In fairness, though, Scarpino is not alone- those loyal to him have received their own deserved criticism.
Note: Anthony Scarpino dresses nicely.
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 [*2]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.
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.
The decedent also executed a last will and testament on March 17, 1997. The decedent appointed Christine and Warren as cotrustees of the testamentary trusts created under his will. After providing for Christine to inherit his personal property, real property located in Connecticut and California, and $10,000,000, the decedent's will stated under Article THIRD(D) that if Christine survived him, he gave to his "then living issue, per stirpes . . . a sum equal to the largest amount that can pass free of Federal estate tax." This credit shelter trust was subject to the provisions of the EIGHTH Article of the will. The EIGHTH Article provided that any assets distributable under the credit shelter trust, the residuary estate, or any terminating trust established under the will payable "to any child of mine" shall be paid to the child if such child attained the age of 40 at the date of distribution. If any child had not reached the age of 40 by the date of distribution, the funds would be held in trust, with one-third payable outright if the child had reached the age of 30 at the time of distribution, or two-thirds if the child had reached the age of 35. The balance of such share, or the entire share if the child had not attained 30 years of age at the time of distribution, would be held in trust for the child's benefit. Pursuant to Article EIGHTH(D), one-third of the share would be distributed when the child reached age 30, half of the remaining balance distributed when the child reached 35, and the remainder distributed and the trust terminated when the child reached the age of 40.
The FOURTH Article of the decedent's will established a separate trust with respect to his residuary estate, which was to be held in trust for the benefit of Christine. This was referred to as one of the marital trusts established under the decedent's will. The subject marital trust (hereinafter the Marital Trust) was to be funded upon Christine's death for the benefit of the decedent's "then living issue, per stirpes" with the remaining principal of this Trust, while any undistributed income of this Trust was to be paid to Christine's estate. The trustees had sole and absolute discretion to pay or apply the principal for Christine's benefit, including the whole thereof, and stated that the interests of the remainder persons were subordinate to the trustees' exercise of discretion. The decedent noted that it was his intention that Christine "continue to maintain the standard of living to which she was accustomed at the date of [his] death." Subsection (B) of the TWENTIETH Article provided that the term "issue," as used in the decedent's will, "shall include children who have been legally adopted at the date of my death as well as children with respect to whom legal adoption proceedings had been commenced prior to the date of my death though not completed at the time of my death" (emphasis added). The decedent's will did not refer to any of the decedent's children by name.
While both the courts and legislature have addressed the inheritance rights of adopted-out children with regard to their biological parents, the question of the rights of children who are adopted-out by their adoptive parents has never been addressed. Generally, adopted children are entitled to rights equal to those of biological children, including "rights of inheritance" (DRL § 117[c]). The Legislature addressed the inheritance rights of adopted children with respect to their adoptive parents in Estates, Powers and Trusts Law (hereinafter EPTL) 2-1.3(a)(1), which provides: "Unless the creator expresses a contrary intention, a disposition of property to persons described in any instrument as the issue, children, . . . distributees (or by any term of like import) of the creator or of another, includes:
MASTRO, J. P., CHAMBERS and MILLER, JJ., concur.