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Segur v. Sbrizzi

April 20, 1999

ROGER L. SEGUR, JOHN R. BELL, AND ALAN SEGUR, PLAINTIFFS-APPELLEES,
v.
SHARON MCGILL SBRIZZI, DAVID MCGILL, TERRENCE MCTAGGART, RICHARD MCTAGGART, PATRICK MCTAGGART, BRYAN CUMMINGS, AND YVONNE CUMMINGS, DEFENDANTS-APPELLANTS



The opinion of the court was delivered by: Justice Homer

The three plaintiffs, the adopted children of Helen McGill's two daughters, filed a suit for partition of a farm located in Iroquois County and held by Helen's estate. Each plaintiff claimed a one-fifth interest in the farm based upon the terms of Helen's will and section 2--4(f) of the Probate Act of 1975 (755 ILCS 5/2--4(f) (West 1996)). Helen's two natural-born grandchildren objected. The trial court granted summary judgment in favor of the plaintiffs, and we affirm.

FACTSThis dispute among Helen McGill's five grandchildren concerns their inheritance of Helen's 273-acre farm (the River Farm). In 1940, Helen devised the River Farm in her will as follows:

"I hereby give, devise and bequeath all my property owned by me at my death, real, personal and mixed, to my four children, share and share alike, except the 273 acres known as the River Farm in Middleport Township, Iroquois County, Illinois, that to remain intact and each to receive their share of rents therefrom after all necessary repairs and taxes are paid each year. At the death of any of my four children it then becomes the property of the living children and so on until the death of the last child, when it shall become the property of my grandchildren." (Emphasis added.)

When Helen died a year later, she was survived by all four of her children: David W. McGill, Maurice McGill, Lorene Segur, and Helen Bell. At that time, Helen also had two natural-born grandchildren, David T. McGill and Sharon Sbrizzi, both of whom were born to her son, David, prior to the execution of her will. In the years after Helen's death, her daughters both adopted children; Lorene Segur adopted two sons, Roger and Alan, and Helen Bell adopted one son, John. Upon the death of Helen's last surviving child, the five grandchildren remained.

Seeking to claim their interest in the River Farm, the three adopted grandchildren filed the instant action for partition. The defendants, the two natural-born grandchildren, objected arguing that because the plaintiffs were adopted they were not entitled to any inheritance under the terms of their grandmother's will.

Cross motions for summary judgment were filed. After a hearing, the trial court found that based upon section 2--4(f) of the Probate Act of 1975 (Act)(755 ILCS 5/2--4(f) (West 1996)) and our supreme court's decision in First National Bank of Chicago v. King, 165 Ill. 2d 533, 651 N.E.2d 127 (1995), each plaintiff was entitled to inherit a one-fifth interest in the River Farm as conveyed in Helen's will. The defendants appealed.*fn1 On appeal, they argue that the trial court erred in granting summary judgment in favor of the plaintiffs and against the defendants and that section 2--4(f) of the Act is unconstitutional.

ANALYSIS

I. Summary Judgment

Summary judgment is properly granted when the pleadings, affidavits, depositions, and admissions on file demonstrate that there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005 (West 1996). When interpreting the provisions of a will, summary judgment may be appropriate if the four corners of the instrument reveal no ambiguity as to the testator's intent. Orso v. Lindsey, 233 Ill. App. 3d 881, 885-86, 598 N.E.2d 1035, 1038-039 (1992). This court conducts de novo review of a trial court's decision to grant summary judgment. Wells v. Enloe, 282 Ill. App. 3d 586, 589, 669 N.E.2d 368, 371 (1996).

The defendants argue that the plaintiffs are not entitled to inherit any portion of the River Farm under the terms of Helen's will because, according to a common law rule in effect at the time she executed her will, the plaintiffs, as adopted grandchildren, would not have inherited under the will. In support, they cite the "stranger to adoption rule" which provided that when a provision is made in a will for the children of some person other than the testator, an adopted child is presumptively not included unless there is language in the will or circumstances surrounding the testator at the time that she made her will which make it clear that the adopted child was intended to be included. See Smith v. Thomas, 317 Ill. 150, 158, 147 N.E. 788, 790-91 (1925). Although the defendants present an accurate recitation of the status of the common law at the time Helen's will was executed, that law is not controlling in this case.

Our state legislature has retroactively reversed the common law rebuttable presumption with respect to the status of adopteds, changing it from a presumption of non-inclusion to a presumption of inclusion. This new rule of will construction is set forth in section 2--4(f) of the Act which provides in pertinent part: "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. "* * * " 755 ILCS 5/2--4(f)(West 1996).

Under section 2--4(f), the instant plaintiffs are presumptively considered children born to their parents for the purpose of determining property rights under their grandmother's will unless the intent to exclude them is demonstrated by the terms of the will by clear and convincing evidence. Although the defendants argue that the terms of Helen's will demonstrate that she intended to bequeath her River Farm to her "bloodline" and thereby exclude any adopted grandchildren, we cannot agree.

Citing numerous cases decided prior to the enactment of the current version of section 2--4(f) of the Act, the defendants argue that use of a term such as "heirs," "lawful issue," or "grandchildren," standing alone, indicates a clear intent to not include adopteds. Because, however, section 2--4(f) was enacted to reflect the "modern view" that adopted children are to be afforded a status of inheritance equivalent to that of natural children (See Wielert v. Larson, 84 Ill. App. 3d 151, 404 ...


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