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Wielert v. Larson

OPINION FILED MAY 13, 1980.

JAN WIELERT, PLAINTIFF-APPELLEE,

v.

RUTH STREVER LARSON, INDIV. AND AS EX'R OF THE LAST WILL AND TESTAMENT OF JENNIE WIELERT, DECEASED, ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of De Kalb County; the Hon. WILSON D. BURNELL, Judge, presiding.

MR. JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Jan Wielert, brought suit for the construction of his grandmother's will. The trial court construed the will and held that plaintiff was entitled to inherit under the terms of the will. The defendants, the three natural-born daughters of the testator, appealed.

Jennie Wielert, the testator, died on October 16, 1977, leaving a will executed on August 20, 1959. A codicil to the will was duly executed on October 26, 1973, appointing a daughter as executor and otherwise ratifying and confirming the will of August 20, 1959. Jennie Wielert's husband predeceased her as did her son, Clarence. Her three natural children, the defendants, survived. Clarence left no natural children surviving, but the plaintiff, Jan Wielert, was his adopted son. The seventh and pertinent clause of the will provided:

"If any child or children of mine shall predecease me, leaving them issue of their body surviving them, then, in that event, I give, devise and bequeath unto such issue of their body, the interest that they would have taken in my estate, had they survived me, and if any child or children of mine shall predecease me leaving them no issue of their body surviving me, I direct that their interest in my estate shall lapse and shall pass out in equal shares, to my remaining living children and to the issue of their body per stirpes and not per capita." (Emphasis added.)

This case appears to be one of first impression in Illinois. The central issue in the case at bar is whether the phrase "issue of their body" as used by the testator in her will executed subsequent to September 5, 1955, plainly expressed an intent on her part to exclude adopted grandchildren from taking under the terms of that will.

Prior to 1955, section 14 of the Illinois Probate Act included a presumption that adopted children would not inherit property from the lineal or collateral kindred of the adopting parent. (Ill. Rev. Stat. 1939, ch. 3, par. 165.) However, in 1955, the Illinois legislature indicated a dramatic shift in public policy by amending this section to include a presumption in favor of the adopted child. The relevant portions of section 14 as amended were:

"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.

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." Ill. Rev. Stat. 1955, ch. 3, par. 165. *fn1

It is in light of this shift in public policy that this court must determine whether the phrase "issue of their body" used in a will drafted in 1959 would evince a sufficient contrary intent so as to exclude an adopted grandchild from inheritance rights under the will.

The defendants have cited a number of Illinois cases which have held the terms "issue" or "lawful issue" or words of similar import, used in pre-1955 instruments, to exclude adopted children. But these cases are of little help in the present case for two reasons. First, the ordinary definition of the word "descendant" or "issue" or the meaning of phrases such as "issue of their bodies" or "heirs of their bodies" have always meant and still continue to mean in their ordinary usage those descending or issuing out of the stock or blood. In their ordinary meaning these words or phrases have never included adopted children. As stated by the Illinois Supreme Court in Stewart v. Lafferty (1957), 12 Ill.2d 224, 227:

"No question is raised as to the ordinary definition of the word `descendants.' It means one who descends or issues from an individual, including his children, grandchildren, and their children to the remotest degree. (Webster's New International Dictionary, 2d ed., p. 706; I Bouvier's Law Dictionary, 8th ed., p. 852; Bates v. Gillett, 132 Ill. 287.) The word `descendant' is coextensive and synonymous with issue, (Wyeth v. Crane, 342 Ill. 545; Carey and Schuyler, Law of Future Interests in Illinois, p. 219,) and an adopted child does not come within the ordinary meaning of the word `issue' or `descendant.' (Hale v. Hale, 237 Ill. App. 410; Carey and Schuyler, Law of Future Interests in Illinois, p. 228.)"

Secondly, the pre-1955 statute 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. 38, par. 165.)

Thus, prior to the 1955 amendment, the statute plainly prohibited adopted grandchildren from taking property which was expressly limited to the body of the adopting parent. The use of such words or phrases as "descendant" or "issue" or "heirs of their body" taken in their ordinary meaning would clearly constitute such an expressed limitation. Thus, there is little doubt that under the ...


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