(Vt., 104 Atl. 232.) York court, on the ground that she was married to him prior to, and had not lived or cohabited with him as husband and wife since attain ing, the age of legal consent. A certified copy of the record of those proceedings was introduced in evidence, and is made a part of the exceptions. It seems from that record that, at the time those proceedings were instituted, all the parties thereto were domiciled in the state of New York, and no claim is here made to the contrary. The record shows that the process was personally served upon the defendant Borst within that state. It therefore appears that the New York court had jurisdiction of the parties and of the subject-matter. Borst failed to appear in answer to the case, and was wholly in default. Those proceedings were brought, and the decree therein rendered, under a statute of that state permitting a marriage to be annulled when contracted by a party of less than eighteen years of age, provided the parties did not freely cohabit as husband and wife after such party had attained that age. In the trial of the present case the petitioner sought to vitiate the New York decree, on the ground of fraud in its procurement; and on this question he was permitted to show, subject to exception, that Eugenie and her mother there testified that the former was born on August 31, 1887, when in fact she was born on August 31, 1886; that in fact she was eighteen years of age on August 31, 1904; that she was married to Borst in the preceding October, and continued to live with him as husband and wife until the summer of 1905, and consequently they thus lived together for nearly a year after she attained the age of legal consent. The petitioner contends that the New York decree was therefore based upon fraud respecting an essential fact, by reason of which it is open to collateral attack, and is void. That the question of jurisdiction of the New York court was open to inquiry is beyond doubt. Domenchi ni v. Hoosac Tunnel & W. R. Co. 90 Vt. 451, 98 Atl. 982. But the fraud shown did not go to foreign jurisdiction. the jurisdiction. JudgmentWe will assume that inquiry into such a judgment rendered in that state may be impeached in a collateral action, for fraud, yet it can only be for fraud extrinsic or collateral to the matter tried in that action; it cannot be impeached by either of the parties thereto, by reason for perjury, of false testimony impeachment given at the time, even though given by a party. Camp v. Ward, 69 Vt. 286, 60 Am. St. Rep. 929, 37 Atl. 747; French v. Raymond, 82 Vt. 156, 137 Am. St. Rep. 994, 72 Atl. 324. It is said, however, that the petitioner in the present action is a stranger to the foreign decree, and therefore he may impeach it collaterally, citing in support of this position Blondin v. Brooks, 83 Vt. 472, 76 Atl. 184. In that case the fraud was as to the domicil of the plaintiff to the action in which the foreign judgment was rendered, and went to the jurisdiction. This court said the defendants, in the case of Blondin v. Brooks, were strangers to it, and that strangers can impeach a judgment collaterally "when it is for their interest to impeach it at all." Granting, though not deciding, that a stranger to a judgment may impeach it for intrinsic fraud, if it be for his interest to do so, his "interest" must be such, at least, as concerns him in the collateral action wherein the impeachment is sought. Otherwise he is not aggrieved. In Kinnier v. Kinnier, 45 N. Y. 535, 6 Am. Rep. 132, the defendant was married in the state of Massachusetts to one Pomeroy. After living together there for some years, Pomeroy went to Chicago to procure a divorce for a cause not recognized by the laws of Massachusetts, and to evade the laws of that state. The defendant went to Chicago, appeared in the action, and the parties, by collusion, procured to be entered and docketed a decree of absolute divorce. Later the divorced wife married Kinnier, and the action was brought by him to annul the marriage on the ground that the former marriage of the defendant was in force, and her divorce from Pomeroy was void in the state of New York. The case stood on demurrer to the complaint. It was held that the judgment of the Illinois court effectually divorced the parties to it, and their marriage was no longer in force in any legal sense; that the plaintiff in the New York action was not defrauded or injured by the foreign judgment. The court said: "The plaintiff was entitled to marry a marriageable person, and though she may not have been, in other respects, all he anticipated or all that was desirable, yet she was competent to marry, because her former marriage was not then in force, and, being competent, it is of no legal consequence to the plaintiff how she became so. Conceding fraud as alleged, he cannot avail himself of it." In Ruger v. Heckel, 85 N. Y. 483, it was held that a second husband of a divorced woman could not maintain an action to have the decree divorcing her from her former husband canceled and her second marriage declared void, on the ground that the proof upon which the court acted in granting the divorce was fabricated, and the decree of divorce fraudulently obtained. We think it clear that the petitioner in the present action has no -collateral attack-perjury. such interest in the matter of the foreign judgment as entitles him to impeach it on the ground of the fraud shown. The wisdom of this law is forcibly brought to mind by the circumstances of this case, where the petitioner is attempting, by such impeachment, to render his