Will of Hoffman

• Decision Date: 24 June 1976
• Citation: 385 N.Y.S.2d 49,53 A.D.2d 55
• Parties: WILL of Mary U. HOFFMAN. In the Matter of the Second Intermediate Account of Proceedings of the BANK OF NEW YORK, as Trustee of the Trust created by Subparagraph (c) of Article 8th of the Will of Mary U. Hoffman, Deceased. Rosemarie MURPHY, as Guardian of Jason Bayard Hawthorne and Sarah Lydian Hawthorne, infants, Respondent-Appellant, v. The BANK OF NEW YORK, as Trustee, Petitioner-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 49

385 N.Y.S.2d 49

53 A.D.2d 55

WILL of Mary U. HOFFMAN In the Matter of the Second Intermediate Account of Proceedings of the BANK OF NEW YORK, as Trustee of the Trust created by Subparagraph (c) of Article 8th of the Will of Mary U. Hoffman, Deceased Rosemarie MURPHY, as Guardian of Jason Bayard Hawthorne and Sarah Lydian Hawthorne, infants, Respondent-Appellant, v. The BANK OF NEW YORK, as Trustee, Petitioner-Respondent.

Supreme Court, Appellate Division, First Department.

June 24, 1976.

James M. Montgomery, New York City, for respondent-appellant.

Kenneth R. Page, New York City, of counsel (Cadwalader, Wickersham & Taft, New York City, attys.), for petitioner-respondent.

Before MURPHY, J.P., and BIRNS, CAPOZZOLI, NUNEZ and LYNCH, JJ.

BIRNS, Justice:

In this appeal from part of a decree entered in the Surrogate's Court, we are asked to decide whether the term 'issue' in a will should be construed to include illegitimate grandchildren of an income beneficiary of a trust established under the terms of that will.

Mary Hoffman, the testatrix did in 1951. Her will established a trust for the benefit of her two cousins and provided that when the first of the two should die, his one-half share of the income should be paid for the remainder of the trust term 'to his issue'.

One cousin is still living; the other died in 1965, survived by a daughter and a son named Stephen. Stephen died in 1972 leaving two children, the infants represented by respondent-appellant herein. Stephen never married the mother of these children nor was an order of filiation entered. The Surrogate, however, determined that the two children were indeed the children of Stephen.

Relying on precedent, the Surrogate ruled that the two children, being illegitimate, could not inherit (Matter of Flemm, 85 Misc.2d 855, 381 N.Y.S.2d 573 (1975); Matter of Belton, 70 Misc.2d 814, 335 N.Y.S.2d 177; Matter of Hendrix, 68 Misc.2d 439, 326 N.Y.S.2d 646) because the term 'issue' as used in the will meant lawful issue only (Matter of Underhill, 176 Misc. 737, 28 N.Y.S.2d 984), and absent an intention to the contrary it could not be assumed that the testatrix intended illegitimate descendants as the object of her bounty (Gelston et al. v. Shields et al., 78 N.Y. 275).

In this court, as she did below, respondent-appellant asserted that inasmuch as the word 'issue' in the provision of the will under consideration was not qualified by the word 'lawful', the question of legitimacy was not in decedent's mind when she made her will. In addition, the change in conventional attitudes towards illegitimates, as reflected in statutes and decisions, would warrant a construction of the word 'issue' as including illegitimates, in the absence of contrary intent to exclude them.

Petitioner-respondent emphasizes that under settled case law, where the word 'issue' appears in a will it will be interpreted to mean only lawful descendants in the absence of clear evidence of a contrary intent of a testator.

We recognize that precedents do hold that in the absence of an express intent to the contrary by a testator, the work 'issue' presumes lawful issue and not illegitimate offspring. This presumption has its roots in an earlier society where there was no sense of injustice in the teaching that the sins of the fathers were to be visited upon their children and succeeding generations (Exodus, 20:4; Shakespeare, Merchant of Venice, Act III, Scene 5, Line 1).

It is evident from these precedents that 'presumed intent' on the part of a testator to include lawful descendants only in the use of the work 'issue' was designed to harmonize testamentary language with the social mores of the times. The judicial policy to afford legitimate children a preferred status in society has placed upon illegitimates the burden of demonstrating an intent on the part of a testator to include such illegitimates in his testamentary use of the word 'issue'.

Because of changes in societal attitudes and recent developments in constitutional law, we are of the opinion that, to the extent that precedents require this burden to be placed upon illegitimate claimants under a will, the law is not only outmoded, but discriminatory and should be rejected. We would reverse.

