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MATTER INDENTURE TRUST MADE BY ALDO R. BALSAM. MATTER ESTATE ALDO R. BALSAM (12/12/68)

SUPREME COURT OF NEW YORK, RICHMOND COUNTY 1968.NY.43862 <http://www.versuslaw.com>; 296 N.Y.S.2d 969; 58 Misc. 2d 672 December 12, 1968 IN THE MATTER OF THE INDENTURE OF TRUST MADE BY ALDO R. BALSAM. IN THE MATTER OF THE ESTATE OF ALDO R. BALSAM, DECEASED Patterson, Belknap & Webb for petitioners. Turk, Marsh, Kelly & Hoare for income beneficiaries. Myron Beldock, Harold L. Fisher and J. Joyce Klinger, special guardians for remaindermen. Webster, Sheffield, Fleischmann, Hitchcock & Brookfield for Frances B. Schieffelin, settlor's widow. John J. Kelly, J. Author: Kelly


John J. Kelly, J.

Author: Kelly

 In two of three consolidated proceedings, the petitioners, trustees under two indentures of inter vivos trusts, seek judicial settlement of their accounts and construction of certain provisions of the trusts. Specifically, as holders of shares of stock of a regulated investment company (sometimes called a "mutual fund"), they seek instructions whether, within the purview of the provisions of the trusts, capital gains distributions made by the company are income distributable to the income beneficiaries of the trusts or are principal allocable to the corpora of the trusts. They also request instructions concerning the allocation of estate taxes and attorneys' fees among the persons interested in one of the trusts. In the third proceeding the executors of the will of the settlor of the trusts request instructions concerning the allocation of estate taxes and attorneys' fees insofar as they are referable to one of the trusts and other property. The parties have stipulated, with the approval of the court, that examination and settlement of the trustees' accounts shall be deferred pending determination by the court of the issues on which instructions are sought. There shall be considered first the treatment of capital gains distributions, as between principal and income, paid to the trustees on the shares of stock of the regulated investment company.

Aldo R. Balsam (hereinafter referred to as the "settlor") died on March 19, 1963. Prior to his death he had created various trusts. We are concerned at this point with two of them. They are described in the petitions as the "1931 trust" and the "1935 trust", representing respectively the years of their creation. In fact, the 1931 trust originally consisted of two separate indentures of trust executed in May and October, 1931, which were later merged and consolidated. The settlor transferred to the trustee of the May, 1931 trust certain parcels of real property and to the trustee of the October, 1931 trust certain shares of stock. The net value of the real property alone was in excess of one million dollars. Both instruments provided that the trustee shall pay the net income of the trusts to Diogenes M. Balsam (Diogenes), father of the settlor, during his life; upon his death the principal of the trusts shall revert to the settlor; the settlor with the consent of Diogenes shall have the right to modify, alter or amend the trusts; and the settlor and Diogenes shall have the unlimited powers in directing the trustee's investment policies of the trusts. During the years from 1931 to 1935 the settlor and his father had been experiencing difficulties and delays in the management of the trusts, particularly in dealing with persons and corporations interested in the sale, mortgaging and leasing of real properties owned by the trusts which were situated in various States and localities. Also, in 1935, Diogenes proposed to make a contribution to the May, 1931 trust in consideration for the settlor's agreement to amend the May and October, 1931 trusts in such a way that the issue of Diogenes, which included the settlor and his sister, Mrs. Morton, and their respective issue, would be entitled to all the income and remainder interests in the trusts after Diogenes' death. It is evident that in 1935 the settlor decided to eliminate the difficulties encountered in the administration of the trusts and accept his father's proposal. To that end, in July, 1935, with the consent of his father and the trustee, he caused the incorporation of Pine Holding Corporation (hereinafter referred to as "Pine") pursuant to the laws of the State of Delaware, with a charter, not limited by any of the provisions of the trusts, which granted broad powers to purchase, sell, mortgage, lease, and otherwise deal in real and personal property. In November, 1935, in performance of his agreement with his father, he (1) executed an instrument merging and consolidating the May and October, 1931 trusts, (2) after the merger, amended the 1931 trust to provide that the income therefrom be paid to Diogenes for life and upon his death 50% of the corpus be allocated for the benefit of the settlor's children and their issue together with Mrs. Morton and her issue, and that the balance of the corpus revert to the settlor in fee; and, (3) created the 1935 trust to which he transferred to designated trustees all of his reversionary interest in the 1931 trust, and provided that upon the reversion the income therefrom be paid to himself for life and upon his death the corpus be allocated according to the provisions of a formula designated in the trust. Between July, 1935 and the amendment of the 1931 trust and creation of the 1935 trust, the corpus of the October, 1931 trust was transferred to Pine in exchange for its stock. From December, 1935 and extending through 1936, the real property which had constituted the corpus of the May, 1931 trust was conveyed to Pine in exchange for additional shares of its stock.

