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.
The testimony of the executrix of the will, given without objection, corroborated that of the attorney-scrivener. She testified that she was a first cousin of the testator’s wife and a friend of the testator. As to the intended beneficiary, her testimony was as follows: “I believe Mr. Beckley wanted it to be paid to the Franciscan Fathers at Saint Bonaventure University, the Friary at St. Bonaventure University, New York. It isn’t the University. It’s St. Bonaventure, New York”.
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 intended was 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.
Particular difficulty to the court attended the identity of “The Franciscan Fathers”. The range of possible beneficiaries that could satisfy that particular designation appeared to include at least the following: The Order of Friars Minor, a worldwide monastic order of the Catholic Church founded by St. Francis of Assisi in 1209; a divisional organizational entity of the Orders of Friars Minor embracing parts of North and South America known as the Province of the Holy Name; a subdivisional organizational entity of the Order of Friars Minor known as the Friary of Christ the King Seminary located initially at St. Bonaventure, New York, and later at East Aurora, New York; a subdivisional organizational entity of the Order of Friars Minor known as the Friary of St. Bonaventure University located at St. Bonaventure, New York; both such subdivisional Friaries; the individual Franciscan Priests who were members of the Friary of St. Bonaventure University; the individual Franciscan Priests who were members of the Friary of Christ the King Seminary; the individual Franciscan Priests who comprised the membership of both such Friaries.
Subd. 37 of Sec. 103 SCPA defines persons under disability. The definition includes “any person who is (d) unknown or whose whereabouts are unknown”. (Italics added). 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”.
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.
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. (Sec. 102 SCPA). 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.
While stipulations of settlement are common and generally favored in the law, there are limitations on their application. The agreement submitted to the court for an order of approval is that the property constituting the residuary estate of the decedent “shall be transferred and paid over to the Friary of St. Bonaventure University and the Friary of Christ the King Seminary, in compromise of the construction proceedings, and a decree may be made and entered in accordance thereto”.
It has long been held that an agreement of stipulation is not binding on those who are not parties to it. Nor are such persons bound by a judgment or decree entered on such a stipulation. The overriding and decisive provisions of the agreement and of the motion for its approval is that it seeks to control the activities of the court. It does this by requiring termination of the construction proceeding pending before the court and on terms not agreed to by all appearing parties, nor by the court. It also seeks to compel the court to sign and enter a judicial degree approving the same. If no discretion resides in the court concerning approval, one can only wonder why judicial approval of the agreement was sought by the attorney for the Friary of Christ the King and the Assistant Attorney General. A rubber stamp would seem to provide a sufficient alternative.
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.
Accordingly, the court held that the motion for approval of the agreement of compromise is denied.
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