Matter of McHale

[*1] Matter of McHale 2012 NY Slip Op 51877(U) Decided on September 28, 2012 Sur Ct, Erie County Howe, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 28, 2012
Sur Ct, Erie County

In the Matter of Estate of Magda Cordell McHale, Deceased.



2008-1015/G



JAECKLE FLEISCHMANN & MUGEL, LLP

Attorneys for Denise Kelleher

Gayle L. Eagan, Esq., and Beverley S. Braun, Esq., of Counsel

HODGSON RUSS LLP

Attorneys for The John McHale and Magda McHale Archives Foundation

Hugh M. Russ, III, Esq., of Counsel

Attorney for Evan McHale

HON. ERIC T. SCHNEIDERMAN, ESQ., NYS ATTORNEY GENERAL

Appearing for Charitable Beneficiaries

William D. Maldovan, Esq., of Counsel

ACEA M. MOSEY, ESQ., ERIE COUNTY PUBLIC ADMINISTRATOR

Temporary Administrator of the Estate of John McHale

Thomas F. Hewner, Esq., of Counsel

Barbara Howe, J.

MEMORANDUM AND ORDER

BARBARA HOWE, J.

Magda Cordell McHale [hereafter, Magda], died on February 21, 2008 at the age of 86. Her second husband, John McHale, had predeceased her, and she had no children of her own. However, she was survived by three stepsons, who were John McHale's children by his first wife: Evan McHale [hereafter, Evan], Julian McHale, and John McHale [hereafter, John].[FN1] [*2]

Magda's Last Will and Testament is dated August 31, 2007, and has been admitted to probate in this court. However, because of on-going challenges to the fiduciary nominated under the Will, Denise Kelleher [hereafter, Denise], only preliminary letters testamentary have ever been issued.

Denise has petitioned for judicial settlement of her accounts. As part of that petition, Denise seeks a determination about the disposition of various items of property. Evan McHale [hereinafter, Evan], one of Magda's stepsons, has filed an answer and cross-petition objecting to the accounting and to related relief sought by Denise. Evan has also sought a determination that a document titled "Instrument of Gift" [hereafter, the IOG], by which Magda donated extensive property of hers to "The John McHale and Magda McHale Archives, Inc.", a New York not-for-profit entity [hereafter, the Foundation], is not valid.

Denise then moved for summary judgment, seeking an order, inter alia, granting partial relief under her petition for judicial settlement, and partially dismissing Evan's cross-petition. The Foundation filed a cross-motion for summary judgment, seeking an order declaring the IOG valid and legally enforceable.

By Memorandum and Order dated October 28, 2011, I deferred all issues until the validity and legal enforceability of the IOG was determined. Because there were disputed issues of material fact, especially on the issue of Magda's capacity to make the inter vivos gift represented by the IOG, an evidentiary hearing on the matter was set down by me. On consent of all parties, that hearing took place before the Chief Attorney of this Court, as referee, on a hear and report basis. Testimony was given over a period of several months, the proof finally concluding on June 15, 2012. Post-hearing legal submissions were filed thereafter.

At the beginning of the hearing, the parties waived the filing of a written report and recommendation by the referee, and consented that I might decide the issues based upon the hearing testimony and documentary evidence (SCPA 506[6][c]). The matter having been finally submitted, I now find and decide as follows.

I

(A)

Before turning to the specific issues involved in the hearing, it is essential first to describe who Magda was. Without such background, the issues themselves cannot be fully understood.

At the hearing, there was anecdotal information about Magda at various points in her life but there was no full-fledged biographical portrait of her from the witnesses. In order to present that background, I start by quoting here from an affidavit submitted during the course of these estate proceedings from her stepson, Evan:

"Magda was born in Hungary on June 24, 1922, and she died in Buffalo on February 21, 2008 at the age of 86. She had an extraordinary life (see New York Times obituary - Exhibit E). In her late teens, she was forced to flee Hungary ahead of the Nazis, who later murdered her parents and her little sister. She arrived in Palestine as a refugee, where she had a number of small jobs and then became a translator for the Free Czech Army. She met Frank Cordell, who was an RAF big band leader; and, after the war, they moved to England and were married. Magda and Frank moved to London and, in the early 1950s, joined up with my father, John McHale, in various musical and art business endeavors. My father, with the assistance of Magda and Frank, organized one of the seminal exhibitions in the ICA's This is Tomorrow' exhibition series. Frank was a highly successful [*3]musician and composer, and Magda assisted him in bookings for his orchestra. Magda, Frank and my father were early members of the Independent Group' of artists, architects and designers in London. Magda and my father fell in love, and later got married.

