Monday, November 11, 2013

In re Martin B. case brief

In re Martin B. case brief summary
841 N.Y.S.2d 207 (2008)

The trustees brought an uncontested application for advice and direction in connection with seven trust agreements to determine if the terms "issue" and "descendants" included children conceived by means of in vitro fertilization with the cryopreserved sperm of the grantor's son, who had died several years prior to such conception.


After the son learned that he had Hodgkins Lymphoma, he deposited a sample of his sperm 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. Thereafter, the wife twice underwent in vitro fertilization with his cryopreserved sperm and gave birth to two sons. The trustees brought the proceeding because under the trust instruments they were authorized to sprinkle principal to the decedent's "issue" and "descendants." Therefore, they needed to know whether the son's children qualified as members of such classes.


  • The court found it undisputed that the infants, although conceived after the son's death were the products of his sperm. 
  • Although it could not be said that the grantor contemplated that his "issue" or "descendants" would include children who were conceived after his son's death, the trust instruments provided that the trust fund would benefit his sons and their families equally. 
  • Because the grantor intended all members of his bloodline to receive their share, and pursuant to Domestic Relations Law § 73 and EPTL 6.5-7, the infants were "issue" and "descendants" for all trust purposes.


The infants were deemed to be "issue" and "descendants" for all purposes of the trusts.

Suggested Study Aids For Wills, Trusts & Estate Law

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