dissenting:
The majority opinion makes two substantial errors, either of which requires a result different from that reached. First, the majority has incorrectly selected the law of Illinois to govern this case. Second, even if the law of Illinois is to be applied, the majority has done so incorrectly.
In determining the choice of law, I agree with the majority that section
277 of the Restatement (Second) of Conflicts of Laws (1971) should be applied. My disagreement lies in the application. The comments to section 277(2) of the Restatement provide:
“When the settlor or testator has not designated a state whose rules are to govern the construction of the trust instrument or will, it is construed in accordance with the rules of construction that would be applied by the courts of the situs. The question then is whether the courts of the situs would apply the rules of construction prevailing in the state of the situs or would apply the rules of another state, such as the state of domicil of the settlor or testator. This may depend upon whether the question of construction relates to matters pertaining to the administration of the trust or to other matters, such as who are beneficiaries and the extent of their interests.” (Emphasis added.)
If the question presented to this court were one of title or boundary dispute, I would not quarrel with the analysis that the situs of the realty provides the most significant contact. However, the question here is in the absence of the settlor’s intent, which State has the most significant contacts, and how that State would construe the settlor’s intent. The only contact Illinois has is that the realty is located here, and that an Illinois bank was later named as a successor trustee. I find the use of the situs in Illinois as a contact unacceptable to determine the settlor’s intent because the corpus has included personalty and realty located both in Illinois and Iowa. As to the selection of an Illinois bank as trustee, the settlor also provided for the selection of an Iowa bank as successor trustee in the event the trust still held Iowa realty when the need for a successor trustee arose. An absurd result could obtain with application of the law of the situs if Iowa law with respect to adopted children were different than Illinois law and even more absurd if the conflicts rule relating to personalty pointed to a third jurisdiction.
Choice of law rules are implemented for two basic purposes: (1) To provide uniformity of results, and (2) to give effect to the justifiable expectations of the parties. The majority opinion does neither. As noted above, applying the law of the situs could provide the absurdity of construing the settlor’s intent in the document differently in each situs. Additionally, the only contact the settlor had with Illinois was that a portion of the trust res was located here. Absent an express choice of law provision in the trust, one would have to grasp blindly to say the settlor’s justified expectations were to apply Illinois law to determine her absent intent.
The law that should be applied is the law of the State predominately concerned with the matters with which the issue of construction deals. To provide uniformity of results and to give effect to the justifiable expectations of the settlor, this court should look to the law of New York to determine the settlor’s intent. At the time the trust was executed, the settlor was a domiciliary of New York and the trust was executed in New York.
“The reasons advanced for the rule pointing to the domicile of the testator on questions of construction of the will [or trust] are that the domicile’s rule will be most likely to coincide with the actual intention of the testator and that, in a case in which the testator has made the same cryptic provision concerning land situated in several states, with differing domestic rules of construction, applying the law of the testator’s domicile will avoid the absurdity of construing his will differently at each situs.” (Weintraub, Commentary on the Conflict of Laws, 328 (1971).)
Weintraub goes on to say that these reasons are not a convincing argument for looking to the law of the testator’s domicile, but rather an argument against applying the law of the situs without further contacts. The law presumes the settlor to have known the law in effect at the time the trust was executed. It appears obvious that the law of the settlor’s domicile is likely to be the most helpful since it is the law with which she (and her scrivener) was the best acquainted.1 ■
The status of adopted children in relation to a testamentary gift over “to issue” in New York would appear to be the same as natural children of the same class. (See In re Will of Lawrence (1974), 86 Misc. 2d 579, 381 N.Y.S. 2d 713; In re Will of Upjohn (1952), 304 N.Y. 366, 107 N.E.2d 492.)
However, in situations where the law of a sister State is to be applied to construe an instrument in Illinois, the determination of the law of the sister State comprises a question of fact for determination initially by the trial court. Ill. Rev. Stat. 1977, ch. 51, par. 48g.