marriage with the petitionee void, and thereby illegitimatize their minor daughter of tender years, begotten and born in lawful wedlock, the fruit of the union. The law would be lacking in justice if it permitted such an inhuman undertaking to succeed. bill of exceptions had attached to it what is stated to be exceptions taken by the petitioner during the progress of the trial. We assume that this was done by the presiding judge, and that they were intended to be a part of the bill. They are so treated. The evidence offered to be shown by the witness Loosemore and by the witness Perry, and excluded by the court, does not appear to have been of sufficient consequence to require further notice. Exception was taken to that part of the decree which gives the care and custody of the minor child to the petitionee, as unreasonable, in that it contemplates that the child will be taken out of the jurisdiction of the court, thus placing it beyond the power of the father to see the child as specified in the decree. Suffice it to say of this exception that there is nothing about the decree indicating the contemplation here stated. It is said that the court in effect found and decreed that the petitionee had been guilty of such intolerable severity toward her husband as to show her not a fit person to live with him; and, if she has done ill in the marriage relation, she will be likely to do ill in the parental relation. Giving this all the force it is entitled to as an argument, it is far from controlling, in view of the fact, among others, that the petitioner's love for the child is so small that it did not even deter him, on the trial of the Divorce custody of child right to object -attempt to bastardize. facts in the court below, nor on exceptions in this court, from strenuously attempting to procure a ruling that could not result otherwise than to render this same child an illegitimate, and relieve him of any liability for her support. The good of the child is the (Vt., 104 Atl. 232.) primary consideration, and that can be judged to some extent by the comparative acts of the father and the mother, showing love and affection for it, and a parental interest in its welfare. It is very apparent from the record that the court below committed no error in decreeing the care, custody, and control of the child to the mother. Judgment affirmed, and cause remanded. ANNOTATION. Attempt to bastardize child as affecting right to custody of the child. It will be seen that in the reported case (DEYETTE v. DEYETTE, ante, 1115), where the husband was granted a decree of divorce from his wife on account of her intolerable severity to him, it was held that she would be awarded the custody of their child in view of the fact that he had attempted in the proceedings to procure a ruling that their marriage was void, which would have illegitimatized the child. In Bickford v. Bickford (1908) 74 N. H. 448, 69 Atl. 579, it appeared that the wife had applied for an annulment of the marriage on the ground that, at the time of such marriage, she had another husband living, although she believed at that time that he had secured a divorce from her, and that the court had annulled the marriage and apparently awarded the custody of the child of the parties to the mother, the father to pay a certain monthly sum for his support until he arrived at the age of fourteen years, etc., and to have access to the boy at reasonable times; but it does not appear that the father contested for the custody. The case arose on an application by the mother to extend the order for support, etc., which the court did for two years. It may be noted that in Safford v. Safford (1893) 31 Abb. N. C. 73, 27 N. Y. Supp. 640, where the statute provided in substance that a second marriage, contracted in good faith, where the former husband or wife has absented himself or herself for the space of five successive years, without being known to the other party to be living during that period, shall be voidable merely, and shall only be considered void from the time its nullity shall be decreed by the court of competent authority, the husband sued for annul ment of the marriage and the wife showed a case under the statute; the court, in giving judgment, declaring the marriage void, and leaving the custody of the child with the mother, said: "One child was born of the marriage, a son, now two years old. What is to be done with this child? Both parents claim the custody. The statute declares that the child shall be deemed legitimate and that the innocent party must be awarded the custody of it (Code Civ. Proc. § 1745). The innocent party is generally regarded as the parent who is compelled to resort to legal proceedings for annulment, but in this instance the plaintiff voluntarily cohabited with the defendant after suit brought, and the strange anomaly is presented of a plaintiff seeking to annul a marriage on the ground that the defendant is the wife of another person, and yet he deliberately cohabited with that other person's wife, knowing the fact. Neither person can be regarded as the innocent party in view of this misconduct, and the court will leave the custody where it is." In another case where the statute made the children of an annulled marriage legitimate, and where the trial court found that the defendant had deceived the plaintiff into believing that her former husband was dead, it was held on appeal that the fraud was not the kind of fraud intended by the statute providing that "the court must award the custody of the children of a marriage annulled on the ground of fraud or force to the innocent parent;" and inasmuch as the plaintiff was guilty of bad faith and depravity in contracting the marriage on insufficient evidence of the death of his predecessor, and in persuading the de fendant to it, and as he had also cohabited with her after her former husband was known to be living, it was also held that upon the record she had a better right than the plaintiff to the 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.] 