Filed 11/16/07 NO. 4-06-0964
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: the Estate of ANDREW ROLLER, ) Appeal from the Deceased, ) Circuit Court of RONALD E. ROLLER, ) Douglas County Petitioner-Appellant, ) No. 64CH1299 v. ) LEOMA ALLISON and RUTH ANN DAVIS, ) Coguardians of the Estate of EDWARD ) R. ROLLER, a Disabled Person; and ) RUTH ANN DAVIS, Individually, ) Respondents-Appellees, ) and ) ALMA SANDERS; MARION ANDREW SANDERS; ) THERESA CURTIS HUNT; RONALD E. ROLLER; ) LEOMA ALLISON and RUTH ANN DAVIS; ) Coguardians of the Estate of EDWARD R. ) ROLLER, a Disabled Person; RUTH ANN ) DAVIS, Individually; the Unborn ) Descendants of ALMA R. SANDERS, MARION ) ANDREW SANDERS, THERESA CURTIS HUNT, ) Honorable RUTH ANN DAVIS, and EDWARD R. ROLLER; ) Frank W. Lincoln, and UNKNOWN OWNERS, Respondents. ) Judge Presiding.
JUSTICE MYERSCOUGH delivered the opinion of the court:
On November 1, 2006, and November 20, 2006, the trial
court entered written orders granting motions for summary judgment filed by respondents, Leoma Allison (Leoma) and Ruth Ann
Davis (Ruth Ann), which sought to exclude Ronald E. Roller
(Ronald) from the Andrew Roller Trust (Trust) by virtue of the
fact that he was an adopted child. The order declared that
Ronald was not entitled to receive any proceeds from the Trust,
either income or principal, because the terms of the Trust
demonstrated clear and convincing evidence that Andrew, the
settlor, intended to exclude adopted children. Ronald appeals, arguing that the terms of the Trust do not overcome the statutory
presumption enacted in 1989 that favors including adopted
children in written instruments created prior to September 1,
1955. We agree and reverse.
I. BACKGROUND
On October 1, 1948, Andrew Roller (Andrew) executed his
last will and testament which incorporated a trust agreement, the
Trust at issue, entered into on March 22, 1948. The Trust
provided that upon Andrew's death the Trust income was to be used
for the care of his wife, Pauline Roller (Pauline), and his
children, Raymond Roller (Raymond) and Alma Roller, n/k/a Sanders
(Alma). Upon Pauline's death, the Trust income was to be used
for the benefit of Raymond and Alma. Upon the death of Raymond
or Alma, his or her share was to be distributed to his or her
"natural children." The Trust further provided that should any
of Alma or Raymond's natural children predecease Alma or Raymond,
that child's share shall be paid over to the "heirs of the body"
of that child. Finally, upon the death of Alma and Raymond, the
Trust assets were to be liquidated and divided between "the heirs
of the body" of Raymond and Alma.
The trial court's order on summary judgment explicitly
held that no genuine issue of material fact existed regarding
paragraphs five and six of the Trust. The first three paragraphs
of the Trust provide for the management and distribution of
Andrew's various real-estate holdings. Paragraphs five and six
of the Trust state as follows:
- 2 - "5. After the death of first party and
the death of said [Pauline], second party
shall continue to operate said real estate as
hereinbefore set forth, and shall divide the
net income after payment of necessary
expenses as provided in paragraph 3 hereof
and amortization of any incumbrance on said
real estate and retention of an adequate
operating reserve, (the amount of said
reserve to be at the discretion of second
party) equally between [Alma] and [Raymond].
However, should either the said [Alma] or
Raymond] fail to provide an adequate
education and adequate maintenance for their
children, second party is authorized to
provide for the education and maintenance of
said children out of their parents' share,
before making distribution to the parent.
Said distributions to said [Alma] and
[Raymond], and upon the death of said [Alma]
or the said [Raymond], the share in the
income herein payable to the said [Alma] or
[Raymond], whichever shall die first, shall
be paid in equal shares to the natural
children of said decedent [Alma] or [Raymond]
until the death of the survivor of the said
- 3 - [Alma] and [Raymond]. Should any of the said
natural children of [Alma] or [Raymond],
predecease their parent, leaving heirs of
their body, which child's share shall be paid
over to the heirs of the body of such child.
