Gardiner, Matter of

• Decision Date: 30 December 1985
• Citation: 497 N.Y.S.2d 89,113 A.D.2d 651
• Parties: In the Matter of Jonathan T. GARDINER, Deceased. The Bank of New York, Petitioner-Respondent; Olney Mairs Gardiner, et al., Respondents-Respondents; Frances Gardiner Collins, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 89

497 N.Y.S.2d 89

113 A.D.2d 651

In the Matter of Jonathan T. GARDINER, Deceased The Bank of New York, Petitioner-Respondent Olney Mairs Gardiner, et al., Respondents-Respondents Frances Gardiner Collins, et al., Appellants.

Supreme Court, Appellate Division Second Department.

Dec. 30, 1985.

John P. Campbell, New York City (David J. van Hoogstraten, of counsel), guardian ad litem for Michael D. Gardiner and Glen Edwards Gardiner, who are infants, and for unknown male relatives of Jonathan T. Gardiner, bearing the surname Gardiner, including any such members of that class who may be infants and incompetents, appellants.

Smith, Finkelstein, Lundberg, Crimmins and Yakaboski, Riverhead (Howard M. Finkelstein and Frank A. Isler, of counsel), for appellant Frances Gardiner Collins.

Ingerman, Smith, Greenberg & Cross, Northport (Jelije De Jong, Rocky Point, of counsel), for appellants William LeRoy Gardiner, Jr., David William Gardiner, John Steven Gardiner, Arthur Richard Gardiner, Clarence William Gardiner, Gary William Gardiner and Craig Thomas Gardiner.

Emmet, Marvin & Martin, New York City (John E. Bennett and Stephen P. Cerow, of counsel), for petitioner-respondent.

Milbank, Tweed, Hadley & McCloy, New York City (Andrew J. Connick and Carolyn C. Clark, of counsel), for respondent-respondent Olney Mairs Gardiner.

Before LAZER, J.P., and THOMPSON, O'CONNOR and RUBIN, JJ.

O'CONNOR, Justice.

These appeals are concerned with the right of respondent Olney Mairs Gardiner to inherit the corpus of a testamentary trust created by the will of Jonathan T. Gardiner, despite the restrictions imposed on such inheritance by a statutory provision known as the "precautionary addendum". The trust contains approximately $2,985,000 in principal and income, including real estate valued in excess of $2,931,000 in 1982, at least one parcel of which, apparently, has been owned by a member of the Gardiner family since 1638 pursuant to a land grant made by King Charles I of England.

Jonathan T. Gardiner, a resident of East Hampton, New York, died on August 6, 1933. He left a will executed on January 25, 1932. The will set up two testamentary trusts for his two grandnieces, Isabelle Gardiner Mairs and appellant Frances Gardiner Collins. Article Fourth of the will established an additional testamentary trust for the benefit of Jonathan's grandnephew, Winthrop Gardiner, Jr., consisting of the bulk of his estate, which is the source of the dispute in the instant case. Article Fourth of the will provides as follows:

"FOURTH: All the rest, residue and remainder of my property, of whatsoever nature and wheresoever situated, I give, devise and bequeath to my Executor and Trustee, hereinafter named, IN TRUST, NEVERTHELESS * * * to accumulate the income until my grandnephew, WINTHROP GARDINER, JR., arrives at the age of twenty-one (21) years. When my said grandnephew Winthrop Gardiner, Jr., arrives at the age of twenty-one (21) years, I direct that all accumulations of income shall be forthwith paid over to him. Thereafter I direct my said Executor and Trustee to pay over the entire net income derived from the trust estate to my grandnephew, Winthrop Gardiner, Jr., during the term of his natural life, in quarterly payments * * * Upon his death, I direct that the said trust shall cease, terminate and come to an end, and, upon his death, I give devise and bequeath the principal of the trust estate to his oldest living son, and, in the event that he shall leave no son him surviving, I give, devise and bequeath the same to such male relative of mine bearing the name Gardiner as my said grandnephew, Winthrop Gardiner, Jr., shall appoint in and by his Last Will and Testament, and, in the event that my said grandnephew, Winthrop Gardiner, Jr., shall die without leaving a son him surviving, and shall fail to exercise such power of appointment, then, and in that case, I direct that my Executor and Trustee sell, as soon after the death of my said grandnephew, Winthrop Gardiner, Jr., as practicable, all of my real property as is included in my said residuary estate, or such portion or portions thereof as shall not theretofore have been sold, in such manner and for such prices as in the judgment of my said Executor and Trustee shall be to the best interests of my estate, provided, however, that such sale be made to, and only to, some male relative of mine bearing the surname "Gardiner", the proceeds of the sale of which, together with the remainder of my said residuary estate, I hereby give and bequeath to my aforesaid grandnieces, Isabel Gardiner and Frances Delaney Gardiner, share and share alike, or to their survivor, and in the event that neither of my said grandnieces should survive my said grandnephew, then I give and bequeath aforesaid proceeds, together with said remainder of my said residuary estate, to such persons who would at that time inherit the same under the Laws of the State of New York if my said grandnephew had died intestate the owner thereof" (emphasis added).

