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06/30/94 JOY DOOLEY v. REIMER FARMS

June 30, 1994

JOY DOOLEY, PLAINTIFF-APPELLANT,
v.
REIMER FARMS, INC., JAMES E. REIMER AND ELLEN M. REIMER, DONALD S. RUTHERFORD AND MARY K. RUTHERFORD, AND DORREN MARK HEINS, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of McLean County. No. 93L160. Honorable Luther H. Dearborn, Judge Presiding.

Released for Publication August 24, 1994. As Corrected September 6, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Honorable Frederick S. Green, J., Honorable John T. McCULLOUGH, P.j., Honorable Carl A. Lund, J.

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

On October 31, 1968, when a testator named John Dowling died, the anti-lapse provision of section 49 of the Probate Act (1967 Act) stated:

"When a devise or legacy is to a descendant of the testator who dies before the testator and there is no provision in the will for that contingency, the descendants of the devisee or legatee take per stirpes the estate so devised or bequeathed." (Emphasis added.) (Ill. Rev. Stat. 1967, ch. 3, par. 49.)

Section 12 of the 1967 Act then provided that a child born out of wedlock is an "heir of his mother and of any maternal ancestor * * * from whom his mother might have inherited." (Ill. Rev. Stat. 1967, ch. 3, par. 12.) Section 12 of the 1967 Act then provided for the legitimation of a child born out of wedlock by the marriage of the natural parents and the father's acknowledgment of paternity. However, that has not happened here.

We hold that under the foregoing legislation, a remainder interest in fee in Illinois real estate devised in John Dowling's will to his son Maurice Dowling, who died prior to John Dowling, could not pass to and vest in plaintiff, Joy Dooley, who purported to be a daughter of Maurice Dowling, born out of wedlock, and the only child fathered by him.

On June 28, 1993, plaintiff brought suit in the circuit court of McLean County against defendants Reimer Farms, Inc., James E. and Ellen M. Reimer, and unknown heirs of Maurice Dowling. Plaintiff alleged she was the daughter and only child of Maurice and should take a one-half remainder interest in fee in real estate which John's will purported to devise to Maurice. She also alleged the named defendants were in possession of that property. Plaintiff then alleged that the life estate had terminated and requested a declaration of her interest in the real estate and rents and income which had been received since the life estate terminated. On October 8, 1993, plaintiff was permitted to file an amendment which named Donald S. and Mary K. Rutherford and Dorren Mark Heins as additional defendants and alleged they were in possession of additional real estate which had passed to plaintiff in the same manner as the other property.

The parties agree that plaintiff was born out of wedlock. On November 15, 1993, the Reimer and Rutherford defendants filed a motion to dismiss citing a substantial number of theories. After hearing arguments, the circuit court entered an order on January 3, 1994, dismissing the complaint with prejudice. The court ruled that (1) plaintiff could not take under the anti-lapse provision of section 49 of the 1967 Act because, having been born out of wedlock, she could not be a "descendant" of Maurice Dowling within the meaning of that legislation even if he was proved to be her natural father; and (2) in any event, any cause of action she might otherwise have was barred by the two-year limitation of section 8 of the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/8 (West 1992)). Plaintiff has appealed. We affirm.

Because, as we have indicated, we are convinced that a child born out of wedlock did not qualify as a descendant of a deceased father under section 49 of the 1967 Act on October 31, 1968, when the estate whose ownership is in issue had vested, we need not consider the application of section 8 of the Parentage Act or other defense theories in order to affirm.

On October 31, 1968, section 11 of the 1967 Act set forth a procedure by which property "descends and shall be distributed" and speaks of "descendants. " (Emphasis added.) (Ill. Rev. Stat. 1967, ch. 3, par. 11.) Plaintiff does not dispute that, at that time, she would not have taken from intestate estates of either John or Maurice Dowling as a "descendant." Clearly, section 12 of the 1967 Act created the only exceptions to children born out of wedlock being descendants of their parents for purposes of inheritance. We see no logical reason why the word "descendants" would have a broader scope in the anti-lapse statute than in a statutory provision which focuses upon how property "descends."

Plaintiff recognizes that in Marsh v. Field (1921), 297 Ill. 251, 256, 130 N.E. 753, 755, the court held that unless a contrary intention in a will is shown, "persons" taking under the description of "children" or "issue" will be limited to "legitimate [children] * * * or issue." Plaintiff also notes that in Hardesty v. Mitchell (1922), 302 Ill. 369, 373, 134 N.E. 745, 746-47, similar sentiments were expressed in regard to the words "child or children." Plaintiff then calls to our attention that at the time of Marsh and Hardesty, and up to the time of the enactment in 1939 of the Probate Act (1939 Act), the anti-lapse statute previously in force used the terms "child," "grandchild" or "issue" (see Ill. Rev. Stat. 1937, ch. 39, par. 11) rather than making reference to a "descendant" or "descendants" as in section 49 of the 1967 Act. Those latter words were put into the anti-lapse provision of the 1939 Act. (See Ill. Rev. Stat. 1939, ch. 3, par. 162.) Citing the maxim that an amendment to a statute creates a presumption of an intent to change its meaning ( Weast Construction Co. v. Industrial Comm'n (1984), 102 Ill. 2d 337, 340, 466 N.E.2d 215, 216, 80 Ill. Dec. 763), plaintiff contends that the change that was made at that time was intended to include children born out of wedlock within the coverage of the anti-lapse legislation.

Plaintiff maintains that the word "descendant" had been given a broader meaning than "issue," "child" or "children" by the supreme court and must have been intended to include those in line of descent who were born out of wedlock. This theory is based upon language from the opinion in Bates v. Gillett (1890), 132 Ill. 287, 297, 24 N.E. 611, 612. There, the issue concerned the nature of an estate devised to the testator's daughters for life with a "'remainder to their children and descendants. '" (Emphasis added.) ( Bates, 132 Ill. at 289, 24 N.E. at 611.) No question was raised as to whether an individual involved had been or would have been born ...


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