6. Upon the death of both [Alma] and
[Raymond], second party shall convert all of
the trust property into cash within a
reasonable time, at his discretion, and not
to exceed, at all events, five (5) years, and
shall divide said fund into two (2) equal
parts; one part shall be distributed to the
heirs of the body of said [Alma] in equal
shares per stirpes and not per capita, and
the other share shall be distributed to the
heirs of the body of said [Raymond] in equal
shares per stirpes and not per capita.
Should either of said [Alma] or [Raymond]
leave no heirs of their body surviving at the
time of the death of the survivor of said
[Alma] and [Raymond], then the entire fund
shall be paid to the heirs of the body of
said [Alma] or [Raymond] surviving at the
time of the death of the survivor of them,
then the fund shall be paid to the heirs at
law of first party according to the Statute
- 4 - of Descent of the State of Illinois."
Andrew died on August 5, 1950. His wife, Pauline, died
on July 22, 1993. Andrew's daughter, Alma, had two children,
Marion Sanders (Marion) and Paula Mantel (Paula). Paula died in
January 2004. Paula had two children, Frederick Miller (Freddie)
and Theresa Curtis Hunt (Theresa).
Andrew's son, Raymond, died on December 8, 2005.
Raymond had a total of three children. Raymond had two children,
Edward Roller (Edward) and Ruth Ann, with his first wife, Leoma.
Edward Roller is a disabled person who is the ward of Leoma and
Ruth Ann. Raymond's third child is Ronald. Ronald is the
biological son of Raymond's second wife, Josephine Roller
(Josephine). Raymond adopted Ronald on April 10, 1953. At the
time of his death, Raymond was married to his third wife, Dorothy
Roller (Dorothy). Raymond and Dorothy did not have any children
together.
Upon Raymond's death in 2005, one-half of the Trust
income that had been distributed to Raymond was to be divided per
the terms of the Trust to his heirs. After Raymond's death, the
Trust income was divided one-half to Alma and one-half to the
heirs of Raymond--Edward, Ruth Ann, and Ronald.
On April 17, 2006, Leoma (Raymond's first wife and
Edward's coguardian) and Ruth Ann (Raymond's daughter and
Edward's coguardian) (hereinafter Leoma and Ruth Ann) filed a
"Memorandum Concerning Construction of Will of Andrew Roller,"
which argued that Ronald should not receive a share of the Trust
- 5 - income or assets because he was Raymond's adopted son.
On June 23, 2006, the First National Bank of Danville
(Bank) filed a complaint requesting the trial court to instruct
the Bank, as trustee, as to the proper distribution of income and
principal among the Trust beneficiaries. The Bank also requested
that the court appoint a guardian ad litem (GAL) to represent
unborn and unknown beneficiaries. Accordingly, the trial court
appointed a GAL.
On September 6, 2006, Leoma and Ruth Ann filed a motion
for summary judgment asking the court to find that Ronald should
not take under the Trust due to his status as an adopted child.
Leoma and Ruth Ann supported their motion with a memorandum in
support of their motion, as well as a memorandum concerning the
construction of the Trust.
On September 13, 2006, Alma and her children, Marion
and Theresa, answered the complaint filed by the Bank.
On October 3, 2006, Ronald answered the complaint filed
by the Bank and filed a response to Leoma and Ruth Ann's motion
for summary judgment along with a memorandum in support of his
response. Ronald relied on section 2-4 of the Probate Act of
1975 (Act) (755 ILCS 5/2-4 (West 2006)) to support his position
that he was not excluded from the Trust. Section 2-4 of the Act
provides:
"(a) An adopted child is a descendant of
the adopting parent for purposes of
inheritance from the adopting parent and from
- 6 - the lineal and collateral kindred of the
adopting parent and for the purpose of
determining the property rights of any person
under any instrument, unless the adopted
child is adopted after attaining the age of
18 years and the child never resided with the
adopting parent before attaining the age of
18 years, in which case the adopted child is
a child of the adopting parent but is not a
descendant of the adopting parent for the
purposes of inheriting from the lineal or
collateral kindred of the adopting parent.
***
* * *
(e) For the purpose of determining the
property rights of any person under any
instrument executed on or after September 1,
1955, an adopted child is deemed a child born
to the adopting parent unless the contrary
intent is demonstrated by the terms of the
instrument by clear and convincing evidence.
