author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEOTIS BEASLEY, Defendant-Appellant.
    First District (4th Division)
    No. 80 — 1257
    Opinion filed July 29, 1982.
    Rehearing denied August 25, 1982.

      Frederick F. Cohn, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael L. Shabat, Ca-simir J. Bartnik, and Raymond F. Brogan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant, Leotis Beasley, was charged by indictment with rape and robbery (Ill. Rev. Stat. 1977, ch. 38, pars. 11 — 1, 18 — 1). Following a jury trial in the circuit court of Cook County, defendant was found guilty of rape and not guilty of robbery. He was sentenced to six years in the Illinois State Penitentiary.

On appeal, defendant contends that (1) the State deprived him of a fair trial by failing to request an instruction informing the jury that a prior inconsistent statement used at trial for impeachment purposes could not be considered as substantive evidence; and that (2) the trial judge should have recused himself.

We affirm defendant’s conviction.

Facts

Evidence presented at trial disclosed that on January 11, 1979, at about 1 a.m., the 18-year-old victim, a ward of the State, was walking home from the CTA elevated train stop at Addison and Lincoln following a visit that evening with her caseworker. As she walked, a male pedestrian on the opposite side of the street followed her for a few blocks, then suddenly crossed the street, stopped and questioned her, threatened her with a gun, and robbed her.

While the victim was attempting to empty her pockets, two other men approached, one from a nearby alley and the other down the middle of the street. Two of the men then took her by the arms, forced her through a gangway between two buildings, pushed her to the ground in an open courtyard area, and threatened to kill her if she screamed. The victim testified that as one of the two men held her down, the other pulled down her pants and raped her. After a few minutes the two men changed places. As the second man finished, he cut the side of her throat with a knife. The victim screamed, and the two men ran.

The victim then attempted to get help by running from door to door along the back of the apartment building, trying to awaken someone. Thomas Garcia, the occupant of the first floor apartment, heard her screams and let her in. He immediately called the police, and the victim called her caseworker. The police arrived within minutes, took a description of the two alleged rapists from the victim, and broadcast it to all patrol cars in the area. Using the description the victim provided, the police apprehended a black man on the Addison elevated train platform and brought him to the sidewalk in front of the Garcia apartment for a showup. The victim, looking, through the window, positively identified him as one of the two men who had raped her.

Two policemen then took the victim and her caseworker to the emergency room of Ravenswood Hospital, where she was examined and treated for a knife wound to the neck, abdominal abrasions, and possible sexual assault. Examination of specimens taken by the attending physician revealed the presence of nonmotile sperm, and the attending physician recovered one foreign hair from the surface of her abdomen. The victim was released about one hour later, whereupon the two policemen drove her to the area police station in order to file a complaint and view a lineup.

At the first six-man lineup, held on January 11, 1979, within four hours of the assault, the victim positively identified Stanley Williams, originally a co-defendánt in this case, and Johnny Hunt as two of the three men involved in the rape and robbery. On the following day, January 12, 1979, the victim viewed a second six-man lineup and picked out defendant Beasley as the other man who had raped her. Acting on information gained after the arrest of Williams, the police had obtained an arrest warrant and had arrested Beasley at his apartment early on the morning of January 12, 1979.

Williams and Beasley were subsequently charged by indictment with the rape and robbery of the victim (Ill. Rev. Stat. 1977, ch. 38, pars. 11 — 1, 18 — 1). Following several pretrial hearings at which several witnesses were extensively questioned and cross-examined, the trial judge denied defendants’ motions to quash the arrest, to suppress evidence, to suppress identification, and to grant them both free transcripts.

Approximately one month after the denial of the last pretrial motion, Williams’s attorney learned that the trial judge’s close relative was the complaining witness in an unrelated case in which a black man was accused of raping a young white woman. Claiming that the judge was prejudiced and biased, alleged proof of which was his denial of all defendants’ pretrial motions, attorneys for both defendants filed a motion to dismiss the charges or, in the alternative, to vacate all the previous rulings and to substitute judges. After a hearing, the trial judge also denied this motion. At this point, defendant Williams withdrew his not-guilty plea, entered a plea of guilty, and was sentenced to concurrent terms of 13 years for rape and 7 years for robbery.

At defendant Beasley’s trial, the State’s case-in-chief began with testimony from personnel at Ravenswood Hospital establishing the laboratory procedures by which sperm was discovered in a sample of vaginal fluid taken from the victim and a hair found on her abdomen was determined to be of the same type as Williams’s pubic hair. Police officers then testified about the procedures used to photograph the physical evidence, the transfer of evidentiary material to the police crime lab, and the specific steps taken in both the arrest of defendant Beasley and the conduct of his lineup. The victim related the story of the robbery, the rape, her attempts to get help, the showup outside the Garcia apartment, and the two lineups. Although cross-examined at length about the placement of the porch lights in the courtyard area, she maintained that during the 20 minutes of the double rape, sufficient bright light came from one or more porch lights to enable her to have a clear, continuous look at both men.

The defendant’s case-in-chief consisted of testimony by Beasley, his fiancee Cynthia Patrick, with whom he was living, and his friend, Troy Burks. In their testimony, Beasley, Patrick, and Burks all said that Beasley had spent the evening of January 11, 1979, at Patrick’s apartment eating dinner, playing chess, and discussing the Bible for a report he was writing for a class at Kennedy-King College. Patrick testified that Beasley’s cousin, Johnny Hunt, was temporarily living with them. She also stated that Beasley and Williams, formerly close associates, were no longer friends.

To counter Beasley’s alibi evidence, the State called Williams as a rebuttal witness. When asked the identity of the two companions who had participated in the rape and robbery with him, Williams named Johnny Hunt and one Michael Smith. Thereupon, the State requested and was granted leave to question Williams as a hostile witness pursuant to Supreme Court Rule 238 (73 Ill. 2d R. 238). The State then produced a transcript of the testimony Williams had given during his guilty plea hearing and proceeded to ask him if he remembered each of five specific questions and answers in which he had named Johnny Hunt and Leotis Beasley as his companions in the rape and robbery of the victim. Williams repeatedly answered that he did not remember the testimony he had given at his plea hearing. Following the State’s attempted impeachment of Williams, the defense rested.

On the following day, both sides presented closing arguments. The jury was then read the instructions previously agreed upon at the instruction conference, and they retired to deliberate. On the following afternoon, they returned a verdict finding Beasley not guilty of robbery and guilty of rape. Beasley was then sentenced to the Illinois State Penitentiary for a term of six years.

Opinion

Defendant’s first contention is that the prosecution committed reversible error by failing to offer an instruction informing the jury that a prior inconsistent statement introduced to impeach a witness’s in-court testimony may not be considered as substantive evidence of guilt. In the instant case, Williams, originally Beasley’s co-defendant, had told the attorneys for both defense and prosecution that he would testify in the same way he had testified at his guilty plea hearing, i.e., naming Beasley as the co-participant in the rape. It is clear that Williams’s actual rebuttal testimony surprised the prosecution by naming as the third participant in the rape and robbery one Michael Smith instead of Beasley. Williams, when confronted with his prior testimony naming Beasley as the second rapist, simply stated that he didn’t remember what he had previously said under oath. Beasley now claims that because the jury was never instructed to use the impeachment testimony only to judge the credibility of the witness, the jurors improperly regarded Williams’s prior statement as substantive evidence of Beasley’s guilt.

As a general rule of law, a defendant who neither offers his own jury instruction nor objects to the State’s instruction waives his right to raise that claim of error on appeal. (People v. Garza (1981), 92 Ill. App. 3d 723, 415 N.E.2d 1328.) Beasley admits that he did not offer an instruction, he did not object to the State’s offered instruction, and he did not mention the omission of a limiting instruction in his post trial motion. However, the appellate court has authority by rule to recognize plain errors or defects affecting substantial rights even though they were not brought to the attention of the trial court. (73 Ill. 2d R. 615(a).) Our initial determination, therefore, must be to decide whether the omission of a limiting instruction in this case was so prejudicial that it amounted to plain error. In such a case, the defendant will not be held to have waived his claim of error on appeal by failing to raise that issue before the trial court in a timely fashion.

The underlying reason for disqualifying witnesses’ prior inconsistent statements as direct evidence of defendants’ guilt is that such statements are usually unsworn hearsay and thus have no substantive testimonial value. (See People v. Paradise (1964), 30 Ill. 2d 381, 196 N.E.2d 689.) While impeachment of a witness by use of a prior contradictory statement is acceptable, it “has never been entirely satisfactory because of the difficult mental operation it imposes upon the jurors *** [by requiring them to] ‘consider [the statement] for one purpose but avoid being influenced by it for another purpose.’ ” (People v. Tate (1964), 30 Ill. 2d 400, 403-04, 197 N.E.2d 26, 28, quoting Annot., 133 A.L.R. 1454, 1466 (1941).) In order for us to ascertain whether in the instant case the inadequately limited impeachment evidence resulted in reversible as opposed to harmless error, we must make the key determinations of (1) whether the prior statement bears any independent indicia of reliability, and (2) whether sufficient competent evidence had already been admitted reasonably to insure that the incompetent evidence did not have a prejudicial influence on the minds of the jury.

