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05/13/94 FIRST NATIONAL BANK CHICAGO v. NARCISSA

May 13, 1994

THE FIRST NATIONAL BANK OF CHICAGO, NOT IN ITS INDIVIDUAL CAPACITY, BUT AS TRUSTEE OF THE LYDIA NIBLACK SWIFT FUND UNDER THE LAST WILL AND TESTAMENT OF LOUIS F. SWIFT DATED DECEMBER 11, 1936, PLAINTIFF-APPELLEE,
v.
NARCISSA SWIFT KING, ROBIN SWIFT ROWAN CLARKE, TRACY TULLIS, AND PAUL TULLIS, DEFENDANTS, AND NATHAN B. SWIFT, JR., NATHAN B. SWIFT, IV, A MINOR, AND ALDEN SWIFT O'BRIEN, DEFENDANTS-APPELLEES, AND MARTHA HERRIOTT SWIFT AND JOHN HAROLD SWIFT, DEFENDANTS-APPELLANTS.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE MONICA D. REYNOLDS, JUDGE PRESIDING.

McNAMARA, Egan, Rakowski

The opinion of the court was delivered by: Mcnamara

JUSTICE McNAMARA delivered the opinion of the court:

This appeal is from an order of the circuit court of Cook County in an action for the construction of a will, executed in 1936, limiting gifts over to the "lawful descendants" of the testator's deceased son and his surviving wife. Plaintiff, First National Bank of Chicago, as trustee, filed a complaint for instructions seeking resolution of the conflicting claims asserted by defendants. The trial court held that a daughter adopted by a child of the deceased son and surviving wife was not entitled to share, as a "lawful descendant," in the proceeds of the surviving wife's trust share. On appeal, the adopted daughter argues that a 1989 statute enlarging a presumption that adopteds take as natural-born children, unless the terms of the instrument manifest an opposite intent by clear and convincing evidence, applies.

The testator, Louis F. Swift, Sr., died in 1937. He left a will dated December 11, 1936. The testator was survived by two children, Louis F. Swift, Jr. (Louis, Jr.), who died in 1955, and Idamay Swift Minotto (Idamay), who died in 1943. A third child, Alden B. Swift (Alden), died shortly before the testator in 1936, leaving his wife, Lydia Niblack Swift (Lydia). Lydia died in 1968. Alden and Lydia had three children: Lydia Swift Rowan, who died in 1973, Nathan Butler Swift, Sr. (Nathan, Sr.), who died in 1953, and defendant Narcissa Swift King (Narcissa). At her death in 1973, Lydia Swift Rowan was survived by a daughter, defendant Robin Swift Rowan Clark (Robin), and three grandchildren, defendants Paul Tullis, Tracy Tullis and Alden Swift O'Brien. At his death in 1953, Nathan, Sr. was survived by a wife, Janet Herriott White Swift (Janet), a son, defendant Nathan Butler Swift, Jr. (Nathan), and an adopted daughter, defendant Martha Herriott Swift (Martha), around whom this appeal centers. Martha is the natural daughter of Janet. The remainingdefendants are Nathan Butler Swift IV (Nathan IV), the son of Nathan, and John Harold Swift, the son of Martha.

The will left the substantial bulk of the testator's estate in trust, to be divided into three equal funds. The first fund was named after and established for the benefit of the testator's daughter-in-law Lydia (hereafter the LNS fund). Lydia was to receive all income from this fund for her lifetime. If the trust were to terminate during her lifetime, she was to receive all of the principal of this fund; otherwise, the principal would be distributed upon termination among the "lawful descendants" of Lydia and Alden.

The pertinent language of the will sought to be construed is as follows:

"After the creation of the 'Lydia Niblack Swift Fund', I direct that my trustees shall pay in quarter-yearly installments the net income from said Fund to my said daughter-in-law, Lydia Niblack Swift, during her natural life, if she shall be then surviving; provided, however, that if my said daughter-in-law, Lydia Niblack Swift, shall die after the creation, but before the termination of said 'Lydia Niblack Swift Fund', or if my said daughter-in-law, Lydia Niblack Swift, shall not survive me, the net income from the 'Lydia Niblack Swift Fund', until the termination of said 'Lydia Niblack Swift Fund' shall be paid in quarter-yearly installments to the lawful descendants, then surviving, in equal shares per stirpes, of my deceased son, Alden B. Swift, and said Lydia Niblack Swift." (Emphasis added.)

Similar trusts were established in the names of the testator's daughter and son, Idamay and Louis, Jr., respectively. At the termination of the LNS fund, the will directs that the corpus of that fund shall be distributed as follows:

"The 'Lydia Niblack Swift Fund', if then in existence, shall be distributed, paid over and delivered to said Lydia Niblack Swift, if she shall be then surviving, or, if she shall be then deceased, in equal shares per stirpes, to the lawful descendants then surviving of my deceased son, Alden B. Swift, and said Lydia Niblack Swift, but if there shall be no lawful descendant then surviving of my deceased son, Alden B. Swift, and said Lydia Niblack Swift, said 'Lydia Niblack Swift Fund' shall be distributed, paid over and delivered, in equal shares per stirpes, to the lawful descendants then surviving of my said daughter, Idamay Swift Minotto, and of my said son, Louis F. Swift, Jr." (Emphasis added.)

