In re Estate of Roller

Filed 11/16/07 NO. 4-06-0964

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: the Estate of ANDREW ROLLER, ) Appeal from the
Deceased, ) Circuit Court of
RONALD E. ROLLER, ) Douglas County
Petitioner-Appellant, ) No. 64CH1299
v. )
LEOMA ALLISON and RUTH ANN DAVIS, )
Coguardians of the Estate of EDWARD )
R. ROLLER, a Disabled Person; and )
RUTH ANN DAVIS, Individually, )
Respondents-Appellees, )
and )
ALMA SANDERS; MARION ANDREW SANDERS; )
THERESA CURTIS HUNT; RONALD E. ROLLER; )
LEOMA ALLISON and RUTH ANN DAVIS; )
Coguardians of the Estate of EDWARD R. )
ROLLER, a Disabled Person; RUTH ANN )
DAVIS, Individually; the Unborn )
Descendants of ALMA R. SANDERS, MARION )
ANDREW SANDERS, THERESA CURTIS HUNT, ) Honorable
RUTH ANN DAVIS, and EDWARD R. ROLLER; ) Frank W. Lincoln,
and UNKNOWN OWNERS, Respondents. ) Judge Presiding.

JUSTICE MYERSCOUGH delivered the opinion of the court:

On November 1, 2006, and November 20, 2006, the trial

court entered written orders granting motions for summary
judgment filed by respondents, Leoma Allison (Leoma) and Ruth Ann

Davis (Ruth Ann), which sought to exclude Ronald E. Roller

(Ronald) from the Andrew Roller Trust (Trust) by virtue of the

fact that he was an adopted child. The order declared that

Ronald was not entitled to receive any proceeds from the Trust,

either income or principal, because the terms of the Trust

demonstrated clear and convincing evidence that Andrew, the

settlor, intended to exclude adopted children. Ronald appeals,
arguing that the terms of the Trust do not overcome the statutory

presumption enacted in 1989 that favors including adopted

children in written instruments created prior to September 1,

1955. We agree and reverse.

I. BACKGROUND

On October 1, 1948, Andrew Roller (Andrew) executed his

last will and testament which incorporated a trust agreement, the

Trust at issue, entered into on March 22, 1948. The Trust

provided that upon Andrew's death the Trust income was to be used

for the care of his wife, Pauline Roller (Pauline), and his

children, Raymond Roller (Raymond) and Alma Roller, n/k/a Sanders

(Alma). Upon Pauline's death, the Trust income was to be used

for the benefit of Raymond and Alma. Upon the death of Raymond

or Alma, his or her share was to be distributed to his or her

"natural children." The Trust further provided that should any

of Alma or Raymond's natural children predecease Alma or Raymond,

that child's share shall be paid over to the "heirs of the body"

of that child. Finally, upon the death of Alma and Raymond, the

Trust assets were to be liquidated and divided between "the heirs

of the body" of Raymond and Alma.

The trial court's order on summary judgment explicitly

held that no genuine issue of material fact existed regarding

paragraphs five and six of the Trust. The first three paragraphs

of the Trust provide for the management and distribution of

Andrew's various real-estate holdings. Paragraphs five and six

of the Trust state as follows:

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 "5. After the death of first party and

the death of said [Pauline], second party

shall continue to operate said real estate as

hereinbefore set forth, and shall divide the

net income after payment of necessary

expenses as provided in paragraph 3 hereof

and amortization of any incumbrance on said

real estate and retention of an adequate

operating reserve, (the amount of said

reserve to be at the discretion of second

party) equally between [Alma] and [Raymond].

However, should either the said [Alma] or

Raymond] fail to provide an adequate

education and adequate maintenance for their

children, second party is authorized to

provide for the education and maintenance of

said children out of their parents' share,

before making distribution to the parent.

Said distributions to said [Alma] and

[Raymond], and upon the death of said [Alma]

or the said [Raymond], the share in the

income herein payable to the said [Alma] or

[Raymond], whichever shall die first, shall

be paid in equal shares to the natural

children of said decedent [Alma] or [Raymond]

until the death of the survivor of the said

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[Alma] and [Raymond]. Should any of the said

natural children of [Alma] or [Raymond],

predecease their parent, leaving heirs of

their body, which child's share shall be paid

over to the heirs of the body of such child.

