## Facts

- Mary U. Hoffman executed a will in 1950 and died in 1951.
- Her will created a trust for the benefit of two cousins, with each cousin entitled to one-half of the trust income during the trust term.
- The will provided that, upon the death of one cousin, that cousin’s one-half share of income would be paid for the remainder of the trust term “to his issue.”
- One cousin died in 1965, survived by two children: a daughter and a son, Stephen.
- Stephen later died in 1972, survived by two children (the infant claimants in this accounting proceeding).
- Stephen had never married the children’s mother, and no order of filiation had been entered.
- In proceedings on the trustee’s intermediate account, the Surrogate’s Court found as a fact that the two infants were Stephen’s children.
- Despite that finding, the Surrogate’s Court construed “issue” to mean lawful issue only and excluded the infants from taking under the trust provision.
- The infants’ guardian appealed from the portion of the Surrogate’s decree that excluded them.

## Issues

1. Whether the term “issue,” as used in Hoffman’s will, includes the nonmarital children of the deceased beneficiary’s son when there is no express indication that the testatrix intended to exclude them.

## Decision

- The Appellate Division, First Department reversed the Surrogate’s decree to the extent it excluded the two infants.
- The court held that, absent a demonstrated intent to exclude them, the term “issue” in the will included the nonmarital descendants found to be the beneficiary’s children.
- The matter was sent back for distribution consistent with including the infants as “issue” entitled to share in the income payable after the cousin’s death.

## Legal Principles

- A class gift using a general term such as “issue” is construed in light of testamentary intent, but courts should not treat nonmarital status as a default basis for exclusion without a clear indication of such intent.
- Prior interpretive rules that presume “issue” means only lawful descendants, and that place the burden on nonmarital children to prove they were meant to be included, were rejected as outmoded and discriminatory.
- When paternity is established as a factual matter in the proceeding, the absence of marriage or a filiation order does not alone justify excluding the children from a gift to “issue.”
- In construing wills, courts may consider changes in statutory and constitutional treatment of nonmarital children when deciding whether older presumptions should continue to control.

## Conclusion

The Appellate Division held that Hoffman’s unqualified reference to a cousin’s “issue” included the proven nonmarital grandchildren of the income beneficiary, reversing the Surrogate’s contrary construction and rejecting older case law that presumed class terms like “issue” excluded illegitimate descendants unless the will clearly showed an intent to include them.


Will of Hoffman, 385 N.Y.S.2d 49 (1976)