Monday, March 6, 2017


Matter of Murphy, 843 NE 2d 140 - NY: Court of Appeals 2005:

"The appeal before us involves the interplay of EPTL 3-3.3 and Domestic Relations Law § 117 (2). EPTL 3-3.3, the anti-lapse statute, provides that when a bequest is made to the issue or siblings of the testator, and the beneficiary predeceases the testator, the gift does not lapse but vests in the beneficiary's surviving issue. The anti-lapse statute was designed "to abrogate . . . the common-law rule that a devise or legacy to [a predeceased child] lapsed and to substitute the children of the deceased child for the primary object of the testator's bounty" (Pimel v Betjemann, 183 NY 194, 199 [1905]). The harshness of that common-law rule, more often than not, defeated the testator's intention (id. at 200). We must determine whether the testator's adopted-out child, expressly named in her will, qualifies as her issue within the meaning of EPTL 3-3.3. In simplest terms, the issue is "issue."
In 1986, the Legislature revised subdivision (b) of EPTL 3-3.3, along with Domestic Relations Law § 117, defining "issue" — for the purpose of triggering the anti-lapse provision—to "include adopted children and their issue to the extent they would be included in a disposition to `issue'" under EPTL 2-1.3 and Domestic Relations Law § 117 (2). Domestic Relations Law § 117 (2) (a) provides:
"Except as hereinafter stated, after the making of an order of adoption, adopted children and their issue thereafter are strangers to any birth relatives for the purpose of the interpretation or construction of a disposition in any instrument, whether executed before or after the order of adoption, which does not express a contrary intention or does not expressly include the individual by name or by some classification not based on a parent-child or family relationship." (Emphasis added.)
The Manning children contend that by naming their father— the adopted-out child—as a beneficiary under her will, Mildred altered his status from "stranger" to "issue" for the purposes of the anti-lapse statute with respect to that gift. Because much of Domestic Relations Law § 117 (2) (a) would lose meaning if we were to rule otherwise, we agree with this contention and reverse the Appellate Division order.


We therefore conclude that, under Domestic Relations Law § 117 (2) (a), adopted children and their issue are ordinarily "strangers" to their birth relatives, and thus are excluded from class gifts. They are not "strangers" when the bequest is to a named adopted-out child—here, to Clair Manning. If "stranger" or the three "nonstranger" conditions of section 117 (2) are to have any meaning, it must mean that biological children who are not "strangers" are "issue" under the anti-lapse statute. We therefore conclude that when Mildred Murphy named her adopted-out son Clair as a beneficiary of her will, she triggered the condition in section 117 (2) that made him a nonstranger, and thus her issue, with respect to the relevant bequest. His children, therefore, are entitled to the benefit of the anti-lapse statute."

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