Belfield v. Findlay , 389 Ill. 526 ( 1945 )

I cannot concur in the holding of the majority opinion. Under our Adoption Act, an adopted child, "for the purposes of inheritance," — not from the adopting parent as some statutes provide, but for inheritance generally, — is to be considered the same as though it were born in lawful wedlock, except that "he shall not be capable of taking property expressly limited to the body or bodies of the parents by adoption," with other limitations not material here. It is the law in this State that the testator is presumed to have known the law and to have made his will in conformity therewith. (Munie v.Gruenwald, 289 Ill. 468; Walker v. Walker, 283 Ill. 11; Rudolph v. Rudolph, 207 Ill. 266.) The state of the law, therefore, at the time the will was made, affords material assistance in arriving at the intention of the testator when such intention is otherwise not clear. (Carpenter v. Browning, 98 Ill. 282.) In the case before us there is no evidence whatever to rebut that presumption. Certainly there is nothing in the will to show a contrary intention.

The majority opinion cites Smith v. Thomas, 317 Ill. 150. In that case the testator gave all the residue of his estate to his executors and trustees to pay so much of the income as he directed to his widow and his son and daughter during their lives, and the life of the survivor, and, in addition, provided for sums to be paid for the education "of each grandchild of mine." In his will he also admonished his trustees to keep in view "that my desire is to create and preserve for my grandchildren and their heirs an estate having a steady permanent income." The question was whether an adopted child of the son of the testator was entitled to share in the distribution of the estate and the income therefrom. It was held that while an adopted child became the child of the testator's son, when he was adopted, he did not become the grandchild of the testator. It will readily be perceived that in that case the will specifically provided that the income should be paid to his grandchildren, and it was rightly held that a child who had been adopted by his son did not thereby become the testator's grandchild. In that will there was language showing the intention of the testator that a specific class of children, i.e., his grandchildren, should take. In the will before us there is no word that can be construed as an expression of an intent that only the children of the blood of Arthur Findlay shall take. The language is "if he dies leaving no children."

Moffet v. Cash, 346 Ill. 287, is also cited. In that case the will made devises to the testator's sons and daughters. The devises to three daughters were for life and on their death the property was to go, in each case, "to her children the issue of her body share and share alike." The devises to the sons were for life and on their death the property was to go their children, without limiting the term "children" to issue of the body. It was there held that, as the testator in his will indicated an intention to limit the remainder to the issue of the body of each of the daughters, it should be held that he intended such construction of his devises to his sons, and this even though he used no language to express that intent in the latter devises. The presumption arising from the state of the law at the time was not considered and the reasoning in the opinion should not be adhered to.

In Wallace v. Noland, 246 Ill. 535, this court held that while the word "heirs" in its general sense includes adopted children, yet where the word "heirs" has been construed by this court to mean "children," and where, at the time the will was made and at the time the testator died, there was no statute in this State giving adopted children the right to inherit, (the testator in that case having died before the Adoption Act of 1867,) such adopted children could not take. It is there pointed out that the state of the law at the time of the execution of the will may be considered.

In Munie v. Gruenewald, 289 Ill. 468, the will used the term "children" in naming certain beneficiaries. It was held that in so doing the testator was presumed to know the law in relation to an adopted child and that the adopted child there involved should take. In that case the testator knew of the adoption and treated the adopted child as his own grandchild, though there was nothing in the will so indicating. That fact was treated as evidence of his intention. That case cannot be construed as authority for the contention here, that in the absence of such facts, the presumption of intent on his part to comply with the adoption statute does not apply. On the contrary, the rule as to presumption and supporting cases are cited with approval.

