Matter of Dawe

[*1] Matter of Dawe 2018 NY Slip Op 28233 Decided on July 23, 2018 Surrogate's Court, Madison County McDermott, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on July 23, 2018
Surrogate's Court, Madison County

In the Matter of the Application of Co-Executor, Barry Dawe, for a Determination as to the Validity, Construction and Effect of the Last Will and Testament of Alan Robert Dawe a/k/a Alan R. Dawe, Deceased.



2014-33309



Daniels, Porco and Lusardi, LLP (David E. Daniels, Esq. and Cristen G. M. Rescigno, Esq., of counsel), for the petitioner;

David E. Sonn, Esq., for respondent, co-executor Judith J. DeMuro;

Bond, Schoeneck & King, PLLC (Thomas Bezigian, Jr., Esq. and John F. Boyd, II, Esq., of counsel), for respondent, the Godfrey Memorial Library; and

Hon. Barbara Underwood, Attorney General of the State of New York (Christopher Wiles, Esq., of counsel).
Dennis K. McDermott, S.

Barry Dawe, brother of the decedent Alan R. Dawe and co-executor of his estate (hereafter, "Barry"), seeks the judicial construction of a portion of his brother's will. Aside from a gift of the decedent's thirteen-year old cat and $6,000.00 for her care and upkeep, no other bequest was made for him in the will. If the relief he seeks in his petition is granted, he will [*2]inherit the residuary estate valued at approximately $700,000.00.

The decedent (hereafter, "Alan") took a keen interest is his family's history. He had conducted significant genealogical research and created a website as a repository for his work. In paragraph SIXTH of his will dated December 12, 2009, he stated in pertinent part:

I am mindful of my two brothers, Barry Dawe and Rodger Dawe, and of my other relatives, all of whom I love dearly, but I do not make any other direct testamentary disposition for any of them. Instead, I give, devise and bequeath all the rest, residue and remainder of my estate to my Co-Tustees (sic) hereinbelow named, to be held in a new "Dawe Family Trust", in accordance with the terms hereinafter stated. A. I have a web site (www.dawe.us) devoted to the Dawe family genealogy. The purpose of the new "Dawe Family Trust" will be to continue and expand that website and to create an archive of family genealogical data, photos and heirlooms, etc....D. The trust's income (interest and dividends) shall be used for the advance of the trust's purposes and/or for administrative costs, trustee commissions, fiduciary income taxes and legal and accounting services, etc. There shall be no invasion of principal for support of the trusts's purposes, but, to the extent that my Co-Trustees deem it appropriate, a portion of the trust's principal may be applied/withdrawn to pay administrative costs, trustee commissions, fiduciary income taxes and legal and accounting services, etc.E. My above-mentioned brother, Barry Dawe, has a son, Eric Dawe, my nephew. To avoid violating the New York State Rule Against Perpetuities (EPTL 9-1.1 (b)), I direct that this trust automatically terminate twenty-one (21) years after the death of my said brother (Barry) and my said nephew (Eric). Upon such termination, all the assets of the trust (i.e., its principal and all accumulated interest) shall be distributed outright, free of future trust, to the Godfrey Library, a not-for-profit library in Connecticut which promotes and facilitates genealogical research, it being my hope that said library will then preserve (and continue) the Dawe family genealogical research I have conducted (and my said related web site).

Alan died on March 11, 2014, a domiciliary of Madison County, New York, never having married or having had any children. He was survived by his two brothers, Barry and Rodger, although it appears that Rodger died a month later. In the absence of any objections, Alan's will was admitted to probate on September 9, 2014 and letters testamentary were issued to Barry and co-executor, Judith DeMuro.

