New York State Supreme Court’s Fourth Department  Appellate Division has reversed a decree of Monroe County Surrogate Edmund A. Calvaruso and, by  so doing has enabled Elizabeth McNabb to share in a testamentary trust originally created by Florence S. Woodward in 1926. The trust, which has a current day value of approximately 9.5 million dollars was established with shares of stock from the Jello fortune. This decision has been reported in the March 23, 2007 New York Law Journal in the Matter of Accounting by Fleet Bank, Docket No 229.

The terms of an additional  trust created in 1963 also provided that income would be distributed to grantor’s  daughter Barbara during her lifetime. Principal would be distributed to the income beneficiary’s "descendants" after her death.

Elizabeth was born out of wedlock in 1955 to the beneficiary who later married and had two more daughters. Because Elizabeth was adopted out of the family, the Monroe County Surrogate ruled that she was not within the class of intended remainder persons or beneficiaries under the trusts. The court determined that the two daughters born to Barbara subsequent to her marriage would share the proceeds of the trust.

Reversing the lower court, the Appellate Division found that it was necessary to look within the "four corners" of the trust instrument to establish the intent of the maker of the trust. In doing so, the court notes that it was the intent of the grantor to have her "descendants" benefit from the trust and that it was further presumed that the grantor was aware of the law when the trust was created. Because the laws in effect when the trust was created recognized "at least to some extent" that non marital children were included in the class of descendants or children of their parents, the court ultimately found that Elizabeth is an eligible member of the class entitled to share in the trust.