Section 5 of our Adoption Act was taken verbatim from the Massachusetts statute on that subject. The construction of the act was announced by the Massachusetts court in Sewall v.Roberts, 115 Mass. 262. The question arose whether Ada Parker, an adopted daughter, took under a trust as the child of the settlor. In construing the adoption statute, the court said: "This language is very broad and comprehensive, and it was manifestly the intention of the legislature to provide that, with the exceptions named, the adopted child should, in the words of the sixth section, `to all legal intents and purposes be the child of the petitioner.' The adopted child, in this case, therefore, in construing her father's settlement, must be regarded in the light of a child born in lawful wedlock, unless the property disposed of by the settlement falls within one of the exceptions. It is true that if she takes under the settlement, the property does not come to her by inheritance, but it comes to her as one of the legal consequences and incidents of the natural relation of parents and children." In that case it was urged that the result reached was opposed to the intention of the settlor. In answer, the court said: "But, as is often the case in deeds or wills providing for a remote future, he could have had no intentions as to the particular person who was to take. His general intention was that the property should go in the first instance to his children as a class. Whoever at his death fell within this class was within this general intention, and as his adopted daughter is by law his child, she belongs to the class intended to take, and her rights cannot be defeated upon the presumption that he did not intend her to take." Later the Massachusetts General Assembly amended the adoption statute of that State to read, in effect, that a child by adoption shall not have the right of inheritance as a child born in lawful wedlock unless such appears to have been the intention of the testator, and the Massachusetts cases of Wyeth v. Stone, 144 Mass. 441, 11 N.E. 729, and Blodgett v. Stowell,189 Mass. 142, 75 N.E. 138, said to be in support of the position that the adopted child in this case does not take, were both decided after this change in the statute.

In Russell v. Musson, 240 Mich. 631, 216 N.W. 428, the Michigan Supreme Court held that the question whether an adopted child does or does not take turns upon the intention of the testator. Examination will disclose that the Michigan statute does not contain the significant provision of our statute, herein referred to, which shows a legislative intent that the adopted child shall inherit unless the devise is "expressly limited to the body or bodies of the parents by adoption." It will also be noted that in our statute the language is "a child so adopted shall be deemed, for the purposes of inheritance by such child" the child of the adopting parent. Such language is more comprehensive than that of the Michigan statute, which declares that the adopted child "shall become and be an heir at law of such person," (adopting parent.) Bouvier defines inheritance as follows: "The term `inheritance' includes not only lands and tenements which have been acquired by descent, but every fee simple or fee tail which a person has acquired by purchase." It is a rule of general acceptance that the language of a statute is to be construed in its generally accepted meaning unless another meaning is specified in the act.

In In re Leask, 197 N.Y. 193, 90 N.E. 652, cited by appellees, the statute under consideration provided that foster parent and minor shall have all the rights of parent and child including the right of inheritance from each other "but, as respects the passing and limitation over of real or personal property dependent under the provisions of any instrument on the foster parent dying without heirs, the minor is not deemed the child of the foster parent so as to defeat the rights of remaindermen." Under this statute, it was held that the expression in the will "leaving a child or children" had reference to the natural offspring of the life beneficiary and that an adopted child could not take. It will be observed that the New York statute is so notably different from ours that the case is of little aid here.

In Lichter v. Thiers, 139 Wis. 481, 121 N.W. 153, the Wisconsin Supreme Court held that the adoption statute did not affect the question whether a child shall take as a child of the adopted parents except that it may be used to explain what the testator had in mind by the use of the term "child or children," but whether the testator intended the term "child or children" to mean adopted children or children of the blood depended upon the circumstances; that there is no arbitrary rule on the subject except that the testator's intent must govern. The opinion noted, however, that the authorities are not entirely in harmony. The Wisconsin court cites, in support of its determination that an adopted child does not take, Wyeth v. Stone, 144 Mass. 441,11 N.E. 729, and Blodgett v. Stowell, 189 Mass. 142, 75 N.E. 138, which, as we have already seen, were decided after the amendment of the statute from which the Wisconsin statute and our statute were taken.

The rule, announced in some of the cases cited by appellees, that, unless it plainly appears to have been the intention of the testator to include an adopted child, such child is to be excluded, is not based on statutes as broad as ours. On the other hand, the Massachusetts case of Sewall v. Roberts, 115 Mass. 262, construing the effect of the adoption statute from which ours was taken, holds that, unless it be seen that the testator intended to exclude adopted children, they shall take. Which of these views presents the more reasonable rule? No case decided by this court is inconsistent with the line of cases headed by the Massachusetts case, Sewall v. Roberts, except Moffet v. Cash, hereinbefore referred to. While cases in foreign jurisdictions are not in entire harmony, I believe the Massachusetts rule to be more sound and just.

