In re MARTIN B. 841 N.Y.S.2d 207 (2008) CASE BRIEF

In re MARTIN B.

841 N.Y.S.2d 207 (2008)

NATURE OF THE CASE: The trustees brought an uncontested application for advice and direction to determine if the terms 'issue' and 'descendants' included children conceived by means of in vitro fertilization with the cryopreserved semen of the grantor's son, who had died several years prior to such conception.

FACTS: The Grantor who was a life income beneficiary of the trusts died on July 9, 2001, survived by his wife Abigail and their son Lindsay (who has two adult children), but predeceased by his son James, who died of Hodgkins lymphoma on January 13, 2001. After learning of his illness, James deposited a sample of his semen at a laboratory with instructions that it be cryopreserved and that, in the event of his death, it be held subject to the directions of his wife Nancy. Three years after his death, Nancy underwent in vitro fertilization with his cryopreserved semen and gave birth on October 15, 2004 to a boy (James Mitchell). After using the same procedure, she gave birth to another boy (Warren). These infants are the products of James' semen. The trust instruments give the trustees discretion to sprinkle principal to, and among, grantor's 'issue' during Abigail's life. The instruments also provide that at Abigail's death the principal is to be distributed as she directs under her special testamentary power to appoint to grantor's 'issue' or 'descendants' (or to certain other 'eligible' appointees). The question raised is whether the two infant boys are 'descendants' and 'issue' for purposes of such provisions although they were conceived several years after the death of James.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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