- Seven trust agreements were executed on December 31, 1969 by Martin B. (Grantor)
- Grantor died on July 9, 2001 and was survived by Abigail (W) and Lindsay (S).
- S has 2 adult children
- One child of Grantor (James Sr.) predeceased Grantor on January 13, 2001.
- James Sr., knowing of his illness, cryopreserved his semen for use by his wife (Nancy) in the event of his illness.
- Nancy had in vitro fertilization and gave birth on October 15, 2004 to a boy (James Jr.)
- Nancy did this again and had another son (Warren) on August 14, 2006
- Both Warren and James Jr. are the products of James Sr.’s semen
- One trust is governed by NY law, while the other six are governed by DC law (does not effect question in case)
- All seven trusts give the trustee’s discretion to sprinkle the principal to and among “Grantor’s issue” during W’s lifetime.
- Trusts all provided that, upon W’s death, the principal is to be distributed
- under her will to Grantor’s “issue” or “descendants” or to certain other “eligible” appointees. OR
- if there is no will, to or for the benefit of “issue” surviving at the time of such disposition (James’ issue in some trusts, Grantor’s issue in other trusts)
- All of James Jr.’s sperm has since been destroyed and his class of children has been closed
- Trustees brought action to determine if James Jr. and Warren qualify as members of such classes
Whether, for trust agreements, the terms “issue” and “descendants” include children conceived by means of in vitro fertilization with the cryopreserved semen of the Grantor’s son who had died several years prior to conception
- Where a government instrument is silent, children born of this new biotechnology with the consent of their parent is entitled to the same rights, for all purposes, as those of a natural child
- The right of a posthumous child to inherit or as an after-born child under the will is limited to a child conceived during the decedent’s lifetime.
- This limitation is to ensure certainty in identifying persons interested in an estate and finality in its distribution.
- However, this rule applies only to those who are children of the testator themselves and not the children of third parties.
- DC law says “where a future estate shall be limited to heirs, or issue, or children, posthumous children shall be entitled to take in the same manner as if living at the death of the parent”
- NY law says that “where a future estate is limited to children, distributees, heirs or issue, posthumous children are entitled to take in the same manner as if living at the death of their ancestors.”
- These statutes were passed before anyone anticipated that children could be conceived after the death of the biological parent.
- The human desire to have children deserves respect, as do the rights of the children born as a result of these scientific advances.
Absence of specific intent does not necessarily preclude a determination against the children