• • •

In the early 1960s, my father and Magda moved to the United States; and, with my dad's Ph.D. in Sociology from Southern Illinois University and support from Magda, they became leaders in the new field of future studies (especially the future of mankind's basic needs and the relationships between art, culture and technology) with their own research center, the Center for Integrated Studies, at SUNY-Binghamton, and at University of Texas-Houston, where my father died in 1978. Two years later, at the invitation of Dean Harold Cohen, Magda (with the Center for Integrated Studies) accepted a position at the University of Buffalo's School of Architecture and Environmental Design, and excelled in further developing her career as a full professor until her retirement in 1999" (April 2, 2010 affidavit of Evan McHale, at p. 3).[FN2]

The New York Times obituary referred to by Evan, supra, appeared on March 17, 2008. It contains additional biographical information which is relevant here:

"Magda Cordell McHale, an artist who was one of the founding members of the Independent Group in London in the early 1950s and later became a renowned sociologist and writer in the field of futurism, died on Feb. 21 in Buffalo. She was 86.

Her death, at the home of her friend and caretaker Denise Kelleher, was confirmed by Ms. Kelleher.

Along with her first husband, Frank Cordell, later a prominent British musician and composer, and the artist John McHale, who would become her second husband, Ms. McHale helped convene the London-based group that started British Pop Art.

• • •

A painter herself, Ms. McHale created expressionistic images of women in a style similar to Jean Dubuffet's. In the mid-1950s she exhibited her work at the Institute of Contemporary Art in London and at the Hanover Gallery.

In 1961, having divorced and remarried, she moved with Mr. McHale to the United States, where together they embarked on careers in futurism, an interdisciplinary field that studies global prospects for human development. During the 1960s they lived in Carbondale, Ill., where Mr. McHale worked with the futurist thinker Buckminster Fuller at the Southern Illinois University campus there.

In 1968, the couple moved to Binghamton, NY, where they created a Center for Integrative Studies at the State University of New York (now Binghamton University). Over the next decade, the couple became internationally known for their studies of long-range thinking about social, [*4]cultural and ecological change. Alvin Toffler, author of "Future Shock," was one of their better-known collaborators.

In 1977, the couple moved again, to the University of Houston, to create a new version of their Center for Integrative Studies, but Mr. McHale died the next year. In 1980, Ms. McHale moved to Buffalo, where she recreated the Center for Integrative Studies at the University at Buffalo. After her retirement, in 1999, she was named professor emerita in the department of urban and regional planning in the School of Architecture and Planning at the University of Buffalo.

Despite her record of academic achievement and the publication of numerous books and articles on futurist topics jointly with her husband and in her own name, Ms. McHale had no advanced formal education."

Over the years, Magda acquired and accumulated a substantial collection of material relating to all the work she and her husband, John, had been involved with. She also had a substantial collection of John's artwork and her own.

In her later years, Magda was concerned to find a permanent place for what is referred to as "the archival materials." For example, one of her colleagues from the University of Buffalo, Professor Beth Tauke,[FN3] had many conversations with Magda "over the years" about this:

"A.Right. Well, we had Magda had a center which was called the Center for Integrative Studies in Hayes Hall, a very large center. And she had extensive papers and so at one point when she decided to downsize we had many conversations about the content of the work that she and John had done and this was kind of a collective archive of all of the work

Q.It included her work and John's work

A.Yes, it did.

Q. is that right?

A.And we had many conversations [over] the years about various documents and what and the kinds of things that were going on. Of significant, I think, is that at one point she decided to downsize and she wanted to send a good deal of material to the University of Hawaii.

Q.Why would she send it there?

A.She had a colleague there who she felt was who was involved in futurist studies [*5]and she felt that that material would be very useful to that colleague. I said to her at that point that I felt she should keep her archive intact."

Professor Tauke also testified that "Magda had great pride" in the materials she had:

"Q.And she felt that they represented some important scholarship concerning movements that she'd been involved in, teachings that she had done; she thought that was important scholarship, right?

A.Correct."

Another of Magda's colleagues, Professor John Stewart Bis,[FN4] also recalled that, with respect to the archival material, Magda "tried to get some of the stuff to go to the University of Hawaii . . . but it didn't go [there] so she ended up with it going to . . . Wyoming, or wherever it was. And she was always — she was always interested in having it go someplace where researchers could continue to work with it" (emphasis added).

Magda sent her archival materials at some point to the University of Wyoming for its American Heritage Center. However, in August, 2007 the university "concluded that the American Heritage Center is no longer a suitable repository for the" material, and offered to send it back to her at its expense.[FN5]

(B)

On August 31, 2007, Magda executed her Last Will and Testament, which was witnessed by two attorneys. In it, she directed that

"I give all of the paintings by my late husband JOHN McHALE to my stepsons EVAN McHALE, JULIAN McHALE and JOHN McHALE to be divided and distributed among them in such manner as they may agree. In the event that they shall for any reason not accept all or any part of the collection, I direct that the remaining paintings be kept together as a single collection and that such collection be offered to the following institutions in the order named:

1. Yale Center for British Art, New Haven,Connecticut

2. Scottish Museum of Modern Art,Edinburgh, Scotland

3. Tate Gallery, London, England

If they are not accepted by any of the foregoing institutions, my Executors shall dispose of them in he most appropriate manner."

