{ "id": 2943297, "name": "CONTINENTAL BANK, N.A., et al., Plaintiffs-Appellees. v. NORMA N. HERGUTH et al., Defendants-Appellants (Harold J. Neubrand et al., Defendants-Appellees)", "name_abbreviation": "Continental Bank, N.A. v. Herguth", "decision_date": "1993-07-29", "docket_number": "No. 2 \u2014 92\u20140806", "first_page": "292", "last_page": "301", "citations": [ { "type": "official", "cite": "248 Ill. App. 3d 292" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "120 Ill. App. 3d 108", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3594506 ], "pin_cites": [ { "page": "111" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/0108-01" ] }, { "cite": "133 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3260243 ], "year": 1983, "pin_cites": [ { "page": "8" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/133/0001-01" ] }, { "cite": "145 Ill. 2d 166", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5595759 ], "weight": 2, "pin_cites": [ { "page": "173" }, { "page": "173" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0166-01" ] }, { "cite": "376 Ill. 283", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2540758 ], "weight": 4, "pin_cites": [ { "page": "289" }, { "page": "290-91" }, { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/ill/376/0283-01" ] }, { "cite": "42 Ill. 2d 226", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2848853 ], "opinion_index": 0, "case_paths": [ "/ill-2d/42/0226-01" ] }, { "cite": "291 Ill. 334", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2421455 ], "year": 1969, "pin_cites": [ { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/ill/291/0334-01" ] }, { "cite": "297 Ill. 251", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5040880 ], "weight": 3, "pin_cites": [ { "page": "255" }, { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/ill/297/0251-01" ] }, { "cite": "54 Ill. 2d 6", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2934771 ], "pin_cites": [ { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0006-01" ] }, { "cite": "389 Ill. 526", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2505356 ], "opinion_index": 0, "case_paths": [ "/ill/389/0526-01" ] }, { "cite": "84 Ill. App. 3d 151", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3202990 ], "weight": 4, "pin_cites": [ { "page": "154" }, { "page": "153" }, { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/84/0151-01" ] }, { "cite": "293 Ill. 101", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4985981 ], "pin_cites": [ { "page": "107" } ], "opinion_index": 0, "case_paths": [ "/ill/293/0101-01" ] }, { "cite": "132 Ill. 287", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5419194 ], "weight": 3, "pin_cites": [ { "page": "297" }, { "page": "297" } ], "opinion_index": 0, "case_paths": [ "/ill/132/0287-01" ] }, { "cite": "188 Ill. App. 3d 16", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2693786 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-app-3d/188/0016-01" ] }, { "cite": "237 Ill. App. 410", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5508419 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "413" } ], "opinion_index": 0, "case_paths": [ "/ill-app/237/0410-01" ] }, { "cite": "77 Ill. 2d 335", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5489748 ], "year": 1925, "opinion_index": 0, "case_paths": [ "/ill-2d/77/0335-01" ] }, { "cite": "18 Ill. 2d 124", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5328886 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "128" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/18/0124-01" ] }, { "cite": "12 Ill. 2d 224", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2779746 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/ill-2d/12/0224-01" ] }, { "cite": "61 Ill. App. 3d 966", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3349972 ], "pin_cites": [ { "page": "971" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/61/0966-01" ] }, { "cite": "36 Ill. App. 3d 928", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2629722 ], "year": 1978, "pin_cites": [ { "page": "933" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/36/0928-01" ] }, { "cite": "169 Ill. App. 3d 28", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3550282 ], "pin_cites": [ { "page": "40" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/169/0028-01" ] }, { "cite": "85 Ill. 2d 507", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469159 ], "pin_cites": [ { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0507-01" ] }, { "cite": "118 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3188683 ], "pin_cites": [ { "page": "3" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/118/0001-01" ] }, { "cite": "476 U.S. 852", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12810 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/476/0852-01" ] }, { "cite": "430 U.S. 762", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12127757 ], "weight": 3, "year": 1986, "opinion_index": 0, "case_paths": [ "/us/430/0762-01" ] }, { "cite": "317 Ill. 150", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5147434 ], "pin_cites": [ { "page": "158" } ], "opinion_index": 0, "case_paths": [ "/ill/317/0150-01" ] }, { "cite": "54 Ill. 2d 6", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2934771 ], "pin_cites": [ { "page": "11" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/54/0006-01" ] } ], "analysis": { "cardinality": 863, "char_count": 20516, "ocr_confidence": 0.724, "pagerank": { "raw": 1.1371864538069712e-07, "percentile": 0.5775946782997773 }, "sha256": "c0dec9e76e2356ae2eb3233d47bfd4ccc9f351d811387ff72a060fb4c32b5de8", "simhash": "1:bebef2051ea9577e", "word_count": 3394 }, "last_updated": "2023-07-14T21:04:37.974036+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CONTINENTAL BANK, N.A., et al., Plaintiffs-Appellees. v. NORMA N. HERGUTH et al., Defendants-Appellants (Harold J. Neubrand et al., Defendants-Appellees)." ], "opinions": [ { "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nThis appeal is from an order of the circuit court of Winnebago County in an action for the construction of a trust. The trial court held that both the adopted son of one of the settlor\u2019s grandsons (the adopted person) and the illegitimate son of that same grandson\u2019s other adopted son (the illegitimate person) were \u201clawful descendants\u201d under the trust. On appeal, the natural bom beneficiaries of the trust (the natural borns) argue first that the settlor\u2019s actual intent was to exclude adopted and illegitimate heirs from taking under the trust. Secondly, they argue that the trial court violated constitutional mandates in its application to this case of a 1989 statute enlarging a presumption that adopteds take as natural born children unless the terms of the instrument in question manifest an opposite intent by clear and convincing evidence. Ill. Rev. Stat. 1991, ch. 110\u00bd, par. 2 \u2014 4(f).\nThe trust at issue in this case was executed on January 23, 1926. At that time, all of the settlor\u2019s children and grandchildren were natural born. The settlor reserved the right to the trust income for his life, and after his death his wife and his four children were each to receive 20% of the income. Each child\u2019s share of income was to be paid to that child\u2019s \u201clawful descendants\u201d when the child passed away. The trust is to extinguish after the death of the last to die of the settlor\u2019s widow, his four children and his four grandchildren alive in 1926. When the tmst terminates, the corpus is to be distributed \u201camong the lawful descendants of the grantor *** then living, per stirpes.\u201d\nIn order for the reader to understand why the trustees brought the present suit, we must give an overview of Illinois law concerning the inheritance rights of adopted persons. The Illinois adoption statute in force at the time the settlor executed his trust stated:\n\u201cA child so adopted shall be deemed, for the purposes of inheritance by such child, *** the child of the parents by adoption, the same as if he had been born to them 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, nor property from the lineal or collateral kindred of such parents by right of representation.\u201d (Ill. Rev. Stat. 1925, ch. 4, par. 5.)\nOur supreme court similarly stated in 1925:\n\u201cWhen provision is made in a will for the child of some person other than the testator, an adopted child is not included unless there is language in the will or circumstances surrounding the testator at the time he made the will which make it clear that the adopted child was intended to be included.\u201d Smith v. Thomas (1925), 317 Ill. 150, 158.\nThus, at the time the settlor executed the trust, adopted persons were deemed to be excluded from inheriting from persons other than their adoptive parents unless an intent to include the adopted persons was clear. This legal pronouncement, known as the stranger-to-the-adoption rule, was statutorily modified in 1955 when the General Assembly passed a law which stated:\n\u201cFor the purpose of determining the property rights of any person under any written instrument executed on or after September 1, 1955, an adopted child is deemed a natural child unless the contrary intent plainly appears by the terms thereof.