Tilliski v. Martin (In re Tilliski's Estate)
Decision Date | 21 May 1945 |
Docket Number | No. 28371.,28371. |
Citation | 390 Ill. 273,61 N.E.2d 24 |
Parties | In re TILLISKI'S ESTATE. TILLISKI et al. v. MARTIN. |
Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Appellate Court, Fourth District, on Appeal from Circuit Court, Franklin County; W. Joe Hill, Judge.
Proceeding in the matter of the estate of Mary Elizabeth Tilliski, deceased. A judgment of the circuit court entitling the deceased's daughter, Sarah A. Martin, notwithstanding her adoption by others, to inherit a child's share from her mother's estate was affirmed by the Appellate Court, 323 Ill.App. 490, 56 N.E.2d 481, and August Tilliski, the administrator, and others, appeal by permission.
Affirmed.
Moses Pulverman, of Benton, for appellants.
Frank E. Trobaugh and Stephen E. Brondos, both of West Frankfort, for appellee.
Sarah A. Martin, appellee, is the daughter of Mary E. Tilliski. In the year 1900 Sarah was legally adopted by T. J. and Sarah Armstrong by decree duly entered in the county court of Williamson county. Mary E. Tilliski died October 9, 1940, leaving her surviving her husband, August Tilliski, Sarah A. Martin, the daughter, Daisy Walton, a sister, and Sarah Kaesberg, a niece. The adoptive parents of Sarah A. Martin died previous to the death of her natural mother, and from them she inherited property.
The sole issue for determination is whether appellee, being an adopted child, can inherit a child's share from the estate of her mother. The pleadings and facts out of which this question arises are adequately set out in the opinion of the Appellate Court in 323 Ill.App. 490, 56 N.E.2d 481, and need not be restated, as both parties agree there is only one issue for decision. The county court and the circuit court of Franklin county, where Mary E. Tilliski resided at the time of her death, held appellee was not deprived of the right to inherit from her mother by reason of being an adopted child of another. On appeal to the Appellate Court for the Fourth District the judgment of the circuit court was affirmed. We have allowed an appeal to this court.
The case involves the construction of the provisions of the Probate Act in reference to devolution of property upon death intestate, Ill.Rev.Stat.1943, chap. 3, pars. 162-165, and also parts of the Adoption Act. Ill.Rev.Stat.1943, chap. 4. The Probate Act became effective January 1, 1940, and includes the former statute of 1872 on descent, Ill.Rev.Stat.1937, chap. 39, and sections 5, 6 and 7 of the former Adoption Act, Ill.Rev.Stat.1937, chap. 4, all being incorporated in the Probate Act as part of article II, entitled ‘Descent, Distribution, and Dower.’
It is the contention of appellant that certain changes were made in the former adoption and descent statutes, which evidence an intention upon the part of the Legislature to preclude an adopted child from inheriting from his or her natural parents. To analyze this contention it is perhaps well to ascertain what, if any, substantial change is brought about by incorporating what was formerly designated the descent statute and parts of the adoption statute into the Probate Act. And first, with reference to the language used for the descent of property in case of intestacy, section 11 (par. 162) provides for the descent of property in such case: ‘when there is a surviving spouse and also a descendant of the decedent: (a) to the surviving spouse one-third of the personal estate and one-third of each parcel of real estate of which the decedent died seized * * * and (b) to the decedent's descendants per stirpes two-thirds of the personal estate, * * *.’
It will be noted that in the Probate Act the word ‘descendants' takes the place of ‘child’ and the ‘descendants of a child or children,’ used in the former statute of descent, and in like manner the word ‘descendants' is used to cover the various contingencies under which property passes by intestacy. The word ‘descendant’ means one who is descended lineally from another to the remotest degree. Wyeth v. Crane, 342 Ill. 545, 174 N.E. 871;Bates v. Gillett, 132 Ill. 287, 24 N.E. 611. Section 14 (par. 165) of the Probate Act provides for the descent of property as between as adopted child and an adoptive parent, and this paragraph takes the place of sections 5, 6 and 7 of the former Adoption Act. While there is some difference between the phraseology of section 14 of the Probate Act and sections 5, 6 and 7 of the former Adoption Act, yet in substance they are the same. All of the other provisions of the Adoption Act remain unchanged. Section 14 provides: ‘A child lawfully adopted is deemed a descendant of the adopting parent for purposes of inheritance, * * *.’ This language, in so far as an adopted child and adoptive parents are concerned, places the child in the same relative position as that of a natural child in relation to its natural parents under section 11, where it is referred to as a ‘decedent's descendant.’ It is, however, first to be noted that, under section 11, the inheritance goes to ‘decedent's descendants per stirpes,’ whereas under section 14 there is added, as a limitation to inheritance, the words ‘except that the adopted child shall not take property from the lineal or collateral kindred of the adopting parent per stirpes.’