As to the paintings created by her, Magda directed that each of four named individuals (one of whom was Evan) could select one painting apiece. After that, the remaining paintings were to [*6]be

"offered to the following institution in the order listed:

1. Albright-Knox Art Gallery, Buffalo,

New York

2. Yale Center for British Art, New Haven,

Connecticut

3. Tate Gallery, London, England

In the event not all of said paintings are accepted, I authorize my Executors to dispose of them in the manner they deem most appropriate."

On January 21, 2008, one month before her death, Magda executed the IOG. A copy of the IOG is attached hereto as Appendix A, but, in essence, Magda, through the IOG, gave to the Foundation

"Physical possession of all files, papers, documents, correspondence, paintings, drawings, photographs, artwork, notes, memos, narrative descriptions and materials relating to my work and the work of my late husband, John McHale, including all materials (about 160 boxes) I previously donated to the American Heritage Center at the University of Wyoming that the Center could no longer house and is returning. (Hereafter referred to as "Collection.")" (emphasis added).

II

(A)

The Foundation contends that the January 21, 2008 IOG is valid and is fully enforceable. Evan and the estate of his brother, John [collectively referred to hereafter as objectants], argue that the IOG is invalid.

In their July 20, 2012 post-hearing memorandum,[FN6] objectants first state that the "IOG contradicts MAGDA's previous lifetime intentions and her efforts to preserve her legacy assets by placing them in the care of many different hands and institutions." Objectants further argue that, on January 21, 2008, Magda "was in no condition to sign or approve of an [IOG], particularly one which is contrary to her Will which was executed seven (7) months earlier". Objectants conclude their legal submission as follows:

"Clearly, the capacity of MAGDA MCHALE is the issue at hand. Further, your Proponents' did fail to clearly prove a delivery of the Gift even constructively, and acceptance by the donee, since there was no donee in place at the time the alleged IOG was signed. Based on all of the above, [objectants] respectfully request[ ] this Court to declare the Instrument of Gift invalid and to declare that the items subject to the Instrument of Gift are part of the Residual Estate."

(B)

In Mirvish v. Mott, 18 NY3d 510, 518 [2012], a case involving the validity of an inter vivos [*7]gift of a famous piece of art by the widow of artist Jacques Lipchitz to a friend of hers, our Court of Appeals stated:

"The principles of law that control the outcome of this appeal are a good deal less complicated than the history of the dispute, as is the application of those principles to the facts. In Gruen v. Gruen, 68 NY2d 48 [1986], we held that [f]irst, to make a valid inter vivos gift there must exist the intent on the part of the donor to make a present transfer; delivery of the gift, either actual or constructive to the donee; and acceptance by the donee. Second, the proponent of a gift has the burden of proving each of these elements by clear and convincing evidence' (id. at 53 [citations omitted])."

In Matter of Monks, 171 Misc 2d 514 [1997], Monroe County Surrogate Judge Ciaccio dealt with the issue of whether a gift of the remainder interest in stock, made 29 years before the donor's death, was valid where the stock certificate had remained in the donor's possession even though she had signed a document, dated March 14, 1966, which stated that she had "given to Eleanor Ciotti Grillo one hundred (100) shares of Eastman Kodak Co. Stock Cert "RC 161744. This is a gift . . . ." The Court held as follows:

"As long as the evidence establishes an intent to make a present and irrevocable transfer of title or of the right of ownership, there is a present transfer of some interest and the gift is effective immediately. (Matter of Brady, 228 AppDiv 56, 60, affd no opn 254 NY 590; In re Sussman's Estate, 125 NYS2d 584, 589-591, affd no opn 283 AppDiv 1051; Matter of Valentine, 122 Misc 486, 489.) Thus, in Speelman v. Pascal (10 NY2d 313), the Court held valid a gift of a percentage of the future royalties to the play My Fair Lady' before the play even existed. There, as in this case, the donee received title or the right of ownership to property immediately upon the making of the gift; possession or enjoyment of the subject of the gift was postponed to some future time" (at 517, emphasis added).

As to the issue of delivery, the Monks Court first pointed out that,

"The rules requiring actual delivery are not inflexible. (Matter of Van Alstyne, 207 NY 298; McGavic v. Cossum, 72 App Div 35; Matter of Mills, 172 App Div 530, affd 219 NY 642.) In [Beaver v. Beaver, 117 NY 421] it was said that the delivery may be symbolical, as where the donor gives to the donee a symbol which represents possession. It was held in McGavic v. Cossum (supra), where an instrument of a gift of bonds was delivered, that actual delivery of the bonds was executed where the only reason for not making delivery was the weakened physical condition of the donor and the fact that the bonds were in the custody of a bank in a nearby city. It was said in Van Alstyne (supra, at 309), The delivery necessary to consummate a gift must be as perfect as the nature of the property and the circumstances and surroundings of the parties will reasonably permit.' Here, the stock certificate was held by the donor so she could receive the income during her lifetime. That intention is most unambiguously set forth in the writing. It is not required that Harriet Monks deliver the certificate to Eleanor Grillo to effectuate delivery only to have Eleanor return the certificate for Harriet's life use. (Gannon v. McGuire [160 NY 476], 482; Gruen v. Gruen [68 NY2d 48], 56.)" (emphasis added).

