Vought's Trust, In re

• Decision Date: 21 December 1967
• Citation: 29 A.D.2d 97,285 N.Y.S.2d 780
• Parties: In re VOUGHT'S TRUST. Application of the CHEMICAL BANK NEW YORK TRUST COMPANY, Respondent, for a judicial settlement of the third intermediate account of the trustees of the trust under a certain deed of trust, dated June 3rd, 1931, between Ena Lewis Vought, as Donor, and Robert B. Knowles and Corn Exchange Bank Trust Company, as Trustees, and for a judicial determination construing said deed of trust and other relief. Edward CHERNEY, Guardian ad Litem for Craig Vought, an infant under the age of 14 years, Appellant-Respondent, Frederick Siegmund, Guardian ad Litem for Gay Vought, and John Peter Vought, infants under the age of 14 years, Respondent-Appellant. Henry L. Ughetta II, Guardian ad Litem for Chance M. Vought, III, an infant over the age of 14 years, Respondent. Peter Vought and The Rhode Island Hospital Trust Company, as Executors of the Estate of Ena Lewis Prochet, deceased, Respondent. George Langberg, Guardian ad Litem for Leslie Vought, an infant under the age of 14 years, Respondent. The Presbyterian Hospital in the City of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 780

285 N.Y.S.2d 780

29 A.D.2d 97

In re VOUGHT'S TRUST.

Application of the CHEMICAL BANK NEW YORK TRUST COMPANY,

Respondent, for a judicial settlement of the third

intermediate account of the trustees of the trust under a

certain deed of trust, dated June 3rd, 1931, between Ena

Lewis Vought, as Donor, and Robert B. Knowles and Corn

Exchange Bank Trust Company, as Trustees, and for a judicial

determination construing said deed of trust and other relief.

Edward CHERNEY, Guardian ad Litem for Craig Vought, an

infant under the age of 14 years, Appellant-Respondent,

Frederick Siegmund, Guardian ad Litem for Gay Vought, and

John Peter Vought, infants under the age of 14 years,

Respondent-Appellant.

Henry L. Ughetta II, Guardian ad Litem for Chance M. Vought,

III, an infant over the age of 14 years, Respondent.

Peter Vought and The Rhode Island Hospital Trust Company, as

Executors of the Estate of Ena Lewis Prochet,

deceased, Respondent.

George Langberg, Guardian ad Litem for Leslie Vought, an

infant under the age of 14 years, Respondent.

The Presbyterian Hospital in the City of New York, Respondent.

Supreme Court, Appellate Division, First Department.

Dec. 21, 1967.

Edward Cherney, New York City, of counsel (Smart, McKay & Cherney, New York City, attorneys), for appellant-respondent.

Frederick Siegmund, Brooklyn, respondent-appellant pro se.

Henry L. Ughetta, II, New York City, of counsel (James S. Brown, Jr., New York City, on the brief; Willkie, Farr, Gallagher, Walton & Fitz Gibbon, New York City, attorneys), for respodnent Henry L. Ughetta II.

Before BOTEIN, P.J., and EAGER, TILZER, RABIN and McNALLY, JJ.

RABIN, Justice.

In this construction proceeding, Special Term was called upon to determine whether the infant Craig Vought is a member of the class of 'lawful issue' of one Chance M. Vought, Jr., so as to enable him to take a remainder interest in the trust being construed, to the same extent as the three other children of Chance M. Vought, Jr. His guardian ad litem sought a summary determination that the infant Craig is included in that class whereas the guardian ad litem for two of the other children of Chance M. Vought, Jr., sought a determination to the contrary.

Special Term ordered that 'the question of whether Craig Vought is the lawful issue of Chance M. Vought, Jr., within the settlor's meaning and intent be * * * referred to (a referee) * * * to hear and report * * *.'

It is the opinion of this Court that Special Term should have granted the motion of Edward Cherney, Guardian Ad Litem for Craig Vought, and found that Craig Vought is the 'lawful issue' of Chance M. Vought, Jr., and is entitled to share in the trust created by Ena Lewis Prochet on June 3, 1931.

On June 3, 1931 the settlor established an irrevocable trust for the benefit of her two unmarried children--Chance M. Vought, Jr., and Peter Vought and their 'lawful issue.' The relevant portions of the trust are contained in Article First (a) and Article Tenth. They provide as follows:

'(a) To divide the principal of said trust funds into two equal parts or shares and to designate, Hold and invest one of such equal parts or shares for each of my children, Chance M. Vought, Jr., and Peter Vought, and to collect and receive, and to pay the income to, or apply the same towards the care, use, education, maintenance and support of the child for whom such equal part or share is designated, During his life and upon the death of the child for whom such share was designated, to thereupon pay, assign, transfer, Deliver or convey the principal of the part or share so held in trust for him, to his lawful issue, in equal shares, per stirpes and not per capita, absolutely, free and discharged of the trust, and failing such issue, then to the other of my said children who shall survive, but if he also should be dead, then to his lawful issue, in equal shares, per stirpes and not per capita, absolutely, free and discharged of the trust. (Emphasis ours.)