6. Upon the death of both [Alma] and

[Raymond], second party shall convert all of

the trust property into cash within a

reasonable time, at his discretion, and not

to exceed, at all events, five (5) years, and

shall divide said fund into two (2) equal

parts; one part shall be distributed to the

heirs of the body of said [Alma] in equal

shares per stirpes and not per capita, and

the other share shall be distributed to the

heirs of the body of said [Raymond] in equal

shares per stirpes and not per capita.

Should either of said [Alma] or [Raymond]

leave no heirs of their body surviving at the

time of the death of the survivor of said

[Alma] and [Raymond], then the entire fund

shall be paid to the heirs of the body of

said [Alma] or [Raymond] surviving at the

time of the death of the survivor of them,

then the fund shall be paid to the heirs at

law of first party according to the Statute

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 of Descent of the State of Illinois."

Andrew died on August 5, 1950. His wife, Pauline, died

on July 22, 1993. Andrew's daughter, Alma, had two children,

Marion Sanders (Marion) and Paula Mantel (Paula). Paula died in

January 2004. Paula had two children, Frederick Miller (Freddie)

and Theresa Curtis Hunt (Theresa).

Andrew's son, Raymond, died on December 8, 2005.

Raymond had a total of three children. Raymond had two children,

Edward Roller (Edward) and Ruth Ann, with his first wife, Leoma.

Edward Roller is a disabled person who is the ward of Leoma and

Ruth Ann. Raymond's third child is Ronald. Ronald is the

biological son of Raymond's second wife, Josephine Roller

(Josephine). Raymond adopted Ronald on April 10, 1953. At the

time of his death, Raymond was married to his third wife, Dorothy

Roller (Dorothy). Raymond and Dorothy did not have any children

together.

Upon Raymond's death in 2005, one-half of the Trust

income that had been distributed to Raymond was to be divided per

the terms of the Trust to his heirs. After Raymond's death, the

Trust income was divided one-half to Alma and one-half to the

heirs of Raymond--Edward, Ruth Ann, and Ronald.

On April 17, 2006, Leoma (Raymond's first wife and

Edward's coguardian) and Ruth Ann (Raymond's daughter and

Edward's coguardian) (hereinafter Leoma and Ruth Ann) filed a

"Memorandum Concerning Construction of Will of Andrew Roller,"

which argued that Ronald should not receive a share of the Trust

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income or assets because he was Raymond's adopted son.

On June 23, 2006, the First National Bank of Danville

(Bank) filed a complaint requesting the trial court to instruct

the Bank, as trustee, as to the proper distribution of income and

principal among the Trust beneficiaries. The Bank also requested

that the court appoint a guardian ad litem (GAL) to represent

unborn and unknown beneficiaries. Accordingly, the trial court

appointed a GAL.

On September 6, 2006, Leoma and Ruth Ann filed a motion

for summary judgment asking the court to find that Ronald should

not take under the Trust due to his status as an adopted child.

Leoma and Ruth Ann supported their motion with a memorandum in

support of their motion, as well as a memorandum concerning the

construction of the Trust.

On September 13, 2006, Alma and her children, Marion

and Theresa, answered the complaint filed by the Bank.

On October 3, 2006, Ronald answered the complaint filed

by the Bank and filed a response to Leoma and Ruth Ann's motion

for summary judgment along with a memorandum in support of his

response. Ronald relied on section 2-4 of the Probate Act of

1975 (Act) (755 ILCS 5/2-4 (West 2006)) to support his position

that he was not excluded from the Trust. Section 2-4 of the Act

provides:

"(a) An adopted child is a descendant of

the adopting parent for purposes of

inheritance from the adopting parent and from

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the lineal and collateral kindred of the

adopting parent and for the purpose of

determining the property rights of any person

under any instrument, unless the adopted

child is adopted after attaining the age of

18 years and the child never resided with the

adopting parent before attaining the age of

18 years, in which case the adopted child is

a child of the adopting parent but is not a

descendant of the adopting parent for the

purposes of inheriting from the lineal or

collateral kindred of the adopting parent.

***

* * *

(e) For the purpose of determining the

property rights of any person under any

instrument executed on or after September 1,

1955, an adopted child is deemed a child born

to the adopting parent unless the contrary

intent is demonstrated by the terms of the

instrument by clear and convincing evidence.

