Mr. JUSTICE CARTER delivered the opinion of the court:

This is a writ of error to the circuit court of McLean county to review the decree of that court in a partition proceeding involving the construction of the will of William J. Kerber, who died in 1906 leaving an estate of about $80,000, including real estate in said county. His widow died September 11, 1911, and thereafter this bill was filed. Plaintiff in error, Anna Leary, filed an answer and a crossbill. The court dismissed the cross-bill and entered a decree finding that ten of Kerber's children each owned an undivided one-twelfth interest of the land in question; that the widow and children of a deceased son, between them, owned another one-twelfth interest, and that the remaining one-twelfth was owned by Mathias Kerber, as trustee for Anna Leary. The sole contention here is as to the proper construction that should be given to the third clause of said will of William J. Kerber, deceased. This clause reads:

"Third-After the death of my said wife I give and bequeath the rest, residue and remainder of all of my estate, both personal and real, to my children who may be then living, in equal shares, except as to my daughter Anna Leary, now married to William Leary, and as to her share it is my will that her said equal share shall be paid over and placed in control of my son Mathias Kerber, as her trustee, for her. And I hereby give and bequeath to my said son Mathias Kerber, as trustee for said Anna Leary, one equal undivided share of my estate, both real and personal, after the death of my said wife, to be by him held for her as her trustee, and collect rents and profits thereof and to pay the same over to her during her natural life, free from any act or control of her said husband, William Leary; and at the death of my said daughter Anna, then the said share shall be paid over to her children, and if she should die without leaving any heirs of her body, then the said share so left in trust shall be turned over to the heirs of my body then living, to be distributed according to the statutes of the State of Illinois."

Plaintiff in error contends that two separate bequests are made to Anna Leary by said clause, one in the first sentence and the other in the second sentence; that by the first sentence the testator devised a contingent remainder to plaintiff in error, creating thereby a dry or passive trust, which would be executed at once under the Statute of Uses, and that the devise under the second sentence is void because of the uncertainty as to the quantity of the estate devised. It is therefore contended that plaintiff in error should receive at once her share under the first sentence of said clause.

The paramount rule in construing wills is to give effect to the intention of a testator as expressed in the will, if that can be done without contravening established rules of law. (Smith v. Dellitt, 249 Ill. 113; Armstrong v. Barber, 239 id. 389.) Another fundamental rule in the construction of wills is to consider the whole scope and plans of the testator and to compare the various provisions with one another, construing them, if possible, so that all can stand. (Young v. Harkleroad, 166 Ill. 318; Bennett v. Bennett, 217 id. 434.) The intention is not to be gathered from one clause of the will alone, but from the whole will and all its parts. (Mosier v. Bowser, 226 Ill. 46.) Where a will is susceptible of two constructions, one of which will render it valid and the other void, the courts will, if they can without doing violence to the intention of the testator, adopt the construction that will render it valid. (Heisen v. Ellis, 247 Ill. 418.) The two sentences of said clause 3 would naturally be construed together. To construe them entirely independent of each other, as contended for by counsel for plaintiff in error, would be unreasonable and contrary to all settled rules of law as to construing wills. The testator plainly intended to establish a spendthrift trust in favor of plaintiff in error, protecting her interest therein as against her husband. (Wagner v. Wagner, 244 Ill. 101.) Active duties were prescribed for the

trustee, thereby creating an active trust. (Hale v. Hale, 146 Ill. 227.) The Statute of Uses would therefore not apply. Hart v. Seymour, 147 Ill. 598; Kirkland v. Cox,

94 id. 400.

The circuit court construed the will correctly, and its decree will therefore be affirmed. Decree affirmed.

AUGUSTA MEYER, Defendant in Error, vs. FREDERICK C. MEYER, Plaintiff in Error.

Opinion filed October 26, 1912.

1. DEFAULT when new process is not necessary after amendment of bill. No new process is necessary where a bill is amended after the order for default is entered, provided the amendment is purely formal or immaterial, and in such case the court may proceed as though no amendment had been made.