In Mooney v. Tolles, 111 Conn. 1, 149 A. 515, the will provided for the payment of the income from a trust fund during the lifetime of a named son "to his lawful children" and upon his death to pay the principal of the trust fund to this son's lawful child or children "or if he leaves no lawful child" then among the lawful issue of another named son. After the will was executed the son adopted a child. He had no child, issue of his body. It was held, under an adoption statute substantially identical with ours, that the adopted child was entitled to take. It was pointed out that there was an adoption statute in effect in that State at the time the will was executed and it was presumed that the testatrix knew and acted in contemplation of the reciprocal rights and duties resulting from the existing statute. It is there said: "Where the statutes are broad and comprehensive in their terms, the testator is generally held to have intended to include a child of adoption within the terms "child or children;' * * * By it [the statute] the adopted child becomes, by the fact of adoption, the child, in name and in law, of its parents, with all the reciprocal rights and duties existing between them as between natural child and parent, and with the right of inheritance between parent and child and their relatives the same as though such adopted child were the natural child of such adopting parent." It will be noted that the court did not depend on surrounding circumstances to arrive at its conclusion. In fact, in that case, as here, the will was executed before the adoption took place.

In re Olney, 27 R.I. 495, 63 A. 956, was a case where a life tenant, after the death of the testator, adopted a child. The testator's will gave the income of the estate to this life tenant and then to another for life, and upon the death of both life tenants the trust res was to be distributed to the "children then living" of each life tenant. It was in that case held, under an adoption statute identical with ours, that an adopted child of one of the life tenants took the same interest she would have taken had she been a child of the body. See also Hartwell v.Tefft, 19 R.I. 644, 35 A. 882.

The majority opinion quotes the language of the annotator in 70 A.L.R. p. 621: "It is almost universally agreed that * * * an adopted child is presumed not to be included unless there is language in the will, or there are circumstances surrounding the testator at the time he made the will, which make it clear that the adopted child was intended to be included." The cases cited which consider a statute as broad as ours do not support the conclusion of the annotator. See Sewall v. Roberts,115 Mass. 262; Mooney v. Tolles, 111 Conn. 1, 149 A. 515, and other cases above cited, which consider statutes as broad as ours, and where the rule, as in this State, is that the testator is presumed to have made his will in conformity with the statute of the State at the time the will is executed. It is clear to me in this case that the testatrix intended to give the remainder, at the death of the life tenant, to a class designated as "children." Under our adoption statute an adopted child belongs to that class. In holding otherwise the majority opinion reads into the will an intention contrary to the statute and not expressed in the will.

The presumption that the testatrix made her will in accord with the statute on adoption in existence at the time the will was executed is written into the will as much as any part of the will itself. In the absence of any language or circumstances rebutting that presumption, it becomes conclusive. At the time Sarah Findlay made her will the Adoption Act of this State provided that an adopted child, for the purpose of inheritance and other legal consequences and incidents of the natural relation of parents and children, with the exceptions named in the statute, is to be given the same legal rights as if it had been born in lawful wedlock. (Ryan v. Foreman, 262 Ill. 175; Flannigan v. Howard, 200 Ill. 396.) I am of the opinion that our adoption statute means and should be construed to mean that an adopted child may take by will or deed property not "expressly limited to the body or bodies of the parents by adoption." From this language clearly appears the legislative intent that where no such limitation appears in such will or deed, an adopted child shall come within the terms "child or children." If this be not the correct construction, why so limit the rights of such child? It seems clear to me that the General Assembly intended that where such limitation does not exist such child should take. To hold otherwise is to render such limitation meaningless. Nor can any other construction be given to this will without importing into it a provision expressly limiting "children" to those of the body of Arthur Findlay. How, in the face of the statutory presumption, can it be said that the word "children" was intended by the testatrix to include children of the blood of Arthur Findlay and not those by adoption, unless there be such importation? In other words, it is necessary to such holding that there be read into the will the words "issue of his body" following the word "children." None of these words, or any words indicating such a limitation, appear in the will, and such construction runs counter to the presumption that the testatrix made her will in accord with the statute.

The facts that appellant Nelson Findlay was not born at the time the will was executed and that the testatrix could not have had him in mind are not to be taken as an indication that she may not, under the presumption of her knowledge of the law, have intended that children, as a class, whether they be of Arthur's blood or by adoption, shall take. It can hardly be said that she had any specific children or particular kind of children in mind when she, in 1916, executed the will. The gift was to a class. To hold that she intended children only who were of the blood of Arthur is to presume, without any corroborating word from her, that she did not intend that her will should harmonize with the Adoption Act, knowledge of which she is presumed to have. As the word "children" is given no restricted meaning in the will, and as under the Adoption Act an adopted child is the lawful child of the adopting parents, it seems more in accord with legislative intent, and certainly with the best interests of society, to hold that the General Assembly intended that where, as here, the will put no limitation on the word "children," an adopted child shall be within the term.