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Docket No. 86708-Agenda 20-May 1999.

MARY MORRIS, Adm'r of the Estate of Georgia Holland, Deceased, v. WILLIAM L. DAWSON NURSING CENTER,INC., (Charna Ervin, Appellee; Mary Morris et al., Appellants).

Opinion filed September 23, 1999.

JUSTICE HEIPLE delivered the opinion of the court:

The issue in this case is whether, under the Wrongful Death Act (Act) (740 ILCS 180/2 (West 1998)), dependent brothersand sisters of a decedent may share in the proceeds of a successful wrongful death suit even though decedent is alsosurvived by descendants. We hold that this issue is resolved by reference to the laws of intestate succession, and that underthe facts of this case, decedent's grandchildren alone are next of kin and thus are entitled to share exclusively in theproceeds of such a suit.

BACKGROUND

The dispute in this case arises out of the death of decedent, Georgia Holland, at a nursing home. At the time of her death,decedent was survived by her two adult grandchildren (one of whom is the appellee herein), as well as by seven adultbrothers and sisters (each of whom is an appellant herein). Following decedent's death, Mary Morris, as administrator ofdecedent's estate, filed personal injury and wrongful death actions in the circuit court of Cook County, law division,against, among others, defendant William L. Dawson Nursing Center, Inc. After defendant offered to settle both claims for$300,000, Morris filed a motion seeking approval of the proposed settlement, determination of next of kin and dependencyof each, and dismissal of the suits. On August 12, 1997, the trial court approved the proposed settlement and apportioned60% of the total proceeds as settlement of the personal injury action and the remaining 40% as settlement of the wrongfuldeath action. The trial court found the personal injury settlement proceeds distributable to decedent's heirs, namely, her twograndchildren, appellee Charna Ervin and Joe Louis Ervin.

With respect to the wrongful death proceeds, the trial court determined the decedent's next of kin and dependency of eachpursuant to the Act as follows: Joe Louis Ervin (grandson) - 0%; Charna Ervin (granddaughter) - 0%; Mary Morris (sister) -40%; Audrey McMillan (sister) - 20%; Edna Ruth Kelley (sister) - 20%; Clarence Jones (brother) - 5%; Lewis Jones(brother) - 5%; Barbara Jean Coleman (sister) - 5%; and Bonnie Jean Dickerson (sister) - 5%. On August 21, 1997, theprobate division entered an order authorizing Morris, as administrator of decedent's estate, to accept the settlement of thelaw division cases, and to distribute the proceeds therefrom consistent with the law division's August 12 order anddetermination of dependencies.

Charna Ervin filed separate notices of appeal from both the August 12 law-division order and the August 21 probate-division order. Those appeals were consolidated by order of the appellate court. After hearing the case, the appellate courtreversed the orders of the circuit courts. In so doing, the appellate court held that only decedent's grandchildren, and not hersurviving brothers and sisters, were decedent's "next of kin," and thus, only the grandchildren were eligible recoverwrongful death proceeds.

ANALYSIS

In enacting the Wrongful Death Act, the General Assembly created a statutory cause of action which affords a remedy to adefined class of individuals upon the wrongful death of another. By its terms, the Act sets forth who may bring an action forwrongful death and states for whose benefit such an action may be maintained. The Act provides:

"Every such action shall be brought by and in the names of the personal representatives of such deceased person, and,except as otherwise hereinafter provided, the amount recovered in every such action shall be for the exclusive benefitof the surviving spouse and next of kin of such deceased person ***." 740 ILCS 180/2 (West 1998).

The Act also delineates how the proceeds of a successful wrongful death suit are to be apportioned among the eligiblebeneficiaries:

"The amount recovered in any such action shall be distributed by the court in which the cause is heard or, in the caseof an agreed settlement, by the circuit court, to each of the surviving spouse and next of kin of such deceased personin the proportion, as determined by the court, that the percentage of dependency of each such person upon thedeceased person bears to the sum of the percentages of dependency of all such persons upon the deceased person."740 ILCS 180/2 (West 1998).

The Act does not, however, provide a definition for the statutory phrase "next of kin."

