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MATTER ACCOUNTING SAMUEL J. SILBERMAN ET AL. (10/17/68)

COURT OF APPEALS OF NEW YORK 1968.NY.43157 <http://www.versuslaw.com>; 242 N.E.2d 736; 23 N.Y.2d 98 decided: October 17, 1968. IN THE MATTER OF THE ACCOUNTING OF SAMUEL J. SILBERMAN ET AL., AS TRUSTEES UNDER THE WILL OF DOROTHY SILBERMAN, DECEASED, RESPONDENTS. DOUGLAS R. SILBERMAN ET AL., APPELLANTS; JANET S. YASEEN ET AL., RESPONDENTS Matter of Silberman, 27 A.D.2d 902, modified. Counsel Irving M. Maron for Douglas R. Silberman and another, appellants. David J. Levy and Monroe L. Friedman for Samuel J. Silberman and others, respondents. Counsel Howard Bindelglass, Joel J. Karp and James R. Cohen for Janet S. Yaseen, respondent. Counsel Arthur W. Graef for Allen J. H. Silberman and, in person, as special guardian for Jane M. H. Silberman, an infant, appellants. Counsel David M. Berger, in person, as special guardian for Alfred M. Silberman and another, infants, and Edward Edelman for David M. Berger, respondents. Counsel Henry J. Kennedy, in person, as special guardian for Marc A. Yaseen, an infant, respondent. Scileppi, J. Chief Judge Fuld and Judges Burke, Bergan, Keating and Jasen concur; Judge Breitel taking no part. Author: Scileppi


Matter of Silberman, 27 A.D.2d 902, modified.

Scileppi, J. Chief Judge Fuld and Judges Burke, Bergan, Keating and Jasen concur; Judge Breitel taking no part.

Author: Scileppi

 This accounting proceeding was commenced for the settlement of the accounts of the trustees under the will of the testatrix, Dorothy Silberman. The accounts which accompanied the petition revealed that the trustees had construed articles Twenty-Sixth and Twenty-Seventh of the will as being intended to benefit only the natural grandchildren of the testatrix.

Following our decision in Matter of Park (15 N.Y.2d 413) petitioners-respondents filed a supplemental petition raising for the first time the question of construction with respect to the rights of the adopted children to participate in the payment or distribution of the principal or income of the trusts under articles Twenty-Sixth and Twenty-Seventh of the will.

The testatrix executed her will on February 7, 1950. She died on February 18, 1951 survived by two sons and three natural grandchildren. Another child was born to testatrix' son Samuel in 1955. Samuel and all four natural grandchildren are living. The testatrix' son Marvin died in 1959.

At his mother's death, Samuel was married to Leslie R. Silberman. Leslie had two children, Douglas and Rita Frates, by a prior marriage (hereinafter referred to as the Frates children). In 1956 by order of the Surrogate's Court, Westchester County, Samuel adopted the Frates children. Samuel's marriage to Leslie was terminated by divorce in 1960 and shortly thereafter Samuel married Lois Herskovitz. Lois also had two children, Allen and Jane Herskovitz, by a prior marriage (hereinafter referred to as the Herskovitz children). In 1965 pursuant to orders of the Surrogate's Court, New York County, Samuel adopted the Herskovits children.

The sole question presented on this appeal is what rights do the Frates and Herskovits children have to share in the principal and income issuing under the trusts created by the testatrix in articles Twenty-Sixth and Twenty-Seventh of her will.

The Appellate Division, First Department, unanimously affirmed the decree of the Surrogate's Court, New York County (Cox, S.), construing articles Twenty-Sixth and Twenty-Seventh of the will, providing that only the natural born children of decedent's sons qualify and are entitled to share as beneficiaries and declaring that appellants, being adopted children of decedent's son, Samuel J. Silberman, have no right or interest in the trusts under the above-mentioned articles of decedent's will.

Article Twenty-Sixth provides: "I give, devise and bequeath one-fourth (1/4) of my said residuary estate to my Executors and Trustees hereinafter named, in trust, nevertheless, to invest, reinvest and keep the same invested for and during the life of my beloved son, Samuel J. Silberman, to collect and receive the income and profits arising therefrom, and to pay over the same, in quarterly or more frequent installments, to my said beloved son, Samuel J. Silberman. Upon his death, or if he shall predecease me then upon my death, I direct my said Executors and Trustees to divide the principal or corpus of said trust into as many equal parts as there shall be children of my said son then living and issue of any deceased child of my said son, one such share or part for each such child and one in turn divided into equal parts for the issue collectively of any such deceased child. As to any such child or issue born after my death, his or her share or part shall then and thereupon be paid and distributed to him or her outright; but as to any such child or issue who shall have been living at my death, I direct my said Executors and Trustees to hold, invest and reinvest the same each upon a separate trust, measured in each instance by the life of the respective child or issue of a deceased child of my said son for whom the same shall have been set apart as aforesaid, and to hold, invest and reinvest the same, and to collect and receive the income and profits arising therefrom, and after paying the expenses of each such trust to pay and turn over the income to him, in quarterly or more frequent installments, for life, and upon his death to pay and turn over the principal or corpus to his then living lawful issue, and in default thereof then to the then living lawful issue of my said son, Samuel J. Silberman, and in default thereof to my then living lawful issue, in each instance in equal shares, per stirpes and not per capita."

At the date of the will and at the time of the testatrix' death section 115 of the Domestic Relations Law provided that an adopted child would inherit from his foster parent but would not inherit through a foster parent from the kin of such foster parent.

In interpreting section 115, we held in Matter of Park (supra) that "A testator or settlor must know that in light of New York policy a foster child has exactly the same 'legal relation' to the parent as a natural child. In the absence of an explicit purpose stated in the will or a trust instrument to exclude such a child, he must be deemed included, whether the word 'heir', 'child', 'issue' or other generic term expressing the parent-child relationship is used " (p. 417; emphasis added).

Surrogate Cox, after referring to our holding in the Park case, concluded that, "If the problem of construction concerned article Twenty-sixth only and that article of the will contained the sole expression of the testatrix' general testamentary purpose, the conclusion would need be that, by force of the public policy referred to in Park and the absence of a clear expression of a purpose to reject that policy, the adopted children are participants in the trust."

It should be noted at this point that at the time the testatrix made her will the Frates children were known to her and she in fact made provision for them in a separate article Twenty-Third by the creation of a relatively minor trust bequest of $25,000.*fn1 The Surrogate, however, properly dealt with the applicability of this bequest when he stated: "The fact that the testatrix made a relatively minor trust bequest for the benefit of the then stepchildren of her son cannot be regarded as an 'express purpose' to exclude those later adopted children from any further benefit under the will. At the date of the will these children had not been adopted and, lacking some testamentary provision naming them, they could have no claim upon the estate. This remembrance of persons who then were not related to either the testatrix or her son cannot be read as expressive of her attitude toward a fact situation which came into existence some years after her death."

The Surrogate, however, found that the language and intention manifested in article Twenty-Seventh was enough to satisfy the test enunciated in Park to exclude adopted children. He not only excluded the adopted children from article Twenty-Seventh but felt that the language and intention evidenced in article Twenty-Seventh pervaded the entire instrument and, ...


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