The contention is made by appellant that since an adopted child in case of the death of the adopting parent is deemed a descendant, therefore the term is exclusive of whom it may be a descendant, and therefore the child may no longer be regarded as a descendant of a natural parent. There seems to be no decision in Illinois passing squarely upon the right of an adopted child to inherit from its natural parents. The right of the adopted child to take from its natural parents is inferentially recognized in the last clause of section 6 of the prior Adoption Act by the use of these words: ‘but the parents by adoption and their heirs shall not inherit any property which such child may take or have taken, by gift, bequest, devise or descent, from his kindred by blood.’ This language was used to clarify a precedingsentence in the same section, which provides: ‘The parents by adoption and their heirs shall take by descent, from any child adopted * * * only such property as he has taken or may hereafter take from or through the adopting parents.’ The purport of section 6 of the old act and section 14 of the Probate Act is the same, because both in the old law and the new, the parents by adoption and their kindred are eligible to inherit, from the adopted child, only property received by such child through either or both of the adopting parents.
The contention that the use of the word ‘descendants' in reference to heirship, both of natural and adopted children, has the effect of excluding a natural child from inheriting from its parent is without force. The only effect of the use of the word ‘descendant’ in both sections 11 and 14 is to synchronize their meaning as to the inheriting by the child from the parent described in the respective sections. In section 11 it is the descendant of a natural parent to which reference is made; in section 14 it is the adopted child, as a descendant of the adopting parent, to which reference is made. In other words, the adopted child under section 14 is given the legal standing of a descendant (with certain exceptions) as to adopting parents, similar to that given, by the use of the same term, in section 11, where adoption is not involved. There is nothing in the Probate Act, nor is there anything in the superseded statutes of descent and adoption to indicate that the natural child and the natural parents no longer have such status by reason of adoption of the child. The restrictions in the prior adoption statute and in section 14 of the Probate Act, as to the rights of the adopted child, are strictly limited to inheritance from the adopting parent, with no reference whatsoever to the natural parent, with certain exceptions to which we now refer.
There is no limitation upon the right of a descendant to inherit from natural parents under section 11. There are, however, in section 14, limitations upon the right of the adopted child to inherit from the adopting parent, which are as follows: (1) ‘the adopted child shall not take property from the lineal or collateral kindred of the adopting parent per stirpes or property expressly limited to the body of the adopting parent.’ The same provision, in slightly different language, is to be found in section 5 of the prior Adoption Act, viz., ‘except that he (the adopted child) 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.’ ‘Per stirpes' and ‘representation’ as used above are synonymous terms. 2 Bouv.Law Dict., Rawle's Third Revision, p. 2558. (2) ‘When an adopted child is related by blood to the adopting parent, the adopted child and his descendants shall take property from the estate of the adopting parent only as an adopted child or descendants of an adopted child and not as relatives by blood.’ Probate Act, sec. 14. This exception was not in the former adoption statute. (3) An adopted child cannot inherit as heir property limited to the issue of the body of the adopting parent. Adoption Act, sec. 5; Probate Act, sec. 14.
We have just noted the provisions of the Adoption Act which have been superseded by, and included within, the Probate Act. There are other sections, however, of the Adoption Act which require consideration. Section 3 is still in force, not being affected by the Probate Act, and, among other things, provides that upon the filing of a petition, and a hearing thereon, a decree may be made ‘setting forth the facts and ordering that from the date of the decree the child shall, to all legal intents and purposes, be the child of the petitioner * * *.’ Section 8 of the Adoption Act...
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