Madison County IL Archives Court.....Clarke, V Lott 1849
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Source: Reports Of Cases Illinois
Written: 1849

John L. Clarke et al, and the unknown heirs of John Vyvian Sommerville v. 
Peter Lott and Joseph Arters.

Appeal from Madison.

1. Divorce — always a vinculo. The only divorce authorized by our statute, is 
a vinculo matrimonii. It is granted, as well for causes arising after, as for 
those existing before the marriage.

2. Same — effects on woman in fault. The effect of a divorce under our 
statute, upon the rights of the wife, where it is granted for her fault or 
misconduct, is the destruction of jointure, loss of dower and all rights 
secured by marriage settlements.(1)

3. Same — offspring. The legitimacy of the issue is not affected by a divorce, 
unless the marriage is declared void, on the ground of pre-contract.(2)

4. Same — conclusiveness of decree. A decree of divorce is conclusive evidence 
of the existence of the cause for which it was granted, in all collateral 
actions.(3)

5. Trust — voluntary. a voluntary trust will not be enforced in a court of 
equity.(4)

On the second day of December, A. D. 1847, Peter Lott and Joseph Arters filed 
their bill in chancery, in the Madison circuit court, complaining that, on or 
about the 17th day of April, A. D. 1841, Fitzroy Sommerville, or, as he 
sometimes styled himself, John Vyvian Fitzroy Sommerville, and one Mary 
Turnbull Milburn, contemplated intermarriage; that said Sommerville, in order 
to induce Mary to marry him, represented himself as a person of wealth, and 
also as the sole surviving child and heir of one admiral sir John Fitzroy 
Sommerville, and that he would, by virtue of the will of sir John, upon the 
death of his mother, be entitled to all the real and personal property of 
which sir John died possessed; and that said property consisted of certain 
sums of money in the three per cent, consolidated bank annuities of the bank 
of England, to be found described upon the books of the institution; also, 
certain sums of money in the capital stock of the governor and company of the 
merchants of Great Britain, trading, etc., commonly called South Sea stock; 
also, a variety of turnpike bonds for £100 each, secured upon the turnpike 
leading from St. Albans, through Dunstable, in Hertfordshire, England; that 
said Fitzroy represented himself as the owner in possession of a plantation of 
seventy-three acres of tea ground in the province of Assam, Bombay, in the 
East Indies; and also of a tract of two hundred acres near Collinsville, 
Madison county, Illinois.

The bill further sets forth, that, in consideration of the agreement of the 
said Mary to marry him, said Fitzroy made and entered into an agreement 
between himself, herself, and the complainants, whereby said Fitzroy and Mary 
agreed, in consideration of the premises, to assign and transfer unto the 
complainants and a person called John Pewtriss, within six months from the 
death of the mother of said Fitzroy, all their interest in said bank stock, 
annuities, turnpike bonds, and South Sea stock; and also, within sixty days 
from the date of the agreement (which was dated April 17, 1841), to convey to 
the complainants and said Pewtriss the said lands in Assam and Illinois; which 
property and lands were to be held by the complainants in trust, as follows: 
that said Fitzroy, or assigns, during his natural life, was to have etc., to 
his own use etc., all the dividends etc., accruing or arising from said lands 
or stocks; and in case of the death of said Fitzroy, leaving said Mary, the 
trustees were to permit and suffer her and her assigns, during her natural 
life, to take and receive said dividends, profits, rents, etc.; and in case of 
her subsequent marriage, said dividends, profits, etc., not to be subject to 
the control of her husband, but to remain for her exclusive use; and after the 
death of said Fitzroy and Mary, if leaving children from said marriage, then 
said trustees to assign etc., and dispose of the property amongst the said 
children, share and share alike, at such time and in such manner as said 
Fitzroy should by will direct; in case of the death of said Fitzroy and Mary, 
without children from said marriage, then said trustees to convey said 
property to Rebecca Bartlett, the betrothed wife of Charles Milburn of Quincy, 
during her natural life; and in case of issue from said marriage of said 
Rebecca and Charles, after the death of said Rebecca, said property to be 
conveyed by the trustees to said issue; and in case of no issue from said last 
named marriage, then said property to be conveyed by said trustees to Charles 
Milburn, during his natural life, if he survived said Rebecca; and after the 
death of said Charles, under the circumstances set forth, then said property 
to be distributed according to the English law of descents, among the heirs 
and legal successors of said Fitzroy, in England. Said agreement, which was 
substantially set forth, was made part of the bill, and purported to have been 
signed by said Fitzroy Sommerville, Mary Turnbull Milburn, Joseph Arters, and 
Peter Lott.