\u201d (Emphasis added.) (Ill. Rev. Stat. 1955, ch. 3, par. 165.)\nAt that point in time, the legal pronouncement was altered as to the inheritance rights of adopted persons, regarding the instruments executed after September 1, 1955.\nLater, in 1989, the General Assembly passed legislation altering the presumption to be applied to pre-1955 instruments. The new provision of the Probate Act stated:\n\u201cAfter 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:\n(1) The intent to exclude such child is demonstrated by the terms of the instrument by clear and convincing evidence.\u201d (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 110\u00bd, par. 2 \u2014 4(f)(1).)\nThus, late in 1989, if an instrument executed at any time was unclear on the rights of adopteds to take under the instrument, the presumption in favor of adopteds would apply.\nFollowing enactment of the 1989 statute, attorneys for the adopted and illegitimate persons contacted the trustees of the trust and requested that the adopted and illegitimate persons receive a share of the trust\u2019s income. The trustees had, after the death of the adoptive parent, refused to pay the adoptive parent\u2019s share to his adopted son and illegitimate grandson. The trustees then brought the present suit for construction of the trust to determine the rights of the adopted and illegitimate persons.\nThe trial court found that both the adopted and illegitimate persons were \u201clawful descendants\u201d of the settlor. The nonadopted, nonillegitimate (natural borns) filed a timely appeal.\nIn this court, the natural borns argue: (1) the settlor\u2019s use of the terms \u201clawful\u201d and \u201cdescendents\u201d and the trust\u2019s provision for per stirpes distribution constitute clear proof that the settlor intended to exclude adopteds and illegitimates; (2) the trial judge erroneously applied the principles of Trimble v. Gordon (1977), 430 U.S. 762, 52 L. Ed. 2d 31, 97 S. Ct. 1459, and Reed v. Campbell (1986), 476 U.S. 852, 90 L. Ed. 2d 858, 106 S. Ct. 2234, to a situation involving testate succession; and (3) the trial court\u2019s misapplication of the 1989 statute violates both the doctrine of separation of powers and the due process rights of the settlor and the natural borns.\nThe adopted and illegitimate persons claim: (1) the term \u201cdescendants\u201d did not have a clear and uniform meaning in 1926; (2) a per stirpes distribution does not establish an intent to exclude adopteds; (3) the 1989 statute\u2019s presumption in favor of adopteds applies; (4) the trial court correctly applied Trimble and Reed to avoid asymmetrical discrimination against adopteds and illegitimates; (5) the trial court did not violate the natural borns\u2019 or the settlor\u2019s constitutional rights; and (6) the term \u201clawful\u201d does not exclude illegitimates.\nWhen construing a trust or a will, a court is to give effect to the intent of the settlor or testator, if that intent is not contrary to public policy. (Harris Trust & Savings Bank v. Beach (1987), 118 Ill. 2d 1, 3.) The same rules of construction applicable to wills apply to trusts. (First National Bank v. Canton Council of Campfire Girls, Inc. (1981), 85 Ill. 2d 507, 513.) Moreover, the settlor\u2019s intent is to be determined as of the time the trust was executed (Button v. Elmhurst National Bank (1988), 169 Ill. App. 3d 28, 40), and the settlor is presumed to have known the then-existing law concerning the disposition of. his property when he executed the trust. (Sennot v. Collet-Oser (1976), 36 Ill. App. 3d 928, 933.) When the terms used in a trust are plain and possess a clear meaning, the plain intention will prevail over a presumed intention. Northern Trust Co. v. Winona Lake School of Theology (1978), 61 Ill. App. 3d 966, 971.\nRIGHTS OF ADOPTEDS\nWe address first the issue of adopteds\u2019 rights to take under the trust, since if adopteds are excluded, so too are their illegitimate offspring under a per stirpes distribution. This issue turns on whether the use of the term \u201cdescendants\u201d and the use of a per stirpes method of distribution excluded adopteds in 1926.\n1. \u201cDESCENDANTS\u201d\nThe parties\u2019 briefs make much of the court\u2019s application of differing presumptions in deciding this issue. We believe it is helpful to set out the steps we will follow on this question:\n1. The court looks at the law in effect in 1926, through the prism of the presumption in the 1989 statute, to determine if the terms were then so unambiguously defined that they provide clear and convincing proof of an intent to exclude adopteds.