be deemed presumptively fraudulent and will be set aside unless the one in whom trust and confidence is reposed establishes its fairness by clear and convincing proof. Clark v. Clark, 398 Ill 592, 76 NE2d 446, and Works v. McNeil, 1 Ill2d 47, 115 NE2d 320. It is also true that one method of establishing the fairness of such a transaction would be to show that the dependent party was represented by independent legal counsel. However this is not to say that having established the existence of a fiduciary relationship the burden is then upon the dominant party to establish the fairness of any or all transactions between the parties to the relationship.

We are not disposed to quibble about the question of whether Appellee Bank, or any of its officers, by virtue of being a professional fiduciary in its capacity as trustee, thereby was a fiduciary in any other capacity since the bank has conceded the relationship. Having shown the relationship however, appellant’s burden does not then shift to appellee for appellant must also affirmatively show that appellee was the dominant party and that it gained from the trust agreement at the expense of the Settlor. There is no evidence in the record from which it can be inferred that the bank received any gain or benefit other than the compensation for its services as a professional trustee. This cannot be the kind of gain contemplated by the above rule for to so hold would mean an invitation never to pay any professional fiduciary for his services since such payment would thereby render the transaction presumptively fraudulent. Nor can it even be inferred from the evidence that the trust agreements were disadvantageous to the Settlor. At best the trust agreements minimized her potential federal estate tax and any disadvantage accrued not to the Settlor but to the appellant. Accordingly we believe appellant has failed to establish facts warranting the application of the presumptive fraud rule applicable to fiduciary relationships and hence the trusts are not invalid for this reason.

This brings us to the cross appeal of the bank and the trust beneficiaries not including Claresa Brown, in which it is contended that the court erred in assessing other costs against the principal of the trusts. No question is raised concerning the allowability, reasonableness or allocation among the trusts involved. It is argued by the bank and beneficiaries that such fees should have been assessed against Claresa Brown or her income from the Claresa trust. The general rule is that expenses incident to the preservation of a trust or for the benefit thereof are properly chargeable against and reimbursable from the trust estate. Kerner v. Peterson, 368 Ill 59, 12 NE2d 884 and Patterson v. Northern Trust Co., 286 Ill 564, 122 NE 55. Such rule does not condition the assessment of fees and costs dependent upon the outcome of the litigation and does not require that such fees and costs be assessed against the unsuccessful party. Although costs may be assessed against the unsuccessful party where it appears the claim asserted was groundless, vexatious or for the purpose of harassment, we believe the record demonstrates that a bona fide dispute existed and consequently we find no error in the trial court’s assessment of fees and costs against the trust estates.

For the foregoing reasons the decrees of the Circuit Court of Peoria County are affirmed.

Decrees affirmed.

ALLOY, P. J. and SCHEINEMAN, J., concur.