Thursday, April 30, 2009

One Magic Word Does It All

What is it about New York courts? They do not seem to like to hold trials---you know, those hearings in front of a judge and jury where two sides actually put on evidence with witnesses and documents, and out of the opposing versions some sort of truth emerges? But in New York, at least in cases involving its home-grown, common-law behemoth, the "Protestant Episcopal Church in the United States of America", the courts decide the matter without the bother of a trial, and even without burdening the record with any evidence. All they seem to need are allegations---and based on those (as long as they are made under oath), they make up their minds and issue judgments.

For the latest example of such a judicial shortcut, see this decision by Judge Ferris Lebous in the lawsuit brought by the Diocese of Central New York against the Church of the Good Shepherd in Binghamton. Earlier, Judge Lebous granted summary adjudication to the Diocese on its claim to own by forfeit the parish's real and personal property after the parish voted to leave the Diocese. (Never mind that there were not enough parishioners remaining to allow the building to stay open; it's the principle of the thing, don't you understand? "People may leave, but buildings stay put, even if they are empty. We can always sell them---but not to those who left, you understand---and put the cash to good use in suing other parishes for their property.")

By granting summary adjudication, Judge Lebous necessarily found that there were no facts in dispute that needed a trial to sort them out. No, all was clear from the respective affidavits submitted on either side. The Dennis Canon, after all, was not only part of the diocesan canons (Canon XXIII "reaffirms" its principles, even if the Diocese itself never bothered to accede to the ECUSA canons), but had even been enacted as a statute by that most considerate group of Christians, the New York Legislature, who of course wanted only to help their local parishioners in their desire to give everything they had to the national church, instead of to (God forbid!) their own parish. Given this state of affairs, it was not difficult for Judge Lebous to conclude as a matter of law that the parish did not really own its own property, but held it in trust for the Diocese and the national church.

But what about the bequest left by a long-term parishioner and vestryman, Robert A. Branan, who died in 1986 leaving a testamentary trust? The pertinent parts of his will provided as follows:

FIFTH: I give and bequeath to the RECTOR, WARDENS AND VESTRYMEN OF THE CHURCH OF THE GOOD SHEPHERD, of 74 Conklin Avenue, Binghamton, New York 13903, the sum of One Thousand Five Hundred Dollars ($1,500.00), together with all my diamond, ruby and opal rings for the purpose of creating a chalice and paten with the heretofore mentioned jewels to be set into and become part of said Chalice . . .

SIXTH: All the rest, residue and remainder of my property wheresoever situate, to which I may be entitled or over which I may have any disposing power I give, devise and bequeath to my Trustee, hereinafter named, in trust, to invest and reinvest the same, to collect the income therefrom and to pay the annual income therefrom, in quarterly installments, as follows:
A. To THE ALL SAINTS MEMORIAL FUND OF THE CHURCH OF THE GOOD SHEPHERD, 74 Conklin Avenue, Binghamton, New York 13903, Twenty-Five Percent (25%) thereof . . .
. . .
Upon the death of the survivor of [names omitted], said trust shall terminate and I give, devise and bequeath the entire principal then remaining in said trust, and any accumulated and unpaid income, to the RECTOR, WARDENS AND VESTRYMEN OF THE CHURCH OF THE GOOD SHEPHERD to be held by them as a memorial fund in memory of the persons whose names are to be inscribed on the chalice and paten, to be known as the Branan Memorial Fund. Said Rector, Wardens and Vestrymen shall hold said fund in trust nevertheless to invest and reinvest the same, to collect the income therefrom and use the income for general church purposes.

SEVENTH: In the event The Church ofthe Good Shepherd shall cease to exist or shall merge with another church, the bequests set forth in paragraphs FIFTH and SIXTH shall be to the successor by merger church or in the event said church ceases to exist such bequests shall be to the RECTOR, WARDENS AND VESTRYMEN OF CHRIST EPISCOPAL CHURCH OF BINGHAMTON, by whatever name known.
This seems to be rather straightforward, does it not? The testator leaves his estate in trust for the "Rector, Wardens and Vestrymen of the Church of the Good Shepherd" in Binghamton. He also makes proviso for what happens if that church merges with another church, or if it ceases to exist. Well, all is not as straightforward as it seems. Listen now to Judge Lebous as he approaches the question of what the testator meant:

The parties' positions are relatively straightforward. The parties disagree as to the meaning of the phrase "shall cease to exist" as used in relation to Good Shepherd in the SEVENTH paragraph of Mr. Branan's Will. Good Shepherd argues it is still in existence and thus is entitled to remain as the beneficiary of the Branan Trust. The Diocese argues Good Shepherd no longer exists within the meaning of Branan Trust and that said trust monies should go to Christ Church as the alternate beneficiary or, in the alternative, to the Diocese itself.

