*1 Kramer the offered opportunity Baker January Thus, to do so. business, declined Kramer over the take as a limited to liability partner Kramer’s exposure v. Weiss Klein contribution. to his limited solely capital Md. 135. A.2d contention Moreover, McDonald’s we reject costs in the same fees and for is liable attorneys’ Kramer of his for the deceit is liable agent way principal in the has authorized participated where principal nor a neither a principal A limited partner deceit. partner His in the or transactions of business partnership. in the form his is to liability capital partnership contribution, and not to the creditors. Uniform Laws (6 Act, Annotated, Limited Uniform Official Partnership Therefore, ed. Comment section 1969).) (master for the not liable to fees attorneys’ Kramer is McDonald’s McDonald’s. and costs incurred by the reasons given, judgment Accordingly, in favor of summary judgment appellate granting to Kramer is McDonald’s summary judgment denying affirmed.
Judgment affirmed. (No. 51449 . al.,
ROBERT FREEMAN FORD et v. Appellees, JUDITH FORD al., NEWMAN et al. Robert Ford et (John Appellants).
Opinion October Rehearing filed 1979 . denied November *2 CLARK, J., dissenting. Husted, Caccia,
W. M. of & of Pinney, Jr., Pinney, Ogg Francisco, Kionka, Columbia, San and Edward of for J. appellants. & of Pontiac D. and
Thompson Strong, (R. Thompson L. Austin, Kenneth and & Strong, counsel) Sidley Baker, E. S. Loren E. Robert A. (James Chicago Juhl, Malstrom, III, and L. Mason Henry counsel), appellees. Erdmann,
Richard O. Follmer, West, Erdmann 8c Clem, of Stevenson, Mandel, Nicholas Champaign, Stevenson, Ltd., 8c for amicus curiae Lipton Chicago, Child Care Association Illinois.
MR. MORAN delivered the opinion JUSTICE court:
This case involves a determination of the beneficiaries under a trust in which the Robert Freeman Ford plaintiffs, Pontiac, and the Bank of are cotrustees. The appellants- defendants are the two children of (defendants) III, Tod Ford a named trust now deceased. beneficiary, 16, 1969, On filed a July plaintiffs complaint averred, which in that the defendants have no interest part, in the or of income the trust. The of circuit court corpus entered for the County Livingston summary judgment affirmed, The with court one plaintiffs. appellate justice We Ill. the defend dissenting. (64 App. granted ants leave to appeal.
On December Lillian Ford Timken executed York, of in New inter vivos trust an irrevocable place consisted, of the trust her The domicile. princi- corpus the trust The substance Illinois realty. pally, to this follows. which appeal provision pertinent trust was to be of the income from the One-half paid Ford and Tod Ford sons, Robert Freeman the settlor’s two and, the death of lives, III, their upon during respective “to his was to be either, his share the income paid If their lives. him lawful issue respective surviving,” during lawful issue him surviv- either son died “without leaving was to be to the other of the income his share paid ing,” lawful issue him “to other surviving,” son son’s] [the trust also their lives. The specifically respective during of either said beneficiaries issue “any provided [Tod The settlor not now in Ford III and Robert being.” Ford] as trustees. Both sons herself and her two sons appointed trust, of execution of the lived in California at the time and that is where the defendants were adopted. actual intent that the settlor’s
The court found circuit children. was to exclude appellate law was Illinois affirmed the judgment, finding law, defendants were that, Illinois and applicable not included as beneficiaries. intent was the settlor’s actual
Defendants urge While issue.” in the term “lawful children include adopted find, fact, we raise other defendants arguments, on the determination can be made resolution case intent. the settlor’s actual to the effect
Our is to ascertain object give that we evidence may the settlor. The intention the law this intent to determine consider governed of Conflict forum, Restatement (Second) Illinois. (See Ill. v. Saiken (1971), People of Laws sec. (1971); *4 1066, L. 405 U.S. 31 504, 509, cert. denied (1972), 2d 1499; v. 796, Kirkpatrick (1953), S. Ct. People Ed. 2d 92 to be law, intent is Illinois Under 595, 413 Ill.
