Belfield v. Findlay

62 N.E.2d 403, 389 Ill. 526, 1945 Ill. LEXIS 504

• Court: Illinois Supreme Court
• Decided: March 21, 1945
• Docket: No. 28061. Decree affirmed.
• Status: Published

Opinions

Mr. Justice; Wilson

delivered the opinion of the court:

Plaintiffs, Agnes Belfield, Margaret Horton, Sarah E. Grate, Florence Grate and Ida Grate Silvius, filed a complaint against the defendant, Nelson Findlay, a minor, and Jeanette M. Findlay, guardian of his estate, in the circuit court of Kendall county to quiet title to real estate consisting of an eighty-acre farm. The cloud, alleged in the complaint to exist, arose under the will of Sarah Findlay, deceased. She devised the property to her son, Arthur Findlay, for life, and on his death “the said land to go to his children, or if he leaves no children surviving him, then said land is to go to my daughters.”

The will of Sarah Findlay was executed in 1916. She died in 1930. Nelson Findlay was born in 1933. In 1939, he was adopted by Arthur Findlay, who died in 1940. The two plaintiffs first named are the sisters, and the three last named are daughters of a deceased sister of Arthur Findlay. They claim the land under the will of Sarah Findlay, and the decree of the circuit court quieted title in them. Nelson Findlay, who will be referred to as defendant, urges that under the adoption statute of this State he is entitled to take as remainderman. This is the controlling question in the case. Plaintiffs, to sustain the decree, point out that Nelson Findlay, having been adopted after the death of the testatrix, was not in her mind at the time she executed her will, and, in fact, was not born at the time. They argue that the adoption statute does not give to an adopted child the right to take as remainderman in a case such as this, unless it affirmatively appears in the will that the testator so intended.

The adoption of children was unknown to the common law but was known and recognized by the civil law and is now provided for in most States by statute. The statute relating to adoption, in force at the time this will was executed and since, had been in effect , since 1874, (Ill. Rev. Stat. 1874, chap. 4, sec. 5,) and is substantially the same as the act of 1867. Our Adoption Act, section 5, provides: “A child so adopted shall be deemed, for the purposes of inheritance by such child, and his descendants and husband or wife, and other legal consequences and incidents of the natural relation of parents and children, the child of the parents by adoption, the same- as if he had been born to them in lawful wedlock, except that he shall not be capable of taking property expressly limited to the body or bodies of the parents by adoption, nor property from the lineal or collateral kindred of such parents by right of representation.” This section remained in the Adoption Act until the enactment of the Probate Act of 1939, when section 5 of the Adoption Act was re-enacted as section 14 of the Probate Act. Laws of 1939, p. 12.

Under section 10 of the Descent Act, (Ill. Rev. Stat. 1937, chap. 39, par. 10,) now section 48 of the Probate Act, (Ill. Rev. Stat. 1943, chap. 3, par. 199,) it is provided that on the birth of a child to a testator after making his last will, in which no provision was made for such child, the devises and legacies provided in the will, "unless it- shall appear by such will that it was the- intention of the testator to disinherit such child, * * * shall be abated in equal proportions to raise a portion for such child equal to that which such child would have been entitled to receive out of the estate of such testator if he had died intestate.” Under this statute it has, since Flannigan v. Howard, 200 Ill. 396, been held that an adopted child is a “child” within the terms of section 10 of the Descent Act, unless an intention to disinherit is disclosed by the will. In the case cited, it was pointed out that at the time of the enactment of section 10 of the Descent Act, the Adoption Act of 1867 was in existence, and, consequently, that the right of an adopted child to inherit is the same as that of a natural child. This court also observed that while the accepted definition of a “child” refers to the immediate progeny of human parents, yet by statute the relation of parent and child was recognized and declared to" be legally existing between persons not so related by nature. The Flannigan case and other similar cases concerning inheritance from the adoptive parents are, however, of little assistance in the solution of the present controversy. Nelson Findlay’s rights of inheritance are not material, because he is claiming nothing as an inheritance. His claim is based solely on the will, and, to qualify as remainderman, he must establish his identity as a beneficiary described in the will. In order to successfully conform to the requirements of the prohibitions contained in the exceptions specified in section 5 of the Adoption Act, it is requisite that a showing be made, not only that he is a “child” of Arthur Findlay, his adoptive parent, but, also, that the testatrix had him in mind as a lineal descendant when she executed her will. The law in this State is that a testator is presumed to have known the law and to have made his will in conformity therewith. (Munie v. Gruenewald, 289 Ill. 468; Walker v. Walker, 283 Ill. 11; Rudolph v. Rudolph, 207 Ill. 266.) The state of the law at the time the will was made, therefore, affords considerable assistance in ascertaining the intention of the testator when such "intention is otherwise not clear. Carpenter v. Browning, 98 Ill. 282.