(f) 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

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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.

(2) An adopting parent of an

adopted child, in the belief that the

adopted child would not take property

under an instrument executed before

September 1, 1955, acted to

substantially benefit such adopted child

when compared to the benefits conferred

by such parent on the child or children

born to the adopting parent. ***

(i) 'Acted' means that

the adopting parent made one

or more gifts during life

requiring the filing of a

federal gift tax return or at

death (including gifts which

take effect at death), or

exercised or failed to

exercise powers of appointment

or other legal rights, or

acted or failed to act in any

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 other way.

(ii) Any action which

substantially benefits the

adopted child shall be

presumed to have been made in

such a belief unless a

contrary intent is

demonstrated by clear and

convincing evidence." 755

ILCS 5/2-4 (West 2006).

Leoma and Ruth Ann filed a responsive pleading on

October 5, 2006, which was received by Ronald's counsel on

October 10, 2006, the morning of the hearing on the motion for

summary judgment. Leoma and Ruth Ann's responsive pleading

argued that Ronald was precluded from the Trust based on the

statutory exemption found in section 2-4(f)(2) of the Act, which

states that the presumption in favor of the adopted child will

not be applied when the adopting parent makes a substantial gift

to the adopted child under the adopting parent's belief that the

adopted child will not benefit from a written instrument executed

prior to September 1, 1955.

Leoma and Ruth Ann argued that, upon his death, Raymond

substantially benefitted Ronald to the detriment of his other two

children, Edward and Ruth Ann, because Raymond had specifically

excluded both Edward and Ruth Ann from his will and awarded

Ronald the bulk of his estate. Leoma and Ruth Ann asked the

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court to take judicial notice of Douglas County probate case, No.

2005-P-49, which dealt with the estate of Raymond.

At the motion hearing on October 10, 2006, Leoma and

Ruth Ann argued that section 2-4(f), which was added in 1989, did

not change the fact that the court must look to the testator's

intent. Leoma and Ruth Ann argued that sections 2-4(f)(1) and

(f)(2) precluded Ronald from taking under the Trust. Under 2-

4(f)(1), the presumption in favor of the adopted child may be

overcome by clear and convincing evidence of the testator's

intent to exclude adoptees from his will. 755 ILCS 5/2-4(f)(1)

(West 2006). Section 2-4(f)(2) states that the presumption in

favor of adoptees is overcome if the adopting parent makes a

substantial gift to the adopted child under the belief that the

adopted child will be excluded from a written instrument executed

prior to September 1, 1955. 755 ILCS 5/2-4(f)(2) (West 2006).

Ronald's counsel argued that the newest responsive

pleadings that added Leoma and Ruth Ann's claim under section 2-

4(f)(2) revealed that considerable factual questions were in

dispute, making summary judgment premature. Ronald's attorney

argued that Raymond's gift to Ronald was substantially less than

the share of the Trust to which Ronald is entitled. Ronald's

attorney stated that Leoma and Ruth Ann's counsel had represented

to him that the estate of Andrew "is probably worth three to four

million dollars." Ronald's attorney argued that Ronald received,

at most, $60,000 from Raymond's estate, comparably less than the

share of the Trust to which he is entitled. Ronald's counsel

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further argued that there was not enough evidence of Raymond's

intent to satisfy section 2-4(f)(2), which states that the

"substantial" gift must be made by the adopted parent "in the

belief" that the adopted child will not take under the will.

Leoma and Ruth Ann's attorney argued that there was no

factual dispute, stating that, "[W]hether it's he left $5,000 or

he left 50 cents, the fact is, [Raymond] benefitted the adopted

child over his own natural children, and that's exactly what the

[l]egislature allowed an exception for." They argued that the

issue was whether Raymond benefitted his adopted son over his

natural children in his will and not the size of the gift Raymond

made to Ronald.

Ronald's attorney countered that the gift of $60,000

was not a substantial benefit in light of the estimated value of

Andrew's estate, which was $3 to $4 million. Ronald's attorney

argued that nothing in Andrew's estate planning documents shows

clear and convincing evidence of his intent to exclude adopted

children. Ronald's attorney argued that the supreme court's

decision in First National Bank v. King, 165 Ill. 2d 533, 651

N.E.2d 127 (1995), held that the statute expanded the evidentiary

presumption that an adopted child is a natural child and,

therefore, Andrew's use of the term "natural children" does not

function to exclude Ronald from the Trust.

