The proceeding before the court is one for construction of paragraph “THIRD” of the will of the decedent. It has a long and checkered history before the court. The facts, not complex in themselves, but made so because of the number of parties and their constantly altering positions, unfortunately, requires review in detail to do justice to all. The legal issues presented are unusual and present questions of procedure as well as substance, not typically found in probate proceedings. Under paragraph THIRD of his will, the testator bequeathed his residuary estate, valued upon the accounting at $50,393.65, to “The Franciscan Fathers, Christ the King Seminary, St. Bonaventure University, Olean, New York, with the request that High Masses be said for the repose of my Soul and the repose of the Soul of my said wife. The question of the identity of the residuary legatee or legatees first arose on proceedings for judicial settlement.
On October 18, 1976, court was convened on the construction proceeding pursuant to order for the purpose of taking such proof and making such decree as justice requires pursuant to provisions of Sec. 1420, Subd. (1) of SCPA. The attorney for the executrix was called as a witness. His testimony, given without objection, was as follows: He was the scrivener of the will; he had known the testator and his wife for several years and had been their attorney on prior occasions; he had drawn the will of the testator’s wife as well as the testator; the testator’s wife for several years had been an employee of one of the Franciscan Friars at St. Bonaventure University; illness had compelled her to cease her employment immediately before the wills were prepared; under her will, the wife provided for a legacy to the Friars at St. Bonaventure University; the testator and his wife were very close; the provisions for the bequest of the residuary estate of the testator’s will had been influenced by his wife’s position.
The attorney-scrivener testified that he knew the intention of the testator from his conversations with him. He swore on at least three occasions that he had been given specific direction that the residuary legacy was to be given to the “Franciscan Friars at St. Bonaventure, N.Y.”. The emphasis of the direction of the testator was to geography and to location. As to the phrasing employed in identifying the legatee, the attorney-scrivener testified: “If there is any inadvertence in the third paragraph or confusion as to its interpretation, its simply the manner in which I worded the phrase”. The attorney-scrivener testified that he had not known that there was a separate Friary that operated in connection with the Seminary and was of the opinion that the testator did not know that fact either, although the matter had not been specifically discussed.
Upon inquiry by the court as to whether the intent had been a legacy to individual Franciscan Friars, the attorney-scrivener testified: “The purpose was not to designate any particular Fathers or Priests to say the Masses. They did not want to burden them with the fact any particular person had to do the saying of the Masses. They wanted to make it general so as to cause no inconvenience. That is why they designated it Franciscan Fathers”. Expanding upon the answer, the attorney testified that the testator’s intent was that the intended beneficiary was collectively all the Franciscan Fathers, meaning the ordained Priests of the Order of Friars Minor who were present at St. Bonaventure, New York, that being a geographic location.
A stipulation of facts was subsequently submitted to the court. It stipulated that prior to August 8, 1961, the date of execution of the will in issue, to June 28, 1974, Christ the King Seminary had operated as a division or department of St. Bonaventure University at St. Bonaventure, New York; that on June 28, 1974, four months prior to the date of death of the decedent, which occurred on October 21, 1974, Christ the King Seminary became a separate educational corporation under the provisions of the Education Law; that a separate Friary of Franciscan Fathers, known as the Friary of Christ the King had, prior to the execution of the will and at all times thereafter, been associated with the operation of the Seminary separate and distinct from the Friary of St. Bonaventure which operated in connection with the University.
Following submission of the stipulated facts, the court took the construction of the will under advisement and review. The court has taken judicial notice of the fact that St. Bonaventure, New York is a locality with a separate post office address and is distant no more than one mile from the limits of the City of Olean, the closest municipality. The court first treats the issue of the appointment of a guardian ad litem for unknowns and the motion to dismiss such guardian and his report. The language employed in the will to identify the residuary legatee or legatees is uncertain and equivocal. In the first instance, the number of beneficiaries intendedwas uncertain. Possibilities included (1) The Franciscan Fathers (2) Christ the King Seminary; (3) St. Bonaventure University, Olean, New York, or (4) A combination of such nominees.
