Johnson's Will, Matter of

• Decision Date: 04 May 1981
• Parties: In the Matter of the Judicial Settlement of the Account of Proceedings of Florence V. Anderson, as Executrix of the Last WILL and Testament OF Edwin Irving JOHNSON, Deceased. Surrogate's Court, Westchester County
• Court: New York Surrogate Court

Page 250

439 N.Y.S.2d 250

108 Misc.2d 1066

In the Matter of the Judicial Settlement of the Account of

Proceedings of Florence V. Anderson, as Executrix

of the Last WILL and Testament OF Edwin

Irving JOHNSON, Deceased.

Surrogate's Court, Westchester County.

May 4, 1981.

Plunkett, Wetzel & Jaffe, New York City, for petitioner.

Robert Abrams, Atty. Gen. of the State of New York, respondent-petitioner.

Wirth A. Koenig, Guardian ad litem.

Jonathan G. Blattmachr, Guardian ad litem.

DECISION

EVANS V. BREWSTER, Surrogate.

In this accounting proceeding by the executrix for a judicial settlement of her acts and proceedings as executrix, the Attorney General of the State of New York, as statutory representative of ultimate charitable beneficiaries has also petitioned the court for a construction of Article Sixth of the will which would delete the word "men" contained therein and insert the word "persons" in place thereof. The executrix of decedent's will, the Attorney General and the Croton-Harmon Free School District have stipulated that there are no contested or controverted facts in issue and all agree to the construction to substitute the word "persons" in place of "men" in article Sixth of decedent's will. The parties also consented to the approval of the terms of the stipulation by the court.

Article Sixth of the decedent's will contains the following language:

"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."

During the administration of decedent's estate the executrix made a substantial distribution to the School District. Subsequently, in April 1979, the Board of Education of the school district announced that applications would be accepted from graduating males on or before May 1, 1979 and that it would begin awarding scholarships to male students who meet the qualifications established in article Sixth of decedent's will. However, before any scholarships were awarded, the Board of Education became acutely aware of the danger lurking in such precipitous action. Not only did a female student of the high school district claim a right to scholarship eligibility but a complaint was also filed with the United States Office of Civil Rights of The Department of Education by the National Organization of Women, Legal Defense and Education Fund, with respect to the awarding of scholarships which were restricted to "men". Pending the construction of article Sixth, the Board of Education has deferred the granting of any scholarships.

The Attorney General argues that literal compliance with the provisions of the will respecting the granting of scholarships to "men" would be unconstitutional under both the Constitution of the United States (XIV Amendment) and the State of New York (Article I § 11) since the scholarships were restricted to one sex. It is further argued that administration of the scholarship would violate the provisions of 20 U.S.C. § 1681 (Title IX of the Education Amendments of 1972) which provides:

"Education Sec. 1681 SEX

(a) No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance, ...."

The Attorney General requests that a construction of the will be found which would effectuate a general intent by the testator to assist bright and deserving persons who are graduates of the Croton-Harmon High School and would allow scholarships to be awarded to both male and female graduates thereby avoiding any conflict with the law and public policy and removing from jeopardy the substantial financial assistance received by the School District from the State and Federal Governments.

"It is axiomatic that a testator may dispose of his property as he sees fit so long as it is not contrary to law or public policy (Matter of Kelley, 225 App.Div. 29, 232 N.Y.S. 84, aff'd 251 N.Y. 529, 168 N.E. 415; Matter of Kramer, 172 Misc. 598, 602, 15 N.Y.S.2d 700)." Matter of Hartman, 76 Misc.2d 339, 340, 351 N.Y.S.2d 43. Within those limitations, the freedom of jus disponendi is part of our American liberties and a charitable trust for the benefit of a small and narrow class, however prejudiced or arbitrary the nature of the classification, is a disposition within the right of a testator to create (IV Scott on Trusts 375.2, 3rd Edition; Constitutionality of Restricted Scholarships, 33 N.Y.U.L.Rev. 604, 616). The Supreme Court of New Jersey in Mills v. City of Philadelphia, 52 N.J.Super. 52, 144 A.2d 728, 731-732, in commenting on the opinion of the U.S. Supreme Court in Commonwealth of Pennsylvania v. Board of Directors of City of Philadelphia, 353 U.S. 230, 77 S.Ct. 806, 1 L.Ed.2d 792 stated:

"The court in no way indicates any restriction on the right of an individual to limit the individual's right to create trusts for the benefit of any person, class, or legal objective whatsoever, whether the trust created is limited or discriminatory in any way or not. To have held otherwise would have established a precedent prohibiting anyone from bequeathing or devising his property other than to or for the benefit of all persons, or all objects of a testator's bounty. Carrying such a prohibition to its natural conclusion, no one would be permitted to create trusts or give to a class favoring his church, his fraternal organizations, his charitable interests, or his natural origins."

