In the Matter of a Trust Created by MARGARET E. GURNEY, Deceased. CAROLYN RENNER, as Successor Trustee of the MARGARET E. GURNEY, JUNE 19, 2007 REVOCABLE TRUST, Respondent; ST. MARY'S ROMAN CATHOLIC CHURCH et al., Appellants, and HARTWICK COLLEGE et al., Respondents.
Calendar Date: June 6, 2017
and Dempf, LLP, Albany (Michael L. Costello of counsel), for
Cynthia Feathers, Glens Falls, for Carolyn Renner,
Schoeneck & King, PLLC, Syracuse (Richard L. Weber of
counsel), for Hartwick College, respondent.
Law Firm, LLP, Oneonta (Michael F. Getman of counsel), for
Before: McCarthy, J.P., Garry, Lynch, Rose and Devine, JJ.
MEMORANDUM AND ORDER
from an order of the Surrogate's Court of Otsego County
(Lambert, S.), entered August 8, 2016, which, in a proceeding
pursuant to EPTL articles 2 and 8, among other things,
granted petitioner's cross motion to distribute a certain
residuary share of a revocable trust pursuant to the
assumed her duties as successor trustee of a revocable living
trust established by Margaret E. Gurney (hereinafter
decedent) when decedent became unable to manage her affairs.
The trust agreement directed that, upon decedent's death,
the trust assets be applied toward her debts and gifts to
various individuals and organizations. The trustee would then
distribute percentages of the residuary trust corpus to three
institutions including, as is relevant here, 20% to St.
Mary's Roman Catholic School (hereinafter the school).
died in 2015, after which petitioner found herself unable to
make the distribution to the school given that it had been
closed in 2011 and its grounds sold to an unrelated entity
. Petitioner commenced this proceeding
seeking permission to distribute the school's share
equally between the other two institutions named in the
residuary clause (see EPTL 2-1.15). Respondents St.
Mary's Roman Catholic Church, New York and Roman Catholic
Diocese of Albany, New York (hereinafter collectively
referred to as respondents) - the parish and diocese,
respectively, under whose auspices the school operated -
answered and argued that the school's share should be
distributed to the parish's faith formation ministry and
a diocesan scholarship fund pursuant to the cy pres doctrine
(see EPTL 8-1.1 [c]). Respondents also moved for
that relief, with petitioner cross-moving for the relief
sought in her petition. Surrogate's Court declined to
apply the cy pres doctrine and granted petitioner's cross
motion. Respondents now appeal.
affirm. The gift to the school was "charitable in nature
and, for cy pres relief [to be appropriate], it was further
necessary that the instrument establishing the gift
revealed a general charitable intent and that circumstances
had changed rendering impracticable or impossible strict
compliance with the terms of the gift instrument"
(Matter of Lally, 112 A.D.3d 1099, 1100 ;
see Matter of Wilson, 59 N.Y.2d 461, 472 ).
Strict compliance with the terms of the trust agreement was
impossible due to the closure of the school. We accordingly
turn to whether the evidence evinces a general charitable
intent on the part of decedent, defined "as a desire to
give to charity generally, rather than merely to give to a
particular object or institution" (5-8 New York Civ
Prac: EPTL ¶ 8-1.1 ; see Matter of Syracuse
Univ. [Heffron], 3 N.Y.2d 665, 668 ). In answering that
question, we will read the trust agreement in its entirety
and afford its words "their ordinary and natural
meaning" (Matter of Lanza, 307 A.D.2d 265, 266
; see Winter v American Parkinsons Disease
Assn., 85 N.Y.2d 715, 719 ).
to that agreement, all of the institutions to which decedent
made gifts are in the City of Oneonta, Otsego County,
suggesting an intent to limit her largesse to organizations
in that area. When viewed in that context, a direction to
distribute part of the residuary trust corpus "to the
[school at] 5588 State Route 7, Oneonta, New York 13820"
indicates a desire to support a school at that location
rather than religious education projects in general. This
reading is bolstered by the silence of the trust agreement as
to decedent's Catholic faith and the absence of gifts to
the parish or other Roman Catholic institutions. Moreover, to
the extent that the language of the trust agreement is
unclear, petitioner gave deposition testimony revealing that
decedent was aiming to support institutions in her adoptive
hometown and had fond memories of volunteering at the school.
Petitioner further stated that decedent, although a regular
churchgoer who financially supported the parish, had no
interest in Roman Catholic education per se and had
"satisfied" what she saw as a duty to give to the
parish during her lifetime . The case might be
different if the school had been merged into, or if there
even was, another parochial school in the Oneonta area. As
things stand, however, "there is no direction which
could be made by the Court which would accomplish
[decedent's intent], [and] the legacy cannot be made
effective" (Matter of Aker, 21 A.D.2d 935, 936
; see Saltsman v Greene, 136 Misc. 497,
498-499 , affd 231 A.D. 781');">231 A.D. 781 ,
affd 256 NY 636 ; cf. Matter of
Lally, 112 A.D.3d at 1101; Matter of Hummel, 30
A.D.3d 802, 804 , lv denied 7 N.Y.3d 713');">7 N.Y.3d 713');">7 N.Y.3d 713');">7 N.Y.3d 713
). Thus, it was proper for Surrogate's Court to
decline to apply the cy pres doctrine and distribute the
residuary assets pursuant to EPTL 2-1.15.
remaining arguments have been ...