5. A direction in a will that real estate be sold and the proceeds distributed among testator's heirs will not be held invalid for uncertainty as to whether or not the heirs can elect to take the property without sale, if they never attempted to make such election. Election by insane person. 6. An insane heir to whom the proceeds of real estate are bequeathed is incapable of electing to take the real estate without sale, and the courts will not elect for him unless such election clearly appears to be for his best interests. 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 complainants. Mr. Clarence W. Heyl, for defendants: Courts of equity will never entertain a suit to give a construction to or declare the rights of parties upon a state of facts which has not arisen, nor upon a matter which is future, contingent, or uncertain. 3 Pom. Eq. Jur. 1157; Page, Wills, § 806; Strawn v. Jacksonville Academy, 240 Ill. 111, 88 N. E. 460; Bieber v. Porter, 242 Ill. 616, 90 N. E. 183. Equity will not take jurisdiction to construe where only legal titles are involved. Harrison v. Owsley, 172 Ill. 629, 50 N. E. 227; Minkler v. Simons, 172 Ill. 323, 50 N. E. 176. (— Ill. —, 123 N. E. 557.) The county court has exclusive jurisdiction on the question of securing markers. Moffitt v. Moffitt, 69 Ill. 641. Anything which may be the subject of property may be granted in trust. Burke v. Burke, 259 Ill. 263, 102 N. E. 293. An election by a court for an insane person should not be made unless it clearly appears to be for his best interest. 40 Cyc. 1974; McDonald v. Shaw, 92 Ark. 15, 28 L.R.A. (N.S.) 657, 121 S. W. 935; Gorman v. Mullins, 172 Ill. 349, 50 N. E. 222; King v. King, 215 Ill. 100, 74 N. E. 89; Baldridge v. Coffey, 184 Ill. 73, 56 N. E. 411. Construction is to be placed on the entire instrument, and the intention of the testatrix, as expressed in the instrument, must govern. 1 Lewin, Trusts, Am. ed. 1888, 84; 2 Williams, Exrs. 1081, 1082, 1084; Downing v. Grigsby, 251 Ill. 568, 96 N. E. 513; People v. Byrd, 253 Ill. 223, 97 N. E. 293; Leary v. Kerber, 255 Ill. 433, 99 N. E. 662. Farmer, J., delivered the opinion of the court: Appellants, heirs at law of Isabelle McCartney, filed their bill in the circuit court of Marshall county to construe her will. was Isabelle McCartney, who never married, died testate February, 8, 1917. She was sixty-eight years old at the time of her death, and left surviving as her only heirs five brothers, one of whom, George W. McCartney, was insane and had been for several years. He had been in the hospital for insane at Bartonville some time, but his sister, the testatrix, caused him to be removed from that place to the Lake Geneva Sanitarium, in Wisconsin. In addition to the property individually owned by the testatrix, she and her insane brother each owned the undivided one half of 240 acres of farm land as tenants in common. At the time of her death she was conservator for her insane brother. The will is paragraphed into nine items. Item 1 simply directs the payment of the testatrix's debts and funeral expenses. The clauses of the will sought to be construed are items 2. 4 A.L.R.-71. 3, and 4. Item 2 directs the payment by the executor of $200 to the United Presbyterian Cemetery Ashaving charge and management of sociation, or the proper authority the United Presbyterian Cemetery in the town of La Prairie, Marshall county, Illinois, to be held in trust and placed at interest perpetually, the interest only to be used each year for taking care of the John D. McCartney burial lot in said cemetery. Said item 2 further directs the executor to procure markers for the burial lots of testatrix and her brother George at a cost of not less than $75 for each marker. Item 3 directed that "the real estate held in common by myself and my said brother, George W. McCartney" (describing the 240 acres), be rented from year to year and the rents received therefrom applied to the expense of keeping George in the Lake Geneva Sanitarium the remainder of his life. Said item further directed that testatrix's said brother should be kept at said sanitarium and should not be sent to or placed in any other institution; that after paying out of the rents of the 240 acres the maintenance of George, if there was any remainder it should be applied to the payment of taxes and the general upkeep and improvement of the land. In case the rents were insufficient to pay the expense of keeping and maintaining the insane brother, then the will directed that additional funds necessary be procured by loan "upon any of the real estate aforesaid," and if any conservator was appointed to succeed testatrix, she expressed the wish that said conservator be authorized by the court to procure a loan on the interest of George to make up any deficiency. If that could not be done, then the will directed that the trustee thereafter named should borrow what was necessary on the interest of the testatrix in the 240 acres of land, and Henry E. Jacobs was in the same clause named as trustee for the purpose of looking after and caring for George, and to "conserve the rentals |
