Opinion
January 14, 1971
Order, Supreme Court, New York County, entered on September 4, 1969, so far as appealed from, in this proceeding for an intermediate accounting and construction of a trust agreement, adjudging that appellant is not a "descendant" of her adoptive father, within the meaning of said agreement, unanimously reversed, on the law, with $50 costs and disbursements to all parties filing briefs hereon, payable out of the portion of the trust estate in which the adopted child is interested. The trust agreement in question does not contain an explicit definition of "descendant" and does not distinguish between blood descendants and descendants by adoption. Under the circumstances, there is a presumption in favor of the adopted child ( Matter of Silberman, 23 N.Y.2d 98, 109). In the absence of an explicit purpose stated in the trust instrument to exclude an adopted child, such child "must be deemed included" within the term "descendant" ( Matter of Park, 15 N.Y.2d 413, 417). The Park-Silberman presumption in favor of adopted children extends to circumstances in which the so-called "precautionary addendum" (Domestic Relations Law, § 117, deleted by L. 1963, ch. 406) would otherwise be applicable ( Matter of Schermerhorn, N.Y.L.J., Aug. 9, 1968, p. 9, col. 6, affd. 33 A.D.2d 891). There being no language in the subject trust agreement to indicate an exclusion of the adopted child, said presumption is controlling. Accordingly, we hold that Melissa Mary Angela Cope is a descendant of Sir Anthony Cope and a contingent remainderman of the trust created for his benefit.
Concur — Stevens, P.J., Eager, Capozzoli, Tilzer and Bastow, JJ. [ 59 Misc.2d 969.]