And, finally, the Court in Monks said that

"Case law is clear that delivery can be made symbolically with a writing but the writing must expressly state that the gift is a present one not to be given' in the future. (Compare, Matter of Curry, 143 Misc 2d 252, with Matter of Nolan, 61 NY2d 856.)" (emphasis added) [*8]

III

(A)

Intent and Capacity

In their post-hearing submissions, the Foundation states that it presented clear and convincing evidence that Magda expressly and repeatedly intended that her property described in the IOG go where futurist scholars might continue the futures work begun by her and her husband, John McHale. The testimony of various witnesses was reviewed, as well as the documentary evidence, and the Foundation urges that "even the witnesses called by [objectants] confirmed Magda's intent" and "that Magda had appropriate capacity even in her dying days."

Objectants' post-hearing memorandum states, as noted supra, that "the capacity of MAGDA MCHALE is the issue at hand." In that regard, objectants characterize the testimony of two of the Foundation's witnesses, Magda's longtime attorney and friend, Eugene Setel [hereafter, Setel], and another longtime personal friend, Sheldon Berlow [hereafter, Berlow], as "arrogant and evasive",[FN7] suggesting their testimony should be disregarded. Objectants characterized the testimony of preliminary executor Denise Kelleher as "perhaps the most candid of any of the [Foundation's] witnesses." However, overall, objectants rely on the testimony of witnesses produced by them to support their contention that Magda "would not have had the ability to understand the contents of the [IOG]" or "the capacity to . . . understand, or sign the contents of any document regarding the disposition of her property." Pointing to Magda's physical and mental condition as having deteriorated from the summer of 2007 through the date of her death on February 1, 2008, objectants contend that Magda lacked the capacity to sign or approve the IOG.

(i)

In Matter of DelGatto, 82 AD3d 1230 [2102], a case similar in many ways to the one now before me, the Appellate Division, Second Department, had before it the question of whether an inter vivos trust instrument was validly executed by a decedent on January 17, 2008, one month before she died on February 24, 2008 at the age of 92. The inter vivos trust was executed by decedent while she was in a hospital for the second time in a one month period, and it named a neighbor of decedent's as the trust beneficiary. Decedent's house was deeded to the trust on January 17, 2008, at the same time decedent executed the trust instrument. An attorney had been consulted about the matter by decedent earlier in January, 2008, while decedent was in a rehabilitation center, and he arranged for the preparation of the legal documents and was present and witnessed their execution. After decedent's death, her grandnephew, the administrator of her estate, challenged the validity of the trust instrument on the ground, inter alia, that decedent had not been "mentally competent" to execute it on January 17, 2008. In reviewing a jury determination that the estate administrator had failed to sustain his burden of proof, the Court stated the general principles as follows:

"The general rule is that the burden of proof in a proceeding to set aside a trust instrument is upon the objecting party as to all issues, including the issue of mental competency (see Matter of Aronoff, 171 Misc 2d 172, 177 n 5; Matter of Roth, 2006 NY Misc LEXIS 5652, 236 NYLJ 53 [Sur Ct 2006]). A trustee has no obligation to demonstrate that the grantor was competent when the trust instrument was executed; the burden on that issue is borne by the objecting party, in this case, the [*9]petitioner (see Carew & Friedman, Surrogate's Practice and Proceedings, NYLJ, April 18, 2007, at 3, col 1; Matter of Aronoff, 171 Misc 2d at 177 n 5). This principle is consistent with case law holding that competence to engage in a transaction is presumed, and the objecting party must prove lack of competence (see Jones v Jones, 137 NY 610, 613; Matter of Nealon, 57 AD3d 1325, 1327; Matter of Lee, 294 AD2d 366, 367; Schlage v. Barrett, 259 AD2d 691, 692; Matter of Waldron, 240 AD2d 507, 508; Feiden v. Feiden, 151 AD2d 889)." (emphasis added)

In Matter of Mildred M.G., 43 AD3d 1391, 1392 [2007], our Appellate Division had before it the issue of whether an individual lacked capacity when she executed a power of attorney and health care proxy:

"A person is incompetent to authorize a transaction only if the person's mind was "so affected as to render him [or her] wholly and absolutely incompetent to comprehend and understand the nature of the transaction"' (Feiden v. Feiden, 151 AD2d 889, 890, 542 NYS2d 860 [1989], quoting Aldrich v Bailey, 132 NY 85, 89, 30 NE 264 [1892]). Although there was testimony at the hearing on the petition that the AIP suffered from moderate dementia, there is no presumption that a person suffering from dementia is wholly incompetent. Rather, it must be demonstrated that, because of the affliction, the individual was incompetent at the time of the challenged transaction' (Gala v. Magarinos, 245 AD2d 336 [1997])" (emphasis added).