In support of his argument that the failure to give a limiting instruction amounted to plain error, defendant Beasley presents several cases in which the same omission was held to be so grossly prejudicial that reversal of those defendants’ convictions was necessary. In each of those cases, however, the prior contradictory statement was either unsworn or insufficiently corroborated by other competent evidence so that it appeared probable that the jurors had relied on the incompetent evidence in reaching their decision. The unqualified impeachment evidence judged to be reversible error in most of these cases involved prior unsworn statements, some allegedly coerced, made by co-defendants (People v. Tate (1964), 30 Ill. 2d 400, 197 N.E.2d 26; People v. Tunstall (1959), 17 Ill. 2d 160, 161 N.E.2d 300; People v. Taylor (1978), 66 Ill. App. 3d 907, 384 N.E.2d 558; People v. Fields (1975), 31 Ill. App. 3d 458, 334 N.E.2d 752; People v. Dandridge (1970), 120 Ill. App. 2d 209, 256 N.E.2d 676) or informers (People v. Paradise (1964), 30 Ill. 2d 381, 196 N.E.2d 689). Further, in Fields, Tunstall, and Tate, the information in the prior inconsistent statement was dwelt on excessively, read into the record more than once, emphasized in the closing statement, or some combination of these. None of the prior statements used to impeach in these cases had any independent indicia of reliability.

The second reason reversals were granted in some of the cases cited by defendant Beasley is that the weakness of the rest of the prosecution’s case rendered it highly probable that the jury would not have returned a verdict of guilty unless they had been improperly influenced by the prior contradictory statement, which had been introduced ostensibly only to impeach a witness’s credibility. In People v. Fields (1975), 31 Ill. App. 3d 458, 334 N.E.2d 752, the victims could not identify the defendant; the only corroboration of the defendant’s participation in the crime, other than the impeaching statement, came from an “undisclosed” police informant. In People v. Taylor (1978), 66 Ill. App. 3d 907, 384 N.E.2d 558, the defendant’s identification as a burglary suspect came through the prior inconsistent statement of one co-defendant that corroborated only one of the versions of the story given by a second co-defendant.

Also in this second category of cases, those in which insufficient competent evidence was present to support a guilty verdict beyond a reasonable doubt, two cases cited by defendant Beasley need special examination. In People v. Riley (1978), 63 Ill. App. 3d 176, 379 N.E.2d 746, and People v. Wright (1965), 65 Ill. App. 2d 23, 212 N.E.2d 126, the extrajudicial statements in question were not prior inconsistent statements used to impeach a witness’s credibility, but instead were occurrence witnesses’ hearsay statements repeated in police officers’ testimony. In each case, the only evidence involving the defendant in the crime was the testimony of the complaining witness. At trial, the police officers who had participated in the arrests testified that the complaining witness had told them the defendant had committed the crime. “The effect of such additional statements was to give the impression to the jury that the evidence against defendant was corroborated.” (People v. Wright (1965), 65 Ill. App. 2d 23, 28, 212 N.E.2d 126, 128.) The court held that the officers’ statements were inadmissible hearsay and their admittance prejudicial error.

It appears clear to us that the situation in the instant case is significantly different from that in all the cases presented by defendant as authoritative precedent. The pivotal differences are that Williams’s prior inconsistent statement bears independent indicia of reliability in that it was sworn testimony given under oath in a judicial proceeding. Further, the statement was neither long, repeated, nor dwelt on by the prosecution. (See People v. Tate (1964), 30 Ill. 2d 400, 197 N.E.2d 26; People v. Fields (1975), 31 Ill. App. 3d 458, 334 N.E.2d 752.) Finally, we believe that sufficient competent evidence had been presented for a jury to find defendant Beasley guilty of rape.

At oral argument, counsel for defendant Beasley concluded by saying, “Your Honors, we stand.on People v. Wright [(1965), 65 Ill. App. 2d 23, 212 N.E.2d 126].” It appears clear to us that Wright is inapposite, dealing as it does with a totally uncorroborated identification by the complaining witness. Defendant Beasley would have us believe that the identification by the victim, the complaining witness in the instant case, is equally uncorroborated. A review of the two cases reveals the key difference: whereas in Wright, the hearsay which appeared to corroborate the victim’s identification was merely a verbal repetition of that same victim’s identification, the identification by the victim here was corroborated through another source entirely, namely Williams’s prior judicial testimony.

In summary, we find that although trial error was committed by omitting an instruction limiting the jury’s consideration of Williams’s prior contradictory statement to the matter of his credibility, that error was harmless in light of the reliability of the statement and the other competent evidence offered. Consequently, we further hold that defendant Beasley’s failure to raise the issue in a timely fashion results in waiver of the issue on appeal.

The second issue raised on appeal is whether the trial judge should have recused himself, and thereby granted defendant’s motion for a substitution of judges. Defendant Beasley claims that because the trial judge’s relative had been the victim of rape by a black man some four years previously, the trial judge is presumptively biased and was unable to maintain judicial impartiality during the instant proceedings. We disagree.

First, “[t]he court itself is in the best position to determine whether it may be prejudiced against the defendant.” (People v. Campbell (1975), 28 Ill. App. 3d 480, 487, 328 N.E.2d 608, 614.) Here the trial judge by denying the motion ostensibly asserted his lack of bias. Second, the trial judge’s denial of the other pretrial motions in no manner indicates that he rendered any rulings that were contrary to established law. Third, we question the timeliness of defendant’s motion where it was made after the trial judge had already ruled on the merits of several issues in the case and where the incident concerning the trial judge’s relative had been a matter of public record since 1975, four years prior to the trial here. See People v. Massarelia (1979), 80 Ill. App. 3d 552, 400 N.E.2d 436; People v. Perry (1975), 35 Ill. App. 3d 50, 340 N.E.2d 585.

The cases cited by defendant in support of his recusal argument involve jurors, not judges, who were presumed to be prejudiced because experiences in their personal background were nearly identical to those at issue in the trial to which they had been assigned. (See Jackson v. United States (D.C. Cir. 1968), 395 F.2d 615.) It is clear to us that these cases are inapposite, for while the presumption in a jury trial is that predisposition of a juror will prevent him from being sufficiently impartial to be a fair juror, the “sound presumption [is] that the court in a bench trial relies only on proper evidence in reaching a determination on the merits.” (People v. Berland (1978), 74 Ill. 2d 286, 310, 385 N.E.2d 649, 660, cert, denied (1979), 444 U.S. 833, 62 L. Ed. 2d 42, 100 S. Ct. 63.) Indeed, the presumption is so strong that “ordinarily the fact that a judge has ruled adversely to a defendant in *** a *** [prior] case does not disqualify that judge from sitting in subsequent *** cases in which the same person is a party.” People v. Vance (1979), 76 Ill. 2d 171, 178, 390 N.E.2d 867, 870.

“The appellate court has repeatedly indicated that the burden of establishing actual prejudice [of the trial judge in a situation such as presented here] rests on the defendant.” (People v. Vance (1979), 76 Ill. 2d 171, 178, 390 N.E.2d 867, 870.) In the instant case, defendant Beasley has been unable to indicate even one incident as an example of the trial judge’s alleged bias. Our careful review of the complete record in this case leads us to the obvious conclusion that the trial judge acted with all due fairness and objectivity, and in conformity with all required judicial standards. Since the defendant has made no effort to show any examples of actual prejudice on the part of the trial judge, we necessarily conclude that defendant’s claim is without merit. (People v. Wright (1974), 56 Ill. 2d 523, 309 N.E.2d 537.) We note that a trial judge is presumed “to disregard all evidence heard except that which is competent and relevant, and is considered to possess such legal discernment when *** [making his determination].” People v. Grabowski (1957), 12 Ill. 2d 462, 467,147 N.E.2d 49, 52.

Finally, in response to Beasley’s claim that he would have chosen a bench trial if the judge had recused himself, we note that Beasley requested a jury trial from the very outset of the case, long before he claims he learned of the trial judge’s personal connection with a similar rape incident. It is clear to us that Beasley’s allegation that he was forced to choose a jury trial against his wishes and was thereby prejudiced is directly contradicted by the record.

For all the reasons discussed above, the judgment of the trial court is affirmed.

Affirmed.

JOHNSON, E J., and ROMITI, J., concur.


source: Caselaw Access Project

author: JUSTICE DOWNING

license: Public Domain

text:
    NORTHWESTERN UNIVERSITY, Plaintiff-Appellee, v. HELEN McLORAINE et al., Trustees, et al., Defendants-Appellants.—HELEN McLORAINE et al., Trustees, Plaintiffs-Appellants, v. DAYTON CEMETERY ASSOCIATION et al., Defendants-Appellees.
    First District (2nd Division)
    Nos. 81 — 2362, 82 — 151 cons.
    Opinion filed August 3, 1982.

      Samuel H. Young, of Skokie, and Alan Ganz, of Rooks, Pitts, Fullager & Poust, of Chicago, for appellants Helen McLoraine and Paul F. Cook.
    Lee A. Freeman, of Freeman, Rothe, Freeman & Salzman, of Chicago, for appellant Lyric Opera.
    Michael C. Weston, of Evanston, and Thomas E. Swaney, Arlene C. Erle-bacher, and Shelley C. Chapman, all of Sidley & Austin, of Chicago, for ap-pellee Northwestern University.
   JUSTICE DOWNING

delivered the opinion of the court:

This consolidated appeal, arising out of related cases in the circuit court, presents us with one question for decision: did the settlor of a revocable inter vivos trust validly amend that trust prior to her death?

Plaintiff Northwestern University filed a complaint seeking construction of a trust, an injunction, and an accounting. After a bench trial, the circuit court issued a judgment order granting the relief sought in the complaint. Defendants Helen McLoraine and Paul E Cook, trustees, and various charitable organizations appeal in case No. 81-2362.

Subsequently, trustees Helen McLoraine and Paul F. Cook filed a complaint seeking construction of another provision of the same trust. After a bench trial, the circuit court entered a judgment order adverse to the trustees. The trustees appeal in case No. 82-151.

The facts in these cases are virtually uncontested. Mabel Greene Myers (Mrs. Myers), in 1961, created a living trust known as the Myers Trust. It was first amended in 1962. In 1968 and 1973, it was amended by completely restating it. The 1973 trust was in effect at the time of Mrs. Myers’ death in 1979. Its assets at the time of her death were worth approximately $1 million.

