delivered the opinion of the court.
Aрril 27,1926, Henrietta Eleanor Robinson of Greenwich, Connecticut, made a written agreement with Whiting and McEwen, as trustees, conveying to them 1649 shares of stock of the Ox Fibre Brush Company, a corporation. By its terms the trust was to last 10 years and the stock wаs to be returned to the donor at the end of that period if she survived thus long*. If the donor died within the period, the income from the trust estate after her death was to be paid in equal proportions to four daughters of the donor, Margaret McEwen, Frances McEwen, Laura Evans and Eleanor Whiting. In case of the death of any of these while entitled to income under the trust, the income payable to such daughter during the remainder of the period [it was provided] should be paid to the “lawful heirs” of such deceased daughter. At the expiration of the period it was provided the trust estate should be divided equally between the four daughters, or in case of the death of any one of them, the part she would have taken had she been living [it was provided] should be paid to her ‘ ‘lawful heirs. ’ ’
The donor died within the 10-year period. Her daughter, Eleanor Whiting, the wife of Lawrence H. Whiting, thereby became entitled to one-fourth of the income from the trust estate. Eleanor Whiting died within the period leaving her surviving her daughter, Henrietta Countiss, the plaintiff, Frederick Countiss, her son, Barbara Whiting, a daughter, and Lawrence H. Whiting, Jr., a son, and her husband, Lawrence H. Whiting.
January 14, 1936, plaintiff sued claiming that she was entitled to one-sixteenth of the income frоm the trust, which the trustees refused to pay to her. She made defendants the trustees, her brother Frederick Countiss, Barbara Whiting her sister of the half-blood and her brother of the half-blood, Lawrence H. Whiting, Jr. Barbara and Lawrence H. Whiting, Jr., minors, submitted their interests tо the protection of the court. Frederick Countiss answered admitting the allegations of the bill and praying his answer might be taken as a cross-bill. The trustees answered averring that Lawrence H. Whiting, surviving husband of Eleanor Whiting, with the four children was a “lawful heir” of his deceased wife Eleanor, and that he was therefore entitled to a one-twentieth part of the income of the estate.
In paragraph 15 of the answer the trustees averred that Lawrence H. Whiting was not only an heir of his deceased wife but executor of her estate and by way of counterclaim set up that plaintiff, without his knowledge or consent, had taken property of the estate which would render him liable in case it was not returned; that the value of the property thus taken exceeded any amount due plaintiff on any theory of the case, and that plaintiff was therefore not entitled to maintain the suit until she should have returned this property. On plaintiff’s motion the counterclaim was stricken, tоgether with the paragraph of the answer asserting that Lawrence H. Whiting was a “lawful heir” of his deceased wife.
An amended answer was filed averring for a second time that Lawrence H. Whiting was an heir and plaintiff was precluded by this counterclaim. October 27, 1938, the counterclaim was dismissed and from that order the trustees appeal. The appeal is No. 40,735. Thereafter, the trustees filed their report. Plaintiff and others filed objections to it and August 16, 1939, a decree was entered adjudging that Lawrence H. Whiting was not an heir of his wife Eleanor within the meaning of the trust agreement; that $4,328.39 had been wrongfully paid to him by the trustees on the theory he was her heir and that he should repay the sum with interest; that the trustees had waived compensatiоn for their services, etc. From this decree the trustees appeal and their appeal is No. 41,097. These appeals have been consolidated for hearing.
The trustees say the order dismissing the counterclaim was final and that its effect was to terminate the right of Lawrence H. Whiting to recover on the matter set up in the counterclaim. Section 77 of the Civil Practice Act (Smith-Hurd Anno. Stats., ch. 110, par. 201, p. 195 [Jones Ill. Stats. Ann. 104.077]) is cited. It is said the dismissal of the counterclaim finally determinеs that Lawrence H. Whiting has no cause of action against plaintiff. This is not true. The claim set up is not in favor of Whiting but of the estate of which he is executor. It is said this may on certain contingencies become a personal claim by him. The оrder is final only in the sense that it prevents the presentation of this counterclaim on the merits in this suit. The order of dismissal does not purport to adjudicate the claim on the merits. The motion to dismiss was made and allowed on the theory that the сounterclaim could not be presented in the instant suit, and that it should have been presented in another forum, namely, the probate court of Cook county. This will not prevent a future trial on the merits. The counterclaim as to form was properly pleaded (§ 33 [2] of the Civil Practice Act [Jones Ill. Stats. Ann. 104.033]) but the nature of it was such as to preclude an adjudication on the merits in this case. It could not be tried in this suit because it purported to state a claim in behalf of Lawrence H. Whiting as executor of the estate of Eleanor Whiting. It also purports to state a possible future contingent claim by Lawrence H. Whiting personally.
