(- Vt. -, 104 Atl. 232.) York court, on the ground that she ni v. Hoosac Tunnel & W. R. Co. 90 was married to him prior to, and Vt. 451, 98 Atl. 982. But the fraud had not lived or cohabited with him shown did not go to as husband and wife since attain- the

jurisdiction. toreign

Judgmenting, the age of legal consent. A cer- We will assume that inquiry into

jurisdiction. tified copy of the record of those such

a judgment proceedings was introduced in evi- rendered in that state may be imdence, and is made a part of the ex- peached in a collateral action, for ceptions. It seems from that record fraud, yet it can only be for fraud that, at the time those proceedings extrinsic or collateral to the matter were instituted, all the parties there- tried in that action; it cannat be to were domiciled in the state of impeached by either of the parties New York, and no claim is here thereto, by reason made to the contrary. The record of false testimony Impeachment

for perjury. shows that the process was personals given at the time, ly served upon the defendant Borst even though given by a party. Camp within that state. It therefore ap- v. Ward, 69 Vt. 286, 60 Am. St. Rep. pears that the New York court had 929, 37 Atl. 747; French v. Rayjurisdiction of the parties and of the mond, 82 Vt. 156, 137 Am. St. Rep. subject-matter. Borst failed to ap- 994, 72 Atl. 324. It is said, however, pear in answer to the case, and was that the petitioner in the present acwholly in default. Those proceed- tion is a stranger to the foreign deings were brought, and the decree cree, and therefore he may impeach therein rendered, under a statute of it collaterally, citing in support of that state permitting a marriage to this position Blondin v. Brooks, 83 be annulled when contracted by a Vt. 472, 76 Atl. 184. In that caseparty of less than eighteen years of the fraud was as to the domicil of the age, provided the parties did not plaintiff to the action in which freely cohabit as husband and wife the foreign judgment was rendered, after such party had attained that and went to the jurisdiction. This age.

court said the defendants, in the case In the trial of the present case of Blondin v. Brooks, were stranthe petitioner sought to vitiate the gers to it, and that strangers can New York decree, on the ground of impeach a judgment collaterally fraud in its procurement; and on "when it is for their interest to imthis question he was permitted to peach it at all.” Granting, though show, subject to exception, that Eu- not deciding, that a stranger to a genie and her mother there testified judgment may impeach it for intrinthat the former was born on August sic fraud, if it be for his interest to 31, 1887, when in fact she was born do so, his “interest” must be such, at on August 31, 1886; that in fact she least, as concerns him in the collatwas eighteen years of age on August eral action wherein the impeach31, 1904; that she was married to ment is sought. Otherwise he is not Borst in the preceding October, and aggrieved. In Kinnier v. Kinnier, continued to live with him as hus. 45 N. Y. 535, 6 Am. Rep. 132, the

6 . band and wife until the summer of defendant was married in the state 1905, and consequently they thus of Massachusetts to one Pomeroy. lived together for nearly a year after After living together there for some she attained the age of legal con- years, Pomeroy went to Chicago to sent. The petitioner contends that procure a divorce for a cause not the New York decree was therefore recognized by the laws of Massachubased upon fraud respecting an es- setts, and to evade the laws of that sential fact, by reason of which it is state. The defendant went to Chiopen to collateral attack, and is void. cago, appeared in the action, and the That the question of jurisdiction parties, by collusion, procured to be

, of the New York court was open to entered and docketed a decree of abinquiry is beyond doubt. Domenchi- solute divorce. Later the divorced

record,

wife married Kinnier, and the action Several exceptions were taken by was brought by him to annul the the petitioner, the consideration marriage on the ground that the of which requires an examination of former marriage of the defendant evidence not before us as a part of was in force, and her divorce from the record. To such

Appeal-evi. Pomeroy was void in the state of exceptions we pay dence not in New York. The case stood on de- no attention. The murrer to the complaint. It was bill of exceptions had attached to it held that the judgment of the Illi- what is stated to be exceptions taken nois court effectually divorced the by the petitioner during the progparties to it, and their marriage was ress of the trial. We assume that no longer in force in any legal sense; this was done by the presiding that the plaintiff in the New York judge, and that they were intended action was not defrauded or injured to be a part of the bill. They are so by the foreign judgment. The court treated. The evidence offered to be