The bill further sets forth, that complainants executed the agreement in good 
faith, etc.; and that April 22, 1841, said Fitzroy and said Mary intermarried 
as contemplated; and the same day said Charles Milburn and Rebecca Bartlett 
intermarried.

The complainants allege there never was any such person as the said admiral 
sir John Fitzroy Sommerville, or Anna Sommerville, as represented by said 
Fitzroy, nor had said Fitzroy descending to him any bank stock, turnpike 
stock, or South Sea stock, as represented by him as aforesaid; and that the 
whole transaction was designed to impose upon Mary, and to induce her to 
consent to said marriage; and that all of said statements of said Fitzroy were 
a fabrication, except as to the one hundred and sixty acres of land near 
Collinsville, Madison county, Illinois, which property is described as the 
south-east quarter of section twenty-one, in town three north, range eight, 
west of the third principal meridian, and was owned by said Fitzroy, and is 
the identical land mentioned by said Fitzroy as the two hundred acres near 
Collinsville. The bill further alleges that there was no such person in 
existence as James Pewtriss, or if there ever was, he died long since, and 
Fitzroy knew the same.

The bill further alleges, that the marriage of said Fitzroy and Mary was 
extremely unfortunate; and that, owing to the discovery of the imposition upon 
her, and the intolerably bad temper of said Fitzroy, said Mary, shortly after 
the marriage, was compelled to leave him, and return to her brother's house, 
where she has since remained. The complainants allege that the transfers, 
etc., have never been made, as stipulated in the agreement; that the said Mary 
is ready and willing to make a transfer of the lands near Collinsville, as 
agreed, but that said Fitzroy, in his life time, refused to unite with her in 
so doing, or to comply with the terms of said agreement, which was one of the 
reasons of her refusal to live with him; that said Fitzroy died on or about 
August 28, 1847, after having made a pretended will, by which he devised all 
his real estate, embracing the land near Collinsville, to James Hutchinson and 
John L. Clarke, and their survivor, in trust for one Sarah Fitzroy Clarke, a 
minor, styled in said will his god-daughter; that said agreement was recorded 
in Madison county, June 22, 1841, long before the will, which bears date June 
15, 1844; that said Hutchinson, John L. Clarke and Sarah F. Clarke had full 
notice of the agreement etc.; that said Sommerville styled himself in the will 
John Vyvian Fitzroy Sommerville, and is the same who made the agreement, and 
married said Mary; that said Hutchinson and John L. Clarke are in possession 
of the land near Collinsville, under said will; that said will was never duly 
signed and executed as required by law, and if ever made by said Fitzroy, was 
defectively executed; that there never was any issue from the marriage of said 
Fitzroy and said Mary; that said Rebecca, who intermarried as aforesaid, 
deceased about October 16, 1842, leaving a son named Charles Milburn; that 
said Mary and the said child have a right to the execution of transfers, etc., 
to the complainants, which complainants are entitled to enforce; that one 
Henry J. Kuntz claims title to the land. The bill then contains a prayer for 
relief etc., and waives answer under oath. Annexed to the bill is a copy of 
the will of said Fitzroy, deceased, and the affidavit of Charles Milburn, of 
search after the heirs of said Fitzroy, which proved futile. A subpoena was 
issued upon the above bill, and served upon John L. Clarke, Sarah F. Clarke, 
and James Hutchinson and Henry J. Kuntz; and the unknown heirs of said Fitzroy 
were brought into court by publication.

At the March term, 1848, John L. Clarke filed his answer, stating he was 
ignorant of the execution of the agreement set forth by complainants, though 
he admitted its being recorded as stated, and insisted upon proof of its 
genuineness, execution and delivery; that he knew nothing of the 
representations alleged to have been made by said Fitzroy, or the identity of 
the person making such representations and said Fitzroy; admits that John 
Vyvian Fitzroy Sommerville married Mary Turnbull Sommerville early in 1841, 
and that he has heard her maiden name was Milburn; insists that if the persons 
named in complainants' bill, and those known by him, were the same, and if the 
agreement is genuine, the consideration of said agreement was not merely the 
submission to the marriage ceremony, and the assumption of the marriage vows, 
by said Mary, but also the agreeing to keep and the actual keeping of said 
vows, by said Mary; knows nothing of the marriage of Charles Milburn and 
Rebecca Bartlett, or of the death of William, or that a child was left, or 
whether there ever were such persons as admiral sir John Fitzroy Sommerville, 
or Anna Maria Sommerville, or James Pewtriss, but asks proof of the death of 
said Pewtriss; does not know that said John V. F. Sommerville was ever called 
upon to make a conveyance as averred, and denies the said allegation; admits 
the said John V. F. Sommerville owned the one hundred and sixty acres of land 
described as the southeast quarter of section twenty-one, town three north, 
range eight, west of third principal meridian.