Suffice it to say at this point that those interested in both trusts are two of the settlor's children, Richard A. Balsam, born in 1924, Maria Balsam Milone, born in 1934, and the settlor's niece, Marian Morton Brown, born in 1927, all of whom are the income beneficiaries. Their children, all of whom are infants, are the remaindermen.

Both trusts provide that during the settlor's life he have unlimited power in directing the trustees' investment policies of the trusts, subject only to the condition that he execute and deliver to the trustees written consents relating to trust investments. They also provided that the settlor had reserved the power to modify, alter or amend the trusts except that he might "not amend the terms and dispositions of the corp(ora) or principal and income or accumulated income of the trust estate(s) adversely to the interests of any person beneficially interested therein without the consent of such person". Other pertinent provisions of the trusts shall be referred to hereafter. Also, in November, 1935, after amending the 1931 trust and creating the 1935 trust, the settlor executed instruments relinquishing all powers which had been reserved to him under both trusts to alter, modify or amend any provisions of the trusts.

Diogenes died in 1940. Thereupon there was transferred to the reversionary 1935 trust one half of the corpus of the 1931 trust including 247 shares of the stock of Pine. The other one half, including a like number of shares of Pine's stock, was retained in the 1931 trust as required by its provisions. Mrs. Morton died in 1953. Thereupon, the 1931 trust, as to one quarter of its corpus, terminated, and that share, including 61.75 shares of Pine's stock, was distributed to the trustee of a trust created by Marian Morton Brown, Mrs. Morton's only child. The trustee of that trust continued to hold those shares until the time of the settlor's death.

In 1958 the settlor suffered a heart attack. As a result he became uneasy about the financial prospects of the trusts in the event that he would no longer be available for the guidance of Pine, the stock of which was the principal asset of the trusts. After consultation with the officers of Pine and its attorney, he devised a plan which contemplated that all of the assets of Pine would be exchanged in a tax-free transaction for the stock of a mutual fund company, followed by a tax-free liquidation of Pine. As part of this plan it was necessary for Pine to divest itself of all its real estate holdings, it having been made known to the settlor that mutual fund companies would consider an exchange of their shares of stock only if the assets of Pine consisted of marketable securities and cash. Pine embarked on a program of such divestiture and by December 27, 1961 had sold all but one of its parcels of real estate. Despite the fact that this one parcel remained unsold, the settlor entered into negotiations with various mutual fund companies to arrange the exchange of Pine's assets for their stock and the completion of the settlor's over-all plan. On March 17, 1963 negotiations with Broad Street Investing Corporation (Broad Street) culminated in an oral agreement between the settlor, on behalf of Pine, and the officers of Broad Street which provided for such exchange upon the disposition of the last remaining parcel of real estate and the execution of formal documents to be drafted by the parties' respective attorneys. A contract for the sale of the last remaining parcel of real property was executed on the afternoon of March 19, 1963 and the settlor died that evening. A deed conveying that property was executed and delivered to the purchaser on April 11, 1963. After the settlor's death, Pine's net assets were in excess of four million dollars invested in marketable securities, in large part acquired with the proceeds realized from the sale of Pine's real property after 1958. The trustees and the officers and directors of Pine were of the opinion that the oral agreement entered into between Broad Street and the settlor, on behalf of Pine, should be concluded. Accordingly, on August 12, 1963, Pine and Broad Street entered into a written agreement providing for the exchange of Pine's assets for Broad Street's stock. However, the agreement provided that its consummation was conditioned upon obtaining a judgment authorizing the transaction. In a proceeding instituted by the trustees in the Supreme Court, New York County (Index No. 13678/1963) a judgment was entered on March 24, 1964 which authorized the consummation of the transaction. Thereafter, on May 15, 1964, in a tax-free transaction, all of the assets of Pine were exchanged for shares of Broad Street stock. Pine was subsequently liquidated in a tax-free dissolution. At the time of the institution of these proceedings the trustees held 81,247 shares of Broad Street stock in the corpus of the 1931 trust and 120,000 shares in the corpus of the 1935 trust.

