Appeal from the Circuit Court of Cook County. No. 95 CH 8444. Honorable Michael Getty, Judge Presiding.
Released for Publication July 21, 1997.
Presiding Justice Greiman delivered the opinion of the court. Theis and Quinn, JJ., concur.
The opinion of the court was delivered by: Greiman
PRESIDING JUSTICE GREIMAN delivered the opinion of the court:
Robert Sonnenschein (Robert) executed a will (the will) dated December 3, 1937, and died on November 8, 1939. Robert was survived by his wife Flora and three children: Jeanne Anne Sonnenschein (Jeanne), Carl Sonnenschein (Carl), and Ralph Sonnenschein (Ralph). The will bequeathed certain personal property to Flora and the remainder of his estate in trust designating Flora and Chicago Title and Trust Company as trustees. The net income from the trust was to be paid to Flora during her lifetime. Upon the Flora's death, the will provided as follows in the sixth paragraph:
"Upon the date of the death of my wife, FLORA K. SONNENSCHEIN, *** I direct my Trustees to divide the trust estate, both as to principal and accrued but undistributed income, into three separate trust funds, one of said three separate trust funds to consist of 40% of said trust estate and to be held for the use and benefit of my daughter, JEANNE ANNA SONNENSCHEIN, and the other two of said three separate trust funds to consist of 30% each of said trust estate and to be held one each for the use and benefit of my two sons, CARL LEO SONNENSCHEIN and RALPH ROBERT SONNENSCHEIN, respectively.
My Trustees shall pay over and distribute to each of my said three children, respectively, quarterly or oftener in the discretion of my said Trustees, all of the net income derived from the respective separate trust funds held for the use and benefit of each of my said three children, respectively, during each and every year ensuing subsequent thereto and prior to the dates of the deaths of my said three children, respectively."
Flora Sonnenschein died on January 15, 1976, survived by all three children (Jeanne, Ralph and Carl). Pursuant to the will, Chicago Title and Trust then acted as sole trustee and paid the net income from the trust to the three children in their respective portions as designated in the will.
Jeanne married, took the name Steinitz, and adopted two sons, Hugo and Paul (the Steinitz defendants). Carl had two children (Robert Sonnenschein and Barbara Sonnenschein). Ralph had three children (David C. Sonnenschein, Lisa Branch and Ann Feiner).
Upon the death of any of the three children, the sixth paragraph of the Will further provided as follows:
"Upon the dates of the deaths of my said three children, respectively *** my Trustees shall pay over and distribute the separate trust fund of such of my said three children so dying (or so having died), as to both principal and accrued but undistributed income, unto the then surviving lawful issue of such of my said three children, respectively, per stirpes and not per capita. In the event that any of my said three children so dying *** shall leave no lawful issue surviving at that time, the separate trust fund of such of my said three children so dying *** shall be divided between the separate trust funds of the other two of my said three children in the same proportions as is hereinabove provided with respect to the creation of the original separate trust funds, and shall be held, used, paid over and distributed in the same manner and at the same times and to the same persons as is herein provided with respect to said other two separate trust funds."
Jeanne died on August 16, 1978. At that time, the trustee correctly determined that the two adopted sons of Jeanne, Hugo and Paul, were not "lawful issue" of Jeanne under then-existing Illinois law and thus not beneficiaries of Jeanne's trust. The trustee then divided Jeanne's 40% share of the trust fund into two equal parts and allocated one part to Carl and one part to Ralph. No principal distributions have ever been made to Robert's children. On June 20, 1995, the aggregate value of the assets held under the will was approximately $541,000.
In 1989, the General Assembly amended the Probate Act of 1975 (755 ILCS 5/1-1 et seq. (West 1992)) to treat adopted children the same as natural children in instruments executed before September 1, 1955. The legislature added subsections 2-4(f) and 2-4(g), which provide in pertinent part as follows:
"(f) 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 ...