Thus, article Fourth of the will set up a trust for the benefit of Winthrop Gardiner, Jr., to be administered by the executor and trustee, the Bank of New York and Trust Company (now known simply as The Bank of New York), which, upon the death of Winthrop, became payable to his oldest living son. If Winthrop did not leave a surviving son, the will provision granted him a testamentary power of appointment to transfer the property to a male relative of Jonathan T. Gardiner bearing the surname of Gardiner. If Winthrop did not leave a surviving son and failed to exercise the testamentary power of appointment, the real estate remaining in the trust, which had not been previously sold by the executor and trustee pursuant to the authority granted in article Sixth of the will, would be sold by the executor and trustee to a male relative of Jonathan's bearing the surname Gardiner. The proceeds of the sale were to be paid to the two grandnieces, or the survivor, unless both of them failed to survive Winthrop. Jonathan's will was admitted to probate in the Surrogate's Court, Suffolk County on September 30, 1933.

The dispute in this case arose because Winthrop Gardiner, Jr., the decedent's grandnephew, died on October 16, 1980, without leaving a surviving natural son. However, Winthrop had adopted his nephew. The nephew was born on June 26, 1942 (nearly nine years after the death of Jonathan T. Gardiner) to Olney Blanchard Mairs, Jr., and Isabelle Gardiner Mairs, one of the decedent's grandnieces, and on his birth certificate was named Olney Blanchard Mairs III. On August 14, 1974, over 40 years after Jonathan's death and when Olney was 32 years old, Winthrop Gardiner, Jr., and his wife, Beth Neher Gardiner, adopted Olney pursuant to an order of the Family Court, Suffolk County (Jones, J.), and upon his adoption he took the name of Olney Mairs Gardiner. It is alleged that Olney had lived much of the time with his uncle Winthrop. Upon his death, Winthrop, a resident of Broward County, Florida, left a will which indicated that his granduncle's will created a trust for his benefit that would pass to his oldest living son upon his death. Winthrop's will, which was executed on February 12, 1975, and which was admitted to probate in Florida on January 12, 1981, stated in relevant part:

"I hereby state that my only son is OLNEY MAIRS GARDINER, of 4935 MaConnel Avenue, Los Angeles, California 90066. To the extent that [it] may be necessary for me to exercise the power of appointment in [paragraph Fourth of the will of Jonathan T. Gardiner], I then do exercise the same and appoint the principal remaining to my said son."

Ancillary letters testamentary were issued by the Surrogate's Court, Suffolk County, on November 4, 1981. On or about March 17, 1983, the executor and trustee under Jonathan's will, the petitioner-respondent The Bank of New York, filed a petition for judicial settlement of its account in the Surrogate's Court, Suffolk County, and on or about October 28, 1983, it moved for summary judgment on the prayer for relief contained in its petition. Olney Mairs Gardiner joined in its motion for summary judgment. The petitioner requested that the will of Jonathan T. Gardiner be construed in such a manner that the trust corpus be paid to Olney Mairs Gardiner pursuant to Article Fourth of Jonathan's will. The petitioner further noted that approximately 50 male relatives of Jonathan T. Gardiner with the surname of Gardiner might have an interest in the will, as well as Winthrop's two sisters, Isabelle Gardiner Mairs and Frances Gardiner Collins, both of whom survived Winthrop.

The opponents of the petition, certain named contingent remaindermen and the guardian ad litem for other contingent remaindermen, contended that Olney could not inherit the corpus of the testamentary trust because he was not the oldest living son of Winthrop, nor could he be considered a male relative of the testator, Jonathan T. Gardiner. Specifically, the opponents contended that (1) Olney could not inherit under the will because he is an adopted son, and because of a statutory provision known as the "precautionary addendum", which was in effect on the date that Jonathan T. Gardiner died (Domestic Relations Law § 114, L. 1931, ch. 562), the adoption of a child cannot cut off the rights of remaindermen to inherit under a will where a provision thereof is dependent on the adoptive parent dying without heirs, (2) Olney cannot inherit pursuant to the testamentary power of appointment exercised by Winthrop, since Olney's right to inherit through his natural relatives was destroyed when he was adopted by Winthrop (Domestic Relations Law § 117[1] ), and (3) the adoption of Olney by Winthrop constituted a fraudulent scheme to cut off the remaindermen from their right to the corpus of the trust, the testator not intending to have someone born almost nine years after his death and adopted by his...