The 1961 trust indenture consisted of the following relevant provisions. Article First conveyed the properties listed in exhibit A to the trust. Exhibit A, listing various properties, was appended to the trust indenture. Article Second provided for the distribution, during the donor’s life, of $200 per month to Ethel Seixas and $1,000 per year to the Pioneer Fund, a not-for-profit corporation. Article Second provided for certain specific bequests upon the death of the donor, per an exhibit B attached. (No copy of an exhibit B is contained in the record on appeal, and apparently none exists today.) The residue was to be distributed to the Pioneer Fund, or, alternatively, to Otterbein College and the University of Chicago. Article Ninth provided that the trust was revocable during the life of the donor, and further provided:

“The Donor further reserves the right to alter, change, or modify any of the provisions of this Indenture in any respect and to any extent at any time by an instrument in writing signed by her and delivered during the Donor’s life to the Trustees then acting hereunder ***.”

The indenture was signed by the settlor, the two trustees, three witnesses, and was notarized.

Mrs. Myers amended the trust in 1962 by executing a formal instrument, signed by her and delivered to the trustees. The signatures of the trustees acknowledged this delivery. This amendment specified that payments to Ethel Seixas and the Pioneer Fund be made from principal if net income was insufficient for such purposes.

The trust was fully amended by Mrs. Myers in 1968 by completely restating it. Article Third provided for, upon termination of the trust, specific bequests to the individuals listed in exhibit 1. The residue was to be paid to Otterbein College. Article Ninth, dealing with alteration, remained unchanged from the 1961 indenture. This restatement was executed with the same formalities as the original indenture.

The trust was again completely restated in 1973. Mrs. Myers and Helen McLoraine, her daughter, were again co-trustees. Article First again stated that the property conveyed by the donor to the trust was described in exhibit A. This exhibit was appended to the indenture. Article Third again provided for the termination of the trust estate. An annuity paying $250 per month was to be purchased for Ethel Seixas. Specific bequests were to be made to those persons listed in exhibit 1. The residue was to be divided equally among the charitable organizations listed in exhibit 2. Article Ninth, regarding alteration, remained unchanged from the 1961 and 1968 indentures. Again, all the formalities of execution were observed.

When the 1973 indenture was executed, it had appended to it exhibit 1 and exhibit 2. Exhibit 1 was a list of over 40 names of individuals, with amounts ranging from $5,000 to $25,000 listed beside their names. Exhibit 2 was a list of eight charitable organizations: Arthritis Foundation, Illinois Chapter; Mid America Hearing Research Foundation; National Right to Work Foundation; Planned Parenthood; Americans United; Lyric Opera; Field Museum; and Otterbein College. Mrs. McLoraine, as co-trustee, received a copy of the indenture without exhibits 1 and 2.

After Mrs. Myer’s death, her daughter, co-trustee Helen McLo-raine, found the 1973 indenture in Mrs. Myers’ safe deposit box at the First National Bank of Chicago. No one but Mrs. Myers had access to the box. The original exhibits 1 and 2 were not then attached to the indenture. A revised exhibit 1, containing several changes, was stapled to the indenture. The revised exhibit 1 had been prepared by Walter Bacon, Mrs. Myers’ attorney, at least a year after the 1973 indenture was executed. There was no substitute exhibit 2. There was, attached by paper clip to the indenture at the point in Article Third, paragraph 5 where it described that the residue went to the charitable organizations listed in exhibit 2, a small, unsigned slip of paper with the following words typed on it:

“shall be given to the Arthritis Section, Department of Medicine of Northwestern University Medical School for the purpose of research.
Arthritis-Connective Tissue Diseases.”

This note was typed on Mrs. Myers’ typewriter.

The original exhibits 1 and 2 were found by Mrs. McLoraine in the office that Mrs. Myers maintained at her apartment. Mrs. McLo-raine had never received a copy of the original exhibits, nor of the subsequent exhibits.

Approximately one month prior to Mrs. Myers’ death, she and Mrs. McLoraine participated in the Pioneer Fund’s gift of $500,000 to Northwestern University Medical School, Arthritis and Connective Tissue Section. Both women were on the board of the Pioneer Fund; Mrs. Myers contributed about $18,000 toward the gift, while Mrs. McLoraine supplied the balance. At this time, Mrs. Myers stated to Mrs. McLoraine, “Now I know what to do with the residue and remainder.” Mrs. McLoraine understood her to be referring to the Myers Trust. Mrs. McLoraine testified that in the year prior to February 21, 1979, Mrs. Myers discussed with her certain possible changes in some of the individual beneficiaries of the Myers Trust.

After Mrs. Myers’ death, Paul F. Cook replaced her as a trustee of the Myers Trust. Cook and Mrs. McLoraine, as co-trustees, sent a letter to all the charitable beneficiaries listed in original exhibit 2 and to Northwestern University advising them of all the relevant facts. Subsequently, the trustees concluded that no amendment to the 1973 indenture had occurred, and that they were going to proceed in accordance with original exhibits 1 and 2.

Northwestern University filed suit in the circuit court, naming as defendants the co-trustees and the eight charities listed in original exhibit 2. After a trial, the circuit court ruled that the 1973 indenture had been amended by the small slip of paper, and ordered the residue of the Myers Trust distributed to Northwestern University. The trustees and the charities appeal this ruling in case No. 81-2362.

The trustees subsequently filed suit in the circuit court seeking instructions as to whether they should make distributions to the individual beneficiaries in accordance with the original exhibit 1 or the new exhibit 1. Named as defendants were the individuals listed in both exhibits 1, the eight charities, and Northwestern University. Pursuant to a stipulation of the parties, the trial transcript and the exhibits from case No 81-2362 were incorporated as the only evidence in this case. The circuit court held that the 1973 indenture was amended by the new exhibit 1 and entered judment in favor of the beneficiaries listed on that exhibit. The trustees appeal this ruling in case No. 82-151.

Appellants, the co-trustees and the eight charitable organizations, contend that the trial court erroneously held that the Article Ninth requirements for alteration of the trust do not apply to the exhibits. They submit that the exhibits are integral parts of the indenture and that Article Ninth must apply to them. Appellants also contend that the purported amendment of exhibit 2 was actually an attempted amendment to the “body” of the indenture, and thus Article Ninth must clearly apply. Finally, appellants contend that the trial court erred in its alternative holding that, if applicable, the Article Ninth requirements were satisfied.

I

The trial court, agreeing with appellees’ argument, held that the Article Ninth requirements for amendment of the indenture did not apply to amendments of the exhibits. Appellees’ argument is that Article Ninth is ambiguous as to whether it applies to the exhibits, and that as a consequence, extrinsic evidence must be examined to determine whether Mrs. Myers intended Article Ninth to apply to the exhibits. Their interpretation of the extrinsic evidence is that Article Ninth does not apply to the exhibits. Appellants contend that Article Ninth unambiguously applies to all amendments.

Article Ninth states that it applies to “any of the provisions of this Indenture.” Appellees argue that “this Indenture” refers only to the “body,” and not to the “Exhibits.” At best, they contend, it is ambiguous. Appellees then look at what they consider the relevant extrinsic evidence. They consider the intent of Mr. Myers to be all important. They argue that she always treated the exhibits differently than the body of the indenture, and thus that she intended Article Ninth to be inapplicable to the exhibits. Appellees note that Mrs. Myers did not give copies of the exhibits to her co-trustee, and that the exhibits did not contain signature lines and were not signed by Mrs. Myers. Thus, appellees contend that Mrs. Myers did not intend that the Article Ninth “signature” and “delivery” requirements apply to the exhibits.

We reject the soundness of the chain of reasoning postulated by appellees. It is plain to us that the exhibits to the 1973 indenture are integral parts of the indenture, and that Article Ninth must apply to them. The essential elements of a trust are: settlor, trustee, property, and beneficiaries. (Bogert, Trusts sec. 1 (2d ed. 1965).) Most of the property and substantially all of the beneficiaries are named in exhibits to the 1973 indenture.

The exhibits were attached to the original 1973 indenture at the time it was executed by Mrs. Myers, and thus should be treated as part of the indenture. The Illinois Supreme Court stated in Wynekoop v. Wynekoop (1950), 407 Ill. 219, 225, 95 N.E.2d 457:

“Unless a contrary intention is manifested, instruments executed at the same time, by the same parties, for the same purpose and in the course of the same transaction, are regarded as one instrument and will be construed together as if they were as much one in form as they are in substance.”

In Wynekoop, the documents were not even attached to each other. Here, the documents were all bound together in a “blue back” document cover. We see no ambiguity in Article Ninth, when read in light of these uncontroverted facts.

We also disagree with appellees’ contention that it was the intent of Mrs. Myers to exclude the exhibits from the ambit of Article Ninth. As appellants correctly note, Mrs. Myers treated the exhibits differently in only one way: they were not attached to the copy of the 1973 indenture which was given to her co-trustee. The understandable reason for this was to prevent potential beneficiaries from knowing of changes made in the amount which they were to receive. While Mrs. Myers did not sign the original exhibits 1 and 2, they were appended to the executed indenture, which was signed by Mrs. Myers and her co-trustee, Mrs. McLoraine. While there were no signature lines on the original exhibits, there were also no signature lines on any other page of the 1973 indenture, save the last page.

We do not believe that this sole difference in treatment evinces an intent to not subject the exhibits to Article Ninth, when considered in conjunction with the plain language of Article Ninth and the location of the original exhibits on the executed indenture.