2. SAME when an amendment of a divorce bill is immaterial. Where a bill is for divorce, alimony and an injunction to prevent the defendant from interfering with the complainant's business, and there is no issue as to any dispute between the parties as to the ownership of real estate, an amendment, after default, which merely avers that complainant is the owner of a one-half interest in certain described real estate is immaterial and should be disregarded by the court in entering the decree.

3. DIVORCE what provision of a divorce decree is erroneous. Where, after default in a suit for divorce, an immaterial amendment is made which avers the complainant's ownership of certain property about which it is not claimed by the bill there is any controversy, the court, in entering the decree for divorce, should not make a finding that the complainant is the owner of the property and that the defendant be divested of all interest therein; but such finding does not invalidate the provision of the decree. granting the divorce.

DUNN, C. J., and CARTWRIGHT, J., dissenting.

WRIT OF ERROR to the Superior Court of Cook county; the Hon. OSCAR E. HEARD, Judge, presiding.

CHARLES S. MCNETT, for plaintiff in error,

MICHAEL LYONS, and WILLIAM ANNAN TAYLOR, for defendant in error.

Mr. JUSTICE COOKE delivered the opinion of the court:

Augusta Meyer filed her bill for divorce in the superior court of Cook county against her husband, Frederick C. Meyer, plaintiff in error. The bill charged plaintiff in error with habitual drunkenness and extreme and repeated cruelty, and alleged that the complainant owned certain furniture and personal property which she used in conducting a rooming house in the city of Chicago; that the defendant interfered with and disturbed the complainant and her roomers so as to injure her business, and prayed for divorce, alimony and solicitor's fees, and for an injunction to restrain the defendant from interfering with the complainant's rooming house business and personal property, and for general relief. The bill made no reference whatever to real estate claimed by either of the parties. The defendant was personally served, and failing to answer, a general default was entered against him on July 8, 1909. Two days later, on July 10, by leave of court complainant filed the following amendment to her bill: "Your oratrix further shows unto your honors that she is the owner of an undivided one-half interest in certain real estate in Chicago, known as 271 and 273 Milwaukee avenue, which said premises are described as follows: North-westerly one-half (N. W. 1⁄2) of lot sixteen (16) and the southeasterly one-half (S. E. 1⁄2) of lot seventeen (17), in block thirty-three (33), in Ogden's addition to Chicago." The prayer for relief was not amended. No rule was asked or entered against plaintiff in error to answer the bill as amended and no new default was taken. On the same day the bill was thus amended the cause was heard as a default case and a decree entered in accordance with the prayer of the bill for a divorce, and "that the said

Augusta Meyer be, and she hereby is, the sole owner, in fee simple, of a one-half interest in and to the property described as follows, to-wit: North-westerly one-half of lot sixteen (16) and the south-easterly one-half of lot seventeen (17), in block thirty-three (33), in Ogden's addition to Chicago, being the premises located at and known as 271 and 273 Milwaukee avenue, in Chicago, Cook county, Illinois, and that the said Frederick C. Meyer be and he hereby is divested of any and all right, title or interest in and to the aforesaid property." After the rendition of this decree, and before this writ of error was sued out, Augusta Meyer died. It appears from the record that she left no children surviving her, and that no one claimed any rights in the real estate, as purchaser for value from her, after the rendition of the decree and before the suing out of this writ of error. Plaintiff in error seeks a reversal of the decree upon the ground that the court erred in rendering a decree upon the amended bill without entering a rule upon him to plead to the bill after the amendment had been made. It is sought to sustain the decree on the ground

that the amendment was immaterial.

The rule established by the authorities is, that no new process is, in general, necessary upon an amended bill, and an order for default can ordinarily be entered upon the original service notwithstanding the bill has been amended; and the same is true where, after an order for default, there is an amendment to the bill purely formal or not affecting the rights of the defendant. (16 Cyc. 493.) It is also a general rule that an amendment of a bill after default, if it introduces a new cause of action or if it otherwise goes to the substance of the pleadings, opens the default and admits the defendant to all the rights which he would have had on the filing or service of the original bill, although it is otherwise if the amendment is immaterial. (23 Cyc. 741; McQuade v. Chicago, Rock Island and Pacific Railway Co. 78 Iowa, 688.) From these rules it