Said answer further states, that a few weeks after the marriage of said John 
V. F. and said Mary, said Mary broke her marriage vows, and wilfully deserted 
her said husband, and absented herself for more than two years, without any 
reasonable cause; and that October 2, 1843, said John V. F. Sommerville filed 
his petition for a divorce from said Mary, in the Madison county circuit court 
of the state of Illinois, praying for a divorce, upon the ground said Mary had 
wilfully deserted and absented herself from said Sommerville, without 
reasonable cause; in which said bill Sommerville averred that he had always 
conducted himself towards said Mary as a kind and affectionate husband; that 
upon the filing of such bill, a subpoena was duly issued, returnable, etc., 
and personal service thereof was duly made upon said Mary; that subsequently, 
at the May term, 1844, of said court, said application for divorce came up for 
trial, but said Mary did not appear; and upon such trial a decree was granted 
and made, by which the court ordered, decreed and adjudged, that the bonds of 
matrimony between said John V. F. Sommerville and said Mary T., should be 
dissolved, and forever held for naught; avers the identity of the persons 
divorced with those named in complainants' bill as Mary T. Sommerville and 
John Vyvian Fitzroy Sommerville.

The answer further insists, that by said divorce said Mary T. forfeited all 
claim to dower in the estate of her husband, as also all claim to the 
enforcement of any agreement for jointure, arising from said marriage, as also 
all claim to the benefit of the agreement set forth by complainants.

The answer further shows, that said John V. F. died August 28, 1847, leaving a 
will, a copy of which is annexed to complainants' bill, by which said John L. 
Clarke and James Hutchinson were appointed executors, and by which all the 
real estate of said John V. F., embracing the one hundred and sixty acres 
within named as near Collinsville, were devised as stated by complainants; 
that said will was duly executed according to law, and after the decease of 
the said John V. F., upon the first day of October, 1847, was duly probated 
and allowed, and recorded by and before the probate justice of the peace of 
said Madison county, and the same day letters executory were duly granted said 
respondent, said Hutchinson declining to act, and the respondent duly 
qualified himself, etc. A copy of the letters executory is annexed to the 
answer.

The answer further denies said Mary was forced to leave her husband's house, 
and insists she is estopped by said decree of divorce from denying that said 
divorce was on account of a breach of her marriage vows, as stated in the 
petition then filed. Respondent knows of no real estate which was of said John 
V. F., other than the land near Collinsville.

On the 28th day of August, 1848, Sarah F. Clarke, minor, by her guardian ad 
litem, E. Keating, filed her answer, in substance the same as the answer of 
John L. Clarke, insisting upon strict proof of the allegations of which she is 
ignorant; and further insisting, that not only said Mary, but all other 
persons claiming through the agreement set forth by complainants, forfeited 
their claims by said divorce; and that the trusts sought to be established 
were thereby destroyed, and all interest of the complainants divested, and the 
rights and interests of John V. F. Sommerville restored.

The answer, in addition, says that said agreement was made without any 
consideration between said John V. Land Charles Milburn, or any other person 
than said Mary; and that said consideration had wholly failed, as within 
stated; also denies that said Mary was compelled, by bad treatment, or from 
the temper of said John V. P., or from any other cause on his part, to leave 
her husband, but insists that he conducted himself as a good, kind and 
affectionate husband, towards said Mary; also denies all fraud on the part of 
said John V. P. in obtaining said marriage, but insists that said Mary, before 
said marriage, came to Madison county, and spent several days in examining 
said John V. F.'s property; and so far from fraud on the part of said John V. 
F. towards said Mary, it was rather a matrimonial speculation on her part.

On the 31st of August, 1848, the complainants filed their exceptions to the 
answers of the respondents; objecting —

1. To the sufficiency of the facts set forth in the answers.

2. That the rights of the other persons in the agreement could not be affected 
by the acts of said Mary. 

3. That said John V. F., being guilty of fraud previous to the marriage, the 
respondents, under the circumstances, could not avail themselves of the 
divorce.

