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In Re Estate of Cregar

JULY 21, 1975.

IN RE ESTATE OF ANNA MAE CREGAR, DECEASED. — (DONALD F. MCKEONE ET AL., PETITIONERS-APPELLANTS,

v.

JUNE PESIKEY, ADM'R OF THE ESTATE OF ANNA MAE CREGAR, DECEASED, RESPONDENT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. HELEN J. KELLEHER, Judge, presiding.

MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order entered in the circuit court of Cook County concerning the probate of the estate of Anna Mae Cregar, who died intestate. The appellants, Donald F. McKeone and Anna May Howard, were heirs both by blood and adoption. The appellants contended before the trial court that they were entitled to double shares of the estate by virtue of their dual relationship to the deceased by blood and adoption. The trial court rejected this contention and entered an order finding that the appellants were entitled to inherit only a single share as the adopted nephew and niece of the deceased. The appellants appeal from this order.

The two appellants, Donald F. McKeone and Anna May Howard, are the natural nephew and niece of the deceased. The two appellants were born to Margaret West, a sister of the deceased. Margaret West died, and the appellants were adopted by two other sisters of the deceased. Donald was adopted by Catherine McKeone and Anna was adopted by Harriet Gallo. These two aunts who adopted the appellants both died prior to the intestate, Anna Mae Cregar.

Anna Mae Cregar was the last of these four sisters to die, and she died intestate. The intestate left no surviving spouse, parents or descendants. Therefore, her estate is to pass under Illinois law to her sisters and brothers or their representatives per stirpes. (Ill. Rev. Stat. 1973, ch. 3, par. 11.) The two appellants are claiming double shares in their dual capacities as blood descendants of their natural mother (a sister of the intestate) and as adopted descendants of their adoptive mothers (also sisters of the intestate). The trial court held that the two appellants could not claim dual shares, but could only inherit a single share in their capacity as descendants of their adoptive mothers. The issue on appeal is whether the court erred in denying the appellants the right to inherit a second share as descendants of their natural mother.

The first paragraph of section 14 of the Probate Act states:

"A child lawfully adopted is deemed a descendant of the adopting parent for purposes of inheritance from the adopting parent and from the lineal and collateral kindred of the adopting parent." Ill. Rev. Stat. 1973, ch. 3, par. 14.

It is clear from the statute that the appellants can inherit from the intestate, who is a collateral kindred of their adopting parent, in their capacity as an adopted niece and nephew of the intestate. The lower court so held, and this matter is not at issue on appeal. What is at issue is whether the appellants' adoption cut off their right to inherit additional shares by virtue of the intestate being a collateral kindred of their natural mother. There are two possible theories which would deny them this additional share: (1) the theory that an adoption works to sever all rights of inheritance from natural relatives no matter who the adopting parents are; or (2) the theory that an adoption severs rights to inheritance from natural relatives only where one of the adopting parents is a blood relative.

The first of these theories has been rejected by In re Estate of Tilliski, 390 Ill. 273, 61 N.E.2d 24. In this case, a person had been adopted by nonrelatives, and the issue arose whether the adoption cut off the right of the person adopted to inherit from his natural parents. In interpreting section 14 of the Probate Act, the court held that adoption did not cut off one's right to inherit from his natural parents. The court stated that:

"In a matter of such general importance the legislature would have made express provision if it had intended a child should lose its birthright upon becoming adopted by another." 390 Ill. 273, 283, 61 N.E.2d 24, 28.)

Although Tilliski dealt with the right to inherit from the natural mother's estate, we are of the opinion that the holding in Tilliski also encompasses the right of an adopted person to inherit from the estates of his other natural relatives.

Tilliski did not deal with a situation where the person claiming a share of the estate of his or her natural parents had been adopted by blood relatives. The appellee contends that claimants who have been adopted by blood relatives are barred from inheriting a double share by claiming as blood relatives of the intestate in addition to claiming as adopted relatives. The appellee bases this contention solely on the argument that the fourth paragraph of section 14 of the Probate Act bars a double inheritance. Ill. Rev. Stat. 1973, ch. 3, par. 14.

The fourth paragraph was first made a part of Illinois law when it was included in the Probate Act of 1939. This paragraph states:

"When an adopted child is related by blood to the adopting parent, the adopted child and his descendants shall take property from the estate of the adopting parent only as an adopted child or descendants of an adopted child and not as relatives by blood." Ill. Rev. Stat. 1941, ch. 3, par. 165 — presently Ill. Rev. Stat. 1973, ch. 3, par. 14.

The last portion of the paragraph states that whoever falls within the description of this paragraph "shall take property * * * only as an adopted child or descendants of an adopted child and not as relatives by blood." It is clear from this that if the appellants fall within the category of ...


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