\n2. If the terms were so clearly defined in 1926, the court applies those definitions.\n3. If the terms were not so clearly defined in 1926, the court applies the presumption existing at the time of the court\u2019s decision, i.e., the presumption in the 1989 statute.\nIn a series of cases involving virtually identical language and trusts, our supreme court and this court have had no difficulty in ascertaining a settlor\u2019s actual intent. (Stewart v. Lafferty (1957), 12 Ill. 2d 224; Continental Illinois National Bank & Trust Co. v. Clancy (1959), 18 Ill. 2d 124; Ford v. Newman (1979), 77 Ill. 2d 335; Hale v. Hale (1925), 237 Ill. App. 410; Fischer v. LaFave (1989), 188 Ill. App. 3d 16, appeal denied (1990), 129 111. 2d 563.) An examination of the trust reveals that the settlor unmistakably evidenced his intent to limit the class of beneficiaries to his natural born progeny. First, he employed the term \u201cdescendants,\u201d which in 1926 had an established legal meaning that encompassed only blood offspring. Second, he provided a method of distribution \u2014 per stirpes \u2014 which in 1926 automatically disqualified adopted persons. As in this case, when actual intent is evident, all presumptions, statutory or otherwise, are inapplicable. Here, the settlor manifested his actual intent by using terms which were clearly defined and with settled meaning to limit the class of eligible takers to his blood offspring.\n\u201cDescendants\u201d is a word which had a definite and certain meaning under the Illinois law when the settlor created his trust in 1926. The legal meaning of descendants was first established by our supreme court in Bates v. Gillett, 36 years before the settlor executed his trust. (Bates v. Gillett (1890), 132 Ill. 287.) There, our supreme court held that a descendant is a person \u201cwho is descended from another, \u2014 that is, one who proceeds from the body of another.\u201d (Bates, 132 Ill. at 297.) It is coextensive with issue, but does not embrace others not of issue. (Bates, 132 Ill. at 297.) The court added that \u201cdescendant\u201d is a good term of description and that the foregoing meaning is the ordinary meaning applied to the word \u201cdescendants,\u201d not only by the profession but by the laity, i.e., even laymen would understand without edification from legal counsel that \u201cdescendants\u201d did not include adopteds.\nIn Rasmusson v. Unknown Wife of Hoge (1920), 293 Ill. 101, 107, decided six years before the settlor executed his trust, the supreme court cited Bates v. Gillett and reiterated its definition that \u201cdescendants\u201d is a broader term than children and includes all lineal heirs in the descending line from the person or all who proceed from his body. In 1925, the year before the settlor here executed his trust, the appellate court reconfirmed the definition and meaning of \u201cdescendant\u201d in Hale v. Hale (1925), 237 Ill. App. 410, 413, The appellate court observed that the testator did not use the word \u201cchildren\u201d or \u201cheirs,\u201d which arguably might have included adopteds, but rather used the word \u201cdescendants,\u201d thereby indicating an intention to exclude those who are not descendants of a deceased beneficiary even though such deceased beneficiary might leave surviving heirs who had the legal status of children.\nOur supreme court in Continental Illinois National Bank & Trust Co. v. Clancy stated:\n\u201cThe term \u2018issue\u2019 was then [in 1928] synonymous with \u2018descendants\u2019 and meant those descending or issuing out of the stock or blood. It did not include strangers to the blood.\u201d (Continental Illinois National Bank & Trust Co. v. Clancy (1959), 18 Ill. 2d 124, 128.)\nThe supreme court held that an adopted grandchild could not be a beneficiary of a 1928 trust, a trust made just two years after the trust in this case.\nThe Appellate Court, Second District, in Wielert v. Larson (1980), 84 Ill. App. 3d 151, reviewing the effect of the 1955 Probate Act stated:\n\u201cFirst, the ordinary definition of the word \u2018descendant\u2019 or \u2018issue\u2019 or the meaning of phrases such as \u2018issue of their bodies\u2019 or \u2018heirs of their bodies\u2019 have always meant and still continue to mean in their ordinary usage those descending or issuing out of the stock or blood. In their ordinary meaning these words or phrases have never included adopted children.\u201d Wielert, 84 Ill. App. 3d at 154.\nThe court continued and pointed out that legislation in 1955 changed the definition of \u201cdescendants\u201d by declaring that the 1955 enactment altered the term \u201cdescendant\u201d by stating that a \u201cchild lawfully adopted is deemed a descendant.