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In re Martin B.

Surrogate’s Court of New York County
17 Misc.3d 198 (N.Y. Misc. 2007), 841 N.Y.S.2d 207 (2007)


The trustees (applicants) managing seven trusts executed by Martin B. in 1969, filed an application with the Surrogate’s Court of New York County for advice and direction on distribution of trust assets to post-conceived children of Martin B.’s deceased son, James. James had sperm preserved during his lifetime with instructions for it to be used by his wife, Nancy, at her discretion in the event of his death. James died on July 9, 2001 and Nancy gave birth to two sons, James Mitchell and Warren, 3 and 5 years later, respectively. Both children were conceived with James’ sperm. All of the remaining sperm have since been destroyed. Martin B. died on July 13, 2001, and his trusts give the trustees discretion to distribute some of the trust assets to the “issue” and “descendants” of Martin B during the lifetime of his widow, Abigail. The trustees now seek the assistance of the court in determining whether James Mitchell and Warren, as post-conceived children, qualify as “issue” and “descendants” entitled to receive distributions of trust assets.

Rule of Law


Holding and Reasoning (Roth, J.)

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