Matter of Grant

[*1] Matter of Grant 2013 NY Slip Op 50509(U) Decided on April 2, 2013 Sur Ct, New York County Mella, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 2, 2013
Sur Ct, New York County

In the Matter of Proceeding to Reform the Will of Hugh J. Grant, Deceased.



1981-1632/A



John J. Hannaway, Esq., White Plains, for petitioner.

JP Morgan Chase Bank, N.A., New York City, respondent pro se

Hugh J. Shevlin, Mamaroneck, respondent pro se

Archbishopric of New York, New York City, respondent pro se

Eric T. Schneiderman, Attorney General, New York City (Lisa Barbieri of counsel)

Rita M. Mella, J.

Regis High School in New York City, income beneficiary of a trust created under Article FOURTH (I)(B)(6) of the will of Hugh J. Grant, has filed a petition which, although styled as a petition for construction, is actually one for reformation. Petitioner asks the court to reform one of the two conditions upon which its interest depends. All interested parties — the two trustees (JP Morgan Chase Bank and Hugh J. Shevlin), the Archbishopric of New York (which would succeed to petitioner's interest, should petitioner fail to satisfy both conditions stated in Article FOURTH [I][B][6]of the will), and the Attorney General of New York State — have each filed a notice of appearance, waiver of process and consent. The trust, valued as of the date of the petition at $2.85 million, produces annual net income of $180,000.

Decedent died in 1981. Article FOURTH (I)(B)(6) of his will provides that petitioner shall receive the net income from the trust, provided petitioner satisfies two conditions, one of which is that petitioner be: "rated as superior by the Commission on Secondary Schools, Middle States Association of Colleges and Secondary Schools, or such Commissions's [sic] successor or successors."

The will further provides that, should Regis High School fail to satisfy both conditions, the trust shall continue for the benefit of the Archbishopric of New York.[FN1] [*2]

On November 2, 1983, this court issued a decree in a prior proceeding commenced by Regis High School. That petition, again styled as one for construction, was actually for cy pres relief. Petitioner asserted that the Commission on Secondary Schools, Middle States Association of Colleges did not rate, but only accredited, schools and that, accordingly, satisfaction of the condition that petitioner be "rated as superior" was impossible. The decree provides that accreditation of Regis High School by the Commission on Secondary Schools, Middle States Association of Colleges shall satisfy the condition.[FN2]

In the instant petition, petitioner argues that accreditation by the Commission on Secondary Schools, Middle States Association of Colleges and Secondary Schools — of which petitioner has been a member since 1929 — should no longer be the standard by which petitioner's qualification, as income beneficiary of the trust, should be measured. Instead, petitioner asks that accreditation by the New York State Association of Independent Schools — which has existed since 1948, but of which petitioner has been a member only since 1986 — should be the standard. Petitioner claims that the accreditation process of the New York State Association of Independent Schools is more rigorous than that of the Commission on Secondary Schools, Middle States Association of Colleges and Secondary Schools.

Apparently, the petition was prompted by a recent change in protocol of the New York State Association of Independent Schools. Until 2012, accreditation by the Commission on Secondary Schools, Middle States Association of Colleges and Secondary Schools qualified petitioner for membership in the New York State Association of Independent Schools. Now, however, the New York State Association of Independent Schools requires its members to meet its own accreditation requirements. If not for the condition set forth in the will, petitioner would not incur the cost of membership in the Commission on Secondary Schools, Middle States Association of Colleges and Secondary Schools: decennial accreditation (in 2007, the cost consisted of out-of-pocket expenses of $22,009.04 plus 3,176 hours of work by faculty and staff) and annual membership dues ($900).

Reformation of a will — the alteration of its terms to effectuate the testator's intent — is a drastic remedy (see Matter of Snide, 52 NY2d 193, 196-197 [1981]). The threshold issue in a reformation proceeding, as in a construction proceeding, is to ascertain testator's intent. As the Court of Appeals has stated: "the intention of the testator must be our absolute guide' " (citations omitted) (Matter of Bieley, 91 NY2d 520, 525 [1998]).

Here, testator's intent is clear: the imprimatur of the Commission on Secondary Schools, [*3]Middle States Association of Colleges and Secondary Schools or its successor(s) is the standard by which petitioner's qualification, as income beneficiary, is to be evaluated. The requested reformation would violate testator's clearly expressed intent and, therefore, is denied.[FN3]

This decision constitutes the order of the court.

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SURROGATE [*4]

Dated:April, 2013 Footnotes

Footnote 1: Specifically, Article FOURTH (I)(B)(6) of the will provides:

"In the event that these conditions are not met by Regis High School, then such income shall not be paid to it but shall be paid to the Archbishopric of New York. Should the Archbishop of New York qualify for receipt of such income for three successive years then at the end of the third year this trust shall terminate and my Trustees shall pay over the principal to the said Archbishopric of New York."

Footnote 2: The decree provides, in relevant part:

"Ordered, Adjudged and Decreed that accreditation of Regis High School by the [Commission on Secondary Schools, Middle States Association of Colleges] offers essentially the same objective measure of the School's performance that the testator sought to procure by requiring that the school be rated superior' by the [Commission on Secondary Schools, Middle States Association of Colleges] . . . ."

Footnote 3: See e.g. Matter of Dickinson, NYLJ, Aug. 4, 1999, at 26, col 5 (Sur Ct, NY County, Preminger, S.), affd 273 AD2d 89 (1st Dept 2000), in which two trust instruments provided that, upon the death of the income beneficiary (settlor's son), the trust remainders would be distributed to the income beneficiary's issue, but, in the absence of such issue, to the trustees of trusts created by settlor for the benefit of his other children and their issue. The word "issue" was defined in the trust instruments to exclude adopted children. Petitioner, one of five children adopted by the income beneficiary and his spouse after the creation of the two trusts, sought reformation of the definition of "issue." Petitioner claimed that the definition in the trust instruments was the result of a mistake or a scrivener's error and did not reflect his grandfather's actual intent. The Surrogate, however, dismissed the petition for failure to state a claim, reasoning: "If unforeseen consequences of unambiguous language could justify trust reformation, the concept of an irrevocable trust would be meaningless." The Appellate Division affirmed unanimously. Quoting the Court of Appeals, the Appellate Division explained:

"When the purpose of a testator is reasonably clear by reading his words in their natural and common sense, the courts have not the right to annul or pervert that purpose upon the ground that a consequence of it might not have been thought of or intended by him."

Matter of Dickinson, 273 AD2d at 90, quoting Matter of Tamargo, 220 NY 225, 228 (1917).

See also Matter of Meyer, NYLJ, Feb. 26, 2002, at 1, col 3 (Sur Ct, NY County, Preminger, S.), in which the court denied a request to reform a will so that the trust, instead of terminating as the testator had provided upon the beneficiary's attaining the age of 55, would continue for the beneficiary's lifetime. The court explained:

"Neither an examination of the proverbial four corners of the will nor evidence adduced by petitioner indicates that the provision is other than a perfect expression of the testator's intent. Indeed, the only argument petitioner advances for the extraordinary relief he seeks is that the extension of the trust for the lifetime of the beneficiary would ease the burden of taxation on the beneficiary's own estate."

Id.