morning your honor is the court my name is ferrets habits a buy from hughes hubbard and reed representing plaintiff appellant to sharon mcneil on behalf of her twin children this case is about whether this court should deprive two nine year old children from solution security benefits from their biological father by reading into the new york contest to see statute language that simply isn't there in order to do that this court would have to find that the new york and the statute contains an implied unwritten bar that prohibits the macneil twins from inheriting from their biological father was how to use section one point one c maintain anybody t the in the in the record how does it survive if your argument is accepted well the is your argument is basically that whenever the conception occurs there that there needs to be inheritance assuming paternity yes that's correct because of the possibility that the language in section four dash one point one see was intended to exclude posthumously conceived children it's only an intent to clarify what the scope of the statute is to include still a page with my question now as to why it would be necessary at all unusual circumstances are nevertheless covered that there's no ambiguity here about who is covered by the statute and at the time that language was that there was no ambiguity based on the four point four point one point one just generally in for part one for him to say that's correct but if you're looking at the legislature must have intended at the time this is simply to ensure that all of these that all possible categories of children here are a critical point about what the statute must have meant and what it must have intended there because this is the language a section for us one point one see predates any in vitro fertilisation the it there can't have possibly been an intent on the part of the legislature to carve out an but wouldn't the legislature be acting against a background assumption that without special legislation only children who are already born would inherit that the errors are determined as of the date of the death of there's nobody alive at the date of the death and particular category they don't inherit in the legislature that oh no we're going to make an exception to that for children honor it's clearly to provide these benefits or the benefits of intestate inheritance to the largest possible category of biological heirs i don't why didn't you say that i mean that they they don't with what existed at the time here's a problem  these children would not inherit otherwise so we adopt a statute to say now they do inherit that they they don't consider it conceived no pun intended of any other possibilities that may exist they're dealing with the one they've got and changing the background law to deal with that situation that's quite different than the legislature thinking you know what everybody who comes from the sperm of the decei and should get to inherit and we're going to you know somehow anticipate the possibility of even a posthumous lee can child of that ever happens we're trying to get the broadest coverage possible they're just dealing with what they've got against the background of law that was negative to inheritance by anybody who wasn't alive at the time that well i think the purpose of this language is to ensure the greatest possible inclusion because as your honor said this is the entire universe of children who are conceivably you could conceivably exist as that then what do you do with the twenty fourteen statute was that intended to cut back on this months of death so that was no liberalisation that was actually cutting back on the rights of people like the mcneil twins well again effectively i mean i understand doesn't apply to this case but i thought the legislature thought it was liberalizing not that it was restricting the current state of the law well your honor if you look at the sponsors memorandum for that which we cited in our paper is what's clear from that is that while you know individual members of the legislature may have disagreed about what the law is they do refer to an ambiguity in the law that the law is not clear and so what they did with that twenty fourteenth amendment is to clarify the scope of possumus they conceive children's inheritance rights is not necessarily to narrow or strict expand it was to arose today the children would not in her that's correct your honor because now there is this amendment in the line as you pointed out that doesn't apply to the mcneil children and when the statute as it was when the mcneil children applied for new york court of appeals because this is a fairly significant issue i would think in to the state of new york which has you know maybe is made it's a mistake by congress now that we've got these more complicated scenarios to defer to state intestate succession law and i could see reasons why the state would want to not allow intestate succession where children are conceived eleven years after the estate is closed that would not have anything to do with the social security law but for good or ill congress says this is a matter of state law and i would think it's a fairly significant question of state law whether  the law is and always has been as you suggest well wasn't all twenty fourteen as you say yes right and in your honor you know we do believe that the statute is clear on its face section for dish one point two says what it says but in the alternative if the court believes that there's an ambiguity there that needs to be resolved we we would suggest that the court certify the question to the court of appeals in new york and the question retains its significance for purposes of certification even though the subsequent the new four dash one point three answers the question for the future pretty clearly but you say this ambiguity should be resolved by the your court of appeals were cases of predating the and yes that's right obviously this this issue is resolved the specific issues resolved by the november twenty fourth teen amendment that there are cases of a states that the that amendment where this would be an important question of public policy for the new york courts to resolve and there is no controlling precedent on that we have any idea how many such cases might exist  that is to say where there are still open the states from three twenty fourteen and still frozen sperm except that well  i imagine it would be a small number i meant it would be a small number but again this is this is an issue that is of public policy importance to new york and it's not settled by any existing case and we do believe if the court does not believe that the statute  of two children to