(f) After September 30, 1989, a child
adopted at any time before or after that date
is deemed a child born to the adopting parent
for the purpose of determining the property
rights of any person under any instrument
- 7 - executed before September 1, 1955, unless one
or more of the following conditions applies:
(1) The intent to exclude such
child is demonstrated by the terms of
the instrument by clear and convincing
evidence.
(2) An adopting parent of an
adopted child, in the belief that the
adopted child would not take property
under an instrument executed before
September 1, 1955, acted to
substantially benefit such adopted child
when compared to the benefits conferred
by such parent on the child or children
born to the adopting parent. ***
(i) 'Acted' means that
the adopting parent made one
or more gifts during life
requiring the filing of a
federal gift tax return or at
death (including gifts which
take effect at death), or
exercised or failed to
exercise powers of appointment
or other legal rights, or
acted or failed to act in any
- 8 - other way.
(ii) Any action which
substantially benefits the
adopted child shall be
presumed to have been made in
such a belief unless a
contrary intent is
demonstrated by clear and
convincing evidence." 755
ILCS 5/2-4 (West 2006).
Leoma and Ruth Ann filed a responsive pleading on
October 5, 2006, which was received by Ronald's counsel on
October 10, 2006, the morning of the hearing on the motion for
summary judgment. Leoma and Ruth Ann's responsive pleading
argued that Ronald was precluded from the Trust based on the
statutory exemption found in section 2-4(f)(2) of the Act, which
states that the presumption in favor of the adopted child will
not be applied when the adopting parent makes a substantial gift
to the adopted child under the adopting parent's belief that the
adopted child will not benefit from a written instrument executed
prior to September 1, 1955.
Leoma and Ruth Ann argued that, upon his death, Raymond
substantially benefitted Ronald to the detriment of his other two
children, Edward and Ruth Ann, because Raymond had specifically
excluded both Edward and Ruth Ann from his will and awarded
Ronald the bulk of his estate. Leoma and Ruth Ann asked the
- 9 - court to take judicial notice of Douglas County probate case, No.
2005-P-49, which dealt with the estate of Raymond.
At the motion hearing on October 10, 2006, Leoma and
Ruth Ann argued that section 2-4(f), which was added in 1989, did
not change the fact that the court must look to the testator's
intent. Leoma and Ruth Ann argued that sections 2-4(f)(1) and
(f)(2) precluded Ronald from taking under the Trust. Under 2-
4(f)(1), the presumption in favor of the adopted child may be
overcome by clear and convincing evidence of the testator's
intent to exclude adoptees from his will. 755 ILCS 5/2-4(f)(1)
(West 2006). Section 2-4(f)(2) states that the presumption in
favor of adoptees is overcome if the adopting parent makes a
substantial gift to the adopted child under the belief that the
adopted child will be excluded from a written instrument executed
prior to September 1, 1955. 755 ILCS 5/2-4(f)(2) (West 2006).
Ronald's counsel argued that the newest responsive
pleadings that added Leoma and Ruth Ann's claim under section 2-
4(f)(2) revealed that considerable factual questions were in
dispute, making summary judgment premature. Ronald's attorney
argued that Raymond's gift to Ronald was substantially less than
the share of the Trust to which Ronald is entitled. Ronald's
attorney stated that Leoma and Ruth Ann's counsel had represented
to him that the estate of Andrew "is probably worth three to four
million dollars." Ronald's attorney argued that Ronald received,
at most, $60,000 from Raymond's estate, comparably less than the
share of the Trust to which he is entitled. Ronald's counsel
- 10 - further argued that there was not enough evidence of Raymond's
intent to satisfy section 2-4(f)(2), which states that the
"substantial" gift must be made by the adopted parent "in the
belief" that the adopted child will not take under the will.
Leoma and Ruth Ann's attorney argued that there was no
factual dispute, stating that, "[W]hether it's he left $5,000 or
he left 50 cents, the fact is, [Raymond] benefitted the adopted
child over his own natural children, and that's exactly what the
[l]egislature allowed an exception for." They argued that the
issue was whether Raymond benefitted his adopted son over his
natural children in his will and not the size of the gift Raymond
made to Ronald.
Ronald's attorney countered that the gift of $60,000
was not a substantial benefit in light of the estimated value of
Andrew's estate, which was $3 to $4 million. Ronald's attorney
argued that nothing in Andrew's estate planning documents shows
clear and convincing evidence of his intent to exclude adopted
children. Ronald's attorney argued that the supreme court's
decision in First National Bank v. King, 165 Ill. 2d 533, 651
N.E.2d 127 (1995), held that the statute expanded the evidentiary
presumption that an adopted child is a natural child and,
therefore, Andrew's use of the term "natural children" does not
function to exclude Ronald from the Trust.