339 the instru ascertained, if from possible, language National & Trust Illinois Bank Co. ment Continental itself. 127; 124, Erwin v. Kruse v. Ill. Clancy 2d (1959), 370; 364, Ill. Storkan v. Ziska (1959), (1950), 259, Ill. bar, did
In at the settlor not refer the case expressly did, however, with the aid in the instrument. She adoptees issue,” “lawful to refer to the counsel, of utilize term how, on of two sons. must the date issue her We examine as the execution, of the law defined “lawful issue” settlor that term. employed which we must examine that under law is which
the settlor considered the trust She did not provisions. law which State’s was to Absent expressly designate apply. such an it is reasonable to express only designation, of conclude she the laws either New expected had York—where she been domiciled and where the long was and executed—or the instrument drawn laws Illinois—the situs almost all which realty comprised of the trust—to Examination the laws corpus apply. in effect 1941 in these two States reveals that a like result reached under either.
New York had the statutes in effect at following trust: of execution time adopting a person mean parent’ shall “1. ‘Foster (N.Y. Dom. adopted.” person shall mean ‘foster child’ (Supp. VII, Rel., eff. Feb. 109(1), sec. art. 1942).)
And, in part, pertinent real over and limitation passing respects “As any provisions dependent
personal property
heirs, the
without
parent dying
on the foster
instrument
parent so
foster
the child
not deemed
foster
child
Dom.
(N.Y.
of remaindermen.”
rights
defeat
as to
(Supp. 1942).)
VII,
Apr.
Rel.,
eff.
sec.
art.
v. Viele
& Trust Co.
Insurance
New York
See
Life
Leask
311;
re
In
Accounting
55 N.E.
161 N.Y.
*5
197 N.Y.
“A child
is deemed a descendant of
inheritance,
parent
the
for
adopting
purposes of
except
adopted
the
property
child shall not
take
from the
lineal or collateral kindred of
adopting parent per
the
stirpes
property expressly
body
limited to the
of the
adopting parent.” (Ill. Rev. Stat.
par.
ch.
165.)
See Miller v. Wick
Under States, the law of both children were adopted deemed not to be included as “lawful issue” the settlor’s sons within the trust in this Thus, case. provision the attributed to the used served legal meaning language exclude absent other evidence of a adoptees, contrary intention.
Our careful examination of the record reveals no such evidence intention on the contrary settlor. part After first to the of the trust looking instrument language itself, we consider the may circumstances at surrounding Illinois time execution (Continental the trust. National Bank & Trust v. Co. Clancy 18 Ill. The record here discloses the defendants were not until more than a after the date of year the instrument. The defendants however, allege, settlor knew that wife, Tod and his adoptive parents, were natural incapable children. In having support thereof, defendants out that Tod correctly point his wife were 36 and old, at the time of years respectively, trust’s execution and had been childless since their But marriage any settlor by knowledge their at the time in capabilities child-bearing question not fact, substantiated the record. In in a deposition taken in case, this Tod’s wife stated that preparation she herself did not know that she was incapable having natural children until after sometime she and Tod had stated, child, which, their first as did not occur until more than a after the settlor executed trust. year reasons,
For foregoing judgment affirmed. appellate
Judgment ajfirmed. MR. CLARK, dissenting: JUSTICE I dissent from the not majority opinion. opinion leaves which State’s law it it also only ambiguous applies, makes the erroneous statement that Illinois and New York *6 law are the same. It is that New York law my opinion State, and that under the law of that applies, of the settlor would be grandchildren considered to be beneficiaries of the trust. states: “Our is to majority opinion object
