In the Matter of the Trusts Under Article FOURTH of the David Wolfenson 1999 Trust (a/k/a) the David Wolfenson Living Trust) Under an Agreement Dated December 14, 1999, as Amended.
HODGSON RUSS, LLP Appearing for Petitioner Fidelity Personal
Trust Company, FSB Britta L. McKenna, Esq., and Nathan W.G.
Berti, Esq., of Counsel
PHILLIPS LYTLE LLP Appearing for Respondents Zoe Payne,
William Fischbein and Nathan Fischbein Sharon L. Wick, Esq.,
B. SIMON, ESQ. Guardian ad Litem for GG
Barbara Howe, J.
Wolfenson [hereafter, David], died on November 2, 2005. David
was the grantor of a trust, dated December 14, 1999, which
was amended by him on June 29, 2001 [the First Amendment to
the David Wolfenson Living Trust], and which he amended again
on July 1, 2002 [the Second Amendment to the David Wolfenson
Living Trust]. 
THIRD of the Trust provides that, if the net remaining assets
are not effectively "appointed" by David on or
before the date he dies, those assets are to be distributed:
"equally among the class of individuals consisting
solely of [David's] great-grandchildren living at the
time of [David's] death, specifically the issue of
[David's] grandchildren WILLIAM STEWART FISCHBEIN, ALANA
SUE FISCHBEIN a/k/a ALANA PAYNE and KELLEY INGER WOLFENSON,
subject to the provisions of Article FOURTH" (emphasis
FOURTH of the Trust, insofar as relevant here, provides as
"(A) The Trustees shall hold such property, IN FURTHER
TRUST, for the benefit of my great- grandchildren living
at the time of my death " (emphasis added).
David died in 2005, he had not appointed the net
remaining trust assets, so that Article THIRD and FOURTH
control their disposition.
now before me is a petition by Fidelity Personal Trust
Company, FSB [hereafter, Fidelity], as trustee of the Trust,
seeking two forms of relief. First, Fidelity asks that its
accounts for the period January 1, 2012 through May 31, 2016
be judicially settled. Second, Fidelity seeks advice and
direction from this Court "confirming" that GG,
David's great-granddaughter  - who was born in 2006,
five months after David's death, but who was in
utero when her great-grandfather died - is David's
surviving great-grandchild within the meaning and scope of
Articles THIRD and FOURTH of the Trust.
guardian ad litem appointed by me to represent GG's
interests supports Fidelity's petition for advice and
direction. However, Zoe Payne, William David Fischbein, and
Nathan Fischbein [hereafter, respondents] , contend that
GG is not entitled to take under Articles THIRD and
FOURTH of the Trust. In opposing the advice and direction
relief Fidelity seeks, and in cross-petitioning for a
determination that GG is not a great-grandchild under
Articles THIRD and FOURTH of the Trust, respondents maintain
that the phrase "living at the time of my death"
was not intended to include a great-grandchild who
was in utero at the time of David's death, and
they further allege that David would not have intended such a
have reserved their right to reply to the accounting aspects
of Fidelity's petition until after the advice and
direction issue is resolved. Understandably, GG's
guardian ad litem has also not yet addressed that issue.
have now moved for summary judgment on the advice and
direction application(s), and all parties have filed papers
in that regard. I now find and decide as follows.