The Honorable Justice Harrison delivered the opinion of the court: Justice Heiple, dissenting: Chief Justice Bilandic and Justice Miller join in this dissent.
The opinion of the court was delivered by: Harrison
JUSTICE HARRISON delivered the opinion of the court:
The issue in this case is whether section 2-4(f) of the Probate Act of 1975 (Ill. Rev. Stat. 1989, ch. 110 1/2, par. 2-4(f)) should be construed to permit the adopted child of a testator's grandson to receive proceeds from a trust created by a will executed in 1936 under which the class of beneficiaries was limited to the "lawful descendants" of the testator's son and daughter-in-law.
The circuit court answered this question in the negative, holding that the presumption created by the statute in favor of adopted children cannot be applied here because "the intent to exclude such child is demonstrated by the terms of the instrument by clear and convincing evidence." (Ill. Rev. Stat. 1989, ch. 110 1/2, par. 2-4(f)(1).) Following the analysis advanced by Justice Inglis in his dissenting opinion in Continental Bank, N.A. v. Herguth (1993), 248 Ill. App. 3d 292, 300-01, 187 Ill. Dec. 395, 617 N.E.2d 852 (Inglis, P.J., dissenting), the appellate court subsequently reversed and remanded for further proceedings. (263 Ill. App. 3d 813.) The appellees in the appellate court then applied for a certificate of importance pursuant to Rule 316 (134 Ill. 2d R. 316). That application was granted, and the matter is now before us for review.
At the center of this dispute is the will left by Louis F. Swift, Sr., who died in 1937. Dated December 11, 1936, the will created three separate trust funds: one named for Swift's son Louis F. Swift, Jr.; a second named for his daughter Idamay Swift Minotto; and a third named for his daughter-in-law Lydia Niblack Swift. The Lydia Niblack Swift Fund (LNS Fund) is the one that concerns us on this appeal.
In section 10 of his will, Swift provided:
"After the creation of the [LNS Fund], I direct that my trustee 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 [LNS Fund], or if my said daughter-in-law, Lydia Niblack Swift, shall not survive me, the net income of said [LNS 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."
In section 11 of his will, Swift further provided that upon termination of the LNS Fund, the corpus of the trust was to be distributed to Lydia Niblack Swift "if she shall be then surviving, or, if she 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."
Alden B. Swift and Lydia Niblack Swift had three children, Lydia, Nathan, and Narcissa. Lydia and Narcissa survived their mother. Although Nathan predeceased her, he left behind a son, Nathan Jr. and a daughter, Martha. Nathan Jr. was his biological child. Martha was not. She was the biological child of Nathan Jr.'s mother, who was Nathan Sr.'s second wife. Nathan, Sr., adopted Martha after he married her mother. Both Nathan, Jr., and Martha survived Lydia Niblack Swift, and both are alive today.
The LNS Fund has not been terminated and is still in existence. Lydia Niblack Swift received all of the income from the Fund until her death in 1968. After that, her two surviving children, Lydia and Narcissa, each became entitled to one third of the Fund's income. The remaining third, which would have been payable to Nathan, Sr., had he survived his mother, was paid instead to Nathan's son, Nathan, Jr. Because Martha was adopted, the trustee took the position that she was not a "descendant" of Alden B. and Lydia Niblack Swift within the meaning of the testamentary trust. The trustee therefore paid her nothing, and she claimed no share of the Fund's income.
The situation changed with enactment of the 1989 revisions to section 2-4 of the Probate Act (Ill. Rev. Stat. 1989, ch. 110 1/2, par. 2-4). Those revisions added a new subsection (f), which provides:
"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.
(2) An adopting parent of an adopted child, in the belief that the adopted child would not take property under an instrument executed before September 1, 1955, acted to substantially benefit such adopted child when compared to the benefits conferred by such parent on the child or children born ...