We conclude that the requirements of Article Ninth must be satisfied in order to properly amend the exhibits. Article Ninth expressly provides a method for alteration of the trust. Where a method of exercising a power of modification is described in the trust instrument, the power can be exercised only in the manner described. In Parish v. Parish (1963), 29 Ill. 2d 141, 193 N.E.2d 761, the trust instrument provided for modification by a written agreement signed by the settlor and the trustees. The supreme court held an attempted oral modification ineffective, stating:

“It is elementary that if the method of exercising a power of modification is described in the trust instrument, the power can be asserted only in that manner. (Bogert, Trusts and Trustees, sec. 993; Restatement of the Law of Trusts, sec. 331; 54 Am. Jur., Trusts, sec. 69.)” 29 Ill. 2d 141, 149.

Accordingly, the circuit court erred in holding the Article Ninth requirements inapplicable to the exhibits.

II

We next consider a contention raised by appellants as an alternative to the argument discussed in section I of this opinion. Appellees contend that the requirements of Article Ninth do not apply to the exhibits, but rather only to amendments of the “body.” Appellants contend, and we agree, that the purported amendment of exhibit 2 involved an amendment to the “body” of the indenture (assuming, arguendo, the validity of a distinction between “exhibits” and “body”).

Article Third, paragraph 5 of the 1973 indenture states:

“5. The balance of the trust estate, after making the specific bequests listed in Exhibit 1, and after making or providing for the payments specified in Article Seventh hereof, shall be distributed in equal amounts to the organizations listed in Exhibit 2.”

The purported amendment consisted of two steps: (1) removing the original exhibit 2, which was originally attached to the indenture; and (2) attaching to the body of the indenture at paragraph 5 the small slip of paper referring to Northwestern University. If this second step was an attempt to amend the indenture, it was an attempt to amend the “body” of the indenture by changing paragraph 5. The phrase on the slip of paper fits grammatically into paragraph 5 after the word “hereof.” To illustrate, the following is paragraph 5 with the amendment:

“5. The balance of the trust estate, after making the specific bequests as listed in Exhibit 1, and after making or providing for the payments specified in Article Seventh hereof, s-h-a^H-b-e- d-^s-t-^-i-b-Hrt-e-d- i^n- e-q-tar-1— a^me-tna-t-s- t-e-t-h-e- e-r-g-a^n-i-z-a^t-i-e-H-s- 1-i-s-t-e-d- i-u- Ese-h-i-b-i-t-2-, shall be given to the Arthritis Section Department of Medicine of Northwestern University Medical School for the purpose of research.

By virtue of the manner of attachment, its location, and wording, we believe it clearly indicates that if Mrs. Myers was thinking of amending, it was as an amendment of Article Third, paragraph 5. Therefore, the requirements of Article Ninth would be clearly applicable.

Ill

In each of the preceding sections of this opinion, we have concluded, via alternate legal pathways, that the purported amendments to exhibits 1 and 2 of the 1973 indenture must satisfy the requirements of Article Ninth. The trial court held that these requirements were satisfied. In this section, we determine whether or not that conclusion was correct.

Article Ninth sets forth the following three specific requirements: (A) an instrument in writing; (B) signature; and (C) delivery. The briefs of the parties discuss the “signature” and “delivery” requirements, but ignore the “instrument in writing” requirement. We consider this overlooked requirement because it is dispositive of the issue.

A.

The term “instrument in writing” suggests to us some type of formal legal document consisting of substantially more than an unsigned scrap of paper and a list of names. More significantly, it is apparent to us, based upon the various documents in evidence, that Mrs. Myers considered an “instrument in writing” to be a formal legal document.

We can determine the meaning of the term “instrument in writing” in Article Ninth by examining the way in which Mrs. Myers previously amended the trust. (Cedar Park Cemetery Association, Inc. v. Village of Calumet Park (1947), 398 Ill. 324, 335, 75 N.E.2d 874.) The original 1961 indenture, containing the same Article Ninth, was amended by Mrs. Myers on July 30, 1962. On that date, she directed a letter to the trustees stating the amendment and required the trustees to acknowledge delivery with their signatures. The two subsequent amendments to the trust involved complete restatements of the trust in 1968 and 1973, each time with the formalities of witnesses, signatures, and delivery.

The court in First National Bank v. Oppenheimer (1963), 23 Ohio Op. 2d 19, 190 N.E.2d 70, was confronted with a similar question. There, the settlor had created a living trust which stated that it could be altered by an instrument in writing signed by the grantor and delivered to the trustee during the life of the grantor. (23 Ohio Op. 2d 19, 20, 190 N.E.2d 70, 71.) After determining that an “instrument in writing” referred to a formal document, the court concluded that a fully executed copy of a will could properly be described as an instrument in writing. See also In re Estate of Wilson (1949), 404 Ill. 207, 210-11, 88 N.E.2d 662; In re Estate of Brokaw (1950), 339 Ill. App. 353, 357-58, 90 N.E.2d 300.

It is plain to us that Mrs. Myers’ conception of an “instrument in writing” was a formal legal document. The purported substitute exhibits 1 and 2 do not meet this requirement of Article Ninth.

B.

The second requirement for amendment found in Article Ninth is the requirement of “signature.” Appellants argue that this requirement was not met because neither the substitute exhibit 1, nor the scrap of paper replacing exhibit 2, was signed. Appellees concede that these papers were not signed but present various theories by which signature may be implied.

Initially, relying on Wynekoop v. Wynekoop (1950), 407 Ill. 219, 95 N.E.2d 457, appellees argue that because the new documents were attached to the executed 1973 indenture, they became integrated into the 1973 indenture, thus adopting the original signature on the 1973 indenture. Wynekoop, however, requires the presence of four factors before integration will be found. They are: same time, same parties, same purpose, and same transaction. (407 Ill. 219, 225.) Since the “new” exhibits were not created at the same time as the 1973 indenture, they cannot be integrated therein.

Appellees next rely on a number of statute of frauds cases in which the signature requirement was “liberally” construed. Illustrative of these cases is Mid-Town Petroleum, Inc. v. Dine (1979), 72 Ill. App. 3d 296, 390 N.E.2d 428. The issue before the court in Mid-Town was whether a real estate sales contract satisfied the statute of frauds, where the defendant seller did not sign the contract. The court, considering numerous documents involved in the case, held that in sum, these documents satisfied the statute of frauds. The basis of the holding by the court involved consideration of the underlying purpose of the statute which is to prevent enforcement of contracts unless the court can be certain of the existence and terms of the contracts. The court was convinced that no fraud would be perpetrated by enforcement of the contract. 72 Ill. App. 3d 296, 305; see also Jones v. Olsen (1980), 80 Ill. App. 3d 1016, 1017-18, 400 N.E. 2d 665, appeal denied (1980), 81 Ill. 2d 584.

Appellants argue that the reasoning behind the statute of frauds cases is not applicable to this case where the signature requirement is not found in a statute but was created by Mrs. Myers. They contend that since the distributions were to take effect after the death of the settlor, wills cases are more analogous than statute of frauds cases. Appellants rely on Hoffman v. Hoffman (1938), 370 Ill. 176, 18 N.E.2d 209, in which a document purporting to be a will was denied admission to probate because it did not contain the signature of the testator. The document was in the handwriting of the testator and contained her name. The court stated: “The decisive question is not whether the deceased intended the instrument to be her will, but whether she intended the name appearing in the exordium clause to be her signature.” 370 Ill. 176, 179.

We believe that the standard which should be applied is that which was followed by Mrs. Myers. She actually signed every previous amendment. Thus, by her course of action, it is clear to us that she established the requirement that an actual signature is required by Article Ninth.

C.

The final requirement of Article Ninth is the “delivery” requirement. Since the purported amendments were never actually delivered to Mrs. McLoraine, appellants contend that no delivery occurred. Ap-pellees argue that “constructive delivery” occurred when Mrs. Myers placed the exhibits in her safe deposit box with the intent that Mrs. McLoraine take possession of them and when Mrs. McLoraine did in fact take possession of them. As in the previous subsection, appellees ask this court to liberally construe the requirements of Article Ninth.

Appellees initially rely on several cases in which a delivery requirement was relaxed. Illustrative is In re Estate of Wood (1973), 32 Cal. App. 3d 862, 108 Cal. Rptr. 522, where a donee could only exercise a power of appointment by a written instrument delivered to the trustee during the donee’s lifetime. The donee delivered the instrument to her attorney, but. the attorney did not deliver the instrument to the trustee until after her death. The court determined that the possible purposes of the requirement of delivery during lifetime were: (1) to assure the authenticity of the instrument; (2) to be certain of the intent of the donee to deliver the instrument during her lifetime; and (3) to inform and protect the trustee. The court concluded that a holding of valid delivery would not thwart any of these purposes. We do not think any of the three tests are satisfied in the instant case. In fact, the questions of authenticity and intent go to the heart of the instant litigation. Thus, the reason for the “delivery” requirement becomes significant.

Appellees next argue, citing St. Louis Union Trust Co. v. Dudley (Mo. App. 1942), 162 S.W.2d 290, that a failure to comply with the delivery requirement was excused by the “waiver and acquiescence” of the co-trustee, Mrs. McLoraine. Contrary to appellees’ claim, we find no factual basis in the record for this conclusion.

Finally, citing Prince v. Prince (1913), 258 Ill. 304, 101 N.E. 608, appellees argue that the controlling factor must be the intent of the settlor to deliver the amendments to the trustee. This intent was manifest, according to appellees, by Mrs. Myers placing the amendments in her safe deposit box with the knowledge that Mrs. McLo-raine would find them. Compared with the formal delivery achieved by Mrs. Myers in the three other amendments of the trust, it is impossible for us to see the intent which appellees claim existed.

The only possible conclusion we can reach is that Mrs. Myers did not deliver the amendments to her co-trustee as required by Article Ninth.

In sum, we hold that the trial court erred in finding the requirements of Article Ninth satisfied.