Furthermore, even where there is evidence that an individual has "died of complications relating to . . . advanced dementia" (Matter of Neill, 35 Misc 3d 1244A [dec. 6/21/12], emphasis added), there is still no presumption that such person "is wholly incompetent" (id.). In such instance, it must be demonstrated that, " because of the affliction, the individual was incompetent at the time of the challenged transaction.'" (id., quoting Gala v. Magarinos, 245 AD2d 336, 337 [1997]).

(ii)

All parties agree that, as Professor Tauke testified, Magda

"was a very dynamic, fascinating, curious, intellectually engaged person. She was very creative, very opinionated, very difficult, very controlling."

Professor Bis echoed those views of Magda:

"Q.All right. And could you describe her personality?

A.Opinionated, feisty and rather elegant, too. She tended to be rather elegant. She also ran - - the conferences that she had, she ran very well. She was probably one of the most effective conference managers I know."

Mary Cohen, the wife of Harold Cohen, Dean Emeritus of the University of Buffalo School of Architecture and Environmental Design, met Magda in 1959 and developed a close friendship with her which "really lasted until she died, despite some problems . . . non-professionally we were very . . . became very close friends we celebrated all kinds of holidays together." Mrs. Cohen described Magda this way: [*10]

"She was vibrant and wonderful and opinionated and we argued a lot because I am not a shrinking violet, either, and so we would argue, but we had a great deal of fun together. she was a very bright woman."

Magda's stepsons, John and Evan, echoed the characterization and picture of Magda by the witnesses just described.

In 2007, Magda resided for a time at the Weinberg Campus in Amherst, New York, as she was recovering from health problems.[FN8] All the witnesses who testified to visiting with Magda at Weinberg were impressed by the fact that she did not like it there and very much wanted to be elsewhere. According to Denise, Magda "hated it. She cried every time; every time I left she would cry and I would cry. She just didn't like to be there."

However, there are significant differences from one witness to the next as to their observations of Magda when visiting her at Weinberg. Her stepson John, who saw her at Weinberg for their first in-person visit since the 1970s,[FN9] testified that he was shocked by her appearance and found her verbally generally unresponsive, although she did respond by nodding, gesturing and smiling. Harold Cohen and his wife, Mary, visited Magda at this time at Weinberg and Harold Cohen also found Magda "largely unresponsive." On the other hand, Mary Cohen, discussing the same visit, said merely that Magda "was not as communicative as she had been in the past." While she would answer questions which either Harold or Mary Cohen put to her, the answers were generally monosyllabolic, either "yes" or "no", and Magda did not initiate any conversation during that visit.

When Magda was finally able to leave the Weinberg Campus, she went to live with Denise, who had worked for her when Magda resided at 800 W. Ferry Street, Buffalo, New York. Magda and Denise had become good friends, and Denise felt Magda "was like a mother to me." Denise made room for her in her home in Sloan, New York, and Magda appeared quite happy and content there. Denise described Magda in general:

"Just loved life, loved people; just loved doing things, getting out, just a great lady."

After the University of Wyoming had notified Magda in August, 2007 that it would no longer retain the archived material Magda had sent to it, Magda asked Setel, her longtime attorney and friend, to make arrangements for the return of those materials and to arrange to have them properly stored in Buffalo. Setel did that, and 160 boxes of the archived materials were placed into storage, where they remain today. All of Magda's art works including those of her husband, John were also placed in the same storage facility.

Setel and another longtime and very close friend of Magda's, Sheldon Berlow, talked during [*11]the fall of 2007 about what could be done with the archived materials. Both Setel and Berlow were well aware that Magda was extremely concerned to preserve these materials for future use by scholars and researchers. Eventually, according to both Berlow and Setel, they formulated a proposal for Magda to consider whereby all the archived materials, and all Magda's and her late husband John's artwork, would be gifted to a not-for-profit foundation. The intent was to preserve everything together for future scholarship and research purposes.

Setel and Berlow testified that Magda was extremely pleased with the proposal and immediately agreed with it. They testified that the proposal seemed to relieve her. Berlow described what took place as follows:

"Q.Tell me about that first conversation, please.

A.The first conversation was to talk to Magda about the possibility of bringing together all of this work and so on and that I had spoken to her attorney, Eugene Setel; I had spoken to two other people who were very close to Magda and we wanted to recommend that a foundation be set up, that we be the trustees and that this would receive these things and her response was one of delight, I think relief, I think

• • •

Q.What did Magda say?

A.She was delighted and thanked me for being willing to sort of direct and effect this.

Q.Did you also observe her behavior during that conversation?

A.Yes.

Q.How did she appear?

A.Very happy.

Q.You indicated that she appeared relieved, is that correct?