In the settlor suffered a heart attack. As a result he became uneasy about the financial prospects of the trusts in the event that he would no longer be available for the guidance of Pine, the stock of which was the principal asset of the trusts. After consultation with the officers of Pine and its attorney, he devised a plan which contemplated that all of the assets of Pine would be exchanged in a tax-free transaction for the stock of a mutual fund company, followed by a tax-free liquidation of Pine. As part of this plan it was necessary for Pine to divest itself of all its real estate holdings, it having been made known to the settlor that mutual fund companies would consider an exchange of their shares of stock only if the assets of Pine consisted of marketable securities and cash. Pine embarked on a program of such divestiture and by December 27, 1961 had sold all but one of its parcels of real estate. Despite the fact that this one parcel remained unsold, the settlor entered into negotiations with various mutual fund companies to arrange the exchange of Pine's assets for their stock and the completion of the settlor's over-all plan. On March 17, 1963 negotiations with Broad Street Investing Corporation (Broad Street) culminated in an oral agreement between the settlor, on behalf of Pine, and the officers of Broad Street which provided for such exchange upon the disposition of the last remaining parcel of real estate and the execution of formal documents to be drafted by the parties' respective attorneys. A contract for the sale of the last remaining parcel of real property was executed on the afternoon of March 19, 1963 and the settlor died that evening. A deed conveying that property was executed and delivered to the purchaser on April 11, 1963. After the settlor's death, Pine's net assets were in excess of four million dollars invested in marketable securities, in large part acquired with the proceeds realized from the sale of Pine's real property after 1958. The trustees and the officers and directors of Pine were of the opinion that the oral agreement entered into between Broad Street and the settlor, on behalf of Pine, should be concluded. Accordingly, on August 12, 1963, Pine and Broad Street entered into a written agreement providing for the exchange of Pine's assets for Broad Street's stock. However, the agreement provided that its consummation was conditioned upon obtaining a judgment authorizing the transaction. In a proceeding instituted by the trustees in the Supreme Court, New York County (Index No. 13678/1963) a judgment was entered on March 24, 1964 which authorized the consummation of the transaction. Thereafter, on May 15, 1964, in a tax-free transaction, all of the assets of Pine were exchanged for shares of Broad Street stock. Pine was subsequently liquidated in a tax-free dissolution. At the time of the institution of these proceedings the trustees held 81,247 shares of Broad Street stock in the corpus of the 1931 trust and 120,000 shares in the corpus of the 1935 trust.

