#### Bridget White et al. v. Jerome K. Kilmartin et al.

Opinion filed December 16, 1903.

Infants—it is reversible error to neglect to appoint guardian ad litem. It is error to dismiss a bill to contest a will without appointing a guardian ad litem for minor defendants who were "defaulted and whose interests lay with the complainants, and such error may be taken advantage of on a writ of “error sued out by the complainants in which the minors join.

Writ of Error to the Superior Court of Cook county; the Hon. Philip Stein, Judge, presiding.

John C. King, and William J. King, for plaintiffs in error.

Charles E-. Hamill, for-defendants in error.

Mr. Justice Ricks

delivered the opinion of the court:

This case comes to this court upon a writ of error to review the record made in the superior court of Cook county, where a decree was entered dismissing a bill filed .to contest the will of Catherine Healy, deceased. Various errors are assigned of record, but taking the view we do of the case, it is not necessary to discuss but the one in reference to the omission of the court to appoint a guardian ad litem for the infant defendants, as, in our judgment, it is fatal to the decree dismissing the bill.

The bill sets up the fact that Catherine Héaly,'during her lifetime, was married twice; that her first husband, John Prendergast, died in June, 1865; that of said marriage there was born one child only, who-died in infancy; that the second husband of Catherine Healy was Bryan Healy; that there was no issue of said second marriage, and that the husband and father of said Catherine Healy are long since dead; that said Catherine Healy, deceased, *526left her surviving several heirs, among whom aré John Kilmartin, Mary Kilmartin- and Jerome Kilmartin, who are all minors, and who are the children and only heirs-at-law of Marie Kilmartin, deceased, who was the only child and heir-at-law of John Ryan, deceased, the oldest brother of said Catherine Healy. The bill alleges that the above named defendants are minors and heirs-at-law of Catherine Healy. The allegation in regard to minority is supported by the testimony. ' At a term of the court previous to the trial of the cause the three Kilmartin heirs were defaulted, with other defendants not answering.

The will in question bequeathed the property disposed of as follows:

“Second—I give and bequeath to my sister,. Bridget White, the sum of $200 in cash. ■

“TMrd-r-J. give and bequeath all the balance of my property, real, personal or mixed, of- whatever kind and wheresoever situated, to my step-daughter, Kate Flanagan, Delia Reefe, my grand-niece, Ellen Cahill, wife of Michael Cahill, and Peter Glynn, equally, it being my intention that each of said parties shall have an equal quarter of my estate; the interest, however, devised and bequeathed to Kate Flanagan, my step-daughter, is to be a life interest; that on her death said quarter interest shall g'o to her two children, Marie Flanagan and Joseph Flanagan, equally.”

Ellen Cahill was the only devisee that was an heir-at-law of the testatrix. The Kilmartin heirs were entitled to a one-sixth interest in the estate, which was valued at $13,000, had the will been declared void, and are now joining with the complainants below in suing out this writ of error, and the Kilmartin minors assign the failure of the chancellor to appoint a guardian ad litem to defend them, and the taking of their default, as for error.

We have repeatedly held that it is reversible error to neglect to appoint a guardian ad litem for infants. Coun*527sel for defendants in error cites authorities to support his contention that the error does not render the judgment void but only voidable, and that a motion to set aside the decree in the trial court was the proper method of procedure in this case; but all the authorities cited are where the attack on the decree of the trial court was collateral. And we have repeatedly held that where a guardian ad litem is appointed whose interests are in any manner hostile to the interest of the minor, such appointment is reversible error. In this casé the decree of the lower court dismissing the bill was certainly hostile to the interests of the Kilmartins, and we would be reversing a well established rule to permit such a decree to stand. In the case of Hall v. Davis, 44 Ill. 494, this court said (p. 498): “In“the case of Peak v. Shasted, 21 Ill. 137, it was held that a minor could only appear to defend a suit by guardian, and that the plaintiff should, in case a minor defendant failed to so appear, have a guardian ad litem appointed to make defense. It was also held that if a minor defendant should appear in person or by attorney it would be error in fact, which may be assigned in the court rendering the judgment; also, that a judgment or decree against a minor without a guardian may be set aside, on motion, in the court rendering it, and let such defendant in to plead. In that case the application was made to the court on motion, and we said that such practice was regular. In this case it appears by the petition that no appearance was entered by Mary J. Davis, either in person, by guardian, attorney or otherwise, nor does any such appearance appear from the record in the cause. It appears from the petition, verified by the oath of the petitioner, that she was a minor when all of these proceedings were had, and that her rights were not protected in the decree of the court. This, then, brings this case within Peak's case. The court below should have allowed the petition and let Mary J. Hall in to defend the suit, and on a final hearing *528have rendered such a decree as should be required by the case made by the parties.”

The decree of the superior court of Cook county is reversed and the cause is remanded to that court for such further action as may be desired, not inconsistent with this opinion.

Reversed and remanded.