IV

We find that appellees failed to establish by a preponderance of the evidence, and the circuit court erred in finding, that Mrs. Myers amended the Myers Trust. The circuit court’s error in so finding is contrary to the manifest weight of the evidence. We hold that the trustees should proceed in accordance with the exhibits that were appended to the 1973 indenture at the time of its execution. Accordingly, the judgment of the circuit court of Cook County is reversed.

Reversed.

BERLIN and HARTMAN, JJ., concur.

      Typed approximately three lines below the new wording is the following: “Arthritis-Connective Tissue Diseases”


author: JUSTICE PERLIN

text:
    OAK PARK TRUST & SAVINGS BANK, Trustee, Plaintiff-Appellee, v. HELEN M. BAUMANN, Indiv. and as Ex’r of the Estate of Richard O. Baumann, Deceased, Defendant-Appellee.—(OAK PARK TRUST & SAVINGS BANK, Ex’r of the Estate of Walter O. Baumann, Deceased, Defendant-Appellant.)
    First District (2nd Division)
    No. 81 — 1096
    Opinion filed August 3, 1982

      Spitzer, Addis, Susman & Roskin, of Chicago (Michael B. Susman, of counsel), for appellant.
    Ted J. Kucia, of Hoy, Oddo, Kucia & Groat, of Chicago, for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

The Oak Park Trust & Savings Bank, as executor of the estate of Walter O. Baumann, deceased, appeals the trial court’s order construing a trust established under the will of Margaret L. Baumann, deceased, the wife of Walter O. Baumann. The bank contends that the trial court erred in holding that the trust created a life estate pur au-tre vie in favor of the testatrix’ son, Richard Baumann, and in holding further that the remainder interest in favor of Richard Baumann vested absolutely upon the death of the testatrix, Margaret L. Baumann. For the reasons which follow, we affirm the orders of the trial court construing the trust and denying the bank’s motion for a rehearing.

The pertinent provisions of the testamentary trust created by the will of Margaret L. Baumann are as follows:

“(a) If my husband survives me, the net income from the trust estate shall be paid equally to my husband and my son, and the Trustee shall be empowered to use from time to time such amounts from principal for either my husband and my son as the Trustee shall deem necessary or desirable for their medical care, comfortable maintenance and welfare, taking into consideration such other resources as they respectively possess and which are known to the Trustee.
(b) Upon the death of my husband, or upon my death if he does not survive me, the trust estate, together with all accrued and accumulated income, shall be distributed to my son.”

Margaret L. Baumann died on July 9, 1975, survived by her husband, Walter O. Baumann, and her son, Richard Baumann. Richard Baumann died on December 11, 1979, predeceasing his father, and leaving his widow, Helen M. Baumann, as his only heir-at-law and executrix of his estate. Richard Baumann died without issue.

On February 19, 1980, the Oak Park Trust & Savings Bank, as trustee under the last will and testament of Margaret L. Baumann, filed a complaint to construe trust under will naming Helen M. Baumann, individually and as executrix of the estate of Richard Baumann, deceased, and Walter O. Baumann as defendants. On January 9, 1981, the trial court granted Helen M. Baumann’s motion for summary judgment. The trial court held that a one-half income interest in the Margaret L. Baumann testamentary trust vested absolutely in Richard Baumann at the time of Margaret Baumann’s death, and, upon Richard Baumann’s death, such income became a part of his estate. The court also held that the remainder interest in the corpus of the testamentary trust vested absolutely not subject to divestment in Richard Baumann and upon his death in his estate. The court accordingly ordered that the one-half income interest of the trust be paid to the estate of Richard Baumann and that the corpus of the trust be distributed to the estate of Richard Baumann upon the death of Walter O. Baumann. Subsequent to this order, Walter O. Baumann died and the Oak Park Trust & Savings Bank, as executor of his estate, filed a motion for rehearing which was denied by the court in an order entered April 9, 1981.

I

Analysis of the parties’ contentions must begin with an identification of the interests created by the Margaret L. Baumann testamentary trust.

Clause (a) creates a life estate which vested immediately in decedent’s son, Richard Baumann, and her husband, Walter O. Baumann, upon the death of Margaret L. Baumann. Each beneficiary was to .enjoy equal and concurrent ownership in the income of the trust. (The trustee was also empowered to invade principal to the extent necessary or desirable for the medical care, comfortable maintenance and welfare of the beneficiaries.) Clause (a) does not limit the length of these estates. Clause (b), however, provides that “Upon the death of my husband, or upon my death if he does not survive me, the trust estate together with all accrued and accumulated income shall be distributed to my son.” By virtue of the emphasized language, Richard Baumann’s one-half income interest in the trust would terminate upon the death of Walter O. Baumann. Under common law principles, this is described as a life estate pur autre vie, i.e., a life estate, the term of which is measured by someone else’s life. Thus, Richard Baumann held a life estate pur autre vie in one-half of the income from the trust. The measuring term for this estate was the life of Walter O. Baumann.

The bank suggests that to construe the trust as creating a life estate pur autre vie is gratuitous and contrary to the manifest intent of the deceased, Margaret L. Baumann, “as set forth by the language in her will and testamentary trust *** to provide first for her husband, and then for her son.” The bank refers to the second paragraph of testatrix’ will wherein she gave her tangible personal property “in equal shares to my husband, Walter O. Baumann *** and my son, Richard M. Baumann ***.” The bank also refers to clause (a) of article III wherein Margaret Baumann directed that “the net income from the trust estate shall be paid equally to my husband and my son, ***.” Based upon the testatrix’ “sequence” of naming her husband first, then her son, the bank argues that Margaret L. Baumann’s primary concern was to benefit her spouse, not her son.

Contrary to this argument, however, it seems apparent that where both the husband and the son were to share equally in the tangible personal property and in the interest income from the trust, the testatrix did not, merely by the sequence of the names, indicate an intention to prefer her husband over her son. Nothing in the will or the trust expresses an intent “to provide first and foremost for her husband, and secondarily for her son ***.” Construing the income interest created in favor of Richard Baumann as a life estate pur autre vie does not contravene the testatrix’ manifest intent as reflected in the will and trust.

The bank cites Schaffenacker v. Beil (1925), 320 Ill. 31, 150 N.E. 333, for the proposition that no life estate pur autre vie was created by the testatrix’ will. In Schaffenacker, the court stated that“[a]n estate pur autre vie is one that is in every instance created by deed or by will, or brought into existence by reason of the provisions of a will or deed or other instrument under consideration.” (320 Ill. 31, 41.) In accordance with this, the court held that a widow’s renunciation of a life estate did not create by operation of law a life estate pur autre vie (using the widow’s life as the measuring life) in favor of the contingent remaindermen. Schaffenacker is clearly inapplicable. Central National Bank v. McMunn (1967), 12 Ohio Misc. 1, 228 N.E.2d 349, is also inapposite because no estate pur autre vie was created.

Since the interest created by the trust in favor of Richard Baumann was a life estate pur autre vie in one-half of the income, it is unnecessary to discuss the bank’s theory of implied cross-remainders. The bank concedes that this theory is inapplicable where an interest has been identified as a life estate pur autre vie. Cross-remainders will be implied in a will only where the intention of the testator, as shown by a consideration of all the terms of the will, requires it. (Hunt v. Mitchell (1951), 409 Ill. 321, 324, 99 N.E.2d 347.) No such intention appears in the trust established by Margaret L. Baumann’s will.

Having identified Richard Baumann’s income interest as a life estate pur autre vie, it must be determined how that interest was affected by the death of the beneficiary (Richard Baumann) prior to the death of the cestui que vie (Walter O. Baumann).

Our supreme court has held that an estate pur autre vie is personal property of the life tenant which, if he dies intestate, is to be distributed under the statute providing for the descent of estates, both real and personal. (Bullard, v. Suedmeier (1920), 291 Ill. 400, 407, 126 N.E. 117.) More generally, in Glaser v. Chicago Title & Trust Co. (1946), 393 Ill. 447, 464, 66 N.E.2d 410, the court stated:

“The rule is that where, by the terms of the will, the income is to be paid to two or more beneficiaries for life *** but there is no provision as to the disposition of the income payable to a life beneficiary in the event of his death prior to the time fixed for the termination of the trust, the disposition of such income depends upon the intention of the testator, expressed in his will. In such cases there are four possible dispositions which might be made of such share of the income. First, it might be paid to the surviving life beneficiary; second, it might be paid to the estate of the deceased beneficiary; third, it might be paid to the heirs of the testator as property not disposed of by his will; and fourth, it might be accumulated by the trustees, and on the termination of the trust, paid to the persons entitled to the principal of the trust estate at that time.”

The testatrix’ will did not create a joint gift of life income to her son and husband with right of survivorship. The one-half income interest of Richard Baumann cannot be considered property not disposed of by her will since the will contains no language terminating Richard’s interest prior to the death of Walter O. Baumann. Nor does the will authorize the trustee to accumulate income. In the absence of such a direction “it must be disposed of in one of the other ways above mentioned.” (393 Ill. 447, 465.) The second alternative suggested in Glaser, payment to the estate of the deceased beneficiary, is the appropriate method of disposing of Richard Baumann’s income interest. II Scott, The Law of Trusts sec. 143, at 1099 (3d ed. 1967).

In Hussey v. Hussey (1948), 323 Mass. 533, 83 N.E.2d 159, the Massachusetts Supreme Judicial Court, after considering a long line of American and English cases, quoted from its earlier decision in Harrison v. Marden (1937), 298 Mass. 148, 10 N.E.2d 109:

“ '*** the principle has been developed that, where an annuity or payment of income *** is not limited in terms to the life of the beneficiary but is limited to some other lawful period of time, and before the expiration of that period the beneficiary dies, his personal representative is entitled to the income for the remainder of the period.” Hussey v. Hussey (1948), 323 Mass. 533, 535, 83 N.E.2d 159,160.

