Matter of Durland

[*1] Matter of Durland 2004 NY Slip Op 51772(U) Decided on December 14, 2004 Surrogate's Court, Westchester County Scarpino, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 14, 2004
Surrogate's Court, Westchester County

In the Matter of the Petition of Westchester-Putnam Council, Inc., Boy Scouts of America, for a as to the Construction and Effect of Articles NINTH and TENTH (B) of the Last Will and Testament of AGATHA ALLING DURLAND, Deceased



4044/1963



BLEAKLEY PLATT & SCHMIDT, LLP

Attorneys for Petitioner

One North Lexington Avenue

P.O. Box 5056

White Plains, NY 10602-5056

ELIOT SPITZER

New York State Attorney General

Attorney for Ultimate Charitable

Beneficiaries

Attn. Amy C. Karp, Esq.

Charities Bureau

120 Broadway

New York, NY 10271

Anthony A. Scarpino, J.

Westchester-Putnam Council, Inc. Boy Scouts of America, a New York State not-for-profit corporation ("petitioner"), has commenced this proceeding pursuant to SCPA 1420, requesting that the court construe Articles NINTH and TENTH (B) of decedent's last will and testament ("will"), which was admitted to probate in 1964.

Pursuant to Article NINTH of her will, decedent bequeathed certain real property located in Rye, Westchester County ("the Rye property") to petitioner's predecessor-in-interest[FN1] for the purposes of establishing "Camp Durland" on the site. This bequest was subject to certain conditions. Specifically, insofar as is relevant to this proceeding, petitioner could not sell or rent the Rye property for 20 years. Petitioner agreed to the conditions and established Camp Durland there.

Pursuant to Article TENTH (B) of her will, decedent bequeathed seven-eighths of her residuary estate to a testamentary trust of which petitioner was beneficiary ("the Article TENTH Trust"). This trust, which was to be used "for the sole benefit of Camp Durland," had a term of 20 years. Upon its termination, the trust's remainder was to become petitioner's "sole and absolute property." However, the will also provided for the trust's remainder to "constitute the Durland Endowment for the establishment of a similar type 'Camp Durland' * * * for the re-establishment at another location and support thereof" ("the Durland Endowment").

As a condition precedent to receiving the Durland Endowment, petitioner was required to execute an agreement with the trustee prior to the termination of the Article TENTH (B) Trust, providing for the re-establishment or continuance of "Camp Durland." [*2]Petitioner and the trustee entered into such agreement, pursuant to which the Durland Trust was established with the Durland Endowment.

In an amended decree dated February 7, 1988, this court (Brewster, S.), inter alia, construed the bequest made under Article TENTH (B) of the will "to the effect that a permanent endowment fund [i.e., the Durland Endowment] was established from which the funds generated are first to be used to continue and maintain Camp Durland * * * at is [sic] present location, or to re-establish Camp Durland at another location * * *."

In or about January 1991, petitioner, as grantor, and certain individuals, as trustees, entered into an agreement amending the Durland Trust ("the amended Durland Trust"), providing for administration of the Durland Endowment. Pursuant to the expressly stated purposes of the amended Durland Trust, its principal and income are to be used: (1) to continue and maintain Camp Durland at its present location or its re-establishment at another location; (2) to permanently improve Camp Durland; and (3) for such special projects as petitioner's Executive Board or its successor may direct. The amended Durland Trust remains in full force and effect.

Presently, Camp Durland is still located at the Rye property. But, at a meeting on February 23, 2004, petitioner's Executive Board adopted a resolution in which it decided to sell the Rye property and to relocate Camp Durland to all or a portion of Clear Lake Scout Reservation, another facility owned by petitioner and located in Putnam Valley, Putnam County ("Clear Lake").

As a result of that resolution, petitioner commenced the instant proceeding to have the court construe Articles NINTH and TENTH (B) of decedent's will "as containing no restriction with respect to the sale of the [Rye property] or the use of the sale proceeds by [p]etitioner and as permitting the relocation of Camp Durland to" Clear Lake.

Petitioner has submitted a number of exhibits in support of its petition, including the affidavit of Jack L. Sears, Jr., petitioner's "Scout Executive" and a non-voting member of its Executive Board. In relevant part, Sears describes Camp Durland's facilities and the activities provided by petitioner at the Rye property, as well as restrictions on its use due to local ordinances. He also describes Clear Lake and its facilities, and states how petitioner intends to improve Clear Lake if it re-establishes Camp Durland there.