Subd. 37 of Sec. 103 SCPA defines persons under disability. The definition includes “any person who is (d) unknown or whose whereabouts are unknown”. Sec. 403 SCPA, Subd. 2 deals with the appointment by the court of a guardian ad litem for persons under disability. It provides: “a person under disability who does not appear by his guardian or committee pursuant to 402 shall except as otherwise expressly provided appear by a guardian ad litem appointed by the court on nomination or on its own initiative whenever such person is a necessary party or for other reason the court deems it necessary to appoint a guardian ad litem to protect the interests of such party”. In speaking of Sec. 403 SCPA it is said: “Neither the former statute (Sec. 64 SCA) nor the present statute was specific as to the cases in which it must be applied. To a large extent unquestionably its application is discretionary with the Surrogate”.
Exercising its discretion, the court appointed a guardian ad litem for unknowns. In doing so the court was prompted by a desire to determine what parties might have an interest in the residuary estate and where they were. Because of the extensive number of initially possible interested parties, it seemed advisable to cause investigation to be made to delimit them if possible and to determine if they lacked capacity to take a disposition for the religious, charitable and benevolent purpose provided in the residuary legacy. The court wanted information on which it could, make an independent judgment of the need for representation on the variously proposed agreements to compromise and procedures which should be followed, and whether all parties were properly represented.
The appointment of the guardian ad litem for unknowns was not made by the court until after the Attorney General, earlier made a party on the court’s initiative failed to appear and participate in the proceedings. His failure to appear continued for three successive occasions and this despite solicitation by the court for an appearance and advice. The court has never questioned the authority of the Attorney General to represent the beneficiaries of a testamentary disposition for religious, charitable, educational or benevolent purposes. This is his statutory right. However, the same statute imposes a “duty on him to enforce the rights of such beneficiaries by appropriate proceedings in the courts”. This, in the judgment of the court, he failed to do.
A further consideration prompting the appointment of the guardian ad litem stemmed from the outstanding possibility that the bequest might be construed to have been made to the Franciscan Priests in their individual capacity. In such instance it has been held that the bequest is not charitable in nature so as to qualify for a charitable deduction under the Internal Revenue Code and this even if the Priest, as recipient of a bequest for masses is bound by vow to say the Masses and is obligated to deliver the bequest to the church.
The court confesses that it also entertained some lingering doubt as to the exclusiveness of representation by the Attorney General of beneficiaries who lack capacity to take a bequest for a religious, charitable, educational or benevolent purpose. In the event of the necessity of a “cy pres” application for charitable bequests, is the Attorney General the single proper legal representative for all alternative and competing charitable beneficiaries. This question also does not appear to have been resolved. This court does not attempt to resolve either of the noted questions. They are set forth only as supportive of the discretionary action of the court in appointing a guardian ad litem for unknowns. The court’s concern over the noted matters is not afterthought, it was made known by letter to the attorneys for all appearing parties. Note is also made that there proved to be Franciscan Fathers who, as member of the two Friaries concerned were possible individual trustee beneficiaries on the death of the testator, but who at the time of distribution were no longer able to say Masses or fulfill the purposes of the trust by reason of death, resignation or having been laicized. For all the reasons noted, it simply seemed best to the court at the time to assure active legal representation for all possible parties in interest.
The investigation by the guardian ad litem for unknowns was thorough. His report was comprehensive and objective. It met fully the requirements of special court rule IX of the Cattaraugus County Surrogate Court Rules which required him to “carefully examine all matters in the proceeding affecting the interests” of the persons he represented. His work and his efforts were helpful to the court and merit note and commendation.
Under all the facts and circumstances existing, the attorney for the Friary of Christ the King Seminary and the Assistant Attorney General have failed to satisfy this court that its discretion in protecting the interests of “persons unknown or persons whose whereabouts were unknown” was not properly exercised. There, the court refused to dismiss a special guardian in an action in which the alien property custodian was given the statutory right to appear. The court said: “While in some set of circumstances there may be overlapping of appearances that is not an unmixed evil in fact, it may be essential to the protection of all the rights involved the appearance of the special guardian will not be stricken out. He is here on the court’s own direction for the protection of interests which the court deems to be entitled to special protection until the inquiry into the validity of the propounded instrument is completed”.