A.Pardon me?

Q.She appeared to be relieved?

A.Yes, maybe that's my interpretation, but she was just very happy and saying, oh, that's wonderful; thank you."

Berlow also testified that the discussions with Magda concerned the need to keep everything together, as "a very special kind of thing." Berlow said that inclusion of the artwork was important because it supported the archived material (and, presumably, vice-versa). Berlow said Magda fully understood, was "delighted", and agreed to the entire Foundation concept.

Denise testified that during the fall of 2007, when Magda was living at her house, Magda [*12]

"was frail, very, very frail, but she still had her mind. She said her mind was good her mind was sharp but her body was just wouldn't cooperate" (emphasis added).

In the late fall and winter of 2007, Magda became ill. In December 2007, she was diagnosed with hydrocephalus, and was treated by neurosurgeon Dr. Ehud Levy, who performed surgery on December 13, 2007 to alleviate the pressure on Magda's brain. At the time of surgery, Dr. Levy said that

"it seemed that she had some difficulty with speech, mental status, was debilitated. Her level of interaction was again at a fairly low level."

Magda improved somewhat after the surgery, and she returned to live with Denise.

Dr. Levy testified that he saw Magda as an outpatient at his office on January 9, 2008 "for her standard-one-month post-op visit." At that time, Dr. Levy believed Magda "had some mild improvement", but "she continued to suffer from speech problems." As Dr. Levy also put it, "I think she had minimal improvement, but clearly had significant speech impairment." Magda seemed "more alert, maybe seemed a little more interactive than she did in the hospital although impaired."

Dr. Levy testified that his observations of Magda constituted only a "snapshot of time", which he agreed does not necessarily give "an entire picture of a person's status":

"I would definitely consider and weigh weigh reports from someone who's seeing them on a regular basis, especially with hydrocephalus because there may be periods of lucidity or worsening, confusion. It's not a static condition. You could see ups and downs."

Dr. Levy agreed "that a person who lived on a 24-hour-a-day basis with that patient might have more perspective on a patient's abilities than he did":

"This person would have insights into the patient's condition that I would not have, seeing the patient for a limited time one time in an office setting."

Finally, Dr. Levy testified that he had no knowledge concerning Magda's condition on January 21, 2008. He testified that there were circumstances in which he believed Magda could have been competent to execute a legal document:

"So to flesh that out, I think if she could understand what was being explained to her and understand what was on the paper and voice that she could understand that, then I would feel some anyone would be competent to execute a contract."

Denise testified that, after Magda's surgery, there was a "big, big change" in Magda:

"She was back again. It was like a lightbulb went off in her head."

Denise elaborated on this: [*13]

"Q.Did she ever have any problem in making her wishes known to you?

A.No.

• • •

Q.Did you ever push Magda around or force her to do anything she did not want to do?

A.Except for therapy. Tried to make her do therapy and she didn't like to do that, but I had to push her to do that.

Q.Putting aside therapy, did you ever force Magda to do anything?

A.No."

Witnesses who visited with Magda during January and February 2008 came away with differing impressions of Magda. Professors Tauke and Bis saw Magda, the last time for each being a week or so before her death, and testified that she was responsive to them although in a largely non-verbal manner. They indicated that Magda would make quite clear to them when they (or someone else with her) said something with which she disagreed, and at times Magda's disagreement was displayed quite forcefully.

Around January 21, 2008, Setel and Berlow went together to visit Magda concerning the IOG which they had been discussing with her since the fall of 2007. At that meeting, at which Denise was also present, the IOG was read, and a discussion took place concerning its meaning and intent. Both Berlow and Setel testified that Magda indicated the IOG was what she wanted and that she was satisfied with it. She executed the IOG at that time, but, because Setel felt her signature was "shaky", he decided to have the IOG executed a second time. To that end, he and Berlow returned to visit Magda on January 21, 2008, when he had prepared a second copy of the IOG, and this time, after again reviewing all of the contents of the document, what had lead up to it and what its intention was, Magda authorized Denise, as her power of attorney, to execute and sign the document on her behalf. Denise did so. Minutes of that meeting with Magda, which occurred on January 21, 2008, from 2:30 to 3:00 in the afternoon, and which were signed by Denise, Setel, and Berlow, reflect, more or less contemporaneously, what took place during that meeting.

At about the same time in January, 2008, Setel prepared the documents to set up the Foundation and, after signing them as incorporator, sent them to New York State for filing.

As noted, Denise was present on January 21, 2008 with Setel, Berlow and Magda when the IOG was executed, and she signed the IOG on Magda's behalf:

"Q.Did you sign the instrument of gift?

A.Yes, I did.

Q.Did anyone direct you to sign it?

A.Magda. [*14]

Q.Magda told you to sign this?

A.Yes."

Denise testified that, prior to the execution of the IOG, there was a discussion with Magda:

"Q.Were you all together in the same room?

A.Yes.

