The Ohio Trust & Estate Blog

This interesting read at Trusts & Estate.com tells the story of Elizabeth McNabb of Longview, Wash.:

In 1889, Orator Francis Woodward purchased the rights to JELL-O gelatin for $450. In 1926 and 1963, his daughter Florence created two irrevocable trusts for the lifetime benefit of her daughter, Barbara Woodward Piel, and upon Barbara’s death, for the benefit of Barbara’s “descendants” and “living “child[ren]”.

Barbara died in July of 2003. In October 2004, Fleet Bank instituted proceedings for judicial settlement of the trusts’ final accounts. The total amount of trust principal at stake was about $9.7 million.

Barbara had three daughters. The first, Elizabeth McNabb, was born out-of-wedlock in 1955—the result of an affair with a married man. Within days of the birth, Barbara relinquished her parental rights and consented to Elizabeth’s adoption by strangers. (There was no evidence presented that the grandmother Florence Woodward knew of Elizabeth’s birth or adoption.) Barbara’s other two daughters, Stobie Piel and Lila Piel-Pullman, were born of her marriage to Michael Piel.

According to news reports about the case, Elizabeth began her quest to locate her birth family in 1974. She finally uncovered her birth mother’s identity, Barbara Woodward of Rochester, New York, in 1988 when she located a copy of her birth certificate. She then telephoned every Woodward in a Rochester telephone book, ultimately locating her mother’s cousin who provided Elizabeth with her mother’s married name. Elizabeth contacted Barbara, and they developed a relationship. After Barbara’s death in 2003, Fleet Bank contacted Elizabeth and requested proof of her relationship with Barbara. But the bank apparently later decided that Elizabeth was not entitled to a share of the trusts benefiting Barbara’s children.

The story ends with In the Matter of the Accounting by Fleet Bank, as Trustee of the Trust f/b/o Barbara W. Piel, 2008 WL 656471 (N.Y.), 2008 N.Y. Slip Op. 02082, March 13, 2008 and a ruling that Ms. McNabb is not entitled to receive any of the trusts’ income or principal.

The court emphasized the public policy considerations underlying Best of “fully assimilating the adopted child into the adoptive family and . . . the importance of keeping adoption records confidential.”

The court also expressed concern regarding the “lurking possibility” of “secret out-of-wedlock” children compromising the finality of judicial verdicts. Whereas, in this case, Elizabeth proactively intervened in the trustee’s accounting action, in other cases, the family might not know of the adopted child, thereby placing an “onerous” burden on a trustee to search out unknown potential beneficiaries.

The court said its ruling did not depend on Elizabeth’s status as a non-marital child and therefore did not implicate any equal protection concerns. It also said that to side with the appellate court would create two classes of adopted persons: those that could inherit from both biological and adoptive parents because the instrument was executed prior to 1964 when state law changed, and those cut off from the biological family because the instrument was executed after that date.

aka: I’m a huge nerd

In a previous post I wrote about ademption and the mystery of demonstrative gifts… Today Professor Berry gives us Ademption & Equitable Conversion…

The testator executed a will devising a home to Beneficiary. Later, the testator entered into a contract to sell the home to Purchasers. The testator died before the closing. The trial court held that the devise adeemed and that Purchasers were entitled to specific performance of the contract. The appellate court affirmed.

The court explained that once the testator executed the contract to sell the home, equitable conversion occurred. In other words, in equity, the testator no longer owned real property (the home) but instead owned personal property (the contract right to the proceeds of the sale because the sale contract was specifically enforceable).

Great case!

Thanks Professor!

Amending one’s constitution can be a dangerous exercise usually made even more so by the unfortunate fact that most legislatures can’t write good. (thems jokes people)

A while ago both Michigan and Ohio proposed amendments to each state’s constitutions via referendum. Both proposed amendments passed. Ohio’s passed by a wide margin. Basically, both amendments narrowly define a marriage as only between one man and one woman. This would have been simple enough but both state’s amendments went even further by preventing the state from acknowledging or conferring any rights or benefits upon any relationship that is similar to or seeks to approximate the designs and qualities of a marriage… And this is where the wheels came right off.

Ohio’s amendment says:

“Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.”

Ohio’s amendment faced an interesting interpretive challenge when many (and I mean many) individuals who had been arrested for domestic violence for beating their non-married cohabitating partner, challenged their arrests/convictions based on the theory that, by convicting them the state would be implicitly acknowledging a relationship that approximated marriage. It was only after some seriously specious reasoning on the part of an Ohio appeals court that these various abusers were held accountable.

On May 7, 2008, The Volokh Conspiracy posted this story about a related problem in Michigan:

By state constitutional amenment in 2004, Michigan voters barred the state from recognizing same-sex marriages. But the awkwardly worded amendment went further: “To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.”

The “similar union” language, along with the “for any purpose” language, was enough for the majority to conclude that it prohibited same-sex domestic partners benefits provided by some 20 state universities and municipal entities in the state. From the dissent: “It is an odd notion to find that a union that shares only one of the hundreds of benefits that a marriage provides is a union similar to marriage.”

The full text of the Michigan Supreme Court’s ruling is available here.

Ohio’s Marriage amendment is again placed squarely in another controversy involving adoption rights:

This story does a fair job of explaining the details behind a case being handled by my very good friend LeeAnn Massucci:

The Tenth Ohio District Court of Appeals was asked on March 27 to overturn a Franklin County ruling that the amendment has no effect on custody agreements.

Almost immediately after the amendment passed in 2004, Denise Marie Fairchild asked the Franklin County Common Pleas Court to invalidate a nearly four-year-old parenting agreement with her former partner, Therese Marie Fairchild, now Therese Marie Leach.

Denise is the biological mother of a son, now 12, born of artificial insemination from an anonymous donor. The couple lived together for four years before he was born in 1996. Their relationship ended in 2001, six months after the custody agreement was entered.

[...]

The court pointed out that the amendment can’t apply because the case is about the child.

“Denise equates the granting of custody to a non-parent as somehow promoting a same-sex marriage. The relationship between the child and the custodian is not the same as the relationship between two adults.”

The child’s best interest is a long-standing principle guiding all Ohio family law.

The trial court also held that “granting of custody does not ‘approximate the design, qualities, significance or effect of marriage.’ ”

Denise appealed this decision, and the case was heard March 27 by a three-judge panel: Charles R. Petree, Susan Brown, and Peggy Bryant. Danny Bank and Lorie McGaughan of Capital University law school were appointed by the court to represent the child.

I’ll be keeping an eye on this one.