40 Misc. 2d 539 | N.Y. Sur. Ct. | 1963
This proceeding has been instituted by the testatrix’ granddaughter, a trust beneficiary, to obtain a construction of the testatrix’ will. The will was executed in 1921 and the testatrix died in 1928. The 19th article of the will created a trust for the benefit of the petitioner in this proceeding with the trust income payable to her, under specific restrictions, and, upon her death, the trust remainder payable to her lawful issue. The will contains the following provision: “ In the event that my said granddaughter, Alexandra diana krickl, shall die without leaving issue her surviving, then I direct my said executor and trustee to distribute said residuary estate between the Swedish Home for Aged People in West Brighton, Staten Island and the Swedish Hospital in Brooklyn, share and share alike.”
Although the petitioner’s adopted child was not born until many years after the testatrix’ death, support for the contention that the testatrix’ contacts with other adopted children could be indicative of her testamentary purpose appears in Matter of Ward (9 A D 2d 950, affd. 9 N Y 2d 722) and Matter of Day (10 A D 2d 220). This court had occasion in Matter of Pryor (38 Misc 2d 722) to examine the cited opinions as well as other relevant decisions and the conclusion was reached that in Matter of Rockefeller (Hubbard) (12 N Y 2d 124) the Court of Appeals had rejected the reasoning of the cited cases and, in fact, had reinstated the rationale of the older decisions (New York Life Ins. & Trust Co. v. Viele, 161 N. Y. 11; Matter of Leask, 197 N. Y. 193). In Matter of Upjohn (304 N. Y. 366) the thinking was that, because the testator knew of a particular adoption, he intended to benefit such child. In the Ward and Day decisions this testamentary purpose was extended to encompass adoptees unknown to the creator of the trust when the facts established that the creator’s attitude toward adoptees was generally favorable. This seemingly unreliable basis for the construction of trust language was premised upon the thought that the Legislature, in enacting section 117 of the Domestic Relations Law and its predecessor statutes, was prompted to limit the rights of an adopted child in order to avoid the perpetration of a fraud upon a testator or trust settlor through an adoption having as its sole and deliberate aim the deprivation of the rights of contingent remaindermen. This thought was rejected in the Rockefeller opinion and it follows that such proof intended either to establish fraud upon a testator or to dissipate any suggestion of fraud is no longer acceptable.
Application of the quoted standards for construing the testatrix’ language will necessarily circumscribe the proof and not permit the wider latitude which would control were any question of fraud upon the testatrix before the court. For the purpose of receiving permissible proof, a hearing will be had.