In White v. Strowbridge (1930), 133 Or. 638, 291 R 798, the will provided for an annuity to a granddaughter during the life of the testator’s widow. The granddaughter predeceased the widow. The court held “in conformity to what we believe to be the universal holding of the courts that the annuity to the granddaughter did not terminate upon her death but passed to her personal representatives.” 133 Or. 638, 642, 291 P. 798, 799.

We conclude that Richard Baumann’s estate was entitled to the one-half income interest in the trust until the death of Walter O. Baumann.

II

The second issue is whether Richard Baumann’s interest in the corpus of the trust was vested at the death of Margaret Baumann, the testatrix, or was contingent upon his surviving Walter O. Baumann. The mere fact that possession was deferred until after the death of Walter Baumann does not make Richard’s interest contingent. Deferral of possession is characteristic of all remainders.

A remainder is contingent if the remainderman’s identity cannot be definitely ascertained or if the remainder is conditioned on the happening of an event not certain to happen. In the case of a vested remainder, there is a person in being ascertained and ready to take who has a present right of future enjoyment which is not dependent upon any uncertain event or contingency, while in the case of a contingent remainder the right of future enjoyment itself is uncertain. Kost v. Foster (1950), 406 Ill. 565, 568-69, 94 N.E.2d 302.

Here, the language in the will clearly identified the remainderman. The phrase “my son” in clause (b) refers to Richard Baumann. Moreover, the language does not expressly postpone or condition vesting on the happening of an uncertain event. The phrase “upon the death of my husband” does not require, as a condition to vesting, the survival of Richard Baumann beyond the termination of the life estate. Our courts have repeatedly held that the phrase “upon death” does not imply the creation of a conditional interest. Such language merely postpones the enjoyment of an interest which vests immediately. (Dyslin v. Wolf (1950), 407 Ill. 532, 541-42, 96 N.E.2d 485; Crowley v. Engelke (1946), 394 Ill. 264, 271-72, 68 N.E.2d 241; Whittaker v. Porter (1926), 321 Ill. 368, 151 N.E. 905; Mueller v. Forsyth (1968) , 94 Ill. App. 2d 258, 263, 235 N.E.2d 645.) This interpretation is in keeping with the law’s preference for “vesting of estates at the earliest possible moment.” St. Louis Union Trust Co. v. Hearne (1969) , 111 Ill. App. 2d 411, 418, 250 N.E.2d 674.

There is no clear intention expressed in Margaret L. Baumann’s will to postpone vesting of the remainder interest. Only the posses-sory enjoyment was deferred until Walter O. Baumann’s death. This serves to distinguish several of the authorities on which the bank relies. Other authorities cited by the bank are distinguishable because they involved language indicating an express condition of survivor-ship.

Based on the foregoing, we find that the remainder interest Margaret L. Baumann created in her testamentary trust for Richard Baumann vested absolutely in Richard at Margaret’s death. Richard was therefore entitled to the interest at that time, with only the possession being deferred. Accordingly, his death before Walter O. Baumann’s death did not divest him of his interest. The remainder passed, as the trial court ordered, to Richard Baumann’s estate.

For the reasons herein stated, the orders of the circuit court of Cook County are affirmed.

Affirmed.

DOWNING and HARTMAN, JJ., concur.


text:
      In re ADOPTION OF ALEX J. McFADYEN III.-(LEON R. SHURE et al., Petitioners-Appellees, v. ALEX J. McFADYEN et al., Respondents-Appellants.)
    First District (2nd Division)
    No. 81 — 1928
    Opinion filed August 3, 1982.

      Lake, Rosenberg & Associates and Beermann, Swerdlove, Woloshin, Barezky & Berkson, both of Chicago (Miles N. Beermann, Howard A. London, and Edward D. Rosenberg, of counsel), for appellants.
    Mandel, Lipton and Stevenson, Ltd., of Chicago (Richard L. Mandel, Nicholas Stevenson, and Richard A. Lifshitz, of counsel), for appellees.
   JUSTICE DOWNING

delivered the opinion of the court:

This is an appeal from the granting of a petition for adoption. Petitioners Leon and Marianne Shure filed a petition to adopt Alex J. McFadyen III (“Alex III”). The petition was contested by respondents Alex and Diane McFadyen. Two issues are presented on appeal: (1) whether the circuit court correctly construed the term “parents” in the Adoption Act to mean only biological and legally adoptive parents (Ill. Rev. Stat. 1979, ch. 40, par. 1510(a)); and (2) whether such a construction deprives Alex McFadyen of due process.

Alex and Diane were married on March 7, 1979. Diane gave birth to a son, Alex III, on February 23, 1980, in Casper, Wyoming. Alex and Diane concede on appeal that Alex is not the biological father of Alex III.

The Shures filed a petition to adopt Alex III on August 13, 1980. Diane executed a “final and irrevocable” consent to the adoption of Alex III on August 14, 1980. Alex and Diane concede on appeal that this consent was valid. The biological father, Robert Giddick or an unknown person, was served by publication in the circuit court and a default judgment entered against him. The circuit court entered an order terminating the parental rights of Diane, appointing a guardian ad litem for Alex III, and granting temporary custody of Alex III to the Shures.

The Shures’ petition, with amendments, alleged that Alex was the presumptive legal father of Alex III, and that Alex was an “unfit person” within the meaning of section 1(D) (Ill. Rev. Stat. 1979, ch. 40, par. 1501(D)). The petition also alleged that Robert Giddick was the biological father of Alex III and that he was an unfit person.

Alex filed a general appearance on February 25, 1981. Alex’ section 45 motion to dismiss the petition for adoption was denied (Ill. Rev. Stat. 1979, ch. 110, par. 45). After further proceedings not relevant to this appeal, the Shures filed a motion for judgment of adoption, which the circuit court treated as a motion for summary judgment. The motion alleged that Diane, the natural mother, consented to the adoption, that Alex had no standing since he was not the biological father, and that the biological father was in default. In support of the contention that Alex was not the biological father, excerpts from the deposition transcripts of Alex and Diane were submitted.

Alex testified at his deposition that he had a vasectomy in 1972, and that he believed himself to be sterile. He further testified that he and Diane had an agreement that she could have intercourse with other men for the purpose of becoming pregnant. One of the men with whom she had intercourse was Robert Giddick. Diane’s deposition testimony corroborated the existence of this “agreement,” and that she had intercourse with Giddick and several other men.

In denying the Shures’ motion for summary judgment, the court stated that if Alex was not the biological father, neither his consent nor a finding of unfitness was needed. A trial on the issue of paternity followed.

Six days before the trial began, Alex and Diane filed a joint verified answer to the petition for adoption. Alex had previously filed a verified answer to the petition. Alex and Diane denied that Alex was an unfit person. They claimed that it was possible for Alex to be the biological father, but that if he was not, that Alex III was conceived through “their type of artificial insemination.” In an affirmative defense, they defined this type of “artificial insemination” as consisting of “someone other than the husband was, by their choice, the sperm donor to help them conceive their child.” It was more clearly explained in a further affirmative defense as “artificial insemination by means of a surrogate donor’s penis.” The Shures did not file a responsive pleading to this answer.

Although the trial court had ruled that the sole issue at trial was to be paternity, this ruling was not strictly followed. Much of the testimony of the 10 witnesses concerned the issue of paternity, but other evidence was introduced by both parties. A brief chronology of the events leading up to the surrender of Alex III for adoption follows.

Alex and Diane were married on March 7, 1979, in Chicago. Several weeks later they moved to Covert, Michigan. Alex spent May and part of June in jail on a misdemeanor charge. It was during this time that Diane had intercourse with Giddick and several other men. Alex and Diane moved to Casper, Wyoming, at the end of July 1979. They lived in Casper until April or June of 1980. Alex III was born in Cas-per on February 23, 1980. From Alex Ill’s birth until they left Wyoming, Diane took Alex III to visit relatives in Chicago on several occasions.

Diane testified that in late April 1980, she hitchhiked to Chicago with Alex III, where they took up permanent residence with Laura Kroll, Diane’s grandmother. Mrs. Kroll’s testimony was consistent about this date. Alex moved to Mrs. Kroll’s in late June. (Alex testified that the entire family moved together from Wyoming to Chicago in late June 1980.) Alex attended truck driving school in Wisconsin for three weeks from approximately June 30 to July 17, 1980. Diane and Alex III accompanied him to Wisconsin. Upon graduation, Alex traveled to at least 10 states in search of employment. Diane and Alex III returned to Mrs. Kroll’s and did not travel with Alex. In late July 1980, Alex secured employment as a cross-country truck driver with a firm in Wichita, Kansas.

While working as a truck driver, Alex did not see Diane or Alex III. When Alex returned to Wichita on August 27 after finishing a run, Diane was waiting for him. She told Alex that she had placed Alex III up for adoption.

Evidence was introduced on issues other than paternity as follows. Alex was called as an adverse witness during the Shures’ case in chief. Ruling on an objection to a line of questioning, the circuit court held that evidence of Alex’ fitness as a parent was relevant and allowed questioning on the subject. Consequently, substantial evidence was introduced in an attempt to establish Alex’ unfitness, including his prior criminal history and his prior marital and child-support history. During their case, Alex and Diane introduced evidence in an attempt to establish Alex’ fitness. This evidence consisted of testimony that Alex played with, fed, and changed the diapers of Alex III.

Alex and Diane introduced evidence in an attempt to establish the existence of their “surrogate insemination” agreement. On direct examination, Alex was asked the following questions:

“Q During your married life to the best of your knowledge, did Diane have intercourse with other men?
A Yes.
MR. COUGHLIN [counsel for the Shures]: Objection, Your Honor. No, I’m sorry, I withdraw the objection.
MR. ROSENBERG [counsel for the McFadyens]: Was this with your prior permission?
A Yes, it was.”