The trial court questioned Ronald's attorney whether
the statute, section 2-4, was in effect when the will was made in
1948. Ronald's counsel argued that whether the statute was in
- 11 - existence when Andrew drafted the documents creating the Trust
was irrelevant, because the presumption applied retroactively.
The trial court stated, "But none of this was known to Andrew
Roller. *** [S]o the [l]egislature is remaking his documents?"
Ronald's counsel, Andrew Bequette, answered, "No," and the trial
court responded, "Yes, they are, Mr. Bequette." Ronald's counsel
argued that the presumption in the statute in favor of adoptees
is rebuttable, but that the case law in Illinois states that the
words "natural children" and "heirs of the body" alone are not
enough to rebut the presumption.
The GAL argued that, although the supreme court in King
based its opinion on the dissenting justice in Continental Bank,
N.A. v. Herguth, 248 Ill. App. 3d 292, 617 N.E.2d 852 (1993), the
dissent in Continental acknowledged that the outcome would be
different in that case had a term involving bloodline been used.
The GAL argued that the dissent in Continental, on which King
relied, actually affirms Leoma and Ruth Ann's position that
Ronald should be excluded from the Trust. Finally, the GAL
argued that the amount of Raymond's gift in comparison to the
portion of the Trust he would receive did not matter; rather, the
statute directs the trial court to look at the amount of
Raymond's gift in comparison to his own gifts to his other
children.
Leoma and Ruth Ann's attorney argued that the case law
in Illinois, particularly King, did not change the fact that the
trial court must look to the intent of the testator at the time
- 12 - the written instrument was executed. Leoma and Ruth Ann's
attorney stated, "This child was not adopted until after [Andrew]
died. Therefore, he didn't even contemplate adopted children."
Ronald's attorney countered that Ronald agreed that Andrew did
not contemplate adopted children; and therefore, no clear and
convincing evidence showed that Andrew intended to preclude
adopted children.
At the conclusion of the hearing, the trial court took
the matter under advisement. The court granted Ronald seven days
to respond to the pleading filed by Leoma and Ruth Ann earlier
that morning regarding the application of section 2-4(f)(2).
In Ronald's reply, he argued that Leoma and Ruth Ann
raised an issue of material fact that defeats their motion for
summary judgment. Also, Ronald acknowledged that he receive two-
thirds of his father Raymond's estate, which was a total of
$39,683.35. Attached to his reply, Ronald submitted an affidavit
alleging that his father, Raymond, excluded his sister Ruth Ann
from his will because he did not approve of her "life choices."
Ronald further alleged in the affidavit that Raymond and Ruth Ann
had not spoken in 20 or more years prior to Raymond's death.
On November 1, 2006, the trial court entered a docket
order and filed a memorandum opinion. The court's opinion held
that there was no issue of material fact regarding paragraphs
five and six of the Trust. The court found that Andrew limited
the right to receive income from the Trust principal to the
natural children of his children and excluded adopted children
- 13 - from the right to receive principal from the Trust. Therefore,
the court held Ronald was not entitled to a share of either the
Trust income or principal.
The trial court held that Alma was to receive one-half
of the net income of the Trust annually until her death. Upon
her death, the Trust assets will be liquidated and divided into
two parts, with one part passing to Alma's children per stirpes
and not per capita. The order also provided that Ruth Ann and
Edward shall each receive one-half of the net income of the trust
annually until Alma's death. Upon Alma's death, Edward and Ruth
Ann will receive one-half of the liquidated assets of the Trust
per stirpes and not per capita.
The trial court provided that a written order shall be
presented for entry on November 20, 2006. On November 20, 2006,
the trial court entered a written order incorporating the same
findings contained in its memorandum opinion and docket entry
dated November 1, 2006.
The memorandum decision filed by the trial court cited
Black's Law Dictionary's definition of "natural," which stated
inter alia, "3. Brought about by nature as opposed to artificial
means ***," and "6. Of or relating to birth
distinguished from adopted child>." Black's Law Dictionary 1048
(7th ed. 1999). In addition the court relied on various passages
from Continental Bank, 248 Ill. App. 3d 292, 617 N.E.2d 852.
