"The court further finds that Esther C. Smith is now about 69 years of age, and wholly incapable of bearing children-that is, to her the possibility of issue is wholly extinct, and that it is impossible for said Esther C. Smith to have any other or further children born to her."

It then recited the proceedings had in 1910 and 1912 to quiet the title, and found that all persons defendant in that suit were bound by that decree. The court further found that all the devisees of David Sholes, including those still unborn, are bound by said proceedings, and have no right, title, or interest in said lands, and that any children who might hereafter be born to Esther C.

Smith are of the same class and stand in the

same relation as the living children of Esther Smith who were made defendants. The court further found that all the children or grandchildren who may be born are unknown, and that their names are unknown, and that they are made parties defendant by the name and description of "unknown dev isees of David Sholes, deceased." The decree then concluded:

"It is further ordered, adjudged, and decreed that the complainants Lydia E. Oakley and Alice J. Carlisle are the sole owners in fee sim

ple of said tract E [being the lands in question] subject to a life estate therein in their mother, Esther Smith, and that all other complainants and all the defendants, and those claiming by, through, or under them, except those three last above mentioned, have no right, title, or interest in and to said tract E, or any part thereof, and that the title of said Lydia E. Oakley and Alice J. Carlisle, subject to a life estate of said Esther Smith in said tract E, is hereby confirmed and quieted; that all the defendants and all the other complainants, and those claiming by, through or under them, are forever barred and enjoined from all right, title, and interest in and to said tract E, and every part thereof; that said Lydia E. Oakley and Alice J. Carlisle, and their successive grantors, have been in open, notorious, and undisputed possession of said premises for 30 years, and have paid all taxes thereon."

[4] There is no claim that the court did not have jurisdiction of the subject-matter involved in these proceedings, and that it did not have jurisdiction of all the parties named as defendants. Granting that the court had jurisdiction, it is altogether immaterial, when the decree is collaterally called in question, how grossly irregular and manifestly erroneous the proceedings may have been. The decree cannot be regarded as a nullity, and cannot therefore be collaterally impeached. Such a decree is binding on the 133 N.E.-5

versed or annulled in a direct proceeding. Miller v. Rowan, 251 Ill. 344, 96 N. E. 285. No appeal was taken from either of these decrees, and therefore the suits are both at an end. The owner of the land in question would therefore be protected against any subsequent litigation concerning the title by any one who was a party to the suit, or who would be bound by the decree under the doctrine of representation. Hopkins v. Patton, 257 Ill. 346, 100 N. E. 992; Kuzak v. Anderson, 267 Ill. 609, 108 N. E. 662. whether the after-born children or grandchil[5] We come, therefore, to the question dren of Esther C. Smith are bound by these decrees under the doctrine of representation. It is unquestionably a genral rule that in proceedings in equity the interests of parties not before the court will not be bound by the decree. This rule is subject, however, to certain well-recognized exceptions, among which is one growing out of convenience or necessity in the administration of justice, which has given rise to what is known as the doctrine of representation. Where it appears that a particular party, though not before the court in person, is so far represented by others that his interests receive actual and efficient protection, the decree may be held to be binding upon him. It must appear that he stands in the same situation as parties before the court, and that he has a common right or interest with them, the operation and protection of which will be for the common benefit of all and cannot be to the injury of any. In order to apply the doctrine there must be some persons present who, with reference to the interests in question, are equally certain to bring forward the entire merits of the question, for the reason that the object is satisfied for which the presence of the actual owner would be required. This doctrine is especially applicable where persons not before the court are only possible parties not in esse, and where the interests of all parties in esse require a decree which will completely and finally dispose of the subject-matter of the litigation. Such possible parties cannot, as a matter of course, be brought before the court in person, and it would be highly inconvenient and unjust that the rights of all parties in be. ing should be required to await the possible birth of new claimants until the possibility of such birth has become extinct. If persons in being are before the court who have the same interests, and are equally certain to bring forward the entire merits of the question, and thus give such interests effective protection, the dictates of both convenience and justice require that there should be a complete decree. For a full discussion of this doctrine we refer to the opinions filed in Hale v. Hale, 146 Ill. 227, 33 N. E. 858, 20

[6-8] In the case at bar the possible interests of after-born children of Esther C. Smith are identically the same as the interests of her four living children. In the proceedings of the circuit court of Kane county resulting in the decrees of 1912 and 1915, the living children of Esther C. Smith did not declare in the pleadings that the interests of the children of Esther C. Smith yet to be born were the same as their interests, but they declared that the title to the land in question vested in them in fee simple, subject only to the life estate of Esther C. Smith, and that after-born children of Esther C. Smith had no interest whatever in said lands. By the pleadings the interests of the living children of Esther C. Smith were made to appear adverse to the interests of children yet to be born to her, and so the doctrine of representation does not apply. This principle of equity cannot be used by a part of a class to destroy the interests of another part of the same class who are not made parties to the suit. When tenants in common and life tenants seek by proceedings in equity to have their interests in lands defined and set off where persons not in esse may have some interest in said lands, it is a reasonable and wholesome requirement for a court of equity to hold that the bill shall clearly and specifically set out the interests of all the parties in the premises, including those of the remaindermen not in esse, and that the decree of the court shall designate the interests of such remaindermen not in esse and definitely fix their interests in the premises before they shall be bound by any decree which extinguishes or seeks to extinguish their title to the real estate. Baker v. Baker, 284 Ill. 537, 120 N. E. 525. The decrees were not binding upon the remaindermen not in esse. The finding of the chancellor that possibility of issue was extinct in Esther C. Smith is clearly wrong. Nature has fixed no certain age, by years, at which childbearing capacity in a woman shall begin or end. The law recognizes the possibility of issue in all adult women, and the single fact that terminates the ability to bear children is death. Hill v. Sangamon Loan & Trust Co., 295 Ill. 619, 129 N. E. 554.

