Johnson, Matter of

• Citation: 460 N.Y.S.2d 932,93 A.D.2d 1
• Parties: , 10 Ed. Law Rep. 669 In the Matter of Edwin Irving JOHNSON, Deceased. Robert Abrams, Attorney-General, Appellant; Jonathan G. Blattmachr, Respondent.
• Decision Date: 21 March 1983
• Court: New York Supreme Court Appellate Division

Page 932

460 N.Y.S.2d 932

93 A.D.2d 1, 10 Ed. Law Rep. 669

In the Matter of Edwin Irving JOHNSON, Deceased.

Robert Abrams, Attorney-General, Appellant;

Jonathan G. Blattmachr, Respondent.

Supreme Court, Appellate Division,

Second Department.

March 21, 1983.

Robert Abrams, Atty. Gen., New York City (Shirley Adelson Siegel, New York City, Deborah Bachrach, Brooklyn, and Lawrence S. Kahn, White Plains, of counsel), appellant pro se.

Jonathan G. Blattmachr (Milbank, Tweed, Hadley & McCloy, Linden Havemeyer Wise, New York City, of counsel), Guardian ad Litem for unknown males who are prospective scholarship recipients under the will of Edwin Irving Johnson, respondent pro se.

Wirth H. Koenig, c/o Greenbaum, Wolff & Ernst, New York City, Guardian ad Litem for unknown distributees under the will of Edwin Irving Johnson.

Abigail A. Jones, Lenore W. Tucker, Phyllis N. Segal and Anne E. Simon, New York City, for New York State Nat. Organization for Women and Advocates for Children, amici curiae.

Before MOLLEN, P.J., and WEINSTEIN, BROWN, NIEHOFF and BOYERS, JJ.

MOLLEN, Presiding Justice.

The issue presented on this appeal is whether the Equal Protection Clause of the Fourteenth Amendment is violated when a Surrogate reforms the provisions of a will so as to give effect to a testamentary bequest which discriminates on the basis of sex.

In 1978 Edwin Irving Johnson died. His will created a gender-restricted scholarship fund to be administered by the Croton-Harmon Union Free School District for the benefit of its needy and deserving male high school graduates. The school district declined to award the scholarshi on a gender-restricted basis, proposing instead to make the selections without regard to sex. In a proceeding to construe the will so as to permit gender-neutral scholarship awards, the Surrogate refused to delete the sex restriction. Instead, he decreed that the school district be replaced by a private trustee who was willing and able to administer the fund and award the scholarships as directed in the will. The appellant and amici curiae now contend that the Surrogate's decree, which clears the way for scholarships to be awarded on a discriminatory basis, is both inconsistent with a proper application of the doctrine of cy pres and violative of the constitutional guaranty of equal protection of the law.

We turn first to a brief review of the pertinent facts.

On June 30, 1961, Mr. Johnson executed a will which bequeathed his residuary estate to Columbia University in trust. The income of the trust was to be paid first to his sister-in-law and, upon her death, to the trustees of Columbia University. The trustees were to apply the income to scholarships for young men from the Croton-Harmon Union Free School District who were attending Columbia. A further provision of the will directed that, if continuation of the Columbia scholarship fund became impractical, the corpus of the trust would be divided equally between the university and the school district for scholarship purposes. A subsequent will, dated December 4, 1974, contained identical provisions regarding the creation of a scholarship fund at Columbia University.

At one point, the university expressed dissatisfaction with that portion of the bequest limiting the class of beneficiaries to those of its students who had graduated from the high school of the Croton-Harmon school district. When the university asked that the restriction be modified, Mr. Johnson's attorney replied that his client's interest in the school district was greater than his interest in Columbia.

The will here in issue, Mr. Johnson's last, was executed on December 15, 1975. The bequest to Columbia University was deleted and replaced with a provision bequeathing the residuary estate to the Croton-Harmon school district with a direction that the district apply the funds for scholarshi to needy college-bound graduates without regard to the university to be attended. Again, however, the will contained a gender-restriction, providing that the scholarships were to be granted to "deserving young men". The specific provision was as follows:

"SIXTH: I give, devise and bequeath my entire residuary estate to CROTON-HARMON UNION FREE SCHOOL DISTRICT, the principal of which shall be invested and held for the purposes hereof, and the net income of which shall be used and applied, each year to the extent available, for scholarships or grants for bright and deserving young men who have graduated from the High School of such School District, and whose parents are financially unable to send them to college, and who shall be selected by the Board of Education of such School District with the assistance of the Principal of such High School."