Q.Did you have some discussion with Magda before you signed this document?

A.Yes.

Q.At anytime during that discussion did Magda appear to be confused?

A.No.

Q.In your judgment, having known her for fifteen years, having had her live with you for a year, did Magda appear to understand what was going on?

A.Yes.

• • •

Q.And do you understand that there's a claim that Magda was not competent, that is, that she didn't understand what was going on?

A.Yes.

Q.What do you say to that?

A.I say it's not true. I think she understood.

Q.Do you have any doubt in your mind as you sit here today that Magda knew what she was going?

A.Yes, she did.

Q.There's no doubt in your mind?

A.No doubt in my mind."

Objectants presented, among other witnesses,[FN10] the testimony of Dr. Bruce Naughton, who [*15]treated Magda in 2008 "in our home care program".[FN11] His best recollection was that he saw her either in early January and early February 2008, or else later in each month, with his visits being one month apart. He pinpointed the first visit to approximately one month after Dr. Levy's surgery on Magda, which would mean approximately on January 13, 2008. The precise dates are not certain on this record.

Dr. Naughton said that, at his first visit with Magda, she was verbally "impaired" and had a limited ability "to participate". She did, however, make clear to him "in some fashion" that she was "comfortable". Dr. Naughton said that he was "able to understand what Magda was expressing" to him, and that Magda "could understand some things" that someone was telling her. He said she "could respond to cues", and to indicate her wishes and her intentions "within a limited range":

"She was passive. She responded to what we were saying to her."

Dr. Naughton testified that Magda "had dementia . . . we weren't sure - - we don't know without an autopsy what the exact nature of it is". He agreed that only an autopsy could have "[d]efinitively" determined whether Magda had Alzheimer's disease.

Dr. Naughton opined that he did not "think [Magda] had capacity to execute a document."

I find that, on January 21, 2008, Magda had the intent to enter into and execute the IOG, and that she had the capacity to do so. The overwhelming weight of the credible evidence well beyond the "clear and convincing" standard establishes both intent and capacity.

If I were to parse the burden of proof issue, which I do not need to do on this record, I would find that the testimony of Dr. Naughton raised questions about Magda's capacity. However, all the other credible evidence especially that from Denise, Dr. Levy, Setel, Berlow, and professors Tauke and Bis establish beyond question that Magda had the requisite intent and capacity on the day in question. Magda had good days and not such good days in her last two months, but she always was able to make her wishes known. More importantly, she was also always able to make clear when she disagreed with something.

Furthermore, the IOG concept had been discussed by Magda with Setel and Berlow over the fall of 2007, when her mind was perfectly clear. And, in the fall of 2007, she understood and agreed with all the concepts for the Foundation and the IOG, and was relieved and delighted by it. Thus, the January, 2008 IOG document would not have come as a new, strange concept to her, but rather was simply the culminating event in a planning process she had been involved with going back many months.

(B)

Delivery and Acceptance

Applying the principles set out in Mirvish and Monks, supra, and the cases cited therein, I find that all of the property which is the subject of the IOG was delivered by Magda to the [*16]Foundation and was accepted by it on January 21, 2008. The language of the IOG itself makes that clear.

Paragraph 1 of the IOG states that "I, Magda Cordell McHale, hereby give, grant, convey title in and set over to [the Foundation] the following property and rights" (emphasis added). Paragraph 3 of the IOG states that "[t]his Agreement shall be effective as of January 21, 2008" (emphasis added). The present donative intent, the intent to part then and there upon execution of the IOG with all the "property and rights" set forth therein, is clearly and unambiguously contained in the IOG. See e.g., Mirvish v. Mott, supra, at 519 ["Yulla's intent to make a present transfer of The Cry' was clear on the face of the gift instrument"].

Acceptance of the gift is likewise clearly established. The certificate of incorporation for the Foundation was drawn up and signed by Setel as an incorporator.[FN12] Setel retained the IOG document after it was executed, thus demonstrating acceptance of the gift on behalf of the Foundation. In Mirvish v. Mott, supra, 512-513, the Court of Appeals described the circumstances of the disputed inter vivos gift, "a 1,100-pound bronze sculpture" titled "The Cry":

"From time to time, Yulla would make gifts to Fury, including art created by her late husband. She memorialized these gifts by giving Fury a picture of the artwork with a writing describing the piece and declaring that it was a gift. After Yulla's death, Fury produced a photograph of The Cry' with the following notation on the back, in Yulla's handwriting: I gave this sculpture "The Cry" to my good friend Biond Fury in appreciation for all he did for me during my long illness. With love and my warm wishes for a Happy Future, Yulla Lipchitz/October 2, 1997, New York.' At the time, The Cry' was apparently in storage in New York in the custody of the Marlborough Gallery, Inc. (Marlborough), the Manhattan art dealer." (emphasis added)

The Court of Appeals then found that there was no question as to whether Fury had accepted the gift:

"mere possession of a gift after the donor's death creates a presumption of delivery to the donee during the donor's lifetime . . . [there is] no impediment to reliance on the presumption of delivery created by Fury's possession of the gift instrument, which was specifically addressed to him, after Yulla's death" (at 518, 519, emphasis added).