The expressed purpose of testator to provide scholarships for "bright and deserving young men" is set forth in the will clearly and without ambiguity. No alternative or gift over is provided and no construction is required to ascertain testator's intent or dominant purpose. "If intention of a willmaker is to be found in the words used in the will and these are clear and definite there is no power to change them (Matter of Watson As is stated in Davids on the New York Law of Wills: 'When intention can be ascertained as a fact from the instrument itself ... there is no occasion for a presumption in respect thereof, and the decision should not be affected by the rules in question. Hence the rules of construction are to be disregarded where the decedent's intention is clearly or sufficiently manifest, or where the language of the instrument is plain and its meaning obvious.' (Vol. I, 491, p. 805; see Matter of Rollins, 271 App.Div. 982, 68 N.Y.S.2d 116, aff'd 297 N.Y. 612, 75 N.E.2d 627)." Matter of Bisconti, 306 N.Y. 442, 445, 119 N.E.2d 34.

The question is not the intent of the decedent, which is clear, but whether, under the circumstances that exist, a trust for scholarships for men only, is illegal or against public policy. It has long been established that the Fourteenth Amendment of the United States Constitution is addressed to the States and does not bar private discrimination (Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 843, 92 L.Ed. 1161; The Civil Rights Cases, 109 U.S. 3, 11, 3 S.Ct. 18, 21, 27 L.Ed. 835). Numerous cases have upheld restrictions with respect to the selection of beneficiaries as valid, enforceable and clearly not against public policy.

One of my predecessors pointed out that "In considering the validity of charitable and educational gifts, the Courts have consistently held that the mere restriction of beneficiaries to a limited class of persons does not invalidate the trust so long as the general purpose of such trust is charitable or educational in nature, and so long as the beneficiaries constitute a reasonable number of persons and are not limited to the natural object of testator's bounty. Matter of Rupprecht's Will, 271 App.Div. 376, 381, 65 N.Y.S.2d 909, 913, aff'd 297 N.Y. 462, 74 N.E.2d 175; Matter of Swan's Will, 237 App.Div. 454, 261 N.Y.S. 428, aff'd 263 N.Y. 638, 189 N.E. 734; Matter of Skuse's Will, 165 Misc. 554, 1 N.Y.S.2d 202; Scott on Trusts, Vol. 3, Sec. 270.6." In re Folsom, 155 N.Y.S.2d 140, 145, aff'd 6 A.D.2d 691, 174 N.Y.S.2d 116, aff'd 6 N.Y.2d 886, 190 N.Y.S.2d 381, 160 N.E.2d 857. In that case, the testator created an Educational Fund to aid "needy and worthy young men" in their education and training in any vocation. In Butterworth v. Keeler, 219 N.Y. 446, 114 N.E. 803, a trust to establish a school for girls was found to be a valid charitable trust. In other jurisdictions likewise, sexual restrictions have been upheld and found not to be against public policy or illegal. In Long Estate, 5 Pa. D & C 3rd 602, the Pennsylvania Court found that with respect to "white women" as trust beneficiaries, the racial restriction should be removed but not the sex restriction. In Lockwood v. Killian, 172 Conn. 496, 375 A.2d 998, it was held that although the restriction to males was not illegal, because the trustees could not find enough candidates to exhaust the income, the scholarships might be given to girls under the cy pres doctrine. In the Estate of Zahn, 16 Cal.App.3d 106, 93 Cal.Rptr. 810, it was held that a trust establishing a rest home for Christian women and girls was not invalid. See also Moore v. City and County of Denver, 133 Colo. 190, 292 P.2d 986; Harrold v. First National Bank of Fort Worth, 93 F.Supp. 882; Shapiro v. Columbia Union National Bank & Trust Co., 576 S.W.2d 310 (Mo.1978). There is no definitive rule that classifications based on...