Mr. Johnson died on January 10, 1978, and his will was admitted to probate four months later. Pursuant to article six, his executrix made distributions to the Croton-Harmon Union Free School District of $195,000, representing the entire residuary estate. In April, 1979, the district's board of education announced that the Edwin Irving Johnson scholarships were to be awarded and that applications would be accepted from graduating male students on or before May 1, 1979.

Although only male applicants were solicited, at least one female student applied for a scholarship, and threatened to seek Federal injunctive relief if she were denied consideration on account of her sex. In addition, the National Organization for Women Legal Defense and Education Fund contacted the Civil Rights Office of the Department of Health, Education and Welfare (HEW), and alleged that, in proposing to award gender-restricted scholarships, the school district was acting in violation of Title IX of the Education Amendments of 1972 (U.S.Code, tit. 20, § 1681, subd. [a] et seq.). As a result of this communication, HEW commenced an investigation to determine whether the school district was engaged in discrimination on the basis of sex.

Thereafter, the school district decided to defer awarding the scholarships and entered into a stipulation with the executrix of the will and with the Attorney-General of the State of New York by which they agreed "to the deletion of the word 'men' in Article Sixth of the Will and the insertion of the word 'persons' in its place". On June 11, 1979, the Attorney-General commenced this proceeding to have the Surrogate construe article six of the Johnson will as agreed in the stipulation. The purpose of such a construction, the Attorney-General asserted, was "to permit the educational bequest set forth [therein] to be administered in accordance with the testator's general charitable intent without violation of the United States Constitution, the Constitution of the State of New York, Federal Law and the public policy as reflected in [those] provisions prohibiting discrimination based on sex." ¹

The Surrogate first appointed a guardian ad litem to represent Mr. Johnson's unknown distributees. The guardian submitted a report in which he offered no opposition to the proposed construction. His position was that, as there probably were no surviving distributees who might qualify to take in intestacy, "the decedent would prefer that scholarships be provided to girls as well as boys, if the alternative * * * would be to have his residuary estate pass as intestate property" and thereby escheat to the State. After receiving this report, the Surrogate appointed a second guardian ad litem--this one to represent prospective male scholarship recipients under the will as written. The second guardian submitted a report in which he opposed the stipulated construction. He maintained that "the appropriate remedy is for the Court to apply the cy pres doctrine to appoint a new administrator for the scholarship fund which is not an instrumentality of the State."

The Surrogate, finding the establishment of a gender-restricted scholarship fund "neither illegal nor against public policy", directed that the school district, which had refused to administer the discriminatory trust, be replaced by a private trustee who would comply with the provisions of the will. Although the selection of scholarship recipients was to be the independent responsibility of the private trustee, the Surrogate directed that the trustee "may consider any recommendations that may be made to it by the Board of Education of the Croton-Harmon Union Free School District or Principal of the High School".

It is from the intermediate decree, entered upon the Surrogate's decision, that the Attorney-General now appeals. The decree should be reversed.

The bequest here in issue, which sought to provide higher education for those who could not otherwise afford it, created a charitable trust. It has long been recognized that "[c]harity ministers to the mind as well as to the body" and, accordingly, "[i]t is established law in this state that a gift for the promotion of education or learning is a gift for charitable uses" (Butterworth v. Keeler, 219 N.Y. 446, 449, 450, 114 N.E. 803 [CARDOZO, J.]; see, also, EPTL 8-1.1, subd. [a]; IV Scott, Trusts [3d ed], § 370). Moreover, the trust here does not lose its charitable character because its beneficiaries are limited to males (see IV Scott, Trusts [3d ed], § 370.6; Restatement, Trusts 2d, § 370, comment [j] ). A charitable trust may be restrictive, provided only that the class of beneficiaries is sufficiently large so that the public is interested in the enforcement of the trust (IV Scott, Trusts [3d ed], § 369.5).

Although charitable in nature, however, the trust Mr. Johnson created was clearly vulnerable to an equal protection challenge. By naming the Croton-Harmon Union Free School District, a public agency, as trustee to receive, invest, administer and dispense scholarship funds and to select scholarship recipients, the bequest required substantial State involvement, thereby triggering the guaranties of the Fourteenth Amendment (see, e.g., Pennsylvania v. Board of...