The living grandchildren of Esther C. Smith, executory devisees under the will of David Sholes, deceased, were made parties defendant to the bill filed in 1910 and the bill filed in 1914. Their interests were set forth in the bills, with the further allegation that their interests were a cloud on the title of the living children of Esther C. Smith, and praying that the title be confirmed in said children of Esther C. Smith. A guardian ad litem was appointed for the minor grandchildren, who was supposed to represent them

ward all defenses that could be presented. Under the doctrine of representation hereinbefore discussed, we must hold that the decree is binding on all the grandchildren of Esther C. Smith, including those who were made parties defendant and those yet to be born.

[9] It is contended by appellee that David W. Sholes and Ernest C. Sholes, sons of David Sholes, deceased, ware necessary parties to the proceedings had in 1910 and 1914, for the reason that the property devised by the sixth clause of testator's will would descend as intestate property to the heirs at law of the testator in the event that Esther C. Smith died without issue surviving her. This contention is not sound. In the absence of a contrary indication of testamentary intent, a devise of a life estate with a remainder to a class of persons not named, but described, will vest the remainder at the testator's death in the persons then comprising the class, the right of enjoyment only being postponed. Schaefer v. Schaefer, 141 Ill. 337, 31 N. E. 136; Grimmer v. Friederich, 164 Ill. 245, 45 N. E. 498; Knight v. Pottgieser, 176 Ill. 368, 52 N. E. 934. As we have said, when the testator died the fee to the lands devised by clause 6 of his will vested immediately in the living children of Esther C. Smith. The fee having passed from the testator, as it did by clause 6 of his will, it cannot again return to him or his heirs. If a remainderman dies before Esther C. Smith dies, and leaves a child or children living at the time of the death of the life tenant, the interest of the remainderman is divested, and the fee passes to his surviving child or children by executory devise. If the remaindermen die before Esther C. Smith dies, and leave no child or children, the interests of the remaindermen will not be divested, and the fee will pass to their heirs. Kales on Estates and Future Interests (2d Ed.) § 597. If David W. Sholes and Ernest C. Sholes should in any event take this property as heirs, they will take it as heirs of the remaindermen or executory devisees, and not as heirs of the testator. The sons of the testator were not necessary parties.

[10] Appellant contends that the unborn children of Esther C. Smith are made parties defendant by the description "unknown owners" and "unknown devisees." Section 7 of the Chancery Act (Hurd's Rev. St. 1919, c. 22) provides that in suits to obtain title to lands, if there be persons interested in the same whose names are unknown, it shall be lawful to make such persons parties to such suits or proceedings by the name and description of "unknown owners" or "unknown heirs or devisees" of any deceased person. This statute refers to persons in being, and does not refer to possible persons that may never be born.

roads, otherwise known as state roads, under the exclusive authority and jurisdiction of the state highway commissioner.

Section 1218, General Code, provides that all contracts for such maintenance and repair "shall be made in the name of the state and executed on its behalf by the state highway commissioner and attested by the secretary of the department." It is very clear, therefore, that, inasmuch as this accident occurred upon a state road then being repaired by the state highway department, the state highway commissioner had full power and authority to proceed in making the improvement without in any way advising with the county commissioners, or being subject in the slightest measure to their authority.

As further evidence of the care with which the Legislature has classified highways, and in order to leave no doubt as to what roads are included in the classification of state highways, we find a definition of that phrase in section 1226, as follows:

"The term 'state highway' as used in this chapter, shall be held to mean such part or parts of the intercounty highways and main market roads which have been or may hereafter be constructed by the state, by the aid of state money or have been taken over by the state."

the petition will disclose, however, that the accident was not primarily due to the defective condition of the road. The automobile did not run into a defect due either to improper original construction or to failure to keep the roadway in proper repair. It is true that this road, according to the allega|tions of the petition, was not in proper repair, but according to the same allegations the road was being repaired and by the authorities whose duty it was to make such repairs.

The petition alleges that

"In making said repairs the road was obstructed and made impassable by a wall of bricks 5 or 6 tiers high, which were carelessly and negligently piled, and placed across the entire width of said road at the western terminus of the paved part of the road as aforesaid, thereby forming a barrier and obstructing the use of said road for all traffic at said point,"

etc.

It further clearly appears by the allegations of the petition that this road is a state road and that the repairs were being made by the state highway department. By reference to section 1225, General Code, it will be found that it is the duty of the state highway commissioner, at the time of approving plans and specifications for making any road improvement, to determine whether such improvement will require closing the highway to traffic, and that it is his duty to avoid closing for traffic whenever practicable.

*

If the board of county commissioners has no duty to perform, then there could be no negligence or carelessness charged to the board arising out of the failure of others to perform some duty. If there is no duty, there can be no negligence. It is not necessary to resort to a definition of the word "negligence," because the word is defined in section 2408 as the failure to keep any such road in proper repair.

In this view of the matter there can be only one conclusion, and that is that there was no duty and therefore no negligence; and therefore no liability on the part of the county commissioners.

The same section further provides that it shall be unlawful for any contractor or other

improvement unless such determination shall have previously been made by the state highway commissioner. If determined that it is necessary to close the highway, it becomes his duty to include as a part of the plans for improvement all necessary and proper barriers and detour signs.

The petition does not allege the failure to make the proper determination or that for any other reason it was improper to build such a barrier. It will be presumed, therefore, that all necessary preliminary steps were taken to make the barrier a lawful institution.

The judgment of the court of common pleas and Court of Appeals will therefore be affirmed.

Judgment affirmed.