The New York State Attorney General, appearing on behalf of charitable remaindermen, does not object to petitioner's request to re-establish Camp Durland at Clear Lake "provided that [petitioner] ensure[s] that similar programs to those which exist at [the Rye property] are maintained at Clear Lake, including maintaining a dock; sailboats and scuba diving."

In response, petitioner has submitted a supplemental affidavit by Sears, who states that Clear Lake will continue to offer "the many outdoor pursuits enjoyed by [Boy] Scouts for decades at Scout Camps: swimming, boating, camping and hiking." He adds, however, that petitioner presently does not intend to offer scuba diving at Clear Lake.

"The primary rule of testamentary construction is that a will should be read so as to reflect the actual intent of the testator. Where the provisions of the will are ambiguous, the intent of the testator would be gleaned 'not from a single word or phrase but from a sympathetic reading of the will as an entirety'" (Matter of Gallucci, 143 AD2d 1015, 1017 [citations omitted]). However, where the wording of the will is unambiguous, "the courts must find and follow the intent of a testator as disclosed by the words of the will itself" [*3](Matter of Battell, 286 NY 97, 102; see Matter of Bisconti, 306 NY 442; Matter of Magnor, 286 AD2d 502, 503).

Applying the foregoing authority to the instant case, the court grants the petition, in part. As to that branch of the petition which requests that the court construe the will as containing no restriction with respect the sale of the Rye property or the use of the sale proceeds, the language of Article NINTH of the will is clear and unambiguous. Decedent bequeathed the Rye property to petitioner on condition that they enter an agreement providing, inter alia, that it would not sell or rent the property for 20 years. The will contained no further restriction regarding petitioner's sale of the property, nor its use of the proceeds in the event that it sold the property. Thus, petitioner may sell the Rye property without restriction as to the sale or its use of the sale proceeds.

As to that branch of the petition which requests that the court construe the will as permitting the relocation of Camp Durland from the Rye property to Clear Lake, petitioner essentially asks the court to declare that Clear Lake is "a similar type 'Camp Durland,'" as provided in Article TENTH (B) of the will, so that it may use the Durland Endowment to re-establish and support Camp Durland at Clear Lake. The court declines to grant such relief. However, to the extent that a dispute exists as to whether petitioner must provide all of the programs which it presently provides at the Rye property if it relocates Camp Durland, the court will construe the phrase "similar type 'Camp Durland.'"

Nothing in the record indicates that decedent required petitioner to provide any specific facilities or activities at Camp Durland once it was established. Similarly, she failed to specify what would constitute "a similar type 'Camp Durland'" in the event that petitioner re-established Camp Durland at a site other than the Rye property. However, the term "similar," at least for purposes of this proceeding, is clear and unambiguous enough that decedent need not have done so.

Webster's New World Dictionary of American English (3rd college ed., 1994) defines the word "similar" as "nearly but not exactly the same or alike; having a resemblance" (id., at 1250), and the word "type," inter alia, as "a kind, class, or group having distinguishing characteristics in common" (id., at 1446). Applying the ordinary definitions of these words here, it is clear that in re-establishing "a similar type 'Camp Durland'" at a site other than the Rye property, petitioner need not offer exactly the same programs and/or activities currently offered at the Rye property. The court will leave to petitioner's discretion exactly what facilities and activities it will provide at a relocated Camp Durland, so long as such facilities and activities are "similar" to those provided at the Rye property.

Settle decree.

Dated: White Plains, New York

December 14, 2004

HON. ANTHONY A. SCARPINO, JR.

Westchester County Surrogate [*4]

To:BLEAKLEY PLATT & SCHMIDT, LLP

Attorneys for Petitioner

One North Lexington Avenue

P.O. Box 5056

White Plains, NY 10602-5056

ELIOT SPITZER

New York State Attorney General

Attorney for Ultimate Charitable

Beneficiaries

Attn. Amy C. Karp, Esq.

Charities Bureau

120 Broadway

New York, NY 10271 Footnotes

Footnote 1: For the sake of simplicity, any future references in this Decision to petitioner also includes petitioner's predecessor in interest, where appropriate.