Matter of Zinsser

[*1] Matter of Zinsser 2004 NY Slip Op 51658(U) Decided on December 20, 2004 Surrogate's Court, Nassau County Riordan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 20, 2004
Surrogate's Court, Nassau County

In the Matter of RUDOLPH ZINSSER, Deceased.



73271

John B. Riordan, J.

This proceeding is a voluntary accounting. It concerns the intermediate account of Edward H. Walworth, Jr., as predecessor trustee, and the final account of JPMorgan Chase Bank as successor trustee. The Trust in question is a testamentary trust for the benefit of Joan Z. Lothrop and remainder beneficiaries under Article ELEVENTH (i)(B) of the Will of Rudolph Zinsser. The petitioners are the two trustees. Objections to the account have been filed on behalf of Roderick D. Zinsser, Jr., Andria Zinsser Cook, Alicia Zinsser Favali, Corey Taylor, Kyle R. Taylor, and Miranda Zinsser. In response to these objections, the petitioners have moved for an order pursuant to CPLR 3211 dismissing the objections. In addition to said dismissal, the petitioners also seek to have the court determine that the objections are not only meritless but also frivolous and therefore the objectants should be sanctioned pursuant to 22 NYCRR §130-1.1.

The decedent died on August 14, 1955. His Will, executed on January 3, 1955, was admitted to probate by this court on September 23, 1955. He was survived by his wife, Dorothy, and their two adopted children, Roderick Zinsser and Joan Zinsser Lothrop. Given the lapse of time and the issue raised by this motion, it is unnecessary to recite the history of the various trustees who have served over that period of time. Suffice it to say, the issue before the court is the identity of the trust's remainder beneficiaries and the effect an antiquated doctrine of law, the so-called "precautionary addendum" has on the determination of those remainder beneficiaries.

Rudolph Zinsser's Will established a trust for the life benefit of his wife, Dorothy. Upon her death, the trust's remainder was to be divided equally into two parts, one part for the benefit of the couple's son, Roderick Zinsser, and the other part for the benefit of their daughter, Joan Lothrop. The latter trust is the object of this accounting. Mr. Zinsser's Will provided that upon the death of Joan Lothrop the remainder of her trust was to be distributed to her issue, per stirpes. In default of Joan Lothrop being survived by issue, then the remainder of this trust is to be distributed to the issue of her brother, Roderick Lothrop, per stirpes. Joan Lothrop died on February 17, 2003. She is survived by three adopted children, John Reed Baker, Matthew James Baker, and Mark Franklin Baker. They were adopted by Ms. Lothrop when they were adults. [*2]

The objectants to this proceeding are the issue of Roderick Lothrop. They contend they are the remainder beneficiaries and that Ms. Lothrop's children do not qualify because they were adopted. While there is no modern distinction between natural and adopted children, there was a time when such a distinction, the "precautionary addendum," would have potentially operated to oust the adopted children of Joan Lothrop from their status as valid remainder beneficiaries. Mr. Zinsser died 1955, at a time when the then current version of Domestic Relations Law §117 included the precautionary addendum. The statute prohibited adopted children from defeating the rights of remainder beneficiaries if those remainder beneficiaries would have, but for the adoption, be assured of taking the property in question. In other words, had Joan Lothrop not adopted these three individuals she would have died without issue and the remainder would have passed to the objectants.

The precautionary addendum, found in Domestic Relations Law §117 (formerly Domestic Relations Law §115), was applicable to Wills of persons dying before March 1, 1964, and operated to prevent the rights of remainder beneficiaries from being terminated where such rights would not otherwise be defeated except for an adoption. The statute read, [a]s respects the passing and limitation over of real or personal property dependent under the provisions of any instrument on the foster [sic] parent dying without heirs, the foster child is not deemed the child of the foster parent so as to defeat the rights of remaindermen.

