dissenting:
In 1936, Louis F. Swift executed his will. After his death in 1937, his daughter-in-law, Lydia Niblack Swift, became the life income recipient of the Lydia Niblack Swift Fund established by the will. The will further provided that, upon Lydia’s death, income from the fund was to become payable to her lawful descendants per stirpes until the last such descendant had died.
Lydia died in 1968. Since one of Lydia’s three children, Nathan Swift, Sr., had predeceased her, that portion of the trust fund income was paid to his biological son# Nathan Swift, Jr. Even though Nathan Sr. also had an adopted daughter, Martha Herriot Swift, the trustee determined that she was not a lawful descendant within the meaning of the will. At that time, Martha made no claim to a share of the trust’s income.
Twenty-one years later, in 1989, the General Assembly passed an amendment to the Instruments Regarding Adopted Children Act which allowed adopted children to participate as blood relatives under certain written instruments executed prior to September 1, 1955. The statute provides:
"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 ***
(1) The intent to exclude such child is demonstrated by the terms of the instrument by clear and convincing evidence.” (760 ILCS 30/1(b)(1) (West 1992).)
(See also 755 ILCS 5/2 — 4(f)(1) (West 1992).) Pursuant to this amendment, Martha claimed an entitlement to a portion of the trust income which Nathan Swift, Jr., had received since 1968.
When Louis Swift executed his will in 1936, settled Illinois law established that the use of "descendants” and "per stirpes” excluded adopted children as takers in written instruments. (See Continental Bank, N.A. v. Herguth (1993), 248 Ill. App. 3d 292, 296-99.) Although the majority disputes the established meaning of per stirpes in 1936 (165 Ill. 2d at 541), it does not seriously dispute that the term lawful descendants excluded adopted children. (165 Ill. 2d at 540.) However, the majority argues that the term lawful descendant under the old law merely created a presumption of an intent to exclude adopteds. (165 Ill. 2d at 540.) Therefore, the majority concludes that Swift’s use of this language, standing alone, cannot be regarded as clear and convincing evidence of his intent to exclude adopteds, and the statute is therefore applicable. (165 Ill. 2d at 541-42.) I disagree.
The fundamental tenet of will construction is to give effect to the intent of the testator. (Harris Trust & Savings Bank v. Beach (1987), 118 Ill. 2d 1, 3.) A court determines such intention from the terms of the instrument, by giving words employed their plain and ordinary meaning. Harris Trust & Savings Bank v. Donovan (1991), 145 Ill. 2d 166, 172.
We must charge Louis F. Swift with knowledge of the then existing law concerning the disposition of his property when he executed his will, and we must determine his intentions by the plain and ordinary meaning of the language he used in his will. Swift’s use of the terms "lawful descendants” and "per stirpes” indicates his actual intention to exclude adopteds, not, as the majority suggests, a mere presumption of his intention.
This is basic testamentary construction, and is the only analysis relevant or necessary in the present case. New legislation cannot legitimately be used to retroactively rewrite the substantive provisions of a will. When Louis F. Swift executed his will in 1936, he was entitled to use and rely on words that had a definite, known, and accepted legal meaning.
In addition to writing a new will for Louis Swift nearly 60 years after his death, the majority’s analysis also violates Nathan Jr.’s due process rights. Nathan Jr.’s property rights under the will vested decades before the legislature adopted the amendment in 1989. Changes in procedure will not be applied retroactively where vested rights will be defeated by such application. (Matter v. Chicago Board of Education (1980), 82 Ill. 2d 373.) Nathan Jr. is entitled to the continued enjoyment of the income stream from the testamentary trust. Contrary to the majority’s assertion, the amendment does not merely effectuate some theoretical change in evidentiary procedure. (165 Ill. 2d at 542-43.) Rather, it permits Martha to seize half the income Nathan Jr. receives from the trust.
Citizens are entitled to reliability and consistency in the meaning of the law. Retroactive statutes are disfavored, among other reasons, precisely because of their potential to interfere with these settled expectations. In upholding the applicability of the statute at issue, the majority has undermined a testator’s right to plan his estate on the basis of known and existing law. Moreover, it has encouraged the legislature, under the guise of procedural change, to retroactively interfere with substantive rights under the impetus of an evolving and ever changing public policy. Accordingly, I respectfully dissent.
CHIEF JUSTICE BILANDIC and JUSTICE MILLER join in this dissent.