About a year ago, I reported here on the  Fourth Department’s Matter of Accounting By Fleet Bank which reversed a lower court to provide trust benefits to Elizabeth McNabb, an out of wedlock daughter of the heiress to the Jello fortune after she was adopted out of the family.  Unfortunately, for Ms. McNabb, my earlier headline that she was to receive her "just desserts" has proven to be somewhat premature because New York’s Court of Appeals has now reversed that decision.

The court’s decision was reported in the Friday, March 14 issue of the New York Law Journal at page 26. The court restated the lower court’s premise that it is necessary to first look to the four corners of the document (here the trust) and not to stray from these boundaries unless it can be shown that the trust document is ambiguous or vague. Evidently, that was not the case here, citing earlier case law , the court determined that it was clear that  "a non-marital child adopted at birth by strangers" was not entitled to share in a class gift devised by a biological grandparent.  The court found no intent within the trust agreement that would indicate that Ms McNabb was an intended beneficiary of the trust in view of the fact that her adoption by strangers took her out of the class of children who might ultimately benefit from the trust.

The court underscored the overall intent of the legislature that a child adopted by strangers should be totally assimilated into the new family –which naturally also leads to the conclusion that ties to the birth family would be severed by the adoption as well.

In this particular matter, Ms.McNabb took great pains to seek out her birth family and, upon doing so, not only discovered that she might be a beneficiary of the Jello trust, but also then took the affirmative step of identifying herself and legally intervening in its distribution. While this relieved the trustees of any obligation to seek out  out-of-wedlock, adopted-out children , the court was concerned that a decree upholding her rights would compromise the finality of judicial decrees it adopted-out children were to be included in such class gifts  "because there would always lurk the possibility , no matter how remote, that a secret out-of-wedlock child had been adopted out of the family by a biological parent or ancestor of a class of beneficiaries". In fact, the court found , that this possibility actually materialized here and the only way to assure closure in such matters was to disfavor the inclusion of adopted-out children in such a situation.