. said: “The plaintiff was entitled to shown by the witness Loosemore marry a marriageable person, and and by the witness Perry, and exthough she may not have been, in cluded by the court, does not appear other respects, all he anticipated or to have been of sufficient conseall that was desirable, yet she was quence to require further notice. competent to marry, because her Exception was taken to that part former marriage was not then in of the decree which gives the care force, and, being competent, it is of and custody of the minor child to no legal consequence to the plaintiff the petitionee, as unreasonable, in how she became so. Conceding that it contemplates that the child fraud as alleged, he cannot avail will be taken out of the jurisdiction himself of it."

of the court, thus placing it beyond In Ruger v. Heckel, 85 N. Y. 483, the power of the father to see the it was held that a second husband of

child as specified in the decree. Sufa divorced woman could not main

fice it to say of this exception that tain an action to have the decree di

there is nothing about the decree in. vorcing her from her former hus- dicating the contemplation here band canceled and her second mar

stated. riage declared void, on the ground

It is said that the court in effect that the proof upon which the court

found and decreed that the petitionacted in granting the divorce was ee had been guilty of such intolerfabricated, and the decree of divorce

able severity toward her husband as fraudulently obtained.

to show her not a fit person to live We think it clear that the peti- with him; and, if she has done ill in tioner in the present action has no the marriage relation, she will be

such interest in the likely to do ill in the parental rela-collateral

matter of the for- tion. Giving this all the force it is attack-perjury.

eign judgment as entitled to as an argument, it is far entitles him to impeach it on the from controlling, in view of the fact,

, ground of the fraud shown. The among others, that the petitioner's wisdom of this law is forcibly love for the child is brought to mind by the circumstan- so small that it did Divorce

custody of child ces of this case, where the petitioner not even deter him, -right to object is attempting, by such impeachment, on the trial of the bastardize.

-attempt to to render his marriage with the pe- facts in the court titionee void, and thereby illegitima- below, nor on exceptions in this tize their minor daughter of tender court, from strenuously attempting years, begotten and born in lawful

to procure a ruling that could not rewedlock, the fruit of the union. The sult otherwise than to render this law would be lacking in justice if it same child an illegitimate, and repermitted such an inhuman under- lieve him of any liability for her suptaking to succeed.

port. The good of the child is the (- Vt. —, 104 Atl. 232.) primary consideration, and that can from the record that the court below be judged to some extent by the committed no error in decreeing the comparative acts of the father and care, custody, and control of the the mother, showing love and affec- child to the mother. tion for it, and a parental interest Judgment affirmed, and cause rein its welfare. It is very apparent manded.

ANNOTATION.

Attempt to bastardize child as affecting right to custody of the child.

It will be seen that in the reported ment of the marriage and the wife case (DEYETTE v. DEYETTE, ante, 1115), showed a case under the statute; the where the husband was granted a de- court, in giving judgment, declaring cree of divorce from his wife on ac- the marriage void, and leaving the cuscount of her intolerable severity to tody of the child with the mother, him, it was held that she would be said: "One child was born of the marawarded the custody of their child in riage, a son, now two years old. What view of the fact that he had attempted is to be done with this child ? Both in the proceedings to procure a ruling parents claim the custody. The statute that their marriage was void, which declares that the child shall be deemed would have illegitimatized the child. legitimate and that the innocent