The trial court questioned Ronald's attorney whether

the statute, section 2-4, was in effect when the will was made in

1948. Ronald's counsel argued that whether the statute was in

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existence when Andrew drafted the documents creating the Trust

was irrelevant, because the presumption applied retroactively.

The trial court stated, "But none of this was known to Andrew

Roller. *** [S]o the [l]egislature is remaking his documents?"

Ronald's counsel, Andrew Bequette, answered, "No," and the trial

court responded, "Yes, they are, Mr. Bequette." Ronald's counsel

argued that the presumption in the statute in favor of adoptees

is rebuttable, but that the case law in Illinois states that the

words "natural children" and "heirs of the body" alone are not

enough to rebut the presumption.

The GAL argued that, although the supreme court in King

based its opinion on the dissenting justice in Continental Bank,

N.A. v. Herguth, 248 Ill. App. 3d 292, 617 N.E.2d 852 (1993), the

dissent in Continental acknowledged that the outcome would be

different in that case had a term involving bloodline been used.

The GAL argued that the dissent in Continental, on which King

relied, actually affirms Leoma and Ruth Ann's position that

Ronald should be excluded from the Trust. Finally, the GAL

argued that the amount of Raymond's gift in comparison to the

portion of the Trust he would receive did not matter; rather, the

statute directs the trial court to look at the amount of

Raymond's gift in comparison to his own gifts to his other

children.

Leoma and Ruth Ann's attorney argued that the case law

in Illinois, particularly King, did not change the fact that the

trial court must look to the intent of the testator at the time

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the written instrument was executed. Leoma and Ruth Ann's

attorney stated, "This child was not adopted until after [Andrew]

died. Therefore, he didn't even contemplate adopted children."

Ronald's attorney countered that Ronald agreed that Andrew did

not contemplate adopted children; and therefore, no clear and

convincing evidence showed that Andrew intended to preclude

adopted children.

At the conclusion of the hearing, the trial court took

the matter under advisement. The court granted Ronald seven days

to respond to the pleading filed by Leoma and Ruth Ann earlier

that morning regarding the application of section 2-4(f)(2).

In Ronald's reply, he argued that Leoma and Ruth Ann

raised an issue of material fact that defeats their motion for

summary judgment. Also, Ronald acknowledged that he receive two-

thirds of his father Raymond's estate, which was a total of

$39,683.35. Attached to his reply, Ronald submitted an affidavit

alleging that his father, Raymond, excluded his sister Ruth Ann

from his will because he did not approve of her "life choices."

Ronald further alleged in the affidavit that Raymond and Ruth Ann

had not spoken in 20 or more years prior to Raymond's death.

On November 1, 2006, the trial court entered a docket

order and filed a memorandum opinion. The court's opinion held

that there was no issue of material fact regarding paragraphs

five and six of the Trust. The court found that Andrew limited

the right to receive income from the Trust principal to the

natural children of his children and excluded adopted children

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from the right to receive principal from the Trust. Therefore,

the court held Ronald was not entitled to a share of either the

Trust income or principal.

The trial court held that Alma was to receive one-half

of the net income of the Trust annually until her death. Upon

her death, the Trust assets will be liquidated and divided into

two parts, with one part passing to Alma's children per stirpes

and not per capita. The order also provided that Ruth Ann and

Edward shall each receive one-half of the net income of the trust

annually until Alma's death. Upon Alma's death, Edward and Ruth

Ann will receive one-half of the liquidated assets of the Trust

per stirpes and not per capita.

The trial court provided that a written order shall be

presented for entry on November 20, 2006. On November 20, 2006,

the trial court entered a written order incorporating the same

findings contained in its memorandum opinion and docket entry

dated November 1, 2006.

The memorandum decision filed by the trial court cited

Black's Law Dictionary's definition of "natural," which stated

inter alia, "3. Brought about by nature as opposed to artificial

means ***," and "6. Of or relating to birth ." Black's Law Dictionary 1048

(7th ed. 1999). In addition the court relied on various passages

from Continental Bank, 248 Ill. App. 3d 292, 617 N.E.2d 852.

