AGUDAS CHASIDEI CHABAD OF UNITED STATES v. Gourary, CV-85-2909.

• Decision Date: 06 January 1987
• Docket Number: No. CV-85-2909.,CV-85-2909.
• Citation: 650 F. Supp. 1463
• Parties: AGUDAS CHASIDEI CHABAD OF UNITED STATES, Plaintiff, v. Barry S. GOURARY, Defendant. and Hanna Gourary, Defendant-Intervenor.
• Court: U.S. District Court — Eastern District of New York

650 F. Supp. 1463

AGUDAS CHASIDEI CHABAD OF UNITED STATES, Plaintiff, v. Barry S. GOURARY, Defendant. and Hanna Gourary, Defendant-Intervenor.

No. CV-85-2909.

United States District Court, E.D. New York.

January 6, 1987.

Miller Cassidy Larroca & Lewin, Washington, D.C. by Nathan Lewin, Seth P. Waxman, and Schnader Harrison Segal & Lewis, Philadelphia, Pa. by Jerome J. Shestack, and Schlam Stone & Dolan, New York City by Richard Dolan, for plaintiff.

Stroock & Stroock & Lavan, New York City by Alvin K. Hellerstein, Brian M. Cogan, Elizabeth A. Mullins, for defendant and defendant-intervenor.

MEMORANDUM DECISION AND ORDER

SIFTON, District Judge.

This is a diversity action for replevin, also alleging conversion and trespass, that was commenced on August 5, 1985, to recover some 400 books or the proceeds of their sale said to be in the hands of defendant Barry S. Gourary. Defendant Barry Gourary has counterclaimed for a judgment declaring that the 400 books, as well as the balance of books and manuscripts which form part of a library housed at a building at 770 Eastern Parkway, in Brooklyn, New York, owned by the plaintiff, belong to him and his mother, intervenor Hanna Gourary.

On November 22, 1985, this Court determined that a trial should proceed before the undersigned, sitting without a jury, with respect to the issue whether the library which is the subject of the litigation was part of the estate of Rabbi Joseph Isaac Schneersohn, the grandfather of Barry Gourary and the father of Hanna Gourary, at the time of the Rabbi's death in 1950. Separate trial of this issue was deemed appropriate since the issue forms the core of defendants' counterclaim and of defendant Barry Gourary's defense to plaintiff's claims in replevin and for conversion, namely, that the library belongs to his mother and to him as a result of inheritance from his grandfather, Rabbi Schneersohn.

Trial of this issue took place in December 1985. Post-trial submissions were completed in March 1986. From April through October 1986, this Court was engaged in the trial of a multi-defendant criminal case. After hearing the testimony at trial and after review of the voluminous documentary evidence introduced by both sides, I conclude that the library was not part of the estate of Rabbi Joseph Isaac Schneersohn at the time of his death. Accordingly, defendants' counterclaims must be dismissed. Since it is undisputed that, except by right of inheritance, defendants have no rights in the library and that plaintiff has at least a right of possession, plaintiff is entitled to judgment with respect to its action in replevin. What further proceedings are appropriate with respect to plaintiff's other claims will be determined after the parties have had an opportunity to consider the issue in the light of this opinion. What follows sets forth the findings of fact and conclusions of law on which these determinations are based as required by Rule 52(a) of the Federal Rules of Civil Procedure.

Plaintiff is a corporation formed under the religious corporations law of New York on July 25, 1940, with its principal, if not only, office at 770 Eastern Parkway, Brooklyn, New York. At present, it is responsible for administering the burial society or Chevra Kadisha of the Lubavitch Chasidic community and for maintaining the building at 770 Eastern Parkway which serves as headquarters and synagogue for the community. In this latter capacity, plaintiff has possession of the library at issue in this litigation and had possession of it at the time when defendant removed certain books from it.

Defendants, as already noted, are among the direct lineal descendants of Rabbi Schneersohn, who was until his death the sixth in a line of rabbis who led a movement of Orthodox Jews known as Chabad Chasidism.¹ Chabad is an acronym for the Hebrew words "cochma," "bina" and "daas," meaning wisdom, knowledge and understanding. As its name suggests, Chabad Chasidism has been considered as placing a greater emphasis on the intellect in the study of the Torah and the Kabbale than is the norm in Chasidism.