4. That the consideration of the agreement, i. e. marriage, was superior to 
that in favor of devisee.

5. That complainants, having an equitable estate prior to the devisee, and 
being trustees for persons other than said Mary, can not be affected by her 
acts, or by the acts of the said John V. F.

6. That the answers present no defence.

The exceptions were heard, and pro forma overruled; and the complainants then 
filed their replication.

On the 20th March, 1849, an agreement was made between the parties to the 
suit, by which the identity of the parties divorced, and the Fitzroy 
Sommerville and Mary T. Milburn, named in complainants' bill, was admitted; 
also, that the divorce was granted as stated in the answers; also, that the 
facts set forth in the bill, which were not denied in the answers, and the 
facts set forth in the answers, were true. These admissions were not, however, 
to conclude the parties, except in the supreme court; and their object was 
stated to be to obtain a decision of the supreme court upon the effect of the 
divorce upon the marriage agreement or covenant set forth in the bill; and all 
the facts necessary to bring that question before the court are admitted to be 
established.

At the August term, 1849, a rule was entered upon the defendants Hutchinson, 
Mary T. Sommerville, and Henry J. Kuntz, to plead by 12 o'clock; and 
subsequently, the court to whom the other defendants and the complainants had 
submitted their cause at the March term, Underwood, judge, presiding, rendered 
a final decree in favor of the complainants, setting aside the will of said 
John V. F., deceased, as to complainants, and directing said Hutchinson, John 
L. and Sarah F. Clarke, to join in a conveyance of said one hundred and sixty 
acres to the complainants; and upon their failure, the said conveyance to be 
made by the master in chancery; the same to be held and proceeded in by the 
complainants, in the fulfilment of the trusts set forth in the marriage 
articles; and that complainants pay costs out of the profits of the land. And, 
upon the 23d day of August, 1849, made the following further agreement: "it is 
further stipulated that this suit shall go by appeal to (1st district, at 
Springfield,) the supreme court, without any appeal bond being filed."

Errors assigned: That decree should have been for respondents in the court 
below. Second, the court below decided that the divorce set up by appellants 
was no bar to the aid and relief sought for in complainants' bill.

E. Keating, for appellants: 1. Marriage is not merely a civil institution, but 
a contract of the most high and important character; the parties to which 
possess rights, and are liable to disabilities, corresponding to the 
observance or breach of the duties belonging thereto. 2. A jointure is a 
bargain and contract of livelihood, adjoined to the contract of marriage, 
being a competent provision of freehold, lands, etc., for the wife, to take 
effect after the death of the husband, if she herself is not the cause of the 
determination or forfeiture of it. 2 Tomlin's Law Dic, 27, title, "Jointure;" 
1 Institutes, 36; 3 Bacon's Ab., 710; Jacob's Law Dic, title, "Jointure;" 1 
Cruise, 199. 3. Elopement by a wife, without subsequent reconciliation, bars 
dower. 3 Comyn's Dig., 490; 2 Bacon's Ab., 384; Clancy on the Rights of 
Married Women, 201. 4. Adultery is a bar. Hethington v. Graham, 19 Com. Law 
Bep., 31. 5. A court of equity will not assist a wife to recover property 
settled to her separate use, where she elopes. 3 Comyn's Dig., 502; Hill on 
Trustees, 411; Carr v. Estabrook, 4 Ves., 148; Bullock v. Menzies, 4 Ves., 
798; Moor v. Moor, 1 Atkyns, 277; Watkins v. Watkins, 2 Atkyns, 96; Clancy on 
Eights of Married Women, 380, 568. 6. Marriages are dissolved by divorce a 
vinculo matrimonii, and such divorce renders the marriage void ab initio. 
Clancy on the Rights of Married Women, 201; 2 Bacon's Ab., 370; Reeve's Dom. 
Relations, 55; 1 Cruise, 165; Bays et ur v. Gillespie, 2 J. R., 117. 7. Dower 
is an incident of marriage, and is barred by a divorce, a vinculo. 3 Comyn's 
Dig., 490, title, "Dower;" 1 Cruise, 165; Clancy on the Rights of Married 
Women, 197; 2 Bacon's Ab., 370, title, "Dower;" Coke Lit., 33, b; 1 Rob., 681; 
1 Hilliard's Ab., 60, 61. 8. Marriage articles and agreements are barred by a 
divorce, a vinculo. 2 Kent, 100, note; Ohanand v. Ohanand, 1 N. Y. Leg. 
Observer, 134. 9. The [*113] *articles of agreement pass no legal title, but 
require the aid of a court of equity, to enforce them. This will be refused. 
First, on account of the misconduct of the wife. See former authorities above 
cited. Second, by the divorce there is a failure of consideration, and the 
wife stands here as a volunteer, and as such, aid must be refused. Hill on 
Trustees, 83, 127; 2 Sugden on Vend., 169; 1 Madd. Ch., 414; Ellison v. 
Ellison, 6 Ves., 662; Webb v. A. M. and F. Ins. Co., 5 Gilman, 223. Third, 
complainants are mere volunteers. See authorities above cited; 1 Hilliard's 
Ab., 202. 10. The complainants are not proper parties complaining, and the 
wife is improperly made defendant. 11. A complainant should not delay seeking 
aid. Hill on Trustees, 168.

