APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
529 N.E.2d 1134, 175 Ill. App. 3d 600, 125 Ill. Dec. 58 1988.IL.1520
Appeal from the Circuit Court of Cook County; the Hon. Harold Siegan, Judge, presiding.
Rehearing Denied November 9, 1988.
JUSTICE BILANDIC delivered the opinion of the court. STAMOS* and SCARIANO, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC
This case requires construction of a will, executed in 1921, and republished by a codicil, executed in 1924, limiting gifts over to the "lawful issue" of the testator's children. The plaintiff, Chicago Title & Trust Co., as trustee, filed its amended complaint for interpleader seeking resolution of the conflicting claims asserted by defendants. The trial court held, inter alia, that adopted children were entitled to share in the proceeds of their mother's trust share.
The sole issue is whether the testator, Morris S. Rosenwald, intended that his children's adopted children should share in his trust estate. The operative language in the instant case is that the respective trust shares of Mr. Rosenwald's daughters, upon their deaths, "shall pass to the lawful issue then surviving, if any, of the such respective daughters, such lawful issue to take the deceased parent's share."
Upon hearing cross-motions for summary judgment, the trial court entered judgment in favor of the adopted children of one of the testator's daughters, holding that they were indeed entitled to their mother's trust share. Motions for reconsideration were denied and this timely appeal followed.
Morris S. Rosenwald (hereinafter Testator) died on March 24, 1924. He left a will dated June 27, 1921, and a codicil dated January 23, 1924. The will was admitted to probate on April 29, 1924, and the estate was closed in 1925.
Testator was survived by his widow and three children: defendant Richard M. Rosenwald (Richard), Catherine Rosenwald Vance (Catherine), and Elinor Rosenwald Harris (Elinor). Elinor died in 1973. She is survived by two children: defendant Patricia Mendel (Patricia), her natural daughter, and Donald Harris (Donald), her adopted son. Donald is not a party to this action. Catherine died in 1983. She is survived by her two adopted children, defendants Peter Vance (Vance) and Carol Packard (Packard), twins born and adopted in 1928.
Articles 8 and 9 of Testator's will set aside three two-ninth shares of his testamentary trust estate, one for each of his three children. This appeal involves disputed claims to his daughter Catherine's trust share valued at approximately $2.3 million. Defendants Vance and Packard claim Catherine's trust share because, as Catherine's adopted children, they are her "lawful issue." Patricia and Richard claim Catherine's share because they assert that as adopted children Vance and Packard cannot be her "lawful issue."
The pertinent language of the will sought to be construed is as follows:
"It is my will that upon the death of my said daughters, respectively . . . the two-ninths portions of the trust estate herein created, held in trust, respectively, for the use and benefit of each of my said two daughters, or such portion of such respective two-ninths shares as shall, at such time, be in the hands, custody or control of my said Trustees shall pass to the lawful issue then surviving, if any, of the such respective daughters, each lawful issue to take the deceased parent's share per stirpes and not per capita, as and for the absolute property of such lawful issue, forever, and in the event that either of my said daughters shall die leaving no lawful issue them or her surviving at the time of death, then and in such event it is my will that the two-ninths portion of the trust estate . . . held in trust for the benefit of such daughter dying without lawful issue her surviving at the time of her death, shall be divided and distributed in equal shares, ...