Chabad Chasidism was formed in 1775 by Rabbi Schneur Zalman, considered the first Lubavitcher Rebbe and known as the Alter Rebbe. The Alter Rebbe was a disciple of the successor of the Baal Shem Tov. The founder's son and successor, Rabbi Dov Baer, who died in 1827 and was known as the Mittler Rebbe, settled in the Russian town of Lubavich and, hence, gave the movement its present name. The third leader of the group was the son-in-law of Dov Baer and the son of the daughter of Schneur Zalman. This Rebbe, known as the Tzemach Tzedek, after the title of his major written work, was Rabbi Menahem Mendel, who died in 1866. The fourth Lubavitcher Rebbe was the youngest son of Menahem Mendel, Rabbi Samuel Schneersohn, known as the Maharash. He was succeeded by his son, Rabbi Shalom Dov Baer, known as the Rashab, who died in 1920. The sixth Rebbe, with whose estate we are concerned, was the son of Rabbi Shalom Dov Baer and succeeded his father on his father's death. The sixth Rebbe was succeeded by the present Rebbe, Rabbi Menahem Mendel Schneerson, who is a son-in-law of Rabbi Joseph Isaac Schneersohn and a great-great-grandson of the Tzemach Tzedek. This family relationship between the various generations of succeeding Lubavitcher Rebbes may explain why the issues raised by this lawsuit have not been clarified earlier, i.e., the distinction between property of the religious institutions of Chabad Chasidism and the personal property of the Rebbe is not a distinction which has had to be made with any regularity in the movement's history.

The library at issue is appropriately divided in two parts for purposes of this discussion: first, the ksovim, manuscripts either in the handwriting of the Lubavitcher Rebbes or recording oral statements by the Rebbes to their followers, both passed from Rebbe to Rebbe; and second, over 40,000 texts, printed and handwritten, collected by or under the direction of Rabbi Joseph Isaac Schneersohn in the 1920's and after. Both the ksovim and Rabbi Joseph Isaac Schneersohn's collection were, undoubtedly, in their origins personal property of the Rebbe, albeit property used to serve the purposes of Chabad Chasidism.

The defendant Hanna Gourary has described the extraordinary consideration given the ksovim as follows:

"Q: Why do you make a difference between the books and the ksovim?

A: Because the ksovim ... are sacrosanct to the family. My grandfather the Rashab and my father Rabbi Jacob Isaac Schneersohn sacrificed very much for the ksovim. They used to take them along with them summertime on vacation, and put them in boxes with metal inside. The boys used to follow and watch it. They used to take it along in the summertime when they went away for three months. And then they were saved in St. Petersburg from the GPU. They had to give up colossal matters for them. When my father was arrested and imprisoned he said you must save lives and the ksovim. Nothing else mattered to him. And that's the way it was when he had to leave Russia, when we had to escape from Warsaw. Ksovim should remain with the family. Even my great-grandfather the Maharash, when they were burning the towns around, had horses ready 24 hours around the clock in case it would be necessary to flee to save the ksovim."

The reason for such special consideration accorded the ksovim appears to be the extraordinary significance attributed to the Rebbe's words by Chabad Chasidism. As described by one expert:

"Number one, insofar as it is the Rebbe who expounds on Hasidic philosophy, and these can only be based on the foundation of his predecessors, that they laid down the basic premise of what the Hasidic religion is about. Therefore, it becomes highly significant that each successive Rebbe would have sufficient manuscripts on which he can base his own commentaries, his own discourses. ...

"The second level, the ksovim that are original manuscripts or manuscripts used by the Rebbe himself, assume a sanctity about them, that they are kind of the essential legacy. I would compare it to the crown jewels. It's something concrete that is passed on in a symbolic way, and in a way incorporates in itself both the sanctity, the very presence, the very personality of the Rebbe himself."

Reputation as to events of general history important to the Lubavitcher community has it that the ksovim of the Alter Rebbe and the Mittler Rebbe were collected by the Third Rebbe, the Tzemach Tzedek, who added to them his own manuscripts. This collection was thereafter acquired by the youngest of six sons of the Tzemach Tzedek, the Maharash, apparently over the protests of the other five sons. A similar dispute over the ownership of the ksovim occurred in the next generation when the Rashab became the Fifth Rebbe. In a letter to a friend and prominent Chabad rabbi, Yitzchok Wilensky, the Rashab wrote of threats of litigation with his two brothers over ownership of the ksovim. Apparently, however, the Rashab took custody of them, justifying his actions both in terms of religious tradition and ordinary property law concepts. From the Rashab the ksovim passed to Rabbi Joseph Isaac Schneersohn by will. The will provided that "all the books, except for those itemized below, I leave as an inheritance to my son." A limited number of books were left to the Rashab's granddaughters "obviously in order that they give these to their husbands for study." Throughout its long history, the collection appears to have been added to by acquisition or gift. For example, what is said to be the only known surviving letter in the handwriting of the Baal Shem Tov is described as having been acquired by a wealthy Chasid from one of the two grandsons of the Baal Shem Tov for one thousand gold rubles and given to the Rebbe to form part of the ksovim.

The larger part of the library at issue in this lawsuit are the seforim or less than...