In his petition, Barry asks that this court determine that the trust created in paragraph SIXTH is void and of no effect and adjudging that as to the residuary estate the decedent died intestate resulting in Barry taking it as his sole distributee.[FN1] In support of his position, Barry [*3]argues that the trust fails to name any beneficiary and merely states a purpose, namely, the preservation and expansion of the research into the Dawe family genealogy, and that it has no charitable purpose inasmuch as "(t)he only people who benefit from genealogical research into the Dawe family's history are the members of the Dawe family." Further, Barry argues that the Rule Against Perpetuities does not apply to charitable trusts so that reference to it in the will underscores that this was not intended to be a charitable trust but rather to benefit only the surviving (and presumably future) members of the Dawe family.

In response, co-executor Judith DeMuro asks the court to deny Barry's petition. She avers that from the outset, Barry, his wife and son, expressed their disagreement with Alan's stated wishes and believed that Alan's estate should go to Barry. In her affidavit submitted in opposition, she says that despite Barry's efforts to enlist her support, "I said I disagreed and would not support a challenge to the Will for that purpose. I felt that assets should go for genealogical research, as my friend, the decedent, wished to occur."

Godfrey Memorial Library of Middletown, Connecticut (hereafter, "the Library") opposes Barry's petition and has filed a cross-petition wherein it concedes that the trust is invalid. The Library asks that the invalid trust provisions be excised and disregarded and that the remaining provisions of paragraph SIXTH bequeathing the residuary estate to it be given effect by accelerating the remainder interest. "If the invalid parts of the (will) can be expunged without essentially changing or destroying the testator's general testamentary scheme, the valid parts of the will should be upheld." Smith v. Chesebrough, 176 NY 317, 322 (1903). The Attorney General fully supports the Library's position.

The court's analysis of this case begins with recognizing the cardinal rule applicable in will construction proceedings, namely, that the intentions of the testator are to be given effect so long as that can be done without violating the law or public policy. That intent is to be gleaned from a sympathetic reading of the will and in view of all the facts and circumstances under which the provisions of the will were written. Matter of Carmer, 71 NY2d 781, 785 (1988); Matter of Fabbri, 2 NY2d 236, 240 (1957); Matter of Prevati, 121 AD3d 137 (3d Dept 2014).

Alan had evidently devoted much time and effort in researching and documenting his family's history. In that effort, it appears that he had availed himself of the services of the Library. It is undisputed that the Godfrey Memorial Library is an internationally recognized resource for those interested in genealogical research and that its mission is to assist persons in researching their family history and to make its considerable resources available to them for that purpose. The Library's website states that it has more than 200,000 books, periodicals, state and local histories, church records, family bibles and similar materials available and that its capstone is a specialized collection called the American Genealogical Biographical Index (the "AGBI"), which is an index of over four million names taken from the Library's original collection and the Boston Transcript genealogical query column, constituting a "key source for researchers all over the world to help locate references to their ancestors in out of print and hard to find books."

In 2002, the Library created the "Godfrey Scholar" which it describes as an online research tool providing access to searchable databases as well as the Library's own records. Ten years later, in 2012, the Library added to its staff an individual who is reputedly a premier genealogy programmer. The Library further operates a Family History Center in Utah which provides access to "a vast repository of microfilms of records from all over the world."

The attorney-draftsman of the will has provided his affidavit in which he states that although he and Alan had never had any prior dealings with each other, Alan provided relevant background information including that he had two brothers but did not wish to benefit them since he believed they were not particularly in need of any bequest from him. Rather, he stated that he wanted the Library to be the recipient of his largess and described it as "one which he had regularly used and/or knew supported genealogical research."

At common law, any trust without a named beneficiary was void. "If there is a single postulate of the common law established by an unbroken line of decision, it is that a trust without a certain beneficiary who can claim its enforcement is void, whether good or bad, wise or unwise." Levy v. Levy, 33 NY 97, 107 (1865). Strict adherence to that rule in the case of Tilden v. Green, 130 NY 29 (1891) led to the Legislature enacting Chapter 701 of the Laws of 1893 (the so-called "Tilden Act"), authorizing the creation of charitable trusts and, in so doing, directing that the Attorney General was to be authorized to seek enforcement of charitable trusts made for the benefit of the public. Today, that statutory provision is found in EPTL § 8-1.1 (f). Lefkowitz v. Lebensfeld, 51 NY2d 442, 445 (1980). That enactment, however, applies only to charitable trusts, i.e., those for "religious, charitable, educational or benevolent purposes", leaving the common law rule fully intact with respect to private, non-charitable trusts.