obtain survivor insurance benefits under section two sixty eight of the social security act the children were born over a decade after the season's death and nine hundred ninety six under section two six it looks towards the new york state statute article four to determine what the law is whatever the interests the law is if the children can inherit under that law then they can get benefits now looking at such article for new york of the b t l estates powers and trust law the statute is written in a way so that is section four dates when one in the very beginning of the statute it says is the general rule and it says the property reads the scene not disposed of by will shall be distributed as provided in this section meaning for one one therefore on the face of it section four days one month see cannot be just ignored or limited in some tortuous way that doesn't comport with the plain meaning of the statute it provides that distribute your legislature at the time clearly was not drawing that distinction because there were no such people as children who were conceived after the death of their father right there there may not have been and there may to which permits non marital children to inherit if eternity has been established by clear and convincing evidence are these children not a somewhat peculiar or unusual species of non marital children it seems odd to refer to them as non marital children when their parents were married at one time and wanted to conceive these children while they were married but the marriage ends with the death is arrogance that however the four one one and for one to have to be harmonized they can't just be read in isolation they're part of the same statutory scheme so in order to read it as the appellant is reading it for one month see doesn't have any purpose which goes against basic rules of statutory interpretation whether or not whether or not the people who promulgated for one month see or inactive for one month see what we're thinking about point one c irrelevant there isn't repeal it it just renders it irrelevant by broadening the category because of course if four before four point four dish one point two is adopted lots of people don't get to inherit principly illegitimate children now the legislature adopts a new rule that clearly broadens the inheritance rights of non marital children the  the remaining categories such as the blood tests and in particular the two thousand and ten enact mintz that we're looking at here do in fact provide more ways for a child to inherit provided that he or she meets the criteria for one one there has never been any move by the legislature to repeal or  three provided another exception and it you know i don't really think that it's an ambiguity because the statute says on the face of it notwithstanding section very similar statute and even references in a footnote that new york has the same statute so there really is no basis for the four four one on and the judge in in martin which was a state case basically said that under these circumstances  previously out there forever kind of inheritance law the inheritance the seed step fixes the inheritance and that that is longstanding retroactive reading in that one particular statute however in this case the only relevant statute would be for dish one three one point three and  shoot there's that very narrow exception you can see from the from the plain lays but at the statute the child must be conceived within twenty four months of the see this death that has to be born when the thirty three months in this case the children are born over conceived and born over a decade after the scene instead there is no basis for all of these laws would be when rendered superfluous if if it could be you could be said that the statutes just allow anyone to keep the state open for as long as they want which is which is basically the the argument understand that argument as a matter of state and has to seawall is there any rational no under the social security wall for why these children should not be permitted to inherit while if they had been born eight or nine years earlier they should not receive some security benefits where they benefits was to replace lot lost income by by a wage earner in other words children who are receiving income from their parent or care purchased with money by their parent or able to  fix that loss by getting survivor's benefits and it's called survivor's benefits because the children with thought of as surviving this is mcneil of of the present day mrs macneil someone exactly similarly situated  are having exactly the same situation of her deceased husband wins the lottery one year in eleven months after her husband's death and now has plenty of money and says thank goodness now i can afford to raise you can see vera raise these children she does they get social security benefits from his account but someone who is just like mrs macneil really and doesn't hit the lottery and has to work for a number of years before she can afford to to bear children doesn't get social security benefits that's not the outcome here not exactly because passage of the two thousand and fourteen statute they would not be able to inherit right has to be there had to muster i'm saying but but but if the same woman had hit the lottery at one year and a half after her husband's death and then manages to be able to afford to raise the children those children would get benefits today but not under the social security act this is the why wouldn't it because they would that they would be children under if they were conceived the the court and i think the potential distributism not quite sure of that in other words this was a very down only drawn very careful statute that was drawn under four dish one three utilizes a mechanism to the side where those children can meet the state departments the social security administration will pay it will be some arbitrariness in terms of just because it's referred apologize however it will be the applications were filed and i think two thousand and eight it would be until the children reach the age of eighteen just monthly  but what i'm asking i understand there could be a lot of money cumulatively over the period but in terms of a monthly benefit are these benefits calculated according to the earnings history of the decei research i just want to know if you i tried you had ok and so basically in some this is a case where the issue has been correctly decided in the to be certified to the court there is basically no language to it within the statute that would that would permit the court in our view to rule otherwise than however since in two thousand and fourteen this this was settled by