Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Svenningsen

Supreme Court of New York, Second Department

February 6, 2013

In the Matter of John Svenningsen, deceased. Maryann Campbell, et al., petitioners-respondents; Elisabeth Anne Svenningsen, et al., appellants; Emily Fuqui Svenningsen, respondent. (File Nos. 1997-1519/A, 1997-1519/C, 1997-1519/D)

APPEAL by Christine Svenningsen and SEPARATE APPEAL by Elisabeth Anne Svenningsen, Jan Anders Svenningsen, and Christina Svenningsen, individually and as virtual representatives of Melissa Anne Svenningsen and Sara Elvera Svenningsen, in a probate proceeding in which Maryann Campbell and Fred Cass, as the adoptive parents of Emily Fuqui Svenningsen, petitioned to compel Christine Svenningsen to render an account as the executor of the decedent's estate, and separately petitioned to compel Christine Svenningsen and Fanny Warren to account as the cotrustees of a testamentary trust created under the decedent's will and as cotrustees of the Svenningsen Family Irrevocable Trust Number One, from an order of the Surrogate's Court (Anthony A. Scarpino, Jr., S.), dated October 6, 2010, and entered in Westchester County, which, in effect, granted the petitioners' motion for summary judgment on the petition to compel Christine Svenningsen to account as the executor of the decedent's estate and denied the motion of Christine Svenningsen, joined by Elisabeth Anne Svenningsen, Jan Anders Svenningsen, and Christina Svenningsen, individually and as virtual representatives of Melissa Anne Svenningsen and Sara Elvera Svenningsen, for summary judgment dismissing that petition, and ADDITIONAL APPEALS by Christine Svenningsen and Fanny Warren, and by Elisabeth Anne Svenningsen, Jan Anders Svenningsen, and Christina Svenningsen, individually and as virtual representatives of Melissa Anne Svenningsen and Sara Elvera Svenningsen, from two orders of the same court, also dated October 6, 2010, which, in effect, granted the petitioners' motions for summary judgment on the petitions to compel Christine Svenningsen and Fanny Warren to account as the cotrustees of the testamentary trust created under the decedent's will and as cotrustees of the Svenningsen Family Irrevocable Trust Number One, and denied the motions of Christine Svenningsen and Fanny Warren, joined by Elisabeth Anne Svenningsen, Jan Anders Svenningsen, and Christina Svenningsen, individually and as virtual representatives of Melissa Anne Svenningsen and Sara Elvera Svenningsen, for summary judgment dismissing those petitions. By three decisions and orders on motion, all dated December 15, 2010, this Court stayed all proceedings in the above-entitled matter pending hearing and determination of the appeals.]

Cahill Gordon & Reindel, LLP, New York, N.Y. (David G. Januszewski and Joan Murtagh Frankel of counsel), for appellants Fanny Warren and Christine Svenningsen; and Wiggin and Dana, LLP, New York (Robert W. Benjamin, Steven B. Malech, and Kim E. Rinehart of counsel), for appellants Elisabeth Anne Svenningsen, Jon Anders Svenningsen, and Christina Svenningsen, individually and as virtual representatives of Melissa Anne Svenningsen and Sara Elvera Svenningsen (one brief filed).

Bertine, Hufnagel, Headley, Zeltner, Drummond & Dohn, LLP, Scarsdale, N.Y. (Stephen Hochhauser of counsel), for petitioners- respondents.

Carton & Rosoff, P.C., White Plains, N.Y. (Robin D. Carton of counsel), attorney for the child, the respondent Emily Fuqui Svenningsen.

OPINION & ORDER

AUSTIN, J.

These consolidated appeals present a case of first impression regarding the rights and interests of an adopted child in irrevocable trusts and the estate of her first adoptive father, whose surviving spouse surrendered the child for a second adoption to the petitioners eight years after the first adoptive father's death and the admission of his will to probate.

In March 1996, the decedent, John Svenningsen (hereinafter the decedent), was diagnosed with cancer while he and his wife, Christine Svenningsen (hereinafter Christine), were in the process of adopting a child from China. As the decedent remained in New York undergoing treatment for cancer, Christine traveled to China to complete their adoption of an infant born on July 7, 1995, whom they later named Emily. The decedent and Christine entered into an "Agreement for Parties to an Adoption Registration" (hereinafter the adoption agreement), dated May 6, 1996, pursuant to which they guaranteed, inter alia, that they would not abandon Emily or "transfer or have [her] re-adopted, " and that they would "deem [Emily] a biological child." Further, the adoption agreement provided that Emily had the right to inherit the estate of the decedent and Christine. A certificate of adoption reflecting the adoption of Emily by the decedent and Christine was issued on May 8, 1996, by the Hubei Province of the People's Republic of China.

Christine returned to New York with Emily, and a written announcement was made acknowledging the adoption of Emily on May 8, 1996, by the decedent and Christine. Additional proceedings were commenced by the decedent and Christine in New York to re-adopt Emily so that she could be issued a U.S. birth certificate and obtain a U.S. passport. The Family Court, Westchester County, eventually issued an order of re-adoption to Christine subsequent to the decedent's death.

The decedent and Christine had four biological children at the time of commencement of the adoption proceedings. Their fifth biological child, Sara, was born subsequent to their application to adopt a child from China but prior to the finalization of Emily's adoption.

During his lifetime, the decedent, as "Settlor, " created two irrevocable inter vivos family trusts for the benefit of his children. The first trust, entitled the "Svenningsen Family Irrevocable Trust Number One" (hereinafter the 1995 Trust), was created on July 20, 1995. The FIRST Article, subsection (D) of the 1995 Trust provided, inter alia, for the trustees, the decedent, and his sister, Fanny Warren (hereinafter Warren), at the time the 1995 Trust was created, to divide the trust fund into equal shares for "each child of the Settlor then living" when the oldest of the decedent's children attained the age of 30. According to the FIRST Article, subsection (A), the Trustees shall dispose of the net income and principal of the 1995 Trust by, inter alia:

"Pay[ing] or apply[ing] to or for the benefit of the Beneficiaries... so much or all of the net income and so much or all of the principal of this Trust Fund as the Independent Trustee, in her sole and absolute discretion, shall from time to time deem advisable, without any requirement that Trustees make any payments to the Beneficiaries in any trust year or make payments to said Beneficiaries in equal shares."

The TWENTY-FIFTH Article defined the class of "children" to include the decedent's then living four children, who were identified by name, "and any additional children born to or adopted by the [decedent] after the creation of this Trust." When the decedent created the 1995 Trust, Emily had not yet been adopted and Sara had not yet been born. The record suggests that although Emily was not yet adopted, the concept of adoption had been discussed between the decedent and Christine prior to the execution of the 1995 Trust.

The second irrevocable family trust, entitled the "Svenningsen Family Irrevocable Trusts" (hereinafter the 1996 Trust) was created on October 29, 1996, for the benefit of the decedent's six children. The decedent and Warren were the trustees of the 1996 Trust. The 1996 Trust established six equal and separate irrevocable trusts, one for each of the decedent's children. Each of the decedent's children, including Emily, was expressly named as a beneficiary in the 1996 Trust. The 1996 Trust identified Emily as the sole beneficiary of her separate irrevocable trust, denominated as "The Emily Fuqui Svenningsen Trust."

The decedent also executed a last will and testament on March 17, 1997. The decedent appointed Christine and Warren as cotrustees of the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.