New York Court of Appeals, 1967

In re the Accounting of United States Trust Co.

New York Court of Appeals · Decided February 28, 1967 · Scileppi

19 N.Y.2d 207; 278 N.Y.S.2d 830; 225 N.E.2d 530; 1967 N.Y. LEXIS 1686

Cases that cite this one

6 later published cases cite this decision.

Elliott v. Hiddleson (Iowa 1981)
In re the Estate of Gillespie (New York Surrogate's Court 1989)
Hacker v. Lincoln First Bank (Appellate Division of the Supreme Court of New York 1978)
In re the Construction of Trust between Gilbert & Chase Manhattan Bank (N.Y. 1976)
In re the Estate of Lawrence (New York Surrogate's Court 1974)
In re the Accounting of Thompson (N.J. 1969)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Scileppi, J.

The order of the Appellate Division should be modified to the extent that those paragraphs which declared that the terms “ issue ” and “ surviving issue ” used in the trust indenture did not include the adopted children or their issue and which declared the rights of the widow and the surviving issue of the settlor’s brother and sisters under the trust indenture are hereby reversed. Those paragraphs of the judgment of the Supreme Court, New York County, which declared that the adopted children and their issue were “ issue ” of the settlor, that such issue were to take per stirpes, and otherwise declared the rights of the widow and such issue under the terms of the trust indenture are hereby reinstated. As so modified, the order is affirmed.

The stranger to the adoption rule creates a presumption that the settlor of the trust intended to include his adopted children in the term issue (Matter of Wehrhane, 23 N. J. 205 [Sup. Ct., 1957]). Sufficient evidence has not been presented by the respondents to overcome this presumption.

The terms of the trust indenture evidence the settlor’s intent that the draw down provision was for Ms sole benefit. Consequently, it was necessary for him to survive the payment dates before any rights to the $5,000 became vested in him. Therefore, his widow is not entitled to recover the $5,000.

*212Chief Judge Fuld and Judges Van Voorhis, Burke, Bergan and Keating concur; Judge Breitel taking no part.

Order modified in accordance with the opinion herein and, as so modified, affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the principal of the trust.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.