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04/17/96 ESTATE STEPHEN GLENN BRITTIN v. MARY ANN

April 17, 1996

IN RE ESTATE OF STEPHEN GLENN BRITTIN, DECEASED; (DEBORAH J. ROEDER, LINDA BRITTIN, DENISE BRITTIN, STACIE BRITTIN, AND LAURA MOORE, PETITIONERS-APPELLEES,
v.
MARY ANN BUCKMAN, ADMINISTRATOR, RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Madison County. No. 93-P-130. Hon. George Filcoff, Judge, presiding.

The Honorable Justice Goldenhersh delivered the opinion of the court: Hopkins, P.j., and Chapman, J., concur.

The opinion of the court was delivered by: Goldenhersh

The Honorable Justice GOLDENHERSH delivered the opinion of the court:

Respondent, Mary Ann Buckman, natural daughter of decedent, Stephen Glenn Brittin, and administrator of his estate, appeals from an order of the circuit court finding petitioners, Deborah J. Roeder, Linda Brittin, Denise Brittin, Stacie Brittin, and Laura Moore, the natural children of decedent's adopted son, William Eugene, to be decedent's legal heirs and reopening decedent's estate.

On appeal, respondent contends the trial court erred in finding petitioners, for purposes of intestate succession, to be the legal heirs of decedent and in reopening decedent's estate. We affirm.

I

The facts are undisputed. The record reveals that when William Eugene was about three years of age, his mother, Estelle Willet, married the decedent, Stephen Glenn Brittin. From age three, Stephen and Estelle raised William as their son. The couple had one natural child, Mary Ann Buckman, respondent herein. Estelle Willet Brittin died on July 28, 1975. Shortly thereafter, on October 20, 1976, Stephen adopted William in an adult adoption proceeding in St. Clair County. William was 46 years old at the time of the adoption and had five children, petitioners herein. The adoption decree specifically provides that William was the child of Stephen Glenn Brittin "and for the purposes of inheritance and all other legal incidents and consequences, shall be the same as if said respondent had been born to Stephen Glenn Brittin and Estelle Willet Brittin (now deceased) in lawful wedlock." William died on May 17, 1979, predeceasing his adoptive father and leaving his five children as his descendants and heirs.

On February 8, 1993, Stephen died intestate leaving Mary, his natural daughter, and petitioners, descendants of his adopted son, William, as his heirs. Decedent's intestate estate was opened on March 10, 1993. The court found respondent to be the sole heir and appointed her administrator of the estate. The estate was closed on October 4, 1993, with the proceeds going to respondent. Petitioners were unaware that the administration of decedent's estate was underway without their participation until December 1993, when they learned that the estate had been closed.

On February 9, 1994, petitioners filed a petition to vacate the order of discharge and order finding heirship and to reopen the estate. Petitioners alleged in the petition that they are heirs of the decedent and are entitled to share in decedent's estate as the children of decedent's adopted son. After a hearing, the trial court entered its order finding petitioners legal heirs of decedent and reopening the estate. Respondent filed a motion to reconsider, which was denied on January 30, 1995. Respondent appeals.

II

Respondent contends that petitioners are not descendants of the decedent and may not take, by representation, their deceased father's share of the decedent's estate. Respondent acknowledges that pursuant to section 2-4(a) of the Probate Act (755 ILCS 5/2-4(a) (West 1992)), petitioners' father, as the adopted child of the decedent, is a descendant of his adoptive parent, and had he not predeceased decedent, he would be entitled to half of decedent's estate. However, defendant argues that the legislature, in using the term "adopted child" in section 2-4(a) of the Probate Act, intended to limit intestate succession to the descendants of a child adopted as a minor. Respondent further asserts that the legislature did not intend to include as descendants of an "adopted child" children born to the adopted adult prior to that adult's adoption. According to respondent, because petitioners were already born at the time of decedent's adoption of their father, they are not the descendants of an "adopted child" and therefore cannot take by representation their deceased father's share of decedent's estate. We disagree.

The case before us is one of first impression and requires our consideration of the issue of whether the natural children of an adult adoptee are descendants of the adopting parent for purposes of inheritance. In considering this issue, we must consider whether the legislature, in enacting the statute granting an adopted child the status of a descendant of the adopting parent, intended to limit succession rights of the adoptee's children to the natural children of a child adopted as a minor and to exclude the natural children born to the adult adoptee prior to his adoption by the adopting parent.

The distribution of an intestate real and personal estate of a decedent whose spouse is predeceased but who is survived by his descendants is governed by section 2-1(b) of the Probate Act, which provides:

"ยง 2-1. Rules of descent and distribution. The intestate real and personal estate of a resident decedent and the intestate real estate in this State of a nonresident decedent, after all just claims against his estate are ...


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