\u201d (Ill. Rev. Stat. 1955, ch. 3, par.. 165; Wielert, 84 Ill. App. 3d at 153.) The court then stated:\n\u201cBut it is equally clear that by the 1955 amendment to the Probate Act (Ill. Rev. Stat. 1955, ch. 3, par. 165) the legislature has continued to broaden the definition of the word \u2018descendant\u2019 as used for inheritance purposes beyond that of its ordinary meaning ***.\u201d (Emphasis added.) Wielert, 84 Ill. App. 3d at 154.\nIn its ordinary meaning, \u201cdescendant\u201d never included adopted children. Hence, the settlor\u2019s intent is clear when the settlor used the term \u201cdescendants,\u201d because in 1926 and prior to 1955 \u201cdescendants\u201d was both legally and ordinarily defined as excluding adopteds.\nThe dissent implies that in order for the appellants to have sustained their burden which the dissent has imposed, the settlor was required to include words somewhere within the trust document to the effect \u201cwhen I say descendant I do not mean adopteds.\u201d Such a statement would be required post-1955 but not pre-1955. Ironically, based upon the law in existence at the time of the execution of the document, such language would have been deemed superfluous and would have raised doubts as to the clear intent of the testator because it would raise the inference that the settlor did not understand either the ordinary or the legal definition of the term \u201cdescendants.\u201d Having determined that there was no ambiguity in the term \u201cdescendants,\u201d we determine the settlor\u2019s clear intent was to exclude adopteds.\nInsofar as the per stirpes issue is concerned, we believe that when one interprets per stirpes in pari materia to the term \u201cdescendants\u201d it is clear that, based upon the law at the time the document was executed, adopteds were excluded and they could not inherit by representation. Belfield v. Findlay (1945), 389 Ill. 526.\nRIGHTS OF ILLEGITIMATES\nPreviously, we stated that illegitimates do not take because the illegitimate in this case could only take through the adopted person. However, assuming arguendo the adopted would take under this trust, we still determine the illegitimate\u2019s right to take also fails based upon the following rationale.\nThe natural borns argue that the settlor\u2019s use of the term \u201clawful\u201d before the word \u201cdescendants\u201d shows his intent to prohibit illegitimate descendants from taking under the trust. Again, we must look at the state of the law in 1926 to determine whether the term \u201clawful\u201d meant \u201clegitimate.\u201d It is important to note, however, that the 1989 statute applies only to adopteds, not to illegitimates. Thus, when examining what the term \u201clawful\u201d meant in 1926, we do not look through the prism of a presumption requiring clear and convincing proof. We look to see only what the \u201cplain and ordinary\u201d meaning of the term \u201clawful\u201d was in 1926. (Feder v. Luster (1973), 54 Ill. 2d 6, 11.) We find that, in 1926, the term \u201clawftd\u201d ordinarily meant \u201clegitimate.\u201d\nIn Marsh v. Field (1921), 297 Ill. 251, our supreme court stated, \u201cobviously, [the term] \u2018leaving lawful issue\u2019 cannot include illegitimates.\u201d (Marsh, 297 Ill. at 255.) The court then explained that both the terms \u201cissue\u201d and \u201clawful issue\u201d ordinarily meant legitimate issue. (Marsh, 297 Ill. at 257.) Similarly, the court in 1920 stated:\n\u201cIt is a rule of construction that prima facie the word \u2018child\u2019 or \u2018children,\u2019 when used in a statute, will or deed, means legitimate child or children, and will not be extended, by implication, to embrace illegitimate children unless such construction is necessary to carry into effect the manifest purpose of the legislature, the testator or the grantor.\u201d Murrell v. Industrial Comm\u2019n (1920), 291 Ill. 334, 336, overruled by Yellow Cab Co. v. Industrial Comm\u2019n (1969), 42 Ill. 2d 226.\nIn Stearns v. Stearns (1941), 376 Ill. 283, the court held that a \u201ctestator\u2019s bequests to \u2018grandsons\u2019 and the trust provisions for \u2018lawful grandchildren\u2019 [were] to legitimate grandchildren.\u201d (Stearns, 376 Ill. at 289.) The court noted that its conclusion was supported by circumstances surrounding the execution of the 1888 will and its testamentary trust. (Stearns, 376 Ill. at 290-91.) For example, the testator took great care when drafting his will to name only his legitimate grandchildren, even though he knew of his illegitimate grandson\u2019s existence. Stearns, 376 Ill. at 290.