Keegan v. Geraghty, 101 Ill. 26, decided in 1881, contains an historical sketch of the law pertaining to adoption and treats, in an exhaustive manner, the "provisions of section 5 of the Adoption Act. There, an adopted child sought to take, as a half-sister, the intestate estate of a natural child of her adoptive father. The decision necessarily dealt with the exception contained in section 5, to the effect that such adopted child “shall not be capable of taking * * * property from the lineal or collateral kindred of such parents by right of representation.” In its opinion, this court pertinently stated: “As we construe the statute, as between the parties to the transaction the adopted child is deemed, for the purpose of inheritatnce from the adoptive parents, their child, the same as if he had been bom to them in lawful wedlock. And when such an adoptive parent dies intestate, having had no children born to him in wedlock, it is reasonable and just that the property he leaves should go to a stranger to his blood, his adopted child. It would be a consequence of his own desire and request in the taking of the adoption proceeding. But another person, who has never been a party to any adoption proceeding, who has never desired or requested to have such artificial relation established as to himself, why should his property be subjected to such an unnatural course of descent? To have it turned away upon his death from blood relations, where it would be the natural desire to have property go, and pass into the hands of an alien in blood, — to produce such effect, it seems to us, the language of the statute should be most clear and unmistakable, leaving no room for any question whatever. We find in our statute of adoption no express language giving to the adopted child the right to inherit from any one else than the adoptive parents.” Although the decision in the Keegan case was made with respect to whether an adopted child would be considered the same as collateral kindred, the language is relevant, also, to the determination whether an adopted child can be considered in the same category as a lineal descendant.

In Smith v. Thomas, 317 Ill. 150, the testator gave all the residue of his estate to his executors and trustees to pay so much of the income as he directed to his widow and his son and daughter during their lives and the life of the survivor, and “then to divide the same and the accumulations thereof, between the heirs of my daughter, * * * and the heirs of my son, * * In addition, the will provided for sums to be paid for the education “of each grandchild of mine.” The testator admonished his trustees to keep in view “that my desire is to create and preserve for my grandchildren and their heirs an estate having a steady permanent income.” The question presented for decision was whether an adopted child of the son of the testator was entitled to share in the distribution of the estate and the income. This court decided that while an adopted child became the child and heir of the testator’s son, when he was adopted, he did not become the grandchild of the testator. There, the adopted child was riot born until four months after the execution of the will, and was not adopted until nearly five years after the death of the testator and more than six years after the execution of the will. These important facts conclusively demonstrated that the adopted child could not have been in the mind of the testator when he drafted his will.

In Moffett v. Cash, 346 Ill. 287, the will made devises to the testator’s sons and daughters. The devises to three daughters were for life and, on their death, the property was to go, in each case “to her children the issue of her body share and share alike.” The devises to the sons were for life and on their death the property was to go to their children, without limiting the term “children”, to issue of the body. Since the testator, in his will, indicated an intention to limit the remainder to the issue of the body of each of the daughters, he intended such construction of his devises to his sons, even though he employed no language to express this intent in the latter devises. Neither the language of the will nor the circumstances surrounding the testator at the time the will was executed disclosed an intention on the part of the testator to include an adopted child in the meaning of the word “children,” as used in the will. There, again, the court directed attention to the fact that the adopted child was not born until five years after the death of the testator and was not adopted by the testator’s son until nearly twenty-six years after the testator’s death.

