APPEAL from the Circuit Court of Livingston County; the Hon.
WILLIAM T. CAISLEY, Judge, presiding.
MR. PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 31, 1978.
This appeal concerns the question of whether the adopted children of Tod Ford III were included in the reference to his "issue" and "lawful issue" made by his mother Lillian S. Timken in a trust indenture executed by her on December 31, 1941.
On July 16, 1969, plaintiff Robert Freeman Ford and Bank of Pontiac, trustees under the indenture, filed a complaint in the circuit court of Livingston County seeking various types of relief. The complaint alleged in part that John Robert Ford and Becky Lou Ford White, the adopted children of Tod Ford III, then deceased, were not his "lawful issue" within the trust instrument and that neither they nor their descendants had any interest therein. Those adopted children were made parties-defendant and because they are the only appellants, they will hereafter be called defendants. They answered, denied those allegations and requested a declaration that they were the "only lawful issue of Tod Ford III" and sought an accounting. The decree of the trial court denied the claims and requests of the defendants.
The decree stated that the trial court had found the settlor's actual intent to include only blood descendants of her sons as their "issue" or "lawful issue." Defendants concede that the actual intent of the settlor should control if it can be determined but argue that no such determination can be made here. They contend that under those circumstances, the court must resort to rules of construction which are aimed not at determining intent but rather at determining proper public policy as to the distribution of the property between those who might have an interest in it. They conclude that because all of those having a possible claim to the property were domiciled in California and the question to be decided concerned the status of defendants as "issue," the court should follow the law of California in making that determination.
The trust instrument in question was executed in the state of New York where the settlor was domiciled. The corpus thereof presently consists principally of real property located in various Illinois counties. The instrument provides that one-half of the income from the trust is to be paid to each of the settlor's two sons and that, upon the death of either, his share shall be paid "to his lawful issue him surviving, during their respective lives, in equal shares per stirpes and not per capita." Should either son die without "lawful issue him surviving," the instrument directs that his share be paid to the other son, or to "his lawful issue him surviving." The instrument further grants an interest in the trust to "any issue of either of said beneficiaries not now in being."
Defendants, as well as plaintiff Robert Freeman Ford, surviving son of the settlor, and his three natural-born children, are California domiciliaries. Defendants were adopted by the settlor's son, Tod Ford III, in the early 1940's. Tod Ford III died in 1951; the settlor died in 1959.
Continental Illinois National Bank & Trust Co. v. Clancy (1959), 18 Ill.2d 124, 163 N.E.2d 523, involved the construction of a trust agreement executed in 1928 which limited gifts over to "issue" and "grandchildren" of the settlor. There an adopted son of the settlor's son sought a construction of the instrument so as to be included as a beneficiary thereunder. The trial court refused the request. The supreme court affirmed stating:
"In construing this instrument, we must seek the intention of the settlor, insofar as it is ascertainable. In this effort we look first within the four corners of the instrument, [citations] but we may also consider the surrounding circumstances at the time the instrument was executed to the extent that they may aid in determining the settlor's intention in using certain language [citations]." (18 Ill.2d 124, 127, 163 N.E.2d 523, 526.)
The court recognized that under the law and statutes in force in 1928, the term "issue" meant blood descendants. The court noted that application of this meaning to the terms as used in the trust did not result in an irrational or absurd interpretation, and ruled such to be the clear intention of the settlor.
At the time of the instant trust's execution, section 14 of the Probate Act provided:
"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. 1939, ch. 3, par. 165.)
This language is substantially the same as that in existence at the time the Clancy trust was created. Subsequently that section was amended by the enactment of the following:
"For the purpose of determining the property rights of any person under any 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. This Amendatory Act of 1955 shall not be used in determining the taker of property under any instrument executed prior to September 1, 1955." (Ill. Rev. Stat. 1955, ch. 3, par. 165.)
This statutory language now appears at section 2-4e of the Probate Act of 1975 (Ill. Rev. Stat. 1977, ch. 110 1/2, par. 2-4(e)). Similar provisions appear at "An Act relating to the construction of written instruments with regard to ...