Matter of Church
Annotate this CaseDecided on June 27, 2007
Sur Ct, Suffolk County
In the Matter of the Judicial Settlement of the Final Account of Proceedings of JPMorgan Chase Bank, N.A., as Trustee of the Trust for the Benefit of Helen Church Minton Created Under Article Sixth of the Last Will and Testament of Elihu Dwight Church, Deceased.
488 P 1953
Sidley Austin, LLP
Attorneys for Petitioners
787 Seventh Avenue
New York, New York 10019
John M. Czygier, J.
In this trustee's first and final accounting proceeding for the trust under Article SIXTH of the last will and testament of Elihu D. Church, the petitioner has filed an account covering the period May 21, 1962, through and including January 31, 2006. The petitioner seeks an order (1) judicially settling its account; (2) discharging petitioner; (3) construing the terms of Article SEVENTH (a) of decedent's will to include Christopher Minton Peterkin; (4) approving legal fees incurred by the trustees in the amount shown; (5) approving the payment of commissions in the amounts shown; and (6) directing payment of the balance of the trust in the proportions shown on the accounting.
Jurisdiction has been obtained over all necessary parties to this proceeding, and no one has appeared in opposition hereto.
Background
Decedent died on July 17, 1953, leaving a last will and testament dated October 9, 1947, which was subsequently admitted to probate by this court. Successor letters of trusteeship issued to The New York Trust Company, which through a series of mergers is now known as JPMorgan Chase Bank, N.A. Pursuant to Article SIXTH of decedent's will, his residuary estate was left in trust for the benefit of his daughter, Helen Church Minton ("Helen"), and others (the "Trust"). Helen's was the measuring life of this trust, and Helen died on June 25, 2005, leaving a last will and testament with first and second codicils, all of which were admitted to probate on August 22, 2005, by the Surrogate's Court, County of Nassau (collectively referred to simply as her "will"). [*2]
Article SEVENTH of decedent's will provides that, upon Helen's death, the residuary estate as it then exists shall be divided into eighteen equal parts. Six equal parts (i.e., one-third of the residuary) shall be paid over to "the lawful issue of my said daughter, Helen C. Minton, and her husband, and in such proportions, whether outright or in trust, as she may by her last will and testament appoint."
Pursuant to Article THIRD (B) of her will, Helen exercised the power of appointment decedent granted to her. As relevant to this proceeding, Helen directed that the property be divided into five shares: one share for each of her children (all of whom survived her) and one share (collectively) for her grandchildren (all of whom also survived her).
Helen was survived by thirteen grandchildren, one of whom, Christopher Minton Peterkin ("Christopher"), is the adopted son of her daughter, Helen Minton Farley.
Issue Presented - Precautionary Addendum
The construction issue before the court is whether Christopher is a member of the class of "lawful issue" to whom Helen may appoint the Trust property. This requires a determination whether the statutory "precautionary addendum" contained in former section 114 of the Domestic Relations Law defeats the inheritance of an adopted child.
The "precautionary addendum" provides as follows:
The foster [adoptive] parent or parents and the person adopted sustain toward each other the legal relation of parent and child, and have all the rights and are subject to all the duties of that relation, including the right of inheritance from each other * * * but as respects the passing and limitation over of real or personal property dependent under the provisions of any instrument on the foster parent dying without heirs, the person adopted is not deemed the child of the foster parent so as to defeat the rights of remaindermen.
Domestic Relations Law former § 114, L 1931, ch 562; the italicized language is known as the precautionary addendum.
Legal Analysis
The precautionary addendum is 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 purpose of the statute was to prevent fraud (see, Matter of Upjohn, 304 NY 366); however, because the addendum was in derogation of long-standing policy favoring adoptions, the courts in New York have always been careful in applying the doctrine (see, Matter of Zinsser, NYLJ January 7, 2005, at 22, col 1). The precautionary addendum was repealed in 1963, when what is now section 117 of the Domestic Relations Law was amended to permit intestate succession from and through foster [*3][adoptive] parents, and Decedent Estate Law § 49, now EPTL 2-1.3, was added. EPTL 2-1.3 provides that, unless a testator "expresses a contrary intention," a disposition to "issue, children, descendants, heirs, heirs at law, next of kin, distributees (or by any term of like import)" includes adopted children.
The Court of Appeals has held that the precautionary addendum was not intended to cut down the rights of adopted children measured against those of natural children; it was intended to prevent an adoption from being used to cut off a remainder which would have followed had there been no child (see, Matter of Park, 15 NY2d 413). Thus, "it has no logical application to a controversy between two children . . . where the survival of [one child] alone avoided any application of the effective clause of the precautionary statute, i.e., since [the adoptive parent] did not die without issue" (see, Matter of Park, supra). Thus, it must be the act of adoption alone that cuts off the remainder. Similarly, the precautionary addendum has not precluded an adopted child's inheritance in cases where the adoption has simply added the child to an existing class (see, Matter of Silberman, 23 NY2d 98; Matter of Johnson, 17 NY2d 448). Further, where the interests of remaindermen could have been defeated by appointment to anyone within a class of which an adoptee happened to be a member, it has been held that the adoption itself and alone did not operate to defeat the interest of the remaindermen, and the precautionary addendum was therefore inapplicable (see, Matter of Gardiner, 69 NY2d 66; Matter of Cavanagh, 136 Misc 2d 826).
Accordingly, Helen's inclusion of Christopher in her will as a member of the class constituting her "grandchildren" was an appropriate exercise of the power of appointment granted to her by decedent. The precautionary addendum does not bar Christopher's inclusion in the class of decedent's "lawful issue," as the precautionary addendum is inapplicable under the facts presented.
Conclusion
In light of the lack of opposition, the petition for judicial settlement of the trustee's account and the incidental relief requested therein is granted.
Submit decree.
JOHN M. CZYGIER, JR., Surrogate
[*4]
Sidley Austin, LLP
Attorneys for Petitioners
787 Seventh Avenue
New York, New York 10019
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