There is no dispute among the parties that the trust provisions of paragraph SIXTH are invalid because there is no named beneficiary of the trust. Here, the research into the genealogy of the Dawe family provided no benefit of any consequence to anyone outside that family. Because there is no substantial benefit to the public from this particular research and website, the trust could not be deemed to be charitable in nature. See, for example, Benjamin Price Genealogical Assn. v. I.R.S., 1979 WL 1346 (US Dist. Ct., D.C., 1979) and The Callaway Family Ass'n. v. Commissioner, 71 T.C. No. 30 (1978). Thus, the Attorney General would have no standing to enforce its provisions and, for lack of a named beneficiary, the trust created in paragraph SIXTH of Alan's will must fail.

Alan was well aware that the trust, even if it were given effect, would eventually come to an end. At that point, he directed that "all the assets of the trust (i.e., its principal and all accumulated interest) shall be distributed outright, free of future trust ..." to the Library. He expressed his "hope" that the Library might see fit to preserve and continue his Dawe family research but this was not made a condition of the bequest.

Barry argues that because the trust provision of paragraph SIXTH fails, all of paragraph SIXTH is invalid and, as a result, Alan's residuary estate must pass to him by way of intestacy. The court cannot agree. When asked to choose between two interpretations of provisions in a will, one of which will result in intestacy, the courts will construe the provisions so as to avoid intestacy. To that end, it is presumed that one who goes to the trouble of making a will did not intend that any part of his estate should pass by operation of the laws of intestacy. "The fact that (the testatrix) made bequests to certain next of kin indicates that such provision was all that she intended that they should receive of her estate. To permit them to share to a greater extent as next of kin in her estate would be contrary to her intent as expressed in the will, and would tend to defeat rather than further the 'obvious wishes' of testatrix." In re Hayes' Will, 263 NY 219, 224 (1934).

Because it does not appear that disregarding the invalid trust provisions of paragraph [*4]SIXTH will result in any fundamental disturbance to Alan's overall testamentary plan, the remainder interest payable to the Library should be accelerated. Matter of Lyons, 271 NY 204 (1936). As once noted by Chief Judge Cardozo, the courts have been reluctant to engage in such an exercise where disregarding invalid provisions in a will would result in the residue passing to someone other than the testator's designated residuary legatee. Oliver v. Wells, 254 NY 451 (1930). Here, however, as in Oliver, the acceleration will benefit no one other than the residuary legatee and the "queries and perturbations" that would flow from a different outcome "are stilled and set at rest." Id., at 457.

Alan's intent is clear — he considered the work of the Library to be important and worthwhile and meant for the Library to inherit the residue of his estate to support its work. Adoption of Barry's interpretation would be directly contrary to Alan's expressed desire to "not make any other direct testamentary disposition" for Barry or any other family member. In view of the clear and unambiguous expression of his intent, this court is duty-bound to honor his wishes and give effect to his words. Matter of Scale, 38 AD3d 983 (3d Dept 2007). See, also, Matter of Phillips, 101 AD3d 1706 (4th Dept 2012), lv dismissed 21 NY3d 909 (2013).

Accordingly, Barry's petition should be denied and the cross-petition of the Library should be granted.

Submit decree on notice.

Dated: July 23, 2018.

Surrogate, Madison County Footnotes

Footnote 1: The court is informed that Rodger had never married and never had any children, marital or non-marital. That being the case, Barry would presumably be his sole distributee. However, there is nothing in the record to indicate whether Rodger died testate or intestate. In either event, his interest would be subject to whatever claims against his estate may have existed.