At the completion of the testimony, the circuit court issued a memorandum opinion, later incorporated into the judgment of adoption. The court found that Alex was not the biological father of Alex III, and thus was a stranger to the proceedings. The court construed “parents” in section 8 (Ill. Rev. Stat. 1979, ch. 40, par. 1510) to mean biological and legally adoptive parents. The court also rejected the claim that Alex III was the product of Alex’ and Diane’s unique form of extramarital artificial insemination. The court held that Alex and Diane did not factually establish the existence of such an agreement, and, as a matter of law, that such an arrangement was not legally equivalent to artificial insemination.

Alex and Diane then stipulated that the Shures were fit persons within the meaning of the Adoption Act. The trial court accordingly entered a judgment of adoption in favor of the Shures, from which Alex and Diane appeal.

I

Alex first contends that the circuit court incorrectly interpreted the adoption statute. Section 8(a) of the Adoption Act (Ill. Rev. Stat. 1979, ch. 40, par. 1510(a)) requires the consent, or a finding of unfitness, of “the parents” for adoption of a child. “Parent” is defined as “the father or mother of a legitimate or illegitimate child.” (Ill. Rev. Stat. 1979, ch. 40, par. 1501(E).) The circuit court held that the term “parent” is limited to biological and legally adoptive parents. Alex contends that, “[i]f a man’s wife gives birth to a child which was conceived during the marriage, the man accepts the child as his own, and no other man asserts his paternity, the husband should be deemed to be the legal ‘father’ of the child within the meaning of the adoption statute.” Two different theories are used by Alex in support of this proposed statutory interpretation. One theory is based on the presumption that a child conceived by a married woman during the marriage is legitimate. A second theory attempts to draw an analogy to cases involving artificial insemination.

A.

In support of the first theory, Alex relies on a recent decision of the Delaware Supreme Court. (Petitioner F. v. Respondent R. (Del. 1981), 430 A.2d 1075.) The Delaware court recognized the presumption that a child born to a married woman is legitimate, in effect holding that this presumption was irrebuttable. (430 A.2d 1075, 1077-78.) The court relied on a statement by Lord Mansfield in a case decided over two centuries ago. (Goodnight v. Moss (1777), 98 Eng. Rep. 1257.) Alex in effect argues that an irrebuttable presumption should exist that he is the biological father of Alex III.

The law in Illinois is not the same as the law in Delaware. In Illinois, there is a presumption that such a child is legitimate, but that presumption may be overcome by clear and convincing evidence. (Happel v. Mecklenburger (1981), 101 Ill. App. 3d 107, 112, 427 N.E.2d 974.) The petitioner in Happel, a stranger to the marriage, was allowed to assert that he had parental rights. The court concluded that petitioner failed to overcome the presumption of legitimacy by clear and convincing evidence.

In the present case, Alex is entitled to a presumption that Alex III is legitimate, and therefore that he is the biological father. In light of the evidence adduced at trial of Alex’ vasectomy, Diane’s relations with other men, and Diane’s assertion that someone else was the biological father, the presumption of legitimacy was rebutted by clear and convincing evidence.

B.

Alex’ second theory is based on an attempt to draw an analogy to artificial insemination cases. In re Adoption of Anonymous (1973), 74 Misc. 2d 99, 345 N.Y.S.2d 430, involved a man whose wife gave birth to a child after she was artificially inseminated in a medical procedure with the semen of a third party donor, with her husband’s consent. The court held that the husband was a “parent” whose consent was required for adoption of the child. Alex argues that the “agreement” he had with Diane that she could have intercourse with other men to become pregnant is tantamount to an agreement to have a child born through artificial insemination.

Initially, Alex contends that the Shures judicially admitted the existence of this “surrogate insemination” agreement. Alex and Diane filed a joint verified answer to the petition to adopt six days before the trial started, replacing a verified answer filed earlier by Alex. The joint answer alleged the fact of the existence of an “agreement,” and the legal conclusion that the agreement makes Alex, for all practical purposes, the “legal biological father.” Because the Shures did not file a pleading denying the allegations in the answer, Alex claims that they have admitted these allegations.

Section 2 — 610(b) of the Code of Civil Procedure provides: “Every allegation, except allegations of damages, not explicitly denied is admitted, unless the party states in his or her pleading that he or she has no knowledge thereof sufficient to form a belief, and attaches an affidavit of the truth of the statement of want of knowledge, or unless the party has had no opportunity to deny.” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 610(b).) Section 2 — 602 of the Code of Civil Procedure provides, in part: “if new matter by way of defense is pleaded in the answer, a reply shall be filed by the plaintiff ***.” Ill. Rev. Stat. 1981, ch. 110, par. 2-602.

Case law consistently holds that failure to deny factual allegations constitutes an admission of those allegations. (Mooney v. Underwriters at Lloyd’s, London (1965), 33 Ill. 2d 566, 570, 213 N.E.2d 283; First Federal Savings & Loan Association v. American National Bank & Trust Co. (1968), 100 Ill. App. 2d 460, 467, 241 N.E.2d 615.) A party, however, can waive the benefit of the admission in two different ways. First, the benefit of the admission is waived by the introduction of evidence in support of the uncontradicted allegation. (Mooney v. Underwriters at Lloyd’s, London (1965), 33 Ill. 2d 566, 570; First Federal Savings & Loan Association v. American National Bank & Trust Co. (1968), 100 Ill. App. 2d 460, 467-68.) Second, a waiver is caused by failure to raise the admission in the trial court. Interstate Printing Co. v. Callahan (1974), 18 Ill. App. 3d 930, 932, 310 N.E.2d 786; First Federal Savings & Loan Association v. American National Bank & Trust Co. (1968), 100 Ill. App. 2d 460, 468.

Alex and Diane have waived the benefit of any admission that may have occurred. First, they introduced evidence regarding the “surrogate insemination” agreement at trial through Alex’ testimony concerning its existence. Second, we can find no evidence in the record that the McFadyens called the admission to the attention of the trial court. We conclude that if an admission occurred, the benefit of it was waived. -

Next, Alex argues that he was precluded from introducing evidence at trial concerning the “surrogate insemination” agreement by the pretrial ruling of the circuit court limiting the trial to the issue of paternity. At oral argument in this court, Alex urged a remand to enable him to introduce evidence on this subject. From our examination of the record, we note that the trial court did not enforce this ruling and admitted evidence- on other issues at trial. We find nothing in the record to suggest Alex was prevented from introducing more evidence regarding this “agreement.” Alex is thus not entitled to a remand for this reason.

We need not address the legal consequences of a “surrogate insemination” agreement (see In re Marriage of L.M.S. (Wis. App. 1981), 105 Wis. 2d 118, 312 N.W.2d 853) because the trial court found, as a matter of fact, that Alex and Diane did not establish the existence of such an agreement between themselves. The factual findings of the trial court will not be reversed unless they are against the manifest weight of the evidence. (In re Adoption of Garrison (1981), 93 Ill. App. 3d 670, 673, 417 N.E.2d 787; Stines v. Vaughn (1974), 23 Ill. App. 3d 511, 519, 319 N.E.2d 561, appeal denied (1975), 58 Ill. 2d 595.) We find no basis upon which to reverse this finding of fact.

C.

We believe that the trial court correctly interpreted the term “parents.” The language of the statute defines parents as “the father or mother of a legitimate or illegitimate child.” (Ill. Rev. Stat. 1979, ch. 40, par. 1501(E).) By this plain language, we cannot say that the General Assembly intended to extend the definition of the term “parent” beyond biological or legally adoptive parents. See In re Adoption of Weller (1977), 47 Ill. App. 3d 492, 497-98, 362 N.E.2d 73.

Our conclusion is buttressed by reference to the recent decision of In re Application of Santore (1981), 28 Wash. App. 319, 623 R2d 702. Karen Santore, married to Richard Santore, became pregnant by Michael Murphy, who died without knowing of the pregnancy. Dissolution of marriage proceedings were pending between Karen and Richard at the time of conception, although the dissolution apparently did not occur. Soon after the birth of the child, Karen signed a consent to adoption, along with an affidavit of paternity. She gave up custody of the child. One month later, Karen filed a revocation of consent and, along with Richard, a petition for writ of habeas corpus seeking to void the adoption.

Richard argued that his consent was necessary for the adoption, and that it was not given. Washington law provides that consent is required from the “parents.” (Wash. Rev. Code Ann. sec. 26.32.030 (1961).) The court held that Richard was entitled only to notice of the proceedings and an opportunity to establish his paternity. Once the court determined that he was not the biological father, it concluded that his consent was not necessary. (In re Application of Santore (1981), 28 Wash. App. 319, 329-30, 623 P.2d 702, 709.) This case is very similar to the present case, and we agree with the reasoning of the Washington court.

In conclusion, we hold that the circuit court correctly interpreted the term “parents” to mean biological and legally adoptive parents. Accordingly, Alex is not a “parent” and has no right to contest the adoption of Alex III.

II

Alex contends that if he is not a “parent” under the adoption statute, that the statute is unconstitutional as applied to him. He claims that the statute violates his “right of family privacy and association guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.” Phrasing the issue somewhat differently, Alex states: “The question presented by this case is whether the relationship between a child and his psychological parent constitutes a ‘family’ relationship entitled to substantive and procedural protection under the Due Process Clause of the Fourteenth Amendment.”