\nFinally, as late as 1991, the court in Harris Trust & Savings Bank v. Donovan (1991), 145 Ill. 2d 166, 173, held that the term \u201clawful\u201d meant \u201clegitimate\u201d where a settlor in his 1982 trust defined \u201cchildren\u201d and \u201cdescendants\u201d as \u201conly lawful blood children.\u201d The court also noted that its construction of the word \u201clawful\u201d as meaning \u201clegitimate\u201d was in line with other States\u2019 decisions. Donovan, 145 Ill. 2d at 173.\nWe thus conclude that the term \u201clawful descendants\u201d meant legitimate descendants in 1926. We also find that the illegitimate person\u2019s attempts to explain away the language in Marsh, Stearns and Donovan are unpersuasive, in part because we are not viewing the law in 1926 in light of a presumption requiring clear and convincing proof of the settlor\u2019s intent. Accordingly, the illegitimate person here may not share in the trust.\nHaving determined that neither adopteds nor illegitimates are entitled to take under the trust agreement, the constitutional issues \u25a0 raised by defendants need not be decided by this court. People v. Rogers (1989), 133 Ill. 2d 1, 8; In re Harrison (1983), 120 Ill. App. 3d 108, 111.\nIn sum, we reverse the trial court\u2019s judgment finding that the adopted person and the illegitimate person may take under the terms of the trust.\nReversed.\nQUETSCH, J., concurs.", "type": "majority", "author": "JUSTICE McLAREN" }, { "text": "PRESIDING JUSTICE INGLIS,\ndissenting:\nI respectfully dissent from that portion of the majority opinion prohibiting adopteds from taking under the trust. In my view, the 1989 statute requiring clear and convincing evidence of an intent to exclude adopteds in an instrument executed at any time mandates that the adopteds share in the trust in this case.\nI agree that the term \u201cdescendants\u201d ordinarily meant only blood kin in 1926, when the trust was executed. If we were construing the trust under normal circumstances, with words to be given their \u201cplain and ordinary\u201d meaning (Feder v. Luster (1973), 54 Ill. 2d 6, 11), adopteds would not take under the trust. However, the 1989 statute changed the prism through which we must examine the trust\u2019s language.\nThe trust\u2019s use of the terms \u201cdescendants\u201d and \u201cper stirpes\" does not convince me that the settlor even considered the question of adopted heirs, much less convince me that he intended to exclude them. The majority does not give the 1989 statute its intended effect and, in fact, renders it a nullity by making the \u201cclear and convincing evidence\u201d test and the \u201cplain and ordinary language\u201d test indistinguishable.\nContrary to the majority\u2019s inferences, I do not believe that the settlor would have to have said \u201cI intend to exclude adopteds\u201d in order to do so, although that might have been the best course. The term \u201cblood descendants\u201d would have met the test of the 1989 statute.\nThe 1989 statute changed the rules of the game in significant fashion. The majority refuses to give the statute its full effect, and for this reason, I dissent.", "type": "dissent", "author": "PRESIDING JUSTICE INGLIS," } ], "attorneys": [ "James W. Hitzeman, of Sidley & Austin, of Chicago (James J. Carroll, of counsel), for appellants.", "Samuel W. Witwer, Jr., and Brian M. Waldron, both of Witwer, Burlage, Poltrock & Giampietro, and John T. Brooks, Christopher W. Zibart, Cathryn Ruggeri, and James R. Hellige, all of Hopkins & Sutter (William P. Sutter, of counsel), both of Chicago, for appellees.", "Franklin W. Nitikman and Roger W. Wenthe, both of McDermott, Will & Emery, of Chicago, for amicus curiae." ], "corrections": "", "head_matter": "CONTINENTAL BANK, N.A., et al., Plaintiffs-Appellees. v. NORMA N. HERGUTH et al., Defendants-Appellants (Harold J. Neubrand et al., Defendants-Appellees).\nSecond District\nNo. 2 \u2014 92\u20140806\nOpinion filed July 29, 1993.\nRehearing denied August 27, 1993.\nINGLIS, P.J., dissenting.\nJames W. Hitzeman, of Sidley & Austin, of Chicago (James J. Carroll, of counsel), for appellants.\nSamuel W. Witwer, Jr., and Brian M. Waldron, both of Witwer, Burlage, Poltrock & Giampietro, and John T. Brooks, Christopher W. Zibart, Cathryn Ruggeri, and James R. Hellige, all of Hopkins & Sutter (William P. Sutter, of counsel), both of Chicago, for appellees.\nFranklin W. Nitikman and Roger W. Wenthe, both of McDermott, Will & Emery, of Chicago, for amicus curiae." }, "file_name": "0292-01", "first_page_order": 312, "last_page_order": 321 }