J. Gillespie, for appellees: 1. Marriage is a consideration of the highest 
character in law. 7 Peters, 393; 2 Kent, 172, note c; 4 Dallas, 306. 2. The 
statute of Illinois of 1833, only bars dower. See R. L. Ill. 1833, page 238. 
3. As to whether, under the provisions of said section, any other misconduct 
will bar dower than adultery. See sec. 12, R. L. 111. 1833, page 238; 3 Peere 
Williams' Rep., 276. 4. The divorce in this case was not a divorce a vinculo, 
as denned by the English law. See 1 Black. Com., 440. 5. Adultery, either 
before or after agreement made in consideration of marriage as a jointure, 
will not bar the jointure. 1 Ball & Beaty, 204; 13 Vesey, 442; 3 P. Williams, 
276; 4 Kent, 55; 4 Bos. & Pul., 121; 1 Cruise's Digest, 219, sec. 3, 4, 5 and 
6. 6. Articles entered into before marriage, in consideration of marriage, 
vesting certain lands, etc., upon the wife, will be enforced in equity, even 
if the wife be guilty of adultery. 1 Atkyns, 272; 4 Vesey, 146, 798. 7. In New 
York, jointure is forfeited, on account of adultery, by statute. 4 Kent, 55, 
note c.

Treat, C. J. The object of this bill is to enforce the specific execution of 
an agreement made in consideration of a marriage that was subsequently 
solemnized. It is contended that the decree for a divorce, obtained by the 
husband on account of the misconduct of the wife, extinguished all right on 
her part to insist on the performance of the agreement.

By the English law, divorces a vinculo matrimonii were only granted for causes 
existing prior to the marriage — such as precontract, consanguinity, affinity, 
and corporeal infirmity. The sentence of divorce pronounced the marriage void, 
as having been unlawful ab initio. It avoided the marriage from the beginning, 
and remitted the parties to their original rights.

Divorces a mensa et thoro were granted for causes arising after the marriage. 
The effects of such a divorce were very different. The sentence did not 
dissolve the marriage, but only provided for the separation of the parties. 
The marriage relation, and most of the rights and duties growing out of it, 
still continued. The obligation of the husband to support the wife, and his 
marital rights to her property, still subsisted. The rights of the wife to 
dower and a marriage settlement were unimpaired.

The only divorce authorized by our statute is a vinculo matrimonii. It is 
granted as well for causes arising after as for those existing before the 
marriage. The consequences are, however, much modified by the statute. The 
legitimacy of the issue is not affected, except where the marriage is declared 
void on the ground of a prior marriage. The wife does not lose her dower, nor 
the benefit of it jointure, unless the divorce is granted for her fault or 
misconduct. The court granting the divorce may allow her alimony. The decree 
does not avoid the marriage ab initio, except in the case of pre-contract, but 
only annuls it from the time the decree is pronounced. But, subject to these 
qualifications, the divorce is absolute. The marriage is dissolved, and all 
rights and obligations dependent on the existence of the marriage relation, 
are extinguished. The parties are no longer husband and wife, but are 
permitted to marry at pleasure. The husband is released from all obligation to 
maintain the wife, and his right to her separate property is at an end. The 
rights of the wife to his estate, and to receive a support from it, further 
than they are saved by the statute, or allowed by the court in the way of 
alimony, are determined. It follows that this suit can not be maintained. The 
sole object of the agreement, so far as the wife was concerned, was to provide 
her a support as the widow of Sommerville. Before any estate was vested in the 
trustees, the marriage was dissolved, for her misconduct, and she ceased to be 
his wife. He was no longer legally or morally bound to support her, or to 
carry into effect any provision previously intended for that purpose. His duty 
to support her was extinguished by the dissolution of the marriage, and with 
it fell her right to demand the execution of the trust. It is only in the 
capacity of wife, or widow, that she can compel the performance of the 
agreement. This must be the basis of her right to relief. She stands in 
neither relation. Ceasing to be the wife of Sommerville when living, she could 
not become his widow by surviving him.