The paramount rule in the construction of inter vivos trust indentures is to ascertain the settlor's intention as expressed in the instruments in the light of the circumstances surrounding and attending their execution, and when ascertained to effectuate that intention unless contrary to public policy or an established rule of law. (Matter of Fields, 302 N.Y. 262; Matter of Cowles, 22 A.D.2d 365, affd. 17 N.Y.2d 567; Matter of Day, 10 A.D.2d 220.) Other than those heretofore related, the record is devoid of any extrinsic circumstances existing at the time of the execution of the instruments which would shed light on the settlor's intentions concerning the allocation, as between principal and income, of the capital gains dividends with which we are here concerned. There is no evidence that, at the time of the amendment of the 1931 trust in 1935 and the creation of the 1935 trust, the settlor was familiar with the operation of regulated investment companies or the nature of their dividend distributions. As a medium of investment those companies grew in popularity as a result of the enactment of the Investment Company Act of 1940 and the tax advantages accruing to the companies and shareholders under subchapter M of the Internal Revenue Code of 1954 (U. S. Code, tit. 26, §§ 851-855) where the company submits to Federal regulation thereunder. (Cf. 3 Bogert, Trusts and Trustees [2d ed.], p. 249, n. 8.) It was not until the settlor decided in 1958 to exchange Pine's assets for the shares of an investment company that the evidence discloses the settlor's awareness of their form of distribution of income and capital gains dividends. Looking to the trust indentures, the only reference to the treatment to be accorded to corporate dividends is found in the provisions that "Any and all dividends payable in the stock of the corporation or association declaring or authorizing the same, and declared and authorized in respect of any stock constituting in whole or in part the principal of the trust fund, as well as all rights to subscribe for new or additional stock, shall be wholly principal and not income of the trust." However, those provisions do not contain any express direction concerning the allocation of dividends payable at the election of the trustees in cash or in additional shares of Broad Street. It is so conceded by the guardian. (Cf. Kellogg v. Kellogg, 166 Misc. 791, affd. 254 App. Div. 812; Matter of Hurd, 203 Misc. 966; Matter of Appleby, 15 Misc. 2d 200.) Nor may the distribution by Broad Street, be considered as a right to subscribe for new or additional shares of stock. Implicit in the term "rights to subscribe" as used in the law there is contemplated an increase in the capital of the corporation giving its shareholders the right to subscribe to new shares at less than the market value of the shares (3 Scott, Trusts [3d ed.], § 236.9.) When capital gains distributions are made by Broad Street they are not accompanied by any increase in its capital stock, nor are their shareholders required to pay for the additional shares they may elect to receive. Being unable to glean the settlor's intention concerning the treatment to be given those capital gains distributions, guidance must be sought in the presumptive canons of interpretation adopted by the courts and the Legislature "to fill such gaps and to supply that for which the [settlor] has not lawfully provided." (Central Union Trust Co. v. Trimble, 255 N. Y. 88, 93; cf. Bourne v. Bourne, 240 N. Y. 172, 175; Matter of Berger, 6 Misc. 2d 468, 469, 470.)

The decisional law of this State, all of which was enunciated prior to 1963, is uniform in holding, absent any indication of contrary intent by the settlor, that dividend distributions of capital gains received by trustees from regulated investment companies constitute income distributable to the income beneficiaries. (Matter of Byrne, 192 Misc. 451 [1948]; Matter of Bruce, 192 Misc. 523 [1948]; Matter of Rosenthal, 110 N. Y. S. 2d 483 [1951]; Matter of Granath, N. Y. L. J. Nov. 24, 1952, p. 1260, col. 8; Matter of Hurd, supra ; Matter of Appleby, supra ; Matter of Bailey, 20 Misc. 2d 539 [1959]; Matter of Snitzer, 33 Misc. 2d 692 [1962].) Such was the posture of the decisional law when the Legislature enacted subdivisions 7 and 13 of section 27-e of the Personal Property Law (now EPTL 11-2.1, subd. [e], pars. [7] and [13]), which subsections, in pertinent part, provide: "(7) Distributions made from ordinary income by a regulated investment company * * * are income. All other distributions made by such company * * * including distributions from capital gains * * * whether in the form of cash or an option to take new shares or cash or an option to purchase additional shares, are principal. * * * (13) * * * subparagraph (7) applies to trusts created on and after its effective date". The effective date was designated as June 1, 1965. The effect of that enactment was to abrogate the rule announced in the decisional law as to trusts created on and after its effective date and require that on and after June 1, 1965 all capital gains distributions made by regulated investment companies to trustees be allocated to principal. However, the statute having been made prospective in operation only, it has no application to trusts created prior to its effective date. Its terms specifically exempt such trusts from its operation. The trusts here involved were created prior to the effective date of the statute and are not subject to its mandate. (Cf. Matter of Hagen, 262 N. Y. 301, 305; Matter of Dodge, 39 N. Y. S. 2d 186, 194, affd. 266 App. Div. 845; Matter of Comfort, 176 Misc. 807, 809.)

