First National Bank Of Chicago v. King

651 N.E.2d 127 (1995)

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Nature of the Case

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Facts

Louis F. Swift, Sr. died in 1937. His will dated December 11, 1936, 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 Niblack trust is at issue. Niblack was to get the net income during her natural life. If she did not survive Louis, the net income was to be paid in quarter-yearly installments to the lawful descendants, then surviving, in equal shares per stirpes, of Louis' deceased son, Alden B. Swift, and said Lydia Niblack Swift. Alden and Niblack 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 Niblack and both are alive. The LNS Fund has not been terminated and is still in existence. Niblack 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.' The trustee, therefore, paid her nothing. The enactment of the 1989 revisions to section 2-4 of the Probate Act (Ill. Rev. Stat. 1989, ch. 110 1/2, par. 2-4) provided that: '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 in part the intent to exclude such child is demonstrated by the terms of the instrument by clear and convincing evidence. Following enactment of section 2-4(f), Martha (D) requested that P begin treating her as a beneficiary of the Fund. P filed an action for a declaratory judgment. D counterclaimed, contending that the statute is constitutional and that it entitles her to share in the income of the Fund as a beneficiary. Nathan, Jr., and his son, Nathan Swift IV filed a motion to dismiss the complaint and those portions of the counterclaim based on section 2-4(f). They asserted that the statute is unconstitutional. They also claim the statutory presumption cannot be extended to D because the testator's intent to exclude her 'is demonstrated by the terms of the instrument by clear and convincing evidence' as set forth in section 2-4(f)(1). D moved for partial summary judgment. The court agreed with the Nathans that the exception created by section 2-4(f)(1) is applicable, holding that the terms of the will do 'demonstrate[] clear and convincing evidence of an intent to exclude adopted children as beneficiaries.' D appealed. The appellate court reversed. The appellate court then granted a certificate of importance pursuant to Rule 316 (134 Ill. 2d R. 316), bringing the matter before this court.