If the estate had been conveyed to the trustees, in pursuance of the 
agreement, it is possible that her right to receive the income, would not be 
lost by the divorce; but upon this question we express no opinion. If there 
had been children of the marriage, it is probable that the agreement might be 
enforced for their benefit. But it would be done for the sake of the children, 
and not on account of the mother.

The statements in the bill, respecting the conduct of Sommerville, can not be 
considered. It can not now be insisted that he was not entitled to the 
divorce. The decree must be held conclusive of the matter in this collateral 
proceeding.

Nor can the suit be maintained for the benefit of the heir of Charles and 
Rebecca Milburn, to whom the estate was to go, in default of issue of the 
marriage. Neither the parents, nor the child, participated in the 
consideration on which the agreement was founded. It was a voluntary trust as 
to them. The principle is well settled, that a court of equity will not lend 
its aid to establish a trust at the instance of mere volunteers. If the 
transaction, on which a voluntary trust is attempted to be established, is 
still executory or incomplete, the court will decline all interference in the 
matter.

The decree of the circuit court must be reversed, with costs, and the bill 
dismissed. 

Decree reversed.

----------------------
Cited—Howey v. Goings, 13 Ill., 108; Badgeley v. Votrain, 68 Ill., 25; Jordan 
v. Clark, 81 Ill., 465.

(1) The right of the husband in the land of his wife, being an estate during 
coverture, is terminated by a divorce a vinculo matrimonii, granted for his 
misconduct, citing R. S., 1845, ch. 34, § 12, Howey v. Goings, 13 Ill., 108. 
So, of the wife, Sisk v.'Smith, 1 Gilm., 503. So, where by the terms of an 
ante nuptial contract, a certain sum is provided for the wife, to be paid out 
of the personal estate of the husband, as a substitute or equivalent for 
dower, in case she survives him, a divorce granted to the husband for the 
fault or misconduct of the wife will bar any claim against his estate under 
such contract, Jordan v. Clark, 81 Ill., 465, and, while during the pendency 
of a bill by a husband for a divorce, the wife will have the right to remain 
in an apartment of his house in virtue alone, of the marriage relation, but, 
after a decree of divorce, ber rights to any and all parts of it will cease 
and, if she continues to remain against the will of the husband, she will be a 
mere intruder, not a tenant at sufferance, and not entitled to notice to quit, 
see R. S., 1874, p. 425, § 14; Cothran's Stat., ch. 41, § 14. Nevertheless 
under the statute of divorce, R. S., 1874, p. 421, § 18; Cothran's Stat., ch. 
40, § 18, for the allowance of alimony, the court may decree alimony to the 
divorced wife notwithstanding the divorce be granted for her fault, Deenis v. 
Deenis, 79 Ill., 74.

(2) See R. S., 1874, p. 420, § 3; Cothran's Stat., ch. 40, § 3.

(3) So held in Hewitt v. Long, 76 Ill., 399, where divorce is granted to a 
wife for the misconduct of the husband, on a subsequent application to modify 
the decree as to the custody of children, the father will be conclusively 
estopped from alleging any fact inconsistent with those found in the decree of 
divorce. The presumption is that the verdict or finding is right until the 
contrary is affirmatively shown, by evidence preserved in the record, Becker 
v. Becker, 79 Ill., 532.

(4) Where a trust is perfectly created, so that the donor or settler has 
nothing more to do and the party seeking to enforce it has need of no further 
conveyance from the settler, and no thing is required of the court but to give 
effect to the trust as an executed trust, it will be carried into effect, 
although it was without consideration and the possession of the property was 
not changed; but, if the transaction be incomplete and its final completion is 
asked in equity, the court will not interfere, to perfect the settler's 
liability, without inquiring into the origin of the claim and the nature of 
the consideration, and, if the undertaking is purely voluntary, the court will 
not execute it, Badgeley v. Votrain, 68 Ill., 25; Padfield v. Padfield, 68 
Ill., 210.

Additional Comments:
Reports of Cases Argued and Determined in the Supreme Court of the State of 
Illinois, from November Term, 1849, to June Term, 1850, Both Inclusive. By 
Ebenezer Peck. Volume XI. Annotated by Henry Binmore, of the Chicago Bar. 
CHICAGO: CALLAGHAN & CO. 1886.

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