The counterclaim as stated is very indefinite and uncertain. If the motion to dismiss had been madе on that ground it might well have been allowed for that reason. This ground was not presented in the motion but is pointed out in the argument. The trustees contend the counterclaim was allowable under § 38 of the Civil Practice Act. (Smith-Hurd Anno. Stats., ch. 110, par. 162 [Jonеs Ill. Stats. Ann. 104.038]). This section is sweeping in its character and has made many former decisions as to counterclaims inapplicable. However, there remains notwithstanding the statute at least one limitation. The counterclaim must be a personal liability between parties to the suit. This counterclaim is not between parties to the suit, or if we regard it as between parties, it sets up merely a possible future contingent liability. While the following cases do not construe § 38, the principles of law necessarily involved in the construction are therein illustrated. McCully v. Silverburgh,
In appeal No. 41,097, the important question for decision is whether within the meaning of the Robinson trust Lawrence H. Whiting is a “lawful heir” of his deceased wife, Eleanor, and therefore a beneficiary of the trust. By its rulings in the settlement of the accounts of the trustees, аnd finally by the terms of the decree entered, the court held Whiting was not such “lawful heir.” That determination is challenged. It is said the question “is purely one of definition of the term ‘lawful heirs’ unexplained by the context”; that construction of a will is not involved; thаt the trust agreement granted no power of appointment to the daughters of the donor; that it merely declares a description of a class of beneficiaries to be determined by reference to the Statute of Descent. Reliance is placed on paragraph 4 of § 1 (Smith-Hurd Anno. Stats, ch. 39 [Jones Ill. Stats. Ann. 110.193]) which provides in substance that when there is a surviving husband and also a child or children of the intestate, the husband shall receive one-third of the personal estatе.and in lieu of dower one-third of the real estate in which he shall waive his right of dower. The statute also provides the methods by which this right of dower may be waived by the husband.
When, as here, the word “heir” or “heirs” is unexplained or uncontrolled by the context, the words are interpreted according to their strict technical import. When so interpreted the word “heir” designates “the person or persons appointed by law to succeed to the real estate in case of intestacy.” (2 Jarman on Wills, 5th American Ed., p. 585.) The trustees say that under the statute Mr. Whiting is the “heir” because by law he is appointed to succeed to the property of his wife’s estate upon her death. This is also said to be the law of the State in which the donor resided at the time she made the trust agreement. Beach v. Meriden Trust & Safe Deposit Co.,
In Illinois the language of some of the opinions is conflicting as in Richards v. Miller,
Tu Braidwood v. Charles,
In Rolofson v. Rolofson,
“We are unable to escape the conclusion that when the term ‘heir’ is used in its technical sense, it does not include the surviving wife or husband, except when the facts of the case come under clause three of section one of the chapter entitled ‘Descent,’ Cahill’s St. ch. 39, If 1, providing for the widow or surviving husband when there is no child or children or descendants of a child or children of the intestate. ’ ’
This case seems to be precisely in point. In conformity with it and other cases cited we think it must be held that Lawrence H. Whiting was not entitled to a share in the income from this trust.
It is further contended by the trustees that in the absence of a charge of lack of good faith or charge that they took any action not believed by them to be within their discretion or power, and in the absence of any charge of wilful default by them, they are not liable in this action. They rely on paragraph 9 of the trust agreement, which provides: ‘ ‘ The Trustees shall not be liable for any action taken by them in good faith and believed by them to be within the discretion or power conferred upon them by this agreement, nor for any loss unless the same shall happen through their own wilful default.” It is contended it was held in Burns v. Hines,
The order dismissing the counterclaim and also the decree on the merits will be affirmed.
Affirmed.
O’Connor, P. J., and McSurely, J., concur.