statute this could be and again i don't have an exact number this could be a very small number of children and it's going to become smaller as time goes on the statutory construction really all the parts of the statute to gether the prohibit prohibition on rendering a statute was superfluous and the plain meaning of the of the of for dash one one see which says if you're conceived to see if if there's no there's not there's no limitation in other words that in him and in test to see is a is is is it doesn't that context but but so that's why that explains why there was no specific language addressing the situation that you could only get get it if you were born before the to see died and then i then there's this four point one one c exception well the way for one once he has looked at his this is the exception we're going to make children who were conceived before death and born there after born before you to see his death but there's no specific language that says that in those words it's clear that that was the background in which the legislation the i guess the purpose is clear that all biological errors as they can that is it's yes every everyone is assuming that a four point one dash two which refers to inheritance by non marital children covers this case because it isn't so clear that  marriage ends at the death of the spouse so that's why this is a section that for those children that are born after the death of the spouse but conceived during the marriage in the statute i'm not i do not find a clearance or in the statute to this question but  but the statute brought in a broad sense seems to treat them as children born during the marriage as marital children and there's no produce no provision that would treat the mother what's right and that may be because and i agree your honor there isn't a clear answer in the statu i think the general rule is the marriage will end of the death of the spouse but if you look at section four dash one point one see in some sense they are treating that as a marital child because the point there is to make sure that there's some establishment of paternity if a child is conceived during the life of the deceased and then born thereafter there's some assurance there that there is paternity established and section four dash one point two is aimed at the same situation it just expands the way that you can prove paternity so there's no demarcation there between c before conceived after it says if you can prove paternity by clear and convincing evidence and there's no dispute here that the mcneil twins have done that then you inherit we do we haven't talked about that the obvious sort of policy difficulties with not having the a stay close shortly after death but the intensity statute seems to say that if the decision to survive bias spouse in any descendants a spouse receives this is by way of example fifty thousand dollars in one half of the residue with the remainder going to  issued but if the deceit and is survived only by a spouse everything goes to her by your interpretation of four point one point two isn't that all offended because if there is a child conceived far into the future how could the spouse ever have the estate closed right so i suppose there's two answers to that and one is you know going forward because it's a new member twenty fourteen amendment that we've been talking about that's not going to be an issue and second while there are cases like this and i think about what that legislation may have intended before this provision i mean what is inactive the provision you're relying on would have wanted the states to remain open and unsettled for such a l periods and under such a situation of uncertainty frankly we don't have any evidence that i've seen in the legislative history that this was specifically contemplated by the legislature the intent as far as we know was to ensure that all marriage non marital children regardless of you know the circumstances of their birth if they could prove paternity could inherit so i don't think this is something that was specifically within their contemplation do you know or do we know anything about how the states are actually administered and in other words even say right today under the two thousand and fourteen law someone dies and there are frozen sperm of that person but i don't know the surrogate's court has any necessary way of even knowing that the widow comes to court and says here i am no children dead husband no will i get all the money does the surrogate say wait we have to wait for two years just in case you conceive any children with the with the hypothetical frozen sperm where does the estate close in if it closes and then subsequently there is a child can someone come series of years i know that they're in the november twenty four thousand amendment there are certain requirements which may come before because in order to to take under that statute under that section of the statute you have to have something in writing essentially for right where your honor it there are there are certainly cases apos misconception as we've said i don't know how many there are but in general we're talking about i think we can all agree a small number of cases and if there's a of us today which is a situation where mrs mcneil was the only statutory distribute t and she's the one asking for this really understand that you know often the rules and principles that we do decide but when any more but what you are suggesting it seems to me is that for at least some period of time new york long should be read to have created some rather peculiar circumstances with respect to interest to see that in that gap period after these forms of reproduction become possible but before the two thousand and fourteen statute this would be the consequence under new york law as you interpret it right and that there wasn't there was no requirement of this written living will kind of situation i suppose people who die and as they probably haven't done that either they would no such requirement and there would be these possibilities open and future created errors yes there might be a possibility of that again we wouldn't know if that would arise i think there are competing interests in the statute here certainly there's an interest in in ministering estates efficiently but there's also an interest which is expressed in the language of the statute that all biological heirs will inherit and in a truly absurd situation the surrogates court any other court is empowered to make rules or to decide how property should be distributed and again in this case that's not an issue because mrs mcneil here is the only distributing and she's asking for this relief from the court