APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
523 N.E.2d 607, 169 Ill. App. 3d 386, 119 Ill. Dec. 851 1988.IL.660
Appeal from the Circuit Court of Morgan County; the Hon. Gordon D. Seator, Judge, presiding.
PRESIDING JUSTICE GREEN delivered the opinion of the court. LUND and SPITZ, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN
This case involves the question of whether the language of a will plainly precludes an adopted child from inheriting a remainder interest in real estate. Subsidiary questions are whether the language of the will at issue is ambiguous to the extent that extrinsic evidence is admissible to explain the meaning of its terms and whether the adopted child is barred by the doctrines of collateral estoppel and laches from claiming under the will. We affirm the circuit court's decision holding that the adopted child is entitled to a remainder interest in real estate under the terms of the will.
The decedent, John H. Martin (Martin), died on February 23, 1972, leaving a will dated October 31, 1960, along with a codicil thereto dated November 1, 1971. Martin was survived by his second wife, Georgia Martin, and three children of his first marriage -- George Martin, Phyllis Troester, and Virginia Porter. George Martin and Phyllis Troester had natural children of their own, but Virginia Porter had neither natural nor adopted children when Martin executed his will in 1960. On May 29, 1965, however, Virginia Porter adopted defendant Martha Gerdes (Gerdes).
The provisions of Martin's will which are relevant for purposes of this appeal devised a 150-acre farm to George Martin and a 160-acre farm to Phyllis Troester. Martin devised to Virginia Porter a 160-acre farm:
"[For] and during her natural life only; subject to said life estate I give and devise said real estate unto the heirs of her body who shall survive her. In the event that my said daughter, Virginia Porter, shall die living no heirs of her body surviving her, then I give and devise said remainder interest unto my son, George W. Martin and my daughter, Phyllis Troester, share and share alike, the descendants of any of my said last two named children who might be deceased to take their Ancestor's share, per stirpes."
Additional relevant provisions of the will provided:
"In the event that either of my children, George W. Martin or Phyllis Troester, shall predecease me leaving descendants surviving me, it is my Will that such descendants shall take and receive, per stirpes, the real estate devised in this Article to such deceased child.
All of the rest, residue and remainder of my estate of whatever nature and wheresoever located, and including any bequests or devises which may lapse, I give, devise and bequeath unto such of my children and descendants of any deceased child, per stirpes, as may survive me."
A change in executor was the only alteration made to the terms of the will by the November 1, 1971, codicil.
The only documents included in the record relating to the probate and distribution of the assets of Martin's estate are an order of discharge dated June 21, 1973, an order approving the final report for the estate also dated June 21, 1973, and an order assessing inheritance tax dated October 19, 1972. The first two documents say nothing concerning who is entitled to the remainder interest in the real estate in which Virginia Porter was given a life estate. Nor do they indicate the names of the persons who were parties to the probate proceeding. The order assessing inheritance tax reflects Virginia Porter, but not Gerdes, was a party to the proceedings. It also indicates George Martin and Phyllis Troester each paid inheritance tax on ...