The will further provides that if no descendants of Alden and Lydia, Idamay, or Louis, Jr. are living at the termination of any of the funds or at the termination of the last of the funds, the trustee shall distribute the applicable trust estate in varying percentages to the heirs and descendants of the testator's siblings.

Under the will, termination of all three funds is to occur upon the death of the last survivor of the testator's "lawful descendants" who were living at the time of his death. At the time of this appeal, several survivors are still living, and each of the three funds remains as a separate and distinct fund, with numerous possible beneficiaries of each fund still living.

This appeal involves disputed claims solely to Lydia's trust share. Martha claims a portion of Lydia's share on the ground that, as Nathan, Sr.'s adopted child, she is his "lawful descendant." Nathan claims the entire share of Lydia's trust as the only natural-born child of Nathan, Sr.

Lydia received all of the income from her fund during the 31 years from 1937 until her death in 1968. By virtue of the foregoing language of the LFS will, the income from that fund then became distributable to the lawful descendants of Lydia and Alden, to be paid in equal shares per stirpes. Lydia's surviving children, Lydia Swift Rowan and Narcissa, each became entitled to one-third of the income from that fund. At present, Narcissa continues to receive her one-third share, and, since the time of her death in 1973, Lydia Swift Rowan's one-third share has been paid to her only child, Robin.

The one-third share of income from the LNS fund which otherwise would have been distributed to Nathan, Sr., had he not predeceased Lydia, became distributable to his "lawful descendants." Beginning in 1968 until 1990, the trustee paid what would have been Nathan, Sr.'s portion of the income of the LNS fund to Nathan as the only natural-born child of Nathan, Sr. No portion of the income from the LNS fund was ever paid to Martha, who had been adopted at the age of 14 by Nathan, Sr. and his wife, Janet. (Janet was Martha's natural mother. However, Martha had previously been adopted and raised by her maternal grandparents, the Herriotts.)

In 1990, Martha made her first claim to the LNS fund. She based her claim on an amendment to the law pertaining to the rights of adopted children in Illinois to receive gifts under testamentary instruments. Specifically, in 1989, the state legislature approved Public Act 86-842, which amended section 1 of the Instruments Regarding Adopted Children Act (Ill. Rev. Stat. 1991, ch. 40, par. 1652) and section 2-4 of the Probate Act of 1975 (Ill. Rev. Stat. 1991, ch. 110 1/2, par. 2-4) to create a presumption in favor of adopteds receiving under testamentary instruments executed before September 1, 1955. The relevant portion of the 1989 amendment states:

"For the purpose of determining the property rights of any person under any instrument executed on or after September 1, 1955, an adopted child is deemed a child born to the adopting parentunless the contrary intent is demonstrated by the terms of the instrument by clear and convincing evidence. After September 30, 1989, a child adopted at any time before or after that date is deemed a child born to the adopting parent for the purpose of determining the property rights of any person under any instrument executed before September 1, 1955, unless one or more of the following conditions applies:

(1) The intent to exclude such child is demonstrated by the terms of the instrument by clear and convincing evidence. " (Emphasis added.) Ill. Rev. Stat. 1991, ch. 40, par. 1652 and ch. 110 1/2, par. 2-4(f).

Martha contends that the trial court erred in holding that the testator's use of the term "lawful descendants" in defining the class of takers under the LNS fund constituted clear and convincing evidence of his intent to exclude adopteds, such that the presumption favoring adopteds, as set forth in the amendment, was successfully rebutted. The trial court found that, at the time the testator executed his will, the term "lawful descendants" was clearly defined to include only persons in the testator's bloodline, which by definition excluded adopteds.

The issue presented in this case is purely one of law, and as such is subject to de novo review. ( South Suburban Safeway Lines, Inc. v. Regional Transportation Authority (1988), 166 Ill. App. 3d 361, 519 N.E.2d 1005, 116 Ill. Dec. 790.) Accordingly, we shall construe the 1989 amendment and its application in the present case independently of the trial court's judgment. Village of Spring Grove v. Doss (1990), 202 Ill. App. 3d 858, 563 N.E.2d 793, 150 Ill. Dec. 666.

The amendment did not abrogate the well-settled rule that, in construing a will, a court's primary objective is to ascertain and give effect to the testator's intent. ( Harris Trust & Savings Bank v. MacLean (1989), 186 Ill. App. 3d 882, 542 N.E.2d 943, 134 Ill. Dec. 597.) Prior to the enactment of the amendment, adopted children were presumed not to be natural children for purposes of determining property rights under testamentary instruments drafted before 1955. In Smith v. Thomas (1925), 317 Ill. 150, 147 N.E. 788 (superseded by the 1989 statute), our supreme court first articulated what has come to be known in Illinois as the ...


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