ascertain and effect to the intention of the settlor. give The evidence that we consider to determine this may forum, intent is the law of the Illinois.” governed by (77 thereafter, however, Ill. at 2d 338.) Shortly majority states that the law to be opinion examined to define “lawful issue” “is that which the settlor considered the trust which would be either New York or provisions,” Illinois. Then the does not make a majority opinion decision but states that xamination of the laws in “[e] effect in 1941 in these two States reveals that alike result is reached under either.” The then majority proceeds New York law and reaches a apply conclusion erroneously, fact, law or which is not only by public unsupported but one which is unfair. policy, If the had endeavored to discern majority truly intent, settlor’s it would have the law of York New applied domiciled; alone. That is the State where settlor was It is where the trust instrument was and executed prepared and, as Mr. Craven said in his dissent thoughful Justice court: “It that obvious the law of the appellate appears settlor’s is domicile to be the most it since likely helpful the best with which she her was the law (and scrivener) Moreover, I Ill. (64 agree acquainted.” App. in the with the opinions appellate majority dissenting Restatement section (Second) not Conflict Laws which was mentioned But think herein, as a I do not majority helpful guide. states that as to trusts it is determinative. Section 277 of the land in land the law situs interests involving However, the comment subsection (2) should apply. provides: of a is to
“The rule construction purpose testator, the settlor effectuate the intention have been his or what would most probably about if he had matter. intention thought situs, and other courts as Hence the courts well, construction which should the rules of apply most have or testator would probably the settlor wished to be added.) (Re- applied.” (Emphasis statement Conflict Laws sec. (Second) comment to subsection (2) (1971).) to me that we cannot See also section It seems 268(2)(b).) in the the settlor most probably indulge speculation her would have wished to exclude grandchildren if we an I think are to make from beneficiaries. becoming we should attribute about the settlor’s intention inference *7 of wished to treat each the settlor the attitude she to alike, she discrimi- and not would her grandchildren who and on the basis of was nate them among and one to not. the fair who was That inference logical to the make, the of evidence in absence indicating any York law of New more closely contrary. Application was the intent. is fair to assume settlor’s out what it carries in 1887 statute The New York adoption passed foster or ordains ‘the parents parent “unequivocally the toward each other and the foster child shall sustain the and have all and child shall relation of parent legal
343 of that the duties relation be to all and subject rights ” of each other.’ inheritance from (In the including rights 373, 366, N.Y. 107 Will 304 N.E.2d re Upjohn (1952), VII, art. 115 492, N.Y. Rel. sec. 494, Dom. (1887), citing in 1938 section, renumbered This although [Supp. 1942]. 1887 to 1963. The 1961, from and remained unchanged the the statute contains additional quoted by paragraph majority: of real or the and limitation over respects passing
“As any provisions under the personal property dependent heirs, without the parent dying on the instrument foster parent the child of the foster so foster child is not deemed rights (N.Y. to the of remaindermen.” Dom. as defeat 9, Rel., VII, Apr. art. sec. eff. However, has been a this termed “precautionary paragraph re the Relations Law Bankers addendum” to Domestic (In n.2, 327, Trust 31 Co. N.Y.2d 326 291 (1972), 137, 139 8c and has been N.E.2d extremely given n.2) the limited effect New York courts. precautionary in to was deleted 1963 addendum finally applies only re to instruments executed March (In prior n.2, Bankers 31 Trust Co. N.Y.2d 291 (1972), n.2, 895, In re 137, 139 In N.E.2d N.Y.S.2d n.2.) a testator intended Will the issue was whether Upjohn a of his niece as the include adopted daughter trust. The testamentary terms beneficiary if niece indicated that instrument language to be to her testator, income was paid predeceased stated that the “lawful The court issue” “descendants.” that, in the York was absence rule construction in New intent, it will be indication of the testator’s any did not assumed that testator envisage adopted Where, however, children under the limitation. taking clear, child is intent an testator’s include with the will be construed to intention. limitation comply N.Y. re Will Upjohn (In *8 344 492, The court found of