Next in order is a review of the procedural aspects of the motion to require the court to confirm the agreement of compromise. The basis of that motion is shadowed in doubt. No statute was ever cited in oral argument. In the memorandum submitted to the court in support of the motion for judicial approval of the compromise agreement, the attorney for the moving party failed to specify any statutory authorization for the motion. His written argument, like his oral argument, consisted of a bare and oft repeated insistence on an obligation of the court to approve the compromise which he had helped to engineer. The research of the court discloses three statutes which could have possible application to the motion. Their provisions are reviewed and measured against the proceedings attending the motion in issue.
Sec. 2106 SCPA provides for a proceeding for compromise of controversies between claimants to property “where the interests of persons under disability or not in being are or may be affected”. At the time the agreement of compromise was submitted to the court and an oral motion made for its approval, there were unknowns. By definition, unknowns are persons under disability. Persons under disability are statutorily made “necessary parties” to proceedings for compromise. As statutorily required, the unknowns were represented by a guardian ad litem appointed by the court. That guardian ad litem for unknowns was not a signatory to the agreement; nor did he support the motion for approval. As a necessary party, his absence constituted one procedural deficiency.
Further, the statute provides that it is the “fiduciary (who) may petition for authorization to compromise any controversy”. The fiduciary here was the executrix. She was not a signatory to the agreement; nor did she join in the oral motion for approval of that agreement. The best, or the worst that can be said of her position was a willingness “to go along” with what others decided subject to the approval of the court. Her failure to seek authorization of the compromise agreement was a second deficiency. In addition, the procedure under the statute requires that the proceeding be instituted by a verified petition by the fiduciary. There was no verified petition. In truth, there was no petition of any kind made by anyone. That is a fourth deficiency. Fifth and finally, the strenuous objection of the attorney for the moving party to the attempt of the court to inquire into the facts surrounding the alleged agreement of compromise is in direct opposition to that provision of the statute that mandates judicial inquiry. In summary at least, five procedural defects exist to the application of Sec. 2106 SCPA, if that is the statute under which the motion for approval was made.
Sec. 1813 SCPA also provides a procedure for compromise of claims. In contrast to Sec. 2106 SCPA, it is applicable where persons under disability are not affected. A proceeding under Sec. 1813 SCPA is to be instituted “upon the application of a fiduciary”. There was an absence of any application to the court by the executrix-fiduciary in the case for decision. While Sec. 1813 SCPA is silent on the matter, authoritative text recites that application for authority to compromise a claim under that statute should be made on petition. There was no petition. The need for evidence of a compromise under Sec. 1813 SCPA is stated textually as follows: “It has been held that on the application for a compromise, the same evidence should be produced before the court as would be required to sustain the compromise if it was attacked on the accounting.
Finally, the approval by the court to a proposed compromise under Sec. 1813 SCPA is to be “for good cause shown”. The insistence of the attorney for the moving party that the court judicially approve the proposed agreement of compromise without developing the findings of facts and supporting reasons was an insistence that the court abrogate a statutory duty of inquiry. The court draws the conclusion that if Sec. 1813 SCPA was the basis for the motion for approval of the agreement of compromise, there were also numerous procedural deficiencies.
Sec. 2104 CPLR is the third and last discovered statute under which a motion for approval of the agreement of compromise might be made. This statute relates generally to all stipulations. Its application to the compromise in issue is extremely doubtful since as indicated, other procedures are provided under the Surrogate Court Procedure Act. It is the absence of procedures under the SCPA that is a “sine qua non” to the application of procedures under the CPLR. Nevertheless, even as a remotely possible basis for the motion, it is examined. Sec. 2104 CPLR defines a stipulation as an “agreement between parties or their attorneys”. It provides that a stipulation is not binding upon a party unless it is in a writing and subscribed by the party or his attorney, or alternatively is reduced to the form of an order and entered.
This court cannot dispel the fundamental proposition that the property bequeathed was earned by the testator. It was his to give, and for whatever legal purpose, and to whom he chose. On construction the court determines that the decedent chose those Franciscan Fathers who collectively constitute the Friary of St. Bonaventure at St. Bonaventure, New York. It further determines that the residuary estate of the decedent passes to that Friary in trust for the authorized and charitable purpose of having the Franciscan Fathers who constitute the Friary celebrate Masses for the spiritual benefit of the decedent and his wife.
The motion for approval of the agreement of compromise is denied.
If you want to contest the contents of a will, seek the legal expertise of Stephen Bilkis and Associates.