Estate of Best, Matter of

• Decision Date: 24 October 1985
• Citation: 485 N.E.2d 1010,66 N.Y.2d 151,495 N.Y.S.2d 345
• Parties: , 485 N.E.2d 1010, 71 A.L.R.4th 361, 54 USLW 2265 In the Matter of the ESTATE OF Jessie C. BEST, Deceased. Anthony R. Reid, Appellant; David L. McCollum, Respondent.
• Court: New York Court of Appeals Court of Appeals

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495 N.Y.S.2d 345 66 N.Y.2d 151, 485 N.E.2d 1010, 71
A.L.R.4th 361, 54 USLW 2265 In the Matter of the ESTATE OF Jessie C. BEST, Deceased.
Anthony R. Reid, Appellant;
David L. McCollum, Respondent. Court of Appeals of New York. Oct. 24, 1985.

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Devereux Milburn, Richard B. Covey, Dan T. Hastings and R. Demarest Duckworth, III, New York City, for appellant.

David S.J. Neufeld, New York City, for respondent.

OPINION OF THE COURT

TITONE, Judge.

The question presented is whether a child born out of wedlock, who is adopted out of his biological family at birth, is entitled to a share of a trust estate devised by his biological grandmother to her daughter's issue. The Surrogate's Court entered a decree in the child's favor, which has been unanimously affirmed by the Appellate Division, 102 A.D.2d 660, 477 N.Y.S.2d 431. We granted leave to appeal and now reverse.

Jessie C. Best died in 1973, leaving a will which provided for a residuary trust. Her daughter, Ardith Reid, was designated as the income beneficiary. Upon Ardith's death, the trustees were directed to "divide trust fund into as many shares or parts as there shall be * * * issue * * * and to continue to hold each of such shares or parts in trust during the life of one of said persons." The remainder is to be paid to the surviving descendants at the latest possible date consistent with the Rule against Perpetuities.

Initially, the executors of the Best will, who are also the trustees of the residuary trust, believed that Ardith had only a single son, appellant Anthony R. Reid, born in 1963. In 1976, however, they were informed that Ardith had given birth to a child out of wedlock in 1952, and that the child had been immediately placed with an agency for adoption. Ardith confirmed that the information was accurate.

Concluding that it was necessary to cite this unknown child in order to complete jurisdiction in a proposed accounting proceeding, the fiduciaries obtained Ardith's authorization to ascertain the child's identity and whereabouts. Attorneys contacted the adoption agency, which, though finding the request "unusual," took the position that, given the apparently large value of the beneficial interest involved, the question of disclosure should be left to the discretion of the adoptive parents. A caseworker was dispatched and the adoptive parents subsequently revealed that the child's present identity was David Lawson McCollum, and that requisite proof of natural ancestry could be obtained in a sealed file at the Surrogate's Court, Nassau County.

After Ardith's death, the trustees commenced this construction proceeding, seeking to determine the proper secondary income beneficiary or beneficiaries, the accounting proceeding having left the question open. On cross motions for summary judgment, the Surrogate's Court, Westchester County, directed that McCollum be included as an issue of Ardith Reid and, as such, a beneficiary under the trust. The Surrogate declined to apply the common-law presumption that the term issue referred only to descendants born in wedlock, in favor of a rule espoused by the Appellate Division, First Department, which presumes that issue includes descendants born both in and out of wedlock (Matter of Hoffman, 53 A.D.2d 55, 385 N.Y.S.2d 49). In addition, the Surrogate construed Domestic Relations Law § 117, which describes the consequences attached to an order of adoption, as cutting off only the right to intestate descent and not affecting the right to take a class gift under the will of a biological ancestor. The Surrogate recognized that this holding would create a myriad of practical difficulties and might lead to a breach of the privacy of adoption proceedings, but believed that the solution was legislative. The Appellate Division unanimously affirmed in a Per Curiam opinion, essentially adopting the Surrogate's reasoning. We now reverse and remit for the entry of a decree in conformity with this opinion (SCPA 2702).

Use of the term issue in a dispositive instrument has always been viewed as ambiguous, with its meaning depending on the intent of the decedent as derived from the

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content of the entire will (Palmer v. Horn, 84 N.Y. 516, 519; 5 American Law of Property §§ 21.49, 22.36 2 Simes and Smith, Future Interests § 738 ). Shaped by the mores of the day, the common-law courts tended to give the term a restrictive interpretation (Bergin and Haskell, Preface to Estates in Land and Future Interests, at 232 ), and viewed a child born out of wedlock as the "child of nobody" (5 American Law of Property § 22.33, at 325 ). Absent a contrary indication in the will, such a child was deemed to be presumptively excluded from taking a class gift to issue (see, e.g., Hiser v. Davis, 234 N.Y. 300, 305, 137 N.E. 596; Matter of Underhill, 176 Misc. 737, 739, 28 N.Y.S.2d 984 9 Rohan, N.Y.Civ.Prac., EPTL p 1-2.10 Restatement of Property § 286 § 292).

EPTL 1-2.10, added in 1966, defines "issue" as descendants in any degree from a common ancestor, unless a contrary intention is indicated, and specifically includes children adopted into the family, thus resolving a conflict which had existed in decisional law (see, 2 Simes and Smith, Future Interests § 738, n 40 ) in favor of inclusion (9 Rohan, N.Y.Civ.Prac., EPTL p 1-2.10 Note, Adopted Children as Issue--Settlor's Intent, 27 Brooklyn L.Rev. 177). Other than that clarification, the Revisors' Notes indicate that the section merely codifies decisional law (Revisors' Notes to EPTL 1-2.10, McKinney's Cons.Laws of N.Y., Book 17B, p. 22; see also, 9 Rohan, N.Y.Civ.Prac., EPTL p 1-2.10 Rohan, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 17B, EPTL 1-2.10, p. 20).

Contemporary social mores and constitutional doctrine governing the rights of children born out of wedlock suggest that drafters now view the unmodified term issue to refer to children born both in and out of wedlock (see, Matter of Hoffman, 53 A.D.2d 55, 385 N.Y.S.2d 49, supra; Matter of Lyden, 96 Misc.2d 920, 409 N.Y.S.2d 700; Matter of Leventritt...