In Bickford v. Bickford (1908) 74 party must be awarded the custody of N. H. 448, 69 Atl. 579, it appeared that it (Code Civ. Proc. 1745). The inthe wife had applied for an annulment nocent party is generally regarded as of the marriage on the ground that, the parent who is compelled to resort at the time of such marriage, she had to legal proceedings for annulment, another husband living, although she but in this instance the plaintiff volunbelieved at that time that he had se- tarily cohabited with the defendant cured a divorce from her, and that the after suit brought, and the strange court had annulled the marriage and anomaly is presented of a plaintiff apparently awarded the custody of the seeking to annul a marriage on the child of the parties to the mother, the ground that the defendant is the wife father to pay a certain monthly sum of another person, and yet he deliberfor his support until he arrived at the ately cohabited with

at other perage of fourteen years, etc., and to son's wife, knowing the fact. Neither have access to the boy at reasonable person can be regarded as the innocent times; but it does not appear that the party in view of this misconduct, and father contested for the custody. The the court will leave the custody where case arose on an application by the it is." mother to extend the order for sup- In another case where the statute port, etc., which the court did for two made the children of an annulled maryears.

riage legitimate, and where the trial It may be noted that in Safford v. court found that the defendant had deSafford (1893) 31 Abb. N. C. 73, 27 ceived the plaintiff into believing that N. Y. Supp. 640, where the statute pro- her former husband was dead, it was vided in substance that a second mar- held on appeal that the fraud was not riage, contracted in good faith, where the kind of fraud intended by the statthe former husband or wife has ab- ute providing that "the court must sented himself or herself for the space award the custody of the children of of five successive years, without being a marriage annulled on the ground of known to the other party to be living fraud or force to the innocent parent;" during that period, shall be voidable and inasmuch as the plaintiff was merely, and shall only be considered guilty of bad faith and depravity in void from the time its nullity shall be contracting the marriage on insuffidecreed by the court of competent au- cient evidence of the death of his thority, the husband sued for annul- predecessor, and in persuading the defendant to it, and as he had also co- a better right than the plaintiff to the habited with her after her former hus- custody of their nine months' old girl. band was known to be living, it was Mickels v. Fennell (1906) 15 N. D. also held that upon the record she had 188, 107 N. W. 53.

B. B. B.

ANDREW J. MCCARTNEY et al.

V. HENRY E. JACOBS, Exr., etc., of Isabelle McCartney, Deceased, et al.

Illinois Supreme Court - June 18, 1919.

(- Ill. -123 N. E. 557.) Perpetuity - bequest to maintain burial lots.

1. A bequest to an unincorporated cemetery association of a fund to be held in trust in perpetuity to maintain burial lots violates the rule against perpetuity.

[See note on this question beginning on page 1124.] Will bequest for markers cer

and her insane brother be rented, and tainty.

the rents applied to keeping the brother 2. A bequest for markers for graves, in a sanitarium. to cost not less than $75 each, is not Will income devise of proceeds so uncertain and indefinite as to be

of real estate election. void, since the court may control the 5. A direction in a will that real esexpenditures.

tate be sold and the proceeds distribTrust direction for caring for in- uted among testator's heirs will not sane person.

be held invalid for uncertainty as to 3. A direction that property held in whether or not the heirs can elect to common by testatrix and her insane take the property without sale, if they brother be rented, and the rents applied never attempted to make such election. to keeping the brother in a sanitarium, Election by insane person. creates a valid trust of the rents and 6. An insane heir to whom the proprofits of testatrix's interest in the land ceeds of real estate are bequeathed is for the purpose named.

incapable of electing to take the real - appointment of trustee.

estate without sale, and the courts will 4. The court may appoint a trustee not elect for him unless such election to carry out a provision in a will that clearly appears to be for his best inproperty held in common by testatrix terests.

C

CROSS APPEALS from a decree of the Circuit Court for Marshall County (Stone, J.) in favor of complainants in part, in a suit to construe a will; complainants appealing from so much of the decree as granted only part of the relief asked, and defendants appealing from so much as held the bequest to a cemetery association void. Affirmed.

The facts are stated in the opinion of the court.

Mr. Elmer J. Slough for complain- 3 Pom. Eq. Jur. 1157; Page, Wills, ants.

§ 806; Strawn v. Jacksonville Academy, Mr. Clarence W. Heyl, for defend- 240 Ill. 111, 88 N. E. 460; Bieber v. ants:

Porter, 242 Ill. 616, 90 N. E. 183. Courts of equity will never enter- Equity will not take jurisdiction to tain a suit to give a construction to or construe where only legal titles are indeclare the rights of parties upon a

volved. state of facts ch has not arisen, nor Harrison v. Owsley, 172 III. 629, 50 upon a matter which is future, contin- N. E. 227; Minkler v. Simons, 172 Ill. gent, or uncertain.