Nevertheless, the guardian contends that when the Legislature made the statute prospective in operation only, it did not intend to codify pre-existing decisional law which allocated capital gains to trust income. He suggests that, inasmuch as the decisional law of this State has been declared by courts having jurisdiction co-ordinate with that of this court, we should exercise the power and reject the reasoning of the decisional law and bring it into line with that part of the statutory enactment which applies to trusts created after the statute's effective date. He cites Matter of Arens (41 N. J. 364) which dealt with the treatment, as between principal and income, of distributions with respect to corporate securities (not mutual fund shares) held as assets of a trust, wherein the court stated (p. 386): "Nor do we think the fact that our Legislature made the 1952 statute applicable only to trusts subsequently coming into existence in any way precludes us from changing the pre-1952 common law. We expressed the view in Fera that the exclusion of prior created trusts from the operation of the act did not codify any pre-existing rule governing apportionment, 26 N. J., at p. 142, and we do not conceive the Legislature intended thereby to foreclose the courts from changing judge-made law in the same field." The guardian further contends that in none of the New York cases is it indicated that the courts closely analysed the uniqueness of the nature and business of mutual fund companies, the relationship between such a company and its shareholders, the source and substance of the distributions made by those companies, the similarity between a common trust fund (wherein capital gains dividends are treated as trust principal) and a mutual fund as a means of investment, the tax consequences of such distributions and the effect of their determinations upon the expectations of the average settlor. He states that where consideration was given to those factors in Tait v. Peck (346 Mass. 521), where the issue requiring determination involved Broad Street shares, the Massachusetts court determined that capital gains distributions of regulated investment companies were allocable to principal. Without conceding the omission of the New York courts to analyze all of those factors, as shall be seen, they were the subject of extensive consideration by a legislative commission and to a large extent motivated the commission in recommending to the Legislature the departure from the judicial rule as to trusts created after the effective date of the enactment. The question remains whether the Legislature intended that the judicial rule then in effect should govern the administration of trusts created prior to the effective date of the statute. If so, recognition should be given to it. If not, only then should consideration be given to changing the judicial rule. To resolve the question a court may invoke "the history of the passage of a statute, that is, the changes and proposed changes in the original bill, as recorded in the legislative journals." (Woollcott v. Shubert, 217 N. Y. 212, 221.) Also, resort may be had to the reports and notes of legislative commissions. (Matter of Pink [ Walladmoy Realty Co.], 179 Misc. 46, 49.)

By chapter 731 of the Laws of 1961 the Legislature created the Temporary State Commission on the Law of Estates (Commission) to make a comprehensive study of pertinent laws, including the Personal Property Law, for the purpose of modernizing, simplifying and improving the law of estates. As a result of the Commission's recommendation, chapter 1005 of the Laws of 1963 was enacted and became a law on May 3, 1963, repealing section 17-a of the Personal Property Law and inserting in its stead a new section 17-a. Subdivision 7 thereof contained the same verbiage as EPTL 11-2.1 (subd. [e], par. [7]) quoted above. By subdivision 12 of section 17-a it was provided that "this section shall apply to any trust, whether created or declared before or after its effective date". It was further provided that the act shall take effect June 1, 1964. In effect the enactment mandated that all capital gains distributions of regulated investment companies be allocated to principal whether the trust was created before or after its effective date. It was explained by the Commission that "the delayed effective dates were to give the public an opportunity to consider with great care the new statutes, some of which made rather drastic changes in the New York law of estates, and to afford time at the 1964 Legislature within which to make any changes before the laws became effective." (Third Report of Temporary Comm. on Law of Estates, N. Y. Legis. Doc. 1964, No. 19, p. 16; cf. pp. 35, 653.) Time was not sufficient to complete consideration of the changes, and by chapter 380 of the Laws of 1964 the effective date of the statute was postponed to June 1, 1965. Additional meetings were held and reports submitted to the Legislature which indicate that extensive consideration was given to all of the factors which the guardian contends are unique and peculiar to the conduct of the business of mutual fund companies. (N. Y. Legis. Doc., 1964, No. 19, p. 653; N. Y. Legis. Doc., 1965, No. 19, p. 33; Minutes of Commission's Meetings held on March 5, October 13, November 10, December 1, and December 8, 1964, filed in the State Library; cf. N. Y. Legis. Doc., 1967, No. 19, p. 30.) Finally, as a result of the Commission's recommendation, chapter 336 of the Laws of 1965 was enacted. By that act section 17-a of the Personal Property Law was repealed and a new section 27-e was adopted to replace it. Subdivision 7 of section 27-e was retained as now appears in EPTL 11-2.1 (subd. [e], par, [7]). However, subdivision was renumbered 13 in section 27-e and revised, in relevant part, to provide that "subdivision seven of this section shall apply to trusts created on or after its effective date" which was designated as June 1, 1965. A legislative note appended to chapter 336 of the Laws of 1965 states: "The act also changes subdivision 7 of section 17-a of the Personal Property Law to provide that the rule allocating capital gains dividends of mutual funds to principal shall not apply to existing trusts." A more succinct clarification of what was intended with respect to trusts created prior to the effective date of the statute is found in the Fourth Report of the Commission (N. Y. Legis. Doc., 1965, No. 19, p. 33) where, with respect to a standby bill containing the same provisions as contained in subdivisions 7 and 13 of section 27-e, it was stated: " Thus such capital gains will be allocated to income as to presently existing trusts and to principal as to trusts created after the effective date of the statute" (emphasis supplied). (Cf. N. Y. Legis. Annual, 1965, No. 19, p. 198.)