Accordingly, I hereby conclude that the January 21, 2008 IOG is valid and fully enforceable, and that the property encompassed by the IOG is not part of Magda's estate.

This decision shall constitute the Order of this Court in this matter and no other or further order shall be required.

DATED:BUFFALO, NEW YORK

September 28, 2012 [*17]

_______________________________________

HON. BARBARA HOWE

Surrogate Judge

Appendix "A"

Magda Cordell Mc Hale

108 Boll St.

Sloan, NY 14212

Instrument of Gift

1) I, Magda Cordell Mc Hale, hereby give, grant, convey title in and set over to The John McHale and Magda McHale Archives, Inc., a New York not-for-profit corporation, the following property and rights:

a) Physical possession of all files, papers, documents, correspondence, paintings, drawings, photographs, artwork, notes, memos, narrative descriptions and materials relating to my work and the work of my late husband, John McHale, including all materials (about 160 boxes) I previously donated to the American Heritage Center at the University of Wyoming that the Center could no longer house and is returning. (Hereafter referred to as "Collection.")

b) All copyrights I own, whether registered or not and whether or not I am the author, including the right to secure registration of any copyright not yet registered.

c) All other rights, title and interest I have in and to the Collection, including any rights in or related to the Collection which I come to own subsequent to the date of this gift as if the rights had been extant upon the effective date hereof. No additional consideration shall be due or payable to me for any future rights.

d) The sole and exclusive rights of using, throughout the universe, John's and my names, abbreviations, initials or nicknames, and our images, likenesses, voices, signatures, quotes, statements and biographical information.

e) All rights to register, exclusively in the name of Corporation, any rights here-conveyed [*18]or which arise from the exercise of these rights.

f) All claims for infringement of any of the rights conveyed including the right to damages. The Corporation may commence any claim in its own name, in John's or my name, or jointly. The Corporation shall bear all expenses and losses of the claims and shall enjoy all awards and benefits from the claims.

2) In determining whether a particular item "relates" to my or John's work, or is a personal item and thus not part of the Collection, my personal representative and the Corporation are authorized and directed to seek the advice of scholars who know the work of my late husband, John McHale, such as Mark Wiggley, Dean of the School of Architecture of Columbia University. The decision of the Board of the Corporation shall be final.

3) This Agreement shall be effective as of January 21, 2008.

Dated: January 21, 2008

Magda Cordell Mc Hale

By____________________

Denise Kelleher, Attorney in fact Footnotes

Footnote 1:Magda's stepson John was an active participant in these estate proceedings. He died in Italy in March, 2012 while vacationing with his wife. An estate for John has been opened in this court because of what he will inherit from Magda; but, because he and his wife resided in Canada and she is a Canadian citizen, the Erie County Public Administrator was appointed the temporary fiduciary of John's estate [file #2012-1518].

Footnote 2:I take judicial notice of this affidavit for background purposes in this decision (see Prince, Richardson on Evidence §2-209 [Farrell 11th ed] ["a court may take judicial notice of a record in the same court either of the pending action or of another action"].

Footnote 3:Professor Tauke is "a professor of architecture at the University of Buffalo and . . . also the associate dean in the School of Architecture and Planning." She saw Magda professionally and on a social basis, and saw her in later years roughly "once a month." She last saw Magda a week or so before Magda died.

Footnote 4:Professor Bis teaches at the "University of Buffalo School of Architecture and Planning." He taught "some graduate classes with [Magda]" and had other professional and social interactions with her from approximately 1977 until "a couple of weeks before she died."

Footnote 5:See August 9, 2007 letter from University of Wyoming, attached as exhibit H to April 2, 2010 affidavit of Evan McHale.

Footnote 6:The memorandum was actually submitted by Evan's attorney. However, John's estate, by letter dated July 23, 2012, "join[ed] with the position set forth" in that memorandum.

Footnote 7:I disagree entirely with that characterization, and find the testimony of both witnesses credible, straightforward and highly persuasive.

Footnote 8:The exact nature of Magda's health problems at the time which lead her to go to the Weinberg Campus have never been clearly defined. However, from what evidence I have in this record, these were physical ailments.

Footnote 9:Although John had not seen Magda since the 1970s, he had otherwise remained in constant contact with her over the years.

Footnote 10:Dr. Levy, for example, actually was objectants' witness.

Footnote 11:Dr. Naughton is a "full-time [University of Buffalo] faculty member," employed by the Academic Medical Services, "the University practice plan." He has extensive experience in geriatric medicine, home care and long term care, among other practice areas.

Footnote 12:Setel testified that he was unsure whether he signed the incorporating documents "alone and sent it in or [whether] I signed it, Mr. Berlow and . . . a third person" also signed it.