English legal history relates the disabilities suffered at law by illegitimates: 'The early common law held that a bastard could not be a lawful heir, nor could one not born in lawful wedlock be regarded as legitimate . . .. If a person laid claim to an estate as heir, and his heirship, was disputed on the ground that he was born out of lawful wedlock, all proceedings in the common law courts stopped.' The claim was then weighed by the ecclesiastical court. (A. Reppy & L. J. Tompkins, Historical and Statutory Background of the Law of Wills, (Callaghan & Co., Chicago, 1928), p. 74.) ¹

Bottomed upon the ancient concept that an illegitimate child was indeed 'filius nullius', i.e., a child of nobody, thus without legal status (New-Haven v. Newtown, 12 Conn. 164; Dickinson's Appeal from Probate, 42 Conn. 491), many jurisdictions, like New York, held the word 'issue' to mean only legitimate issue (Page v. Roddie, 92 Okl. 236, 218 P. 1092; King v. Thissell, 222 Mass. 140, 109 N.E. 880; Hardesty v. Mitchell, 302 Ill. 369, 134 N.E. 745). Courts thus denied 'illegitimate' claimants the right to share under provisions of wills not unlike the one before us. ²

However, this archaic concept, with its moralistic overtones, was not accepted by all courts. Connecticut in 1914 first repudiated any common law principle which limited the words 'child' or 'children' to those only of legitimate status, observing that 'by reason of our recognition of the relation of parent to child between a mother and her illegitimate offspring that no statute has been needed in this state to accomplish results which humanity and natural justice dictated, and which could be arrived at elsewhere only through statutory intervention.' (Eaton v. Eaton, 88 Conn. 269, 280, 91 A. 191, 194.) And in a companion case the same court ruled that in the same will under consideration the words 'issue of his or her body' did not reflect a limited use of those words, but included illegitimate issue, in the absence of anything to indicate the use of the words in any other than their prima facie signification (Eaton v. Eaton, 88 Conn. 286, 91 A. 196).

New York courts, in the main, have not subscribed to the Connecticut view but have clung to the rule that where such words are used in a will, the word 'child' means 'lawful child,' and the work 'issue' means 'lawful issue', in the absence of a manifestation of contrary intent. (Central Trust Co. v. Skillin, 154 App.Div. 227, 138 N.Y.S. 884).

Research has disclosed only six cases in which the courts of this state have actually construed 'issue' or 'children', not qualified by 'lawful' or in any other way, and not otherwise explained, so as to exclude illegitimates. (Collins v. Hoxie, 9 Paige 81 (Court of Chancery, 1841); Van Voorhiss v. Brintnall, 23 Hun 260 (General Term, 2nd Dept., 1880); Miller v. Miller, 79 Hun 197 (General Term, 5th Dept., 1894); Braun v. Gilsdorff, 126 Misc. 366, 214 N.Y.S. 243 (Sup.Ct., N.Y.Co., 1926); Matter of Gould, 172 Misc. 396, 15 N.Y.S.2d 392 (Surrogate's Ct., N.Y.Co., 1939); Matter of Underhill, 176 Misc. 737, 28 N.Y.S.2d 984 (Surrogate's Ct., N.Y.Co., 1941)).

It is noted that the earliest of these decisions is over 100 years old, and the most recent is 35 years old. Two are by the same Surrogate. Only two are appellate decisions, the latest of which is 1894. Apparently the precise question before us has never been decided by the Court of Appeals or this court.

Illustrative of varied expressions of the New York rule is the recitation found in Matter of Underhill, supra: 'The meaning to be ascribed to the word 'issue' depends upon the intention of the testator as derived from the context of the will or such extrinsic evidence as may be considered. . . . The test is what was included 'in the nomenclature or vocabulary of the testator'. . . . His intention is to be construed in the light of the statutes and decisions applicable at the time he executed his will and codicil. . . .'

The Surrogate rejected the argument, that legislation then in effect (Domestic Relations Law, § 24; Decedent Estate Law, § 83) would justify a view that the testator's intent was not to exclude illegitimate descendants from sharing under his will. The Surrogate ruled that this legislation could not serve 'to control the construction of the word 'issue' in a will.' (Matter of Underhill, supra, at p. 740, 28 N.Y.S.2d at p. 987.) ³

However, there are a number of New York decisions wherein courts struggled to obtain relief from the common law strictures to which we have referred. These decisions have construed the expression 'lawful issue' in situations where the parents married or attempted to marry after the child's birth. (New York Life Insurance & Trust Co. v. Viele, 161 N.Y. 11, 55 N.E. 311 (1899); Olmsted v. Olmsted, 190 N.Y. 458, 83 N.E. 569 (1908); United States Trust Co. v. Maxwell, 26 Misc. 276, 57 N.Y.S.2d 53 (1899); Central Trust Co. v. Skillin, 154 App.Div. 227, 138 N.Y.S. 884 (2nd Dept., 1912); Matter of Sheffer, 139 Misc. 519, 249 N.Y.S. 102 (1931); Matter of Vought, 29 A.D.2d 97, 285 N.Y.S.2d 780 (1st Dept., 1967).) Although these cases are not in point, reference to one or two may prove helpful.

For example, in New York Life Insurance & Trust Co. v. Viele, supra, the court rejected claims by an adopted child to property left by will to 'lawful issue', 'lawful issue' being held to be 'nothing more than a descendant.' ⁴

In Matter of Vought, supra, a child born illegitimate whose parents later went through a ceremonial marriage believed valid by the mother but in fact not valid because the father was already married, was determined by this court to be the 'lawful issue' of the father, entitled to collect...