Against that historical background the question is posed: should we now, by judicial rule, give retroactive effect to the statute when the Legislature, which was empowered to do so, deliberately refrained from so doing? The question must be answered in the negative. Confronted with the same question the Supreme Court of Vermont, when urged to change a judicial rule and thereby give retroactive effect to a statute which limited its application prospectively, expressed its attitude in Matter of Valiquette, (122 Vt. 350) follows: "Certainly our legislature was in a position to do all that we can do and it chose not to do more than it did; it did not set out to change the law retroactively. We think that although the legislative action was not pre-emptive in nature, it was close to it, and that this Court, or any other Vermont court, ought to be very reluctant about stepping into a situation and enlarging the scope of the enactment". "The general rule is that an original statute, or an amendment, will be construed as prospective only, unless the language clearly and plainly indicates a contrary purpose, and it will not be given a retroactive effect when it is capable of any other construction." (Walker v. Walker, 155 N. Y. 77, 81.) Here, in view of the positive actions of the Legislature, the reason for adherence to the general rule is more pronounced. Having initially given the statute both prospective and retrospective effect, it thereafter, but prior to its effective date, deliberately annulled the retroactive feature of the statute and limited its application prospectively. Were this court now to change the judicial rule and give retroactive effect to the statute it would enlarge its scope, thereby contravening the clear and plain intent of the Legislature. Such change should be made by the Legislature, not by the courts.

I find that the Legislature clearly intended that the judicial rule in effect at the time of the enactment of subdivisions 7 and 13 of section 27-e of the Personal Property Law (now EPTL 11-2.1, subd. [e], pars. [7] and [13]) should govern the administration of trusts such as those here involved which were created prior to the effective date of the enactment. In consequence, the factors which motivated the courts in Tait v. Peck (346 Mass. 521, supra) and Matter of Brock, (420 Pa. 454 [1966]) to change the judicial rules in those States, by deciding that capital gains dividends of regulated investment companies are allocable to principal, need not be considered.

In Matter of Arens (41 N.J. 364, supra) cited by the guardian, the Supreme Court of New Jersey changed a judicial rule of construction to conform with a statutory rule which was limited to prospective application. The law enunciated in that case is not consistent with the law of this State. Also, the problem there involved differs markedly from that involved in this case. In Arens the issue requiring determination involved the apportionment between principal and income of extraordinary corporate dividends received by a trustee both before and after the effective date of the New Jersey statute (N.J. Stat., § 3A:14A-9). The judicial rule which was changed by that case bore similarity to the judicial rule declared in this State in 1913 in Matter of Osborne (209 N. Y. 450). The rule declared in Osborne governed trust indentures created prior to May 17, 1926, the effective date of former section 17-a of the Personal Property Law which abrogated the apportionment rule with respect to trusts created after that date. In Matter of Hagen (262 N. Y. 301, 303, 305, supra) Crane, J., recognizing that the rule of Osborne was perplexing and "proved to be confusing and at times unjust", nevertheless held that the provisions of former section 17-a of the Personal Property Law "were not retroactive [and] we must do the best we can with the apportionment rule".

Thus, while in Arens the New Jersey court enlarged the scope of its statute by giving it retroactive as well as prospective effect, the Court of Appeals of this State, with similar circumstances existing, refused to do so. Ultimately, the Legislature changed the Osborne rule. (EPTL 11-2.1, subd. [e].) Additionally, there is not involved in this case the complex and at times unjust Osborne rule. At a meeting of the Commission held on December 8, 1964 (Minutes of Meeting, p. 15) it was stated that while two rules would result, one with respect to trusts created prior to and another applying to trusts created after the effective date of the statute, they ...


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