323, 50 N. E. 176.

1- Ill. – 123 N. E. 557.) The county court has exclusive juris- 3, and 4. Item 2 directs the paydiction on the question of securing ment by the executor of $200 to the markers.

United Presbyterian Cemetery AsMoffitt v. Moffitt, 69 Ill. 641. Anything which may be the subject having charge and management of

sociation, or the proper authority of property may be granted in trust.

the United Presbyterian Cemetery Burke v. Burke, 259 Ill. 263, 102 N. E. 293.

in the town of La Prairie, Marshall An election by a court for an insane county, Illinois, to be held in trust person should not be made unless it and placed at interest perpetually, clearly appears to be for his best in- the interest only to be used each terest.

year for taking care of the John D. 40 Cyc. 1974; McDonald v. Shaw, 92 McCartney burial lot in said cemeArk. 15, 28 L.R.A.(N.S.) 657, 121 S.

tery. Said item 2 further directs W. 935; Gorman v. Mullins, 172 Ill. 349, 50 N. E. 222; King y. King, 215

the executor to procure markers for III. 100, 74 N. E. 89; Baldridge v.

the burial lots of testatrix and her Coffey, 184 Ill. 73, 56 N. E. 411.

brother George at a cost of not less Construction is to be placed on the

than $75 for each marker. Item 3 entire instrument, and the intention

directed that "the real estate held of the testatrix, as expressed in the in common by myself and my said instrument, must govern.

brother, George W. McCartney" 1 Lewin, Trusts, Am. ed. 1888, 84; 2 (describing the 240 acres), be rentWilliams, Exrs. 1081, 1082, 1084;

ed from year to year and the rents Downing v. Grigsby, 251 Ill. 568, 96

received therefrom applied to the N. E. 513; People v. Byrd, 253 Ill. 223, 97 N. E. 293; Leary v. Kerber, 255 Ill.

expense of keeping George in the 433, 99 N. E. 662.

Lake Geneva Sanitarium the re

mainder of his life. Said item furFarmer, J., delivered the opinion ther directed that testatrix's said of the court:

brother should be kept at said saniAppellants, heirs at law of Isa

tarium and should not be sent to or belle McCartney, filed their bill in placed in any other institution; that the circuit court of Marshall county after paying out of the rents of the to construe her will.

240 acres the maintenance of Isabelle McCartney, who was George, if there was any remainder never married, died testate Febru. it should be applied to the payment ary, 8, 1917.

She was sixty-eight of taxes and the general upkeep and years old at the time of her death, improvement of the land. In case and left surviving as her only heirs the rents were insufficient to pay the five brothers, one of whom, George

expense of keeping and maintaining W. McCartney, was insane and had

the insane brother, then the will dibeen for several years. He had rected that additional funds necesbeen in the hospital for insane at sary be procured by loan “upon any Bartonville some time, but his sis- of the real estate aforesaid," and if ter, the testatrix, caused him to be

any conservator was appointed to removed from that place to the Lake succeed testatrix, she expressed the · Geneva Sanitarium, in Wisconsin. wish that said conservator be auIn addition to the property individ- thorized by the court to procure a ually owned by the testatrix, she and loan on the interest of George to her insane brother each owned the make up any deficiency. If that undivided one half of 240 acres of could not be done, then the will farm land as tenants in common. At directed that the trustee thereafter the time of her death she was con- named should borrow what was servator for her insane brother. The necessary on the interest of the teswill is paragraphed into nine items. tatrix in the 240 acres of land, and Item 1 simply directs the payment Henry E. Jacobs was in the same of the testatrix's debts and funeral clause named as trustee for the purexpenses. The clauses of the will pose of looking after and caring for sought to be construed are items 2, George, and to "conserve the rentals

4 A.L.R.—71.