In Munie v. Gruenewald, 289 Ill. 468, a child adopted by a daughter of the testator was held to be embraced within the word “children,” where the testator knew not only of'the adoption but also that the adopted child was everywhere recognized as the child of his daughter. Again, in Wallace v. Noland, 246 Ill. 535, the word “heirs,” as used in the will was held to mean “children.” In determining the intention of the testator, the circumstances and environment of the testator when the will was drafted, namely, prior to 1867, including the state of the law at the time, were considered. This court decided that the testator could not have intended to include the adopted children of his son in a devise over after the death of such son without children, because, at the time of the execution of the will and, later, when the testator died, there was no statute in existence, and never had been one in this State, authorizing the adoption of a child. There, also, the child was adopted twenty-three years after the death of the testator.

The testatrix, Sarah Findlay, is presumed to have made her will in accord with the statute on adoption in force at the time the will was executed. This presumption is written into the will as much as any part of the will itself. In 1916, the Adoption Act of this State provided that an adopted child, for the purposes of inheritance, and other legal consequences and incidents, of the natural relationship of parent and child, with the exceptions named in the statute, is to be given the same legal rights as if he had been born to the adoptive parents in lawful wedlock. (Ryan v. Foreman, 262 Ill. 175; Flannigan v. Howard, 200 Ill. 396.) The statutory provision means •that an adopted child may take by will or deed property not “expressly limited to the body or bodies of the parents by adoption,” or not derived “from the lineal or collateral kindred of such parents by right of representation.” Application of the quoted statutory exception to the admitted facts discloses that defendant is seeking to take property from the lineal kindred of his adoptive father by right of representation. This, the statute expressly forbids. A concession that the testatrix did not have any specific children or particular class of children in mind when she, in 1916, executed her will does not aid defendant. Under the applicable statute and the decisions construing it, defendant cannot possibly take as remainderman the farm devised to Arthur Findlay unless, as in Munie v. Gruenewald, 289 Ill. 468, he, an adopted child, was known by, and within the contemplation of, the testatrix when she executed her will. The contention is not, and cannot be, made that defendant was within, the contemplation of Sarah Findlay when she made her will prior to the birth of defendant and, necessarily, before his adoption by her son, Arthur.

Although favoring the taking by an adopted child of the estate of his adoptive parents, the law does not extend the privilege beyond the parties directly participating' in the adoption proceedings, unless an intention so to do is clearly warranted. Thus, in the Smith case and the Moffet case, adopted children of life tenants were denied the privilege of taking as remaindermen the interests to which their adoptive parents were entitled where the children were not in existence during the lifetime of the respective testators. Manifestly, the testators in those cases did not have the adopted children in mind when the wills were drawn. The only case cited in which an adopted child was entitled to take property devised by a parent of a life tenant is Munie v. Gruenewald, 289 Ill. 468, where the adopted child was known by the testator and, as a matter of fact, within his contemplation when the will was executed. Here, defendant, the adopted child, was not born until seventeen years after the execution of the will of Sarah Findlay and, we note again that she died three years prior to defendant’s birth and nine years before he was adopted. It follows

that, under the law established by applicable decisions, defendant is not the owner of the property in controversy. Arthur Findlay, at his death, not having been survived by any child or children or other lineal descendants, within the meaning of his mother’s will, the land devised by her became the property of plaintiffs, and title was properly quieted in them. Our conclusion is in accord with the great weight of authority. Indeed, “It is almost universally agreed that where a provision is made in a will for children of some person other than the testator, an adopted child is presumed not to be included unless there is language in the will, or there are circumstances surrounding the testator at the time he made the will, which make it clear that the adopted child was intended to be included.” 70 A.L.R. 621.

The only other contention requiring consideration is the claim that defendant should be reimbursed for improvements made in 1938 by Arthur Findlay. He urges that this relief should be granted under the equitable maxim, “He who seeks equity must do equity.” There is no merit to the contention. Improvements made by a life tenant are deemed to have been made for his own benefit and enjoyment, and, upon termination of the life tenancy, pass to the remainderman without liability to recompense the life tenant’s estate. Brown v. Hall, 385 Ill. 260; Chilvers v. Race, 196 Ill. 71.

The decree of the circuit court of Kendall county is aErmed.

Uecree affirmed.