The trial court held that Andrew's intent is determined
as of the time the Trust was executed, and when Andrew formed the
- 14 - Trust in 1948 an adopted person did not share in the estate of
anyone other than his adopted parent. The court further found
that Andrew is presumed to have known the existing law at the
time concerning the disposition of his property.
The trial court stated its order:
"If [Andrew] had merely said 'children' of
the said [Alma] and [Raymond], then adopted
children of such child of [Andrew] would not
have been excluded from [Andrew's] estate.
However, [Andrew] specifically limited his
gift over to the 'natural children' of [Alma]
and [Raymond], or the [']heirs of their
body,['] thus meaning a blood descendant of
[Andrew] and demonstrating, by clear and
convincing evidence, an intent on the part of
[Andrew] to exclude adopted children of his
children."
The trial court found no just reason to delay the appeal or
enforcement of the order. However, the court did find that an
issue of fact remained that could not be resolved on summary
judgment, i.e., under the second exception of section 2-4(f):
whether Raymond's will conferred a substantial gift on Ronald,
and if so, whether Raymond made such a gift under the belief that
Ronald would be excluded from Andrew's will. Because the trial
court found that Ronald was excluded any "clear and convincing
evidence" under section 2-4(f)(1), the unresolved facts regarding
- 15 - whether Raymond's will substantially benefitted Ronald as
required under section 2-4(f)(2) did not prevent the court from
awarding summary judgment in favor of Leoma and Ruth Ann.
This appeal followed.
II. ANALYSIS
Summary judgment is appropriate "[w]hen the pleadings,
affidavits, depositions, admissions, and exhibits on file viewed
in the light most favorable to the nonmoving party reveal there
is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law." Follis v. Watkins, 367
Ill. App. 3d 548, 556, 855 N.E.2d 579, 586 (2006). The trial
court found, "The later exception of 755 ILCS 5/2-4(f)(2) is a
question of fact which may not be determined on a motion for
summary judgment." Because the trial court found that an issue
of material fact remained regarding whether the exception in
section 2-4(f)(2) applies, the order before this court is one of
partial summary judgment. Accordingly, our review of the trial
court's grant of partial summary judgment is de novo. American
Service Insurance Co. v. Pasalka, 363 Ill. App. 3d 385, 389, 842
N.E.2d 1219, 1224 (2006).
A. The Trial Court Erred in Granting Leoma and Ruth Ann's Motion for Summary Judgment
The trial court found that the language of the Trust in
paragraphs five and six, "natural children" and "heirs of the
body," provided clear and convincing evidence that Andrew
intended to exclude adopted children from the Trust. Reviewing
the trial court's decision de novo, paragraphs five and six of
- 16 - the Trust do not amount to clear and convincing evidence to
overcome the statutory presumption in favor of including Ronald,
an adopted child, in the Trust.
1. History of Section 2-4 of the Act
In 1989, the State legislature amended the Act to
extend the statutory presumption in favor of including adopted
children as beneficiaries to written instruments created prior to
September 1, 1955. Before this amendment, the presumption in
favor of adopted children applied only to written instruments
entered into after September 1, 1955. See Ill. Rev. Stat. 1985,
ch. 110 1/2, par. 2-4.
When Andrew executed the Trust in 1948, the relevant
statute read as follows:
"A child lawfully adopted is deemed a
descendant of the adopting parent for
purposes of inheritance, except that the
adopted child shall not take property from
the lineal or collateral kindred of the
adopting parent per stirpes or property
expressly limited to the body of the adopting
parent." Ill. Rev. Stat. 1941, ch. 3, par.
165.
In 1955, the legislature revised this provision of the
statute to read as follows:
"For the purpose of determining the
- 17 - written instrument executed on or after
September 1, 1955, an adopted child is deemed
a natural child unless the contrary intent
plainly appears by the terms thereof." Ill.
Rev. Stat. 1955, ch. 3, par. 165.
In 1989, the legislature extended the presumption in
favor of adopted children to written instruments executed before
September 1, 1955. The relevant section 2-4(f) of the Act reads:
"(f) After September 30, 1989, a child
executed before September 1, 1955, unless one
child is demonstrated by the terms
of the instrument by clear and
convincing evidence.
adopted child, in the belief that
the adopted child would not take
property under an instrument
executed before September 1, 1955,
acted to substantially benefit such
adopted child when compared to the
- 18 - benefits conferred by such parent
on the child or children born to
the adopting parent." 755 ILCS
5/2-4 (West 2006).