Initially, the Shures contend that Alex waived his constitutional claim by failing to raise it in the circuit court. Our examination of the record indicates that neither this constitutional claim nor any similar claim was presented to the circuit court. It is a well settled principle of judicial restraint that constitutional questions not presented to the trial court may not be raised for the first time on appeal. Brunswick v. Mandel (1974), 59 Ill. 2d 502, 505, 322 N.E.2d 25; City of Chicago v. Birnbaum (1971), 49 Ill. 2d 250, 251, 274 N.E.2d 22; Smith v. Board of Fire & Police Commissioners (1980), 85 Ill. App. 3d 928, 931, 407 N.E.2d 708; Department of Transportation v. Collins (1979), 69 Ill. App. 3d 269, 273, 387 N.E.2d 6.

Accordingly, it is our view that Alex waived this constitutional claim by failure to raise it in the circuit court.

In conclusion, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

STAMOS, P. J., and HARTMAN, J., concur.

      The record indicates the guardian ad litem was present at all court proceedings.

      In the original petition filed August 13, 1980, it was alleged that the address of Alex was unknown, and that Alex had abandoned Alex III on or about May 1,1980.

      Likewise, we will not discuss the public policy question implicit in such an arrangement, although we note that adultery is against the public policy of the State. See Ill. Rev. Stat. 1981, ch. 40, par. 401(2).

      Alex argued the following theories in the circuit court, some of which he attempted to elevate to constitutional dimension:
      (a) Alex is the biological father.
      (b) The statute should be construed to include Alex as the father.
      (c) An irrebuttable presumption exists that the husband of a married woman is the father of her child. Stanley v. Illinois (1972), 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208, is cited by Alex here, but this case, a procedural due process case, is not relevant to the due process argument raised by Alex in this court.
      (d) Alex III was born through Alex’ and Diane’s own form of “artificial insemination,” which is in fact “surrogate insemination.” Alex attempts to put a constitutional gloss on this argument by stating: “The right of artificial insemination by penis is as much protected by the Constitution of the United States as the right of artificial insemination by glass test tube.”


author: PRESIDING JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARLOS VAN SCYOC, Defendant-Appellant.
    Fourth District
    No. 17522
    Opinion filed August 9, 1982.
    Daniel D. Yuhas and Janet Sinder, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Daniel S. Arbogast, State’s Attorney, of Toledo (Robert J. Biderman and Denise M. Paul, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

After a bench trial in the circuit court of Cumberland County, a judgment was entered on August 31, 1981, finding defendant, Carlos Van Scyoc, guilty of aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4). He was subsequently sentenced to 3 years’ imprisonment. On appeal he contends: (1) the trial court erred in admitting, as spontaneous declarations, testimony of statements made by Amanda and Michael Titus; (2) his guilt was not proved beyond a reasonable doubt; (3) error resulted from admissions of other testimony; and (4) the State violated discovery rules.

We conclude that the evidence of the statements of the two Titus children was pure hearsay, not coming within the spontaneous declaration exception, and its admission was reversible error. Because, absent that testimony, the evidence was insufficient, as a matter of law, to prove the guilt of the defendant, we reverse the conviction and sentence without remandment. We need not consider defendant’s other claims of error.

Most of the evidence of the surrounding circumstances was undisputed. On the evening of February 16, 1981, at approximately 7:45 p.m., defendant emerged from Sandy Titus’ home carrying her youngest child, Laura. The child was having trouble breathing and appeared to be semiconscious. Defendant was a friend of Sandy Titus and was babysitting for her three children while Sandy had gone to the grocery store. Defendant told Sandy’s neighbor, Robert Stewart, that he had just given Laura a bath, and she fell off the bed when he turned away. Stewart then drove defendant and Laura to a local physician’s home.

Stewart left defendant at the physician’s home and returned to the Titus home to get Sandy. In the meantime, the physician and defendant took Laura to the hospital. Stewart and Sandy Titus dressed Laura’s sister and brother, Amanda and Michael, aged five and four, respectively, and took them to Stewart’s home. The children had, in the past spent considerable time there. The children stayed with Stewart and his father for an hour to an hour and a half, watching television and, according to Stewart, carrying on normal conversation. The children’s grandparents then arrived and took the children to the home of their father, Mark Titus, and his present wife Kitty. They arrived there at approximately 11 p.m.

Testimony concerning the emotional state of Amanda and Michael was somewhat conflicting. Robert Stewart and their natural mother, Sandy Titus, both testified that when they arrived at her home, the children were not crying, did not appear upset and did not indicate anything was wrong. Sandy Titus stated the children were sitting calmly on the couch. On the other hand, Kitty Titus, their stepmother, testified that when the children arrived at her home, three or four hours later, they were very upset.

Two physicians who treated Laura in the hospital described the head injuries she had received. They also testified that they suspected she was a victim of child abuse. One physician stated Laura’s injuries were unlikely to be the result of falling from a bed.

The principal thrust of the evidence against defendant was the testimony of Kitty Titus that after Amanda and Michael Titus arrived at her house they told her defendant “kept throwing [Laura] in the water.” The statements in the record by the trial judge indicate he placed great reliance on that evidence. He stated that the testimony of the physicians did not establish with certainty how the child’s injuries occurred.

Defendant objected to the trial court’s admission of the testimony of Kitty Titus as to the statements made to her by the children and has preserved the issue for review. He maintains it was pure hearsay and did not come within the spontaneous declaration exception as claimed by the State. We agree.

The requirements for admissibility into evidence of a spontaneous declaration are (1) the occurrence of an event or conditions sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) a statement relating to the circumstances of the occurrence. People v. Poland (1961), 22 Ill. 2d 175, 174 N.E.2d 804.

Cleary and Graham state that some latitude exists as regards the permissible lapse of time between the event and the statement. The question is whether the statement was made while the excitement of the event predominated and the lapse of time is but one factor to be considered. (Cleary and Graham, Handbook of Illinois Evidence sec. 803.3, at 427 (3d ed. 1979).) In People v. Parisie (1972), 5 Ill. App. 3d 1009, 287 N.E.2d 310, this court stated that other factors to be considered include the nature of the event, the condition of the declarant, the influence of intervening occurrences, and the presence or absence of self-interest. There, the declarant was the victim of a shooting who was found lying along the side of a road suffering from three bullet wounds and in a state of shock at the time the statement was made. The time interval between the shooting and the statement may have been more than one hour. This court held that under those circumstances the lapse of time did not render the statement inadmissible.

In People v. Watson (1982), 107 Ill. App. 3d 691, a child’s statements were admitted as spontaneous declarations even though they were given approximately two hours after the incident. She was not excited, and she had reason to fabricate. In that case the declarant was a three-year-old child who allegedly had been raped by her father. The “spontaneous declarations” were the first words the child spoke after her mother discovered her injury. The court noted that she had been out of the presence of her father for only a short time when the statements were made. Her mother testified to her withdrawn manner, and she had been asleep in bed for nearly one hour before the injury was discovered.

Here, the time lapse between the event, the injury to Laura, and the declaration of the children was three to four hours. The evidence was undisputed that for a substantial time after the event the children were not upset or startled. If they were upset by the time they reached their stepmother’s, their condition could well have resulted from matters other than the injury to their sister. Significantly, the declarants in Pariste and Watson were the victims of the crimes and thus more likely to remain startled for a longer period of time than would be the case here where they were merely witnesses to the event. The lapse of time between the event and the declaration was longer here than in any cited case where the declarant was not a victim and the admission of the declaration was approved. While children of such tender years might be less likely to fabricate than would older persons, we must conclude that the time available here for the children to reflect or fabricate and the existence of intervening occurrences was such that the children’s statements cannot be considered spontaneous declarations. The spontaneity was lacking both because of lapse of time and a lack of showing that the children were still startled from the event purportedly witnessed by them.

As we will subsequently explain, we do not consider the evidence here to have been sufficient to support the conviction absent the evidence of the children’s declarations. Accordingly, we cannot hold the admission of the declarations to be harmless as the court did in People v. Gross (1979), 75 Ill. App. 3d 311, 393 N.E.2d 1308, where it found the other evidence of guilt to be strong. We hold the admission of the evidence to be reversible error.

Absent the testimony of the declarations of the children, evidence of defendant’s guilt was meager. The circumstance that the child was injured while in the sole custody of the defendant would have had some probative value as corroboration. Testimony was presented that defendant said the child had fallen from a bed. The testimony of the physician that, in his opinion, the child could not have fallen from a bed then had some probative value to evidence that defendant had lied about the occurrence thus indicating he had a guilty state of mind. However, this amount of evidence would have been clearly insufficient to support a conviction.

Defendant argues that because of the failure of the proof without the improper evidence, we should reverse without remanding for a new trial. His position is supported by People v. Davis (1966), 35 Ill. 2d 202, 220 N.E.2d 222, and People v. McMahon (1980), 83 Ill. App. 3d 137, 403 N.E.2d 781. In those cases, the reviewing court held reversible error occurred in the admission into evidence of improperly obtained confessions of the defendants. The courts reversed without remanding, noting in each case that the evidence was clearly insufficient to support a conviction without the confession. The State cites People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366, and People v. Mordican (1975), 33 Ill. App. 3d 196, 338 N.E.2d 107, aff'd (1976), 64 Ill. 2d 257, 356 N.E.2d 71. They are not directly in point. In Taylor, the supreme court affirmed an appellate court decision reversing a conviction and sentence and remanding for a new trial. (People v. Taylor (1978), 61 Ill. App. 3d 37, 377 N.E.2d 838.) The reversal had been based on the improper admission into evidence of a confession. The recitation of the evidence in the appellate court opinion might indicate that, absent the confession, the proof could not have supported a conviction. However, neither opinion indicates any contention was ever made in that respect. In Mordican, the reversal of a conviction and sentence and remandment was ordered because of the failure of the court to grant a hearing on a motion to suppress. Thus, unlike here, the propriety of the evidence in dispute had not been determined at the time remandment was ordered.

Based on the foregoing, we deem the appropriate order for us to enter is a reversal without remandment. We so order.

Reversed.

WEBBER and MILLS, JJ., concur.