In Re Martin B.

841 N.Y.S.2d 207 (2008)

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Nature of the Case

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Facts

The Grantor who was a life income beneficiary of the trusts died on July 9, 2001, survived by his wife Abigail and their son Lindsay (who has two adult children), but predeceased by his son James, who died of Hodgkin's lymphoma on January 13, 2001. After learning of his illness, James deposited a sample of his semen at a laboratory with instructions that it be cryopreserved and that, in the event of his death, it be held subject to the directions of his wife, Nancy. Three years after his death, Nancy underwent in vitro fertilization with his cryopreserved semen and gave birth on October 15, 2004, to a boy (James Mitchell). After using the same procedure, she gave birth to another boy (Warren). These infants are the products of James' semen. The trust instruments give the trustees discretion to sprinkle principal to, and among, grantor's 'issue' during Abigail's life. The instruments also provide that at Abigail's death the principal is to be distributed as she directs under her special testamentary power to appoint to grantor's 'issue' or 'descendants' (or to certain other 'eligible' appointees). The question raised is whether the two infant boys are 'descendants' and 'issue' for purposes of such provisions although they were conceived several years after the death of James.