'TENTH: This Trust shall take effect upon the acceptance by the Trustees and in all respects shall be governed by the laws of the State of New York, and the Trustees by joining in the execution and delivery of this Agreement signify their acceptance of this Trust.'

Peter Vought is still living and we are not concerned with that portion of the trust funds set aside for his benefit. The life interest of Chance M. Vought came to an end on April 2d 1964 when he died, predeceasing his mother who died on October 14, 1965. We are concerned with the distribution of the remainder of the trust funds originally set aside for him.

Chance M. Vought was married to Edith Haig in 1948. The marriage produced one child, Chance M. Vought III. That marriage was terminated by a valid divorce. Thereafter, Chance Vought, Jr., married one Eugenie A. Vought in December 1951. Two children, Gay Vought and John Peter Vought were born of this marriage. It is conceded that this marriage was never terminated or dissolved during the lifetime of Chance M. Vought, Jr. While still married to Eugenie, Chance M. Vought, Jr., on March 7, 1960 went through a marriage ceremony with one Sara Wilson, in Alexandria, Virginia. The aforementioned Craig Vought was born of that 'marriage' on April 13, 1960 in Haverford, Pennsylvania.

It appears from the affidavit of the said Sara Wilson, that she met Chance Vought in the winter of 1959. She was told by him that he was divorced. Sara Wilson became pregnant by Chance Vought about July, 1959. Apparently, she discovered that Chance Vought was not divorced. However, in March 1960, and before Craig was born, he told her that he was going to Juarez, Mexico to obtain a divorce. Upon his return from Mexico he assured her that the divorce had been obtained. It is asserted by Sara Wilson that in her good faith belief that Chance Vought was divorced she married him in Alexandria, Virginia on March 7, 1960, several days after Chance returned from Mexico. The facts of the marriage and the birth of Craig are supported by detailed documentary evidence, i.e., the Certificate of Marriage, Birth Certificate and the Birth Registration. All of these documents are matters of public record and their authenticity cannot be disputed.

The Guardian Ad Litem for Craig Vought, relying alternatively on New York and Pennsylvania statutes, which he asserts make Craig Vought a legitimate child of Chance Vought, maintains that Craig must be deemed to come within the class of 'lawful issue' within the contemplation of the trust. However, those claiming adversely to Craig assert that even if any of the statutes relied on do make Craig legitimate as to Chance, nevertheless his legal status does not bring him within the class of 'lawful issue' as intended by the settlor.

Special Term in ordering a hearing stated:

'It is the court's opinion that from the reading and examination of the trust agreement it is impossible to decide Craig's status as a matter of law, and that the determination of the settlor's intent in using the phrase 'lawful issue' as applied to Craig Vought is a mixed question of law and fact.'

We feel that this question, in the circumstances of this case is one solely of law and, further, that that issue should be determined favorably to Craig.

It might be well to first determine what is meant by the words 'lawful issue' and with special reference to the time of the execution of this trust, i.e., June 3, 1931. Some cases have indicated that such phrase means nothing more than the term, descendant. New York Life Insurance and Trust Co. v. Viele, 161 N.Y. 11, 19, 55 N.E. 311, 313; Matter of Disney's Will, 118 App.Div. 378, 380, 103 N.Y.S. 391, 392. We do not here accept that definition of that phrase, for were we to do so the word 'lawful'--especially in the context of this case--would unwarrantedly be deleted.

It is the contention of those claiming adversely to Craig, that 'lawful issue'--at least in 1931 meant issue born during lawful wedlock. Of course, if we were to adopt that definition, Craig would not come within the class. In support of their contention they cite several cases. It would serve no useful purpose to consider each and every case cited since for the most part they are factually distinguishable from the case at bar.

For example, in Central Trust Co. v. Skillin, 154 App.Div. 227, 138 N.Y.S. 884, which is heavily relied upon by those claiming adversely to Craig, the will was made at a time when this State had no statutes in effect which could have made a child legitimate although at birth it was born illegitimate. As will hereinafter be seen, in 1931 when this trust was created there were several such statutes in effect. In United States Trust Co. v. Maxwell, 26 Misc. 276, 57 N.Y.S. 53, relied on by those claiming adversely to Craig, there is a clear indication that the testator intended to disinherit the issue of the meretricious relationship.

At any rate, the decision of the Court of Appeals in Olmsted v. Olmsted, 190 N.Y. 458, 83 N.E. 569, clearly equated legitimacy with 'lawful issue.' In that case the Court considered the question of whether certain children born of an invalid marriage could be considered 'lawful issue' within the terms of the will. The Court in determining this question considered whether the children were in fact legitimatized by virtue of statutes which made a child born illegitimate, legitimate if the parents thereafter intermarried. The Court of Appeals found that the subsequent marriage in that case was invalid and, therefore, the children were not legitimate. What is significant, however, is that the Court equated legitimate--or rather legitimatized, with 'lawful issue.' It obviously did not consider it necessary in order for a child to be considered in the class of 'lawful issue' to have been born of a valid marriage. That was the import of that decision. If not the entire decision of the Court of Appeals was unnecessary.

The definition offered...