N.E.2d 496.) surpassing signifi- cance the fact the testator knew of the It adoption. stated, not, “Far more often than it a recognized, testator the situation and which the ‘accepts relationship have created.’ N.Y. adopting parents (304 [Citation.]” 366, 375, 492, 107 The same factual N.E.2d 496.) situation is herein. the court in present Finally, Upjohn considered the adden- applicability precautionary dum to the facts The court presented. stated that section 115 was designed prevent fraud on perpetration of remaindermen rights an “for by adoption very out a purpose 366, remainder.” N.Y. cutting (304 378, 492, 107 N.E.2d “The of fraud arises 498.) danger where the takes adoption without place testator’s when it knowledge, especially occurs after his death. was, That observe, we Leask, the situation in Matter of 193, 197 N.Y. and is one circumstance thoroughly differentiates that case from the one under considera- tion.” 366, 379, N.Y. 492, 107 re In (304 N.E.2d 498.) Leask, cited Accounting is also dis- majority, from the instant case for tinguishable the same reason. case, Another New York re In Estate Park (1965), 15 N.Y.2d went N.E.2d N.Y.S.2d even further in equal supporting property rights children. There the issue was whether adopted child and the natural child of the deceased grandson testator were to be treated alike. The testator died in 1909. He had created trusts for each of his testamentary children, life, income child for surviving payable died, and as each child “the of the trust fund of principal *** such child shall be distributed his issue him among her 413, 416, shares.” N.Y.2d surviving equal (15 N.E.2d N.Y.S.2d testator’s a trust died in 1961. Her son had daughter, beneficiary, her. The son had a natural and an predeceased daughter son. The trustee an account- testamentary sought to decide whether the will in order and construction of ing a share of be entitled to child would principal each *9 natural child could receive or whether the trust only the principal. rule of construc the former from
The departed in New York. It stated tion which had prevailed previously in section 117 that, York embodied in of New policy light Relations Law that of the Domestic section 115) (formerly relation to the an child has the same parent legal adopted that unless an child, a natural arises as presumption will in the or trust intent to the is contrary expressed included, child “must be deemed instrument an adopted ‘heir’, ‘child’, ‘issue’ or other the word whether generic 861, 413, 417, 859, term” is used. N.Y.2d 207 N.E.2d (15 169, The precau 260 N.Y.S.2d 171.) application was the court to cases where addendum limited tionary by off a remainder.” “the itself and alone cut (15 adoption 413, 418, 859, 861, 207 260 N.Y.S.2d N.Y.2d N.E.2d 169, It has been stated that the creation of the 171.) re children in In Estate Park presumption a intent is be treated as natural children unless contrary re to have overruled” In Accounting expressed “appears 193, 652, N.Y. 90 N.E. In re Leask 197 and even. (1910), 366, N.E.2d492, 304 N.Y. as Will Upjohn (1952), re Grace far as the is concerned. Estate (In presumption 236, 46 Misc. 261 N.Y.S.2d 238.) (1965), & Trust v. Also, New York Insurance Co. Viele Life 311, 11, N.Y. N.E. does not control (1899), it was the 1887 statute because decided before specifying be treated as to natural children are to equal 878, children. re Estate Grace 46 Misc. 2d (In 236, are the Leask Viele only N.Y.S.2d 238.) two York herein. New cases cited majority
I think therefore that it is clear that the abundantly York, has misstated the law of New as it existed majority in New York in 1941 and as it exists now. The re was created in In Estate Park where the presumption court construed a of a trust testator who testamentary died in 1909. The court held that the absence of an in the will or trust instrument exclude explicit purpose child, he must be deemed included. N.Y.2d (15 859, 860-61, 207 N.E.2d 260 N.Y.S.2d No to that in the reference made majority presumption would opinion. operation presumption require a different result than that which is reached under Illinois law; it would the defendants be considered require I con- beneficiaries the trust remain agreement. vinced that the result reached New York law is by applying one, the fair and correct and that the majority opinion wrong.
(No. 51581 . OF CHI GETTO, v. THE CITY A. CHARLES Appellee, al., et CAGO Appellants. Rehearing
Opinion October 1979 . filed denied November