The trial court held that Andrew's intent is determined

as of the time the Trust was executed, and when Andrew formed the

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Trust in 1948 an adopted person did not share in the estate of

anyone other than his adopted parent. The court further found

that Andrew is presumed to have known the existing law at the

time concerning the disposition of his property.

The trial court stated its order:

"If [Andrew] had merely said 'children' of

the said [Alma] and [Raymond], then adopted

children of such child of [Andrew] would not

have been excluded from [Andrew's] estate.

However, [Andrew] specifically limited his

gift over to the 'natural children' of [Alma]

and [Raymond], or the [']heirs of their

body,['] thus meaning a blood descendant of

[Andrew] and demonstrating, by clear and

convincing evidence, an intent on the part of

[Andrew] to exclude adopted children of his

children."

The trial court found no just reason to delay the appeal or

enforcement of the order. However, the court did find that an

issue of fact remained that could not be resolved on summary

judgment, i.e., under the second exception of section 2-4(f):

whether Raymond's will conferred a substantial gift on Ronald,

and if so, whether Raymond made such a gift under the belief that

Ronald would be excluded from Andrew's will. Because the trial

court found that Ronald was excluded any "clear and convincing

evidence" under section 2-4(f)(1), the unresolved facts regarding

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whether Raymond's will substantially benefitted Ronald as

required under section 2-4(f)(2) did not prevent the court from

awarding summary judgment in favor of Leoma and Ruth Ann.

This appeal followed.

II. ANALYSIS

Summary judgment is appropriate "[w]hen the pleadings,

affidavits, depositions, admissions, and exhibits on file viewed

in the light most favorable to the nonmoving party reveal there

is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law." Follis v. Watkins, 367

Ill. App. 3d 548, 556, 855 N.E.2d 579, 586 (2006). The trial

court found, "The later exception of 755 ILCS 5/2-4(f)(2) is a

question of fact which may not be determined on a motion for

summary judgment." Because the trial court found that an issue

of material fact remained regarding whether the exception in

section 2-4(f)(2) applies, the order before this court is one of

partial summary judgment. Accordingly, our review of the trial

court's grant of partial summary judgment is de novo. American

Service Insurance Co. v. Pasalka, 363 Ill. App. 3d 385, 389, 842

N.E.2d 1219, 1224 (2006).

A. The Trial Court Erred in Granting Leoma and Ruth Ann's
Motion for Summary Judgment

The trial court found that the language of the Trust in

paragraphs five and six, "natural children" and "heirs of the

body," provided clear and convincing evidence that Andrew

intended to exclude adopted children from the Trust. Reviewing

the trial court's decision de novo, paragraphs five and six of

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the Trust do not amount to clear and convincing evidence to

overcome the statutory presumption in favor of including Ronald,

an adopted child, in the Trust.

1. History of Section 2-4 of the Act

In 1989, the State legislature amended the Act to

extend the statutory presumption in favor of including adopted

children as beneficiaries to written instruments created prior to

September 1, 1955. Before this amendment, the presumption in

favor of adopted children applied only to written instruments

entered into after September 1, 1955. See Ill. Rev. Stat. 1985,

ch. 110 1/2, par. 2-4.

When Andrew executed the Trust in 1948, the relevant

statute read as follows:

"A child lawfully adopted is deemed a

descendant of the adopting parent for

purposes of inheritance, except that 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." Ill. Rev. Stat. 1941, ch. 3, par.

165.

In 1955, the legislature revised this provision of the

statute to read as follows:

"For the purpose of determining the

property rights of any person under any

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 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." Ill.

Rev. Stat. 1955, ch. 3, par. 165.

In 1989, the legislature extended the presumption in

favor of adopted children to written instruments executed before

September 1, 1955. The relevant section 2-4(f) of the Act reads:

"(f) 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.

(2) An adopting parent of an

adopted child, in the belief that

the adopted child would not take

property under an instrument

executed before September 1, 1955,

acted to substantially benefit such

adopted child when compared to the

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 benefits conferred by such parent

on the child or children born to

the adopting parent." 755 ILCS

5/2-4 (West 2006).