I would therefore remand this case to the circuit court for a determination of the law of New York, as a question of fact, for the application of those principles to the facts of this case.
Further, if Illinois law is to be applied, the majority opinion has failed to make a proper application of the law. The opinion is bottomed on the unsupported assumption that the settlor manifested an intent to restrict the distribution of the corpus of the trust to heirs of the body. The majority supports this assertion by reference to Continental Illinois National Bank & Trust Co. v. Clancy (1959), 18 Ill. 2d 124, 163 N.E.2d 523. There, the court relied upon the statute in effect at the time this trust was executed (Ill. Rev. Stat. 1939, ch. 3, par. 165) to hold that the term “issue” meant only heirs of the blood.
That statute concerned only the distribution of intestate property. It did not by its terms control the distribution of testate or trust property generally. From this statute, however, the court in Clancy determined a settlor’s intent. As Justice Stone pointed out in his dissent in Belfield v. Findlay (1945), 389 Ill. 526, 536-37, 60 N.E.2d 403, 410, adopted children are generally given the same rights as natural children. The forerunner of the section which came to be paragraph 165 here (section 5 of the Adoption Act (Ill. Rev. Stat. 1874, ch. 4, par. 5)) was taken directly from an identical Massachusetts statute. The Massachusetts Supreme Court in Sewall v. Roberts (1874), 115 Mass. 262, interpreted that provision to allow an adopted child the same rights as the natural child of the parentsettlor. While Sewall is not relevant to the interpretation of the trust here because of the degree of kinship involved, a Connecticut case based on a similar statute has construed the identical fact pattern that is presented to this court. In Mooney v. Tolles (1930), 111 Conn. 1, 149 A. 515, the court allowed an adopted grandchild to take a share of the corpus of a trust that was to be distributed to a son’s “lawful child or children.”
It is true that in construing wills and trusts it is the policy of the law to first look to the four comers of the instrument to determine the intent of the settlor and then to look to extrinsic indications of the settlor’s intent. (Clancy.) In determining the intent of the settlor, it is also true courts will presume the settlor to have known the law in effect at the time the trust was executed and to have acted in conformity therewith. (Belfield.) The majority uses this maxim to relate the decision in Clancy back to 1941 when the trust was executed. To engage in the fiction that in 1941 the settlor knew the terms used here to identify the beneficiaries of the trust expressly excluded children not yet adopted, when the supreme court did not so decide until 1959, is something I will not do.
On the contrary, if the settlor is to be presumed to have known the law in effect at the time this trust was executed, it is just as reasonable to conclude that the term “issue” included adopted children under case law then in effect. (See Munie v. Gruenewald (1919), 289 Ill. 468, 124 N.E. 605 (adopted daughter allowed to take a per stirpital share of her mother’s remainder interest); Coon v. McNelly (1912), 254 Ill. 39, 98 N.E. 218 (the term “grandchildren” was held to include step-grandchildren).) We must also presume the settlor to have been familiar with the Adoption Act under which adopted children are now treated and were then treated under the law as the legal children of their adoptive parents, and to expect any adopted grandchildren to be treated accordingly.
Under the existence of these conflicting interpretations of what the law was in 1941 with regard to the rights of defendants under this trust, it can be more likely assumed that the settlor had no intent whatsoever regarding subsequently adopted children. Even after both parties have had a full opportunity to prove the settlor’s intent by extrinsic evidence, no conclusive proof has been adduced on that question. The subsequent adoption of the defendants by Tod Ford HI was clearly a contingency for which the settlor did not plan. Therefore, no intent is shown.
While the majority has assumed the settlor’s intent, I believe it to be the better course that when an assumption must be made, the assumption should be in accord with public policy now existing. In 1955, the legislature determined it to be the public policy of this State that adopted children enjoy all the rights of natural children without limitation. (Ill. Rev. Stat. 1977, ch. 110/2, par. 2 — 4(e).) While the operative terms of that Act limit it to instruments executed after its effective date, that limitation in my mind does not abrogate it as a statement of present public policy. That policy should control here.