This court first had occasion to consider the meaning of the phrase "next of kin" within the context of the Wrongful DeathAct more than 70 years ago. In Wilcox v. Bierd, 330 Ill. 571 (1928), overruled on other grounds, McDaniel v. Bullard, 34Ill. 2d 487 (1966), this court held that "[t]he next of kin of any deceased person are definite blood relatives or a definiteclass of blood relatives or kinsmen in existence at the time of the death of the deceased who would take his personalproperty in case he died intestate." Wilcox, 330 Ill. at 582. Thus, for purposes of determining a decedent's next of kin withinthe meaning of the Wrongful Death Act, Illinois courts look to the laws of intestacy.

In the case at bar, decedent was survived both by brothers and sisters and by grandchildren. Pursuant to section 2-1(b) ofthe Illinois Probate Act of 1975 (755 ILCS 5/2-1(b) (West 1998)), the estate of a decedent leaving no surviving spouse butwho is survived by descendants is distributed among those descendants per stirpes. Thus, under the laws of intestatesuccession, decedent's grandchildren would share in decedent's estate to the exclusion of decedent's brothers and sisters.As a consequence, under Wilcox, decedent's grandchildren alone are decedent's "next of kin" within the meaning of theWrongful Death Act, and they alone are entitled to share in the proceeds of the wrongful death suit.

Seeking to avoid the clear import of this court's holding in Wilcox, appellants point out that the Wrongful Death Act hasbeen amended by the legislature subsequent to the time of that 1928 decision. Indeed, at the time of that decision, the Actprovided, in relevant part, that

"the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of suchdeceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relationto the distribution of personal property left by persons dying intestate." 1853 Ill. Laws 97, cited in Wilcox, 330 Ill. at579.

Twenty-seven years later, in 1955, the General Assembly amended the Act by substituting the following language:

"The amount recovered in any such action shall be distributed by the court in which the cause is heard or, in the caseof agreed settlement, by the county or probate court, as the case may be, to each of the widow and next of kin of suchdeceased person in the proportion, as determined by the court, that the percentage of dependency of each such personupon the deceased person bears to the sum of the percentages of dependency of all such persons upon the deceasedperson." Ill. Rev. Stat. 1955, ch. 70, par. 2.

Appellants argue that the 1955 amendments to the Wrongful Death Act evidence an intent by the legislature to eliminate thelaws of intestacy as the basis for identifying the proper beneficiaries of a wrongful death suit. We disagree.

Even after the 1955 amendments were enacted, the Wrongful Death Act continued to provide that "the amount recovered inevery such action shall be for the exclusive benefit of the widow and next of kin of such deceased person." (Emphasisadded.) Ill. Rev. Stat. 1955, ch. 70, par. 2. We note that in amending a statute, the legislature is presumed to have beenaware of judicial decisions interpreting the statute and to have acted with this knowledge. People v. Hickman, 163 Ill. 2d250, 262 (1994). In this case, therefore, we must presume that when the General Assembly amended the Wrongful DeathAct, it was aware of this court's decision in Wilcox and intended to adopt this court's construction of the term "next of kin."Thus, while the General Assembly abandoned the laws of intestate succession as the basis for determining how wrongfuldeath proceeds are distributed among the class of eligible beneficiaries, it manifestly retained the laws of intestacy as themeans for identifying the members of that class.

Appellants argue in the alternative that the Wilcox decision should simply be rejected as incompatible with the modern viewof the purpose underlying Wrongful Death Act. They contend that the fundamental purpose of the Act is to providecompensation. In appellants' view, therefore, the Act should not be construed so as to allow nondependent grandchildren torecover to the exclusion of dependent brothers and sisters. This is purely a policy argument, however, which lies within thedomain of the legislature and not the Illinois Supreme Court.

We therefore hold that under the facts of this case and consistent with the plain language of the Wrongful Death Act,decedent's surviving grandchildren are next of kin and are eligible to share in the proceeds of the suit; decedent's brothersand sisters are not next of kin and can take no share of such proceeds. The judgment of the appellate court is affirmed.

Affirmed.