In 1995, the supreme court held in King, 165 Ill. 2d
533, 651 N.E.2d 127, that section 2-4(f) did not change the
substantive law; rather, it "merely expanded the evidentiary
presumption that an adopted child is a natural child, so that the
presumption now applies to all documents[] regardless of whether
they were drafted before or after September 1, 1955." King, 165
Ill. 2d at 542, 651 N.E.2d at 131.
The supreme court in King acknowledged that the
legislature has the power to prescribe new rules of evidence,
alter existing rules, and prescribe new methods of proof. King,
165 Ill. 2d at 542, 651 N.E.2d at 131. The court held that the
rules at issue are ones of procedure and that no one has a vested
right in a certain mode of procedure. King, 165 Ill. 2d at 542,
651 N.E.2d at 131. Therefore, the legislature may promulgate new
rules of procedure and apply them retroactively, as they have
done in section 2-4(f). King, 165 Ill. 2d at 542-43, 651 N.E.2d
at 132
2. Use of "Natural Children" and "Heirs of the Body" Is Not Clear and Convincing Evidence of Testator's Intent To Exclude Adopted Children
Section 2-4(f) creates a rebuttable presumption in
favor of including adoptees. However, section 2-4(f)(1) provides
that a party may overcome this presumption by demonstrating clear
- 19 - and convincing evidence that the testator intended to exclude
adoptees. 755 ILCS 5/2-4(f)(1) (West 2006). In King, the
supreme court held that the evidence, however, "must be something
more in the terms of the instrument itself to demonstrate, at a
minimum, that the testator actually considered the contingency of
adoption." King, 165 Ill. 2d at 540-41, 651 N.E.2d at 131.
Ronald argues that the trial court erred in granting
Leoma and Ruth Ann's motion for summary judgment because the use
of the term "natural children" in the Trust does not provide
clear and convincing evidence of Andrew's intent to exclude
adopted children as beneficiaries of the Trust. Ronald argues
that the legislature's 1989 amendment to the Act declared that
for purposes of inheritance rights an adopted child is a natural
child.
Ronald's contention is supported by the supreme court's
holding in King, which said, "section 2-4(f) expands a statutory
presumption, applicable to the determination of property rights
under written instruments, that no distinction is to be drawn
between adopted children and natural offspring." (Emphasis
added.) King, 165 Ill. 2d at 538, 651 N.E.2d at 130.
Leoma and Ruth Ann attempt to distinguish King by the
fact that the testator in King did not "confine the objects of
his bounty to his blood line, but made substantial provisions for
persons not of his blood." King, 165 Ill. 2d at 539, 651 N.E.2d
at 130. Leoma and Ruth Ann contend that Andrew manifested a
clear intent to exclude adoptees by consistently referring to
- 20 - "natural children" and "heirs of the body," along with the
direction to divide the shares "per stirpes and not per capita."
Leoma and Ruth Ann direct the court to the maxim that states, "In
construing either a trust or a will[,] the challenge is to find
the settlor's or testator's intent and, provided that the
intention is not against public policy, to give it effect."
Harris Trust & Savings Bank v. Beach, 118 Ill. 2d 1, 3, 513
N.E.2d 833, 834 (1987). To discern the testator's intent, courts
may analyze both "the words used in the instrument and the
circumstances under which they were drafted." Harris, 118 Ill.
2d at 3-4, 513 N.E.2d at 834.
The statutory presumption contained in section 2-4(f),
however, represented a dramatic shift in public policy to
construe written instruments in favor of adoptees. See Wielert
v. Larson, 84 Ill. App. 3d 151, 153, 404 N.E.2d 1111, 1113 (1980)
(holding that "'issue of [the] body'" in a 1959 will was
insufficient to evince clear intent to exclude adoptees from the
inheriting under the will). The court in Wielert did find that
the terms "descendent," "issue," and "heirs of the body" had a
clear meaning that excluded adoptees prior to 1955, and that had
the will in that case been construed prior to 1955, adoptees
would have been excluded. However, Wielart was decided prior to
the 1989 amendment. Moreover, the court in King held that the
1989 amendment simply expanded the presumption to include written
instruments prior to 1955. The Wielert court observed that,
"under the 'modern view[,]' adopted children are accorded a
- 21 - status of inheritance equivalent to that of natural children."