Although the purpose of the statute was to prevent fraud, it would be fair to conclude that it may also have manifested a residual societal suspicion of adoption that is alien to current sensibilities. It is clear, however, that adopted children enjoyed the right to inherit from their adoptive parents from 1887. Parenthetically, the court also notes that before 1963, EPTL 2-1.3's predecessor statute also provided that adopted children were not the issue of adoptive parents so as to defeat the rights of remainder beneficiaries.

The case law from the time indicates that the precautionary addendum was not a popular statute even in its effective years. In Matter of Park, (15 NY2d 413 [1965]), the court attempted to mitigate the harsh effects of the precautionary addendum by ruling that the legislature had always intended that adopted children should be treated as biological children unless the testator directed otherwise. In the cases after Park, a majority held that where the adopted children were the only members of the class of takers, then the precautionary addendum still applies and that in order to avoid its effect, the adopted children must prove that the testator intended to include them as beneficiaries of his or her estate.

The petitioning trustees have taken the position that Joan Lothrop's adopted children should be the remainder beneficiaries of her testamentary trusts. The court notes that these three children were adopted by Joan Lothrop in 1988. At the time they were already adults.

These facts, were they the only relevant facts, would require a lengthier analysis of the precautionary addendum and the cases interpreting it. As it is, any deep analysis is rendered unnecessary by Rudolph Zinsser himself. Article SEVENTEENTH of his Will provides as follows: For all purposes of this Will, a legally adopted child shall have the same status, and all relationships to or [*3]through him or her shall be determined in the same manner, as if such child were a child of the blood of his or her adoptive parent or parents rather than of his or her natural parents.

Because the precautionary addendum was in derogation of long-standing policy favoring adoptions, the courts in New York had always been careful in applying the doctrine. It was long understood that a contrary intention of the testator, as expressed in the Will, would overcome the precautionary addendum. In Matter of Henderson, 64 Misc 2d 280, 284 [1970], Surrogate Sobel wrote: If the words of the will in its entirety, and the background of facts and circumstances existing when the will was drawn, evidence the testator's intention to include adopted children, the Will will be construed to effectuate that intention.

In a lengthy and penetrating analysis of this issue, Surrogate Sobel also wrote, in Matter of Lawrence, 86 Misc 2d 579, 594, 595 [1974]: [t]he effectuation of the precautionary addendum does not turn on the mere fact of adoption...[the addendum] is not a statutory absolute. The "precautionary addendum" will not be applicable when it appears affirmatively from the terms of the will itself that the testator intended to include adopted children in his class disposition...The first goal of a court confronted with a construction proceeding is to ascertain and enforce the actual intention of the testator.

Based upon the foregoing, there can be no other conclusion than that the provision in the Will, together with the proof of Joan Lothrop's adoption of the three children in California in 1988 is sufficient to conclude as a matter of law that the precautionary addendum is inapplicable to these facts. The objectants' efforts to cast aspersions upon the adoptions or the motives for them are unpersuasive. It is, in fact, ironic that the objectants take this position. Both Roderick Zinsser and Joan Zinsser Lothrop were themselves adopted by Rudolph Zinsser. Therefore, there is no biological connection between the objectants (children of Roderick Zinsser) and the decedent. There is no need to delve into the personal relationships of the relevant parties, as sought by the objectants. The Will of Rudolph Zinsser governs and its clear import favors the adopted children of Joan Lothrop. Therefore, the motion to dismiss is granted.

The petitioners next move for an order pursuant to 22 NYCRR 130-1.1 to assess sanctions against the objectants for engaging in frivolous litigation. The petitioners argue that the objectants' position is entirely without merit, as evidence "by the fact that the objectants have been to multiple attorneys, who have informed them that the presumptive remaindermen are lawfully entitled to the trust." The court declines to sanction the objectants' conduct. As sympathetic as it might be to the petitioners' argument, the court, in this case, draws a distinction between a meritless claim and a frivolous one (cf., Timothy v Newmark & Co. Real Estate, Inc., 299 AD2d 201 [2002]). Therefore, the application for sanctions is denied.

This is the decision and order of the court. Submit decree on the account. [*4]

Dated: December 20, 2004

JOHN B. RIORDAN

Judge of the

Surrogate's Court