In 1995, the supreme court held in King, 165 Ill. 2d

533, 651 N.E.2d 127, that section 2-4(f) did not change the

substantive law; rather, it "merely expanded the evidentiary

presumption that an adopted child is a natural child, so that the

presumption now applies to all documents[] regardless of whether

they were drafted before or after September 1, 1955." King, 165

Ill. 2d at 542, 651 N.E.2d at 131.

The supreme court in King acknowledged that the

legislature has the power to prescribe new rules of evidence,

alter existing rules, and prescribe new methods of proof. King,

165 Ill. 2d at 542, 651 N.E.2d at 131. The court held that the

rules at issue are ones of procedure and that no one has a vested

right in a certain mode of procedure. King, 165 Ill. 2d at 542,

651 N.E.2d at 131. Therefore, the legislature may promulgate new

rules of procedure and apply them retroactively, as they have

done in section 2-4(f). King, 165 Ill. 2d at 542-43, 651 N.E.2d

at 132

2. Use of "Natural Children" and "Heirs of the Body" Is Not
Clear and Convincing Evidence of Testator's Intent To Exclude
Adopted Children

Section 2-4(f) creates a rebuttable presumption in

favor of including adoptees. However, section 2-4(f)(1) provides

that a party may overcome this presumption by demonstrating clear

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and convincing evidence that the testator intended to exclude

adoptees. 755 ILCS 5/2-4(f)(1) (West 2006). In King, the

supreme court held that the evidence, however, "must be something

more in the terms of the instrument itself to demonstrate, at a

minimum, that the testator actually considered the contingency of

adoption." King, 165 Ill. 2d at 540-41, 651 N.E.2d at 131.

Ronald argues that the trial court erred in granting

Leoma and Ruth Ann's motion for summary judgment because the use

of the term "natural children" in the Trust does not provide

clear and convincing evidence of Andrew's intent to exclude

adopted children as beneficiaries of the Trust. Ronald argues

that the legislature's 1989 amendment to the Act declared that

for purposes of inheritance rights an adopted child is a natural

child.

Ronald's contention is supported by the supreme court's

holding in King, which said, "section 2-4(f) expands a statutory

presumption, applicable to the determination of property rights

under written instruments, that no distinction is to be drawn

between adopted children and natural offspring." (Emphasis

added.) King, 165 Ill. 2d at 538, 651 N.E.2d at 130.

Leoma and Ruth Ann attempt to distinguish King by the

fact that the testator in King did not "confine the objects of

his bounty to his blood line, but made substantial provisions for

persons not of his blood." King, 165 Ill. 2d at 539, 651 N.E.2d

at 130. Leoma and Ruth Ann contend that Andrew manifested a

clear intent to exclude adoptees by consistently referring to

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"natural children" and "heirs of the body," along with the

direction to divide the shares "per stirpes and not per capita."

Leoma and Ruth Ann direct the court to the maxim that states, "In

construing either a trust or a will[,] the challenge is to find

the settlor's or testator's intent and, provided that the

intention is not against public policy, to give it effect."

Harris Trust & Savings Bank v. Beach, 118 Ill. 2d 1, 3, 513

N.E.2d 833, 834 (1987). To discern the testator's intent, courts

may analyze both "the words used in the instrument and the

circumstances under which they were drafted." Harris, 118 Ill.

2d at 3-4, 513 N.E.2d at 834.

The statutory presumption contained in section 2-4(f),

however, represented a dramatic shift in public policy to

construe written instruments in favor of adoptees. See Wielert

v. Larson, 84 Ill. App. 3d 151, 153, 404 N.E.2d 1111, 1113 (1980)

(holding that "'issue of [the] body'" in a 1959 will was

insufficient to evince clear intent to exclude adoptees from the

inheriting under the will). The court in Wielert did find that

the terms "descendent," "issue," and "heirs of the body" had a

clear meaning that excluded adoptees prior to 1955, and that had

the will in that case been construed prior to 1955, adoptees

would have been excluded. However, Wielart was decided prior to

the 1989 amendment. Moreover, the court in King held that the

1989 amendment simply expanded the presumption to include written

instruments prior to 1955. The Wielert court observed that,

"under the 'modern view[,]' adopted children are accorded a

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status of inheritance equivalent to that of natural children."