Wielert, 84 Ill. App. 3d at 155, 404 N.E.2d at 1114.
This court in Martin v. Gerdes, 169 Ill. App. 3d 386,
393, 523 N.E.2d 607, 611 (1988), held that the term "'heirs of
[the] body,' without any other limitations, cannot be considered
an expression of a plain intent that adopted children be
precluded from taking." Concededly, our decision in Martin was
rendered prior to the 1989 amendment; yet the amendment serves to
support our earlier holding in Martin. In Martin, we ultimately
held that adopted children were not precluded from the will which
was executed in 1960 and the codicil executed in 1972. While in
Martin, the will was executed after 1955 and the adopted child at
issue was adopted prior to the testator's death, the case
nonetheless supports the proposition that the term "heirs of the
body" does not provide clear and convincing evidence of a
testator's intent to exclude adoptees.
Finally, in King, the supreme court agreed with the
Continental Bank dissent, wherein Justice Inglis argued that the
"'plain[-]and[-]ordinary[-]language'" test must be distinguished
from the "'clear[-]and[-]convincing[-]evidence'" test provided in
section 2-4(f)(1). Continental Bank, 248 Ill. App. 3d at 301,
617 N.E.2d at 858 (Inglis , P.J., dissenting). Otherwise,
Justice Inglis argued, section 2-4(f)(1) would be rendered a
nullity. Continental Bank, 248 Ill. App. 3d at 301, 617 N.E.2d
at 858. Justice Inglis opined that the terms "'per stirpes'" and
"'descendants'" do not demonstrate that the testator even
- 22 - considered the question of adopted heirs. Continental Bank, 248
Ill. App. 3d at 301, 617 N.E.2d at 858 (Inglis , P.J.,
dissenting).
The supreme court effectively overruled Continental
Bank in King and explicitly agreed that Justice Inglis's dissent
as representing the "better-reasoned" approach. King, 165 Ill.
2d at 541, 651 N.E.2d at 131. In spite of the supreme court's
holding in King, Leoma and Ruth Ann maintain that the language
"natural children" and "heirs of the body" provide clear and
convincing evidence that Andrew intended to excluded adopted
children from the Trust. Leoma and Ruth Ann argue that the
meaning of "natural children" and "heirs of the body" are so
clear that including additional language to exclude adoptees
would be "unnecessary verbiage."
Based on the statutory language and prevailing case law
interpreting that language, we find the statutory presumption in
section 2-4(f) is not overcome by clear and convincing evidence
of Andrew's intent to exclude adoptees from his will simply by
using the terms "natural children" and "heirs of the body." The
language used to establish the Trust does not demonstrate clearly
and convincingly that Andrew intended to exclude adopted children
from benefitting from the Trust. The only evidence of Andrew's
intent concerning the exclusion of adoptees in his will is the
language "natural children" and "heirs of the body." Such
language is insufficient to demonstrate intent to exclude
adoptees. King, 165 Ill. 2d at 538, 651 N.E.2d at 130; Martin,
- 23 - 169 Ill. App. 3d at 393, 523 N.E.2d at 611. Moreover, by Leoma
and Ruth Ann's counsel's own admission at the hearing, "[Andrew]
didn't even contemplate adopted children." On appeal, Leoma and
Ruth Ann's counsel argues that comment was meant to imply that
Andrew did not contemplate adopting children of his own.
However, the statute requires clear and convincing evidence of
his intent to exclude his adopted heirs. At the very least,
showing that he did not contemplate adopting children of his own
is immaterial to whether there is clear and convincing evidence
shows that he intended to exclude adopted heirs.
III. CONCLUSION
Therefore, based on the foregoing reasons, we reverse
the trial court's ruling on summary judgment and remand for
further proceedings.
Reversed and remanded.
McCULLOUGH, J., concurs.
TURNER, J., specially concurs.
- 24 - JUSTICE TURNER, specially concurring:
While I agree with the majority our supreme court's
decision in King requires us to reverse the trial court's judg-
ment, I write separately to indicate that, if I were not bound by
the King majority opinion, I would affirm the trial court's
judgment based upon the rationale and analysis set forth in the
King dissent. See King, 165 Ill. 2d at 543-46, 651 N.E.2d at
132-33 (Heiple, J., dissenting, joined by Bilandic, C.J., and
Miller, J.).
- 25 -