Posthumously conceived children are beneficiaries of a trust created by a “grandparent”

A grandfather created lifetime trusts which gave the trustees discretion to sprinkle principal among his descendants during the life of his widow.  At her death, she has a special testamentary power of appointment among her husband’s descendants who are also the takers in default.  One of grandfather’s sons predeceased him by six months.

Using the son’s stored semen, his widow conceived and sons were born to her 3½ and 5½ years after her husband’s death.  The trustees brought a proceeding for advice and direction regarding the status of the posthumously conceived children.

The court held that both children were beneficiaries of the trusts because a “sympathetic reading” of the trusts indicated that the grandfather intended “all members of his bloodline to receive their share.”  In re Martin B, 841 N.Y.S.2d 207 (N.Y. Sur. Ct. 2007).