Wielert, 84 Ill. App. 3d at 155, 404 N.E.2d at 1114.

This court in Martin v. Gerdes, 169 Ill. App. 3d 386,

393, 523 N.E.2d 607, 611 (1988), held that the term "'heirs of

[the] body,' without any other limitations, cannot be considered

an expression of a plain intent that adopted children be

precluded from taking." Concededly, our decision in Martin was

rendered prior to the 1989 amendment; yet the amendment serves to

support our earlier holding in Martin. In Martin, we ultimately

held that adopted children were not precluded from the will which

was executed in 1960 and the codicil executed in 1972. While in

Martin, the will was executed after 1955 and the adopted child at

issue was adopted prior to the testator's death, the case

nonetheless supports the proposition that the term "heirs of the

body" does not provide clear and convincing evidence of a

testator's intent to exclude adoptees.

Finally, in King, the supreme court agreed with the

Continental Bank dissent, wherein Justice Inglis argued that the

"'plain[-]and[-]ordinary[-]language'" test must be distinguished

from the "'clear[-]and[-]convincing[-]evidence'" test provided in

section 2-4(f)(1). Continental Bank, 248 Ill. App. 3d at 301,

617 N.E.2d at 858 (Inglis , P.J., dissenting). Otherwise,

Justice Inglis argued, section 2-4(f)(1) would be rendered a

nullity. Continental Bank, 248 Ill. App. 3d at 301, 617 N.E.2d

at 858. Justice Inglis opined that the terms "'per stirpes'" and

"'descendants'" do not demonstrate that the testator even

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considered the question of adopted heirs. Continental Bank, 248

Ill. App. 3d at 301, 617 N.E.2d at 858 (Inglis , P.J.,

dissenting).

The supreme court effectively overruled Continental

Bank in King and explicitly agreed that Justice Inglis's dissent

as representing the "better-reasoned" approach. King, 165 Ill.

2d at 541, 651 N.E.2d at 131. In spite of the supreme court's

holding in King, Leoma and Ruth Ann maintain that the language

"natural children" and "heirs of the body" provide clear and

convincing evidence that Andrew intended to excluded adopted

children from the Trust. Leoma and Ruth Ann argue that the

meaning of "natural children" and "heirs of the body" are so

clear that including additional language to exclude adoptees

would be "unnecessary verbiage."

Based on the statutory language and prevailing case law

interpreting that language, we find the statutory presumption in

section 2-4(f) is not overcome by clear and convincing evidence

of Andrew's intent to exclude adoptees from his will simply by

using the terms "natural children" and "heirs of the body." The

language used to establish the Trust does not demonstrate clearly

and convincingly that Andrew intended to exclude adopted children

from benefitting from the Trust. The only evidence of Andrew's

intent concerning the exclusion of adoptees in his will is the

language "natural children" and "heirs of the body." Such

language is insufficient to demonstrate intent to exclude

adoptees. King, 165 Ill. 2d at 538, 651 N.E.2d at 130; Martin,

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169 Ill. App. 3d at 393, 523 N.E.2d at 611. Moreover, by Leoma

and Ruth Ann's counsel's own admission at the hearing, "[Andrew]

didn't even contemplate adopted children." On appeal, Leoma and

Ruth Ann's counsel argues that comment was meant to imply that

Andrew did not contemplate adopting children of his own.

However, the statute requires clear and convincing evidence of

his intent to exclude his adopted heirs. At the very least,

showing that he did not contemplate adopting children of his own

is immaterial to whether there is clear and convincing evidence

shows that he intended to exclude adopted heirs.

III. CONCLUSION

Therefore, based on the foregoing reasons, we reverse

the trial court's ruling on summary judgment and remand for

further proceedings.

Reversed and remanded.

McCULLOUGH, J., concurs.

TURNER, J., specially concurs.

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 JUSTICE TURNER, specially concurring:

While I agree with the majority our supreme court's

decision in King requires us to reverse the trial court's judg-

ment, I write separately to indicate that, if I were not bound by

the King majority opinion, I would affirm the trial court's

judgment based upon the rationale and analysis set forth in the

King dissent. See King, 165 Ill. 2d at 543-46, 651 N.E.2d at

132-33 (Heiple, J., dissenting, joined by Bilandic, C.J., and

Miller, J.).

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