Appeal from the Circuit Court of LaSalle County; the Hon.
WALTER DIXON, Judge, presiding. Reversed and remanded with
In May 1956 an order was entered escheating the Estate of Walter Clark to the County of LaSalle and the order placed title to the real estate involved in the name of LaSalle County. Walter Clark had died a resident of LaSalle County in 1950 leaving substantial personal property and real estate in LaSalle County. No heirs were discovered and no beneficiaries designated by will were eligible to inherit. The estate was handled as an intestate estate. At the time of the death of Walter Clark, section 7 of the Escheat Act (Ill Rev Stats 1955, c 49) allowed a claimant five years after an escheat order in which to file as an heir and claim escheated property. This statute also provided that as to persons who are infants, or of unsound mind or beyond the limits of the United States, they had an additional five years after their disabilities were removed to claim escheated property. The latter section was amended in 1961 to provide as follows:
"The county treasurer shall keep just and true accounts of all moneys paid into the treasury, and if any person appears within 10 years after the death of the intestate and claims any money paid into the treasury as aforesaid as his, on legal representation such person may file a petition in chancery in the circuit court of such county, stating the nature of his claim and praying such money may be paid to him; . . . And if any person appears and claims any lands vested in the county as aforesaid, within 5 years after the judgment was rendered, such person may file his petition in chancery in the circuit court of such county in which the lands claimed lie, setting forth the nature of his claim and praying that the lands be relinquished to him; . . . And all persons who fail to appear and file their petitions within the times limited, aforesaid, shall be forever barred, saving, however, to infants and persons of unsound mind the right to apear and file their petition as aforesaid, at any time within 5 years after their respective disabilities are removed: . . .
"All persons beyond the limits of the United States, as to whom a right to petition under this Section is otherwise barred by this amendatory Act of 1961 or will be barred within one year after the effective date of this amendatory Act of 1961, may file a petition pursuant to this Section at any time within two years after such effective date. As amended by act approved August 21, 1961."
The effect of this amendment of 1961 was to establish a two-year limitation period as to persons living beyond the limits of the United States.
Following the escheat order entered in 1956, numerous heirs of Walter Clark began to appear. In July, 1960, Nellie Gregory and Betsy Alice Clark, residents of England, filed to recover the property from the County of LaSalle, contending they were heirs of Walter Clark. The petition set up that there were still "Unknown Owners" of the property and that they were made parties to the proceeding and publication was made as to "Unknown Owners." In all, 29 people claimed to share the property as heirs of Walter Clark. Twenty-three of the persons filed in the Circuit Court of LaSalle County, 4 came into the United States District Court in a suit which later included 23 of the people in the Circuit Court, and 2 more have attempted to intervene in the Federal Court, in the Circuit Court, in this court and in the Supreme Court of this State.
For clarity, we must specify that there are three sets of heirs involved. (1) There are claimants through surviving first cousins of Walter Clark, being Nellie Clark Gregory and Betsy Alice Clark, who claim through children of Ellen Clark, aunt of decedent Walter Clark. Ellen Clark was never married so they claim through illegitimates. Betsy Alice Clark died after the action was instituted and that interest is represented by the administrator of her estate. (2) Joan Baxter and James Clark, children of William Henry Clark and grandchildren of William Clark, an uncle of decedent, Walter Clark, claiming through a surviving first cousin, sought to intervene in the Circuit Court and in this court but their request for intervention was denied as being filed too late. (3) Finally, there are 21 claimants under Betsy Clark, who are first cousins once removed and these 21 claimants can succeed only if the two groups claiming through first cousins are incapable of taking. The question in such case would be whether the estate would escheat to the County of LaSalle or whether it should be distributed to the first cousins once removed.
As the issues are now presented in this court, there is one basic question and that is whether Nellie Gregory and Betsy Alice Clark should have been allowed to share in the estate as claimants through surviving first cousins. This involves a determination as to whether the Illinois statute in effect at the death of decedent, Walter Clark, barred them as descendants of illegitimates. The problem revolves around the construction of what was then paragraph 163 of chapter 3 of the Probate Act (1941 Ill Rev Stats, c 3, par 163). This is now section 12 of the Probate Act (1965 Ill. Rev Stats, c 3, § 12). This statute at the time of the death of Walter Clark provided as follows:
"An illegitimate child is heir of his mother and of any maternal ancestor; and in all cases where representation is provided for by this Act an illegitimate child represents his mother and his lawful issue represents him and take, by descent, any estate which the parent would have taken if living. An illegitimate child whose parents intermarry and who is acknowledged by the father as the father's child, shall be considered legitimate. 1939, July 24, Laws 1939, p 4 S 12."
This particular provision had been changed by the act of 1939. Prior to 1939 the statute had provided in part that:
"An illegitimate child shall be an heir of its mother and any maternal ancestor, and of any person from whom its mother might have inherited, if living."
Prior to 1939 under this statute there could be inheritance through a parent who was an illegitimate child. Ellen Clark was an aunt of the decedent Walter Clark. Although she never married she was the mother of five children, one of whom was the mother of Nellie Gregory and another of whom was the father of Betsy Alice Clark.
The problem arises as a result of the omission from the 1939 statute of the words "of any person from whom its mother might have inherited, if living." Prior to this enactment, illegitimates and descendants inherited through their mother from collateral relatives (Morrow v. Morrow, 289 Ill. 135, 124 N.E. 386; Chambers v. Chambers, 249 Ill. 126, 94 N.E. 108). The 1939 amendment was, however, construed in one case, Spencer v. Burns, 413 Ill. 240, 108 N.E.2d 413. In that case the court looked first at the language that had been omitted from the 1939 act, being the phrase "any person from whom its mother might have inherited, if living." The court then looked at the new language which was added to the statute and, after an analysis by the court, concluded that it was not the intention of the 1939 legislature to merely reword the former statute, but rather, to make a change in the substantive law. The court in seeking to construe the phrase "and of any maternal ancestor" to allow an inheritance by illegitimates, felt that the phrase "maternal ancestor" was not susceptible of such construction. The court in that case stated that although the language indicated that the court felt that the best result would be to allow illegitimates to inherit, they felt bound by the new wording of the statute. The court said there (at page 255):
"Giving service to the common meaning of the words `maternal ancestor' and avoiding a tortured meaning to produce what might be a more desirable result, it is our opinion that the trial court properly concluded that, as section 12 of the Probate Act is now constituted, it manifests a legislative intent and direction that the right of an illegitimate to ...