The question presented to this court is what was Mr. Branan's intent when he used the phrase "in the event The Church of the Good Shepherd shall cease to exist"?
All right, that will suffice as an introduction to the problem posed to the court. Mr. Branan left a will, and expressed that will in words. The Judge's task is to divine what Mr. Branan's intent was by reading those words and by evaluating any other evidence that might bear on the question.

Now there are certain courts---called generally probate courts (in New York, however, they are called "surrogate" courts)---which face these tasks day in and day out. The subject matter addressed in probate (or surrogate) courts has to do with peoples' estates generally. To "probate" a will means to prove the will in court---to prove that the testator signed it and had it witnessed as the law requires, and then to carry out its provisions. So is Judge Lebous a probate judge? No, he is not. And he is not interested in turning the matter over to any probate (surrogate) judge, either---he can interpret the will himself, because he is "extensively familiar" with the case:

Good Shepherd argues that since the sole remaining cause of action - the fourth - involves a will construction that this matter should be transferred to surrogate's court. Good Shepherd does not claim that supreme court lacks jurisdiction, only that practice dictates that a matter involving such a specialized area of the law be transferred to the court with the most experience in that area. As stated on the record during oral argument, this court finds that its extensive familiarity with this case overrides any other concerns and, as such, Good Shepherd's motion to transfer this matter to surrogate's court is denied.
Could the court's "extensive familiarity with the case" possibly mean that the court comes to the present question with its mind already more than a little made up? Perish the thought. Judge Leboux will simply draw upon his "extensive familiarity" with the case to decide what Robert Branan really meant in his will about Good Shepherd ceasing to exist.

Well, what about actually receiving evidence on what sort of man Mr. Branan was, and what his opinion would have been about the current divisions in ECUSA which led to the Church of the Good Shepherd's departure? Judge Lebous rules that further evidence is not necessary---remember, he is already "extensively familiar" with the facts of the case:
The court rejects Good Shepherd's argument that additional discovery is required with respect to the fourth cause of action. Lengthy depositions and paper discovery have been exchanged in this matter which included the subject of the fourth cause of action, namely the Branan Trust. No further discovery on these issues is warranted . . . .
And that is that. Thus, confident in his "extensive familiarity" with the facts, Judge Lebous proceeds to interpret the testator's language. Let us follow his reasoning as he does so:

Good Shepherd argues that while it may have disaffiliated with The Episcopal Church such a disaffiliation does not equate to a legal dissolution. More specifically, Good Shepherd emphasizes that no formal dissolution proceedings have been initiated, let alone completed, for either a judicial or non-judicial dissolution under the Not-For-Profit Corporation Law or a dissolution under the Religious Corporation Law.

The Diocese contends that Good Shepherd no longer exists within the meaning of the Branan Trust. The Diocese asserts there can be little doubt that Mr. Branan intended to benefit an Episcopal Church based upon his choice of another Episcopal Church, Christ Church, as his alternate beneficiary.
Note that word "Episcopal". The only time it appears in Mr. Branan's will (or the portions of it which the court quotes) is in the title of the alternative beneficiary: "Christ Episcopal Church of Binghamton". Mr. Branan could hardly describe it without using its name, and that name includes the word "Episcopal". (Google reports the existence of six other churches in or near Binghamton with "Christ" in their name, including "Christ Church" in nearby Vestal.) And please note, as well, that in his will, Mr. Branan allows for the possibility that even Christ Church might cease to be Episcopal, since he adds to his description of that church the phrase "by whatever name known." But Judge Lebous is not interested in that descriptive phrase, because it does not fit in with the case with which he is so "extensively familiar." No, in the case that he knows is before him, it is the word "Episcopal" that counts. Watch what Judge Lebous is able to conclude from that one descriptive word:

In this court's view, Mr. Branan's Last Will and Testament provides the answer to the question presented. Mr. Branan named The Church of the Good Shepherd - an Episcopal Church - as his primary trust beneficiary. Mr. Branan named Christ Church - the oldest Episcopal Church in the City of Binghamton - as his alternate beneficiary. The court finds Mr. Branan's choice of a second Episcopal Church as his alternate beneficiary most telling. Based upon this language alone, the court finds that Mr. Branan's intent was to benefit an Episcopal Church.
(Emphasis added.) Oh, really? So if I leave my worldly goods to my local (currently Episcopal) church, and in case it no longer exists I specify that they go to a nearby African Methodist Episcopal Church, does that mean that if my original church joins the Southern Cone it can no longer receive my bequest, because the Southern Cone is neither African, Methodist, or Episcopal? But if it happened to affiliate with the Anglican Church of Uganda, or the Anglican Church of Kenya, then that would be OK? That is impressive reasoning, Judge Lebous.

Well, to do him credit, Judge Lebous seems a bit unsure of his reasoning as well. He therefore buttresses it with a few more facts, drawn from his "extensive familiarity" with the case:
Additionally, however, this record reflects Mr. Branan's connection to the Episcopal faith and understanding of the relationship between a local parish and the Diocese by way of his involvement with Good Shepherd during his lifetime. Mr. Branan served as Clerk of the Vestry at Good Shepherd and, in that capacity, executed applications to supreme court to sell or mortgage real property which contained recitations of Good Shepherd's relationship with the Diocese, as well as having annexed thereto the consents of the Bishop for property transactions.
Well that surely is conclusive: as clerk of the vestry, Mr. Branan actually signed his name to a document requesting permission to sell some church property, and that document actually recited that Good Shepherd was part of an Episcopal Diocese, and that its Bishop actually gave his consent to the transaction! Will wonders never cease?

So from those facts, drawn from the court's extensive familiarity with all of the evidence in the case, it can conclude (a) that Mr. Branan was a devoted Episcopalian, and (b) that he never would have wanted his trust to go to the church he attended all his life if it ever ceased to be an Episcopal Church. Heaven forfend! (And that must be why he added those words "by whatever name known" to his description of his intended beneficiary. He really meant to say: "by whatever name known---so long as it is Episcopal.")

Ah, but Judge Lebous is not finished bolstering this magnificent piece of judicial reasoning just yet. He has the little matter of his spleen against Good Shepherd's rector to vent---even though, as he candidly admits, it has nothing to do with the question of Mr. Branan's intent (my interpolations to the court's decision are in red):
Although not pertinent to the issue of the testator's intent,
It certainly isn't, but don't let that stop you.
the court finds instructive
I.e., what I am about to unload is the real reason for my decision:
the actions and representations of Good Shepherd and/or its former Rector Matt Kennedy. It is undisputed
[I am emphasizing all the court's weasel words, just so you cannot miss them.]
that in July 2006, Good Shepherd
[i.e., not Matt Kennedy+ personally, but his parishioners]
adopted a Resolution declaring it intended to dissociate itself from The Episcopal Church and the Diocese. On November 8, 2007, Good Shepherd
[not Matt Kennedy+ again, please note]
passed a resolution stating that they "[d]issociate and end our affiliation with The Episcopal Church in the United States of America and the Episcopal Diocese of Central New York and apply for membership within the jurisdiction of the Anglican Church of Kenya". Additionally, Matthew Kennedy
[ah, now we've got him!]
renounced his ministry within the Diocese and The Episcopal Church.
[But he retained his ministry within the Anglican Communion---oh, never mind.]
On December 9, 2008, The Church of the Good Shepherd filed a Certificate of Amendment, the sole purpose of which was to delete all references to The Episcopal Church
and stated instead that it would be in communion with the Anglican Province of Kenya.
[Yes, Judge Lebous---in order to affiliate with a different province, it is unfortunately necessary to delete all references to the old one---otherwise people such as yourself might get confused, you know.]
Additionally, Mr. Kennedy's
[Ah, yes---always refer to the minister who leaves for another province as just "Mr."---that will put him in his place.]
recent statements cannot be ignored, including that "The Anglican Church of the Good Shepherd was born last week" and that "seven of your fellow parishioners ... signed (the legal papers to establish a new church corporation called The Anglican Church of the Good Shepherd" (Affidavit of Jonathan B. Fellows, Esq. sworn to March 7,2009, Exhibit J).
[Well, of all things! What a thing to say when you start a new church!]
Finally, it is also noteworthy
[i.e., we're not done with you yet, Mr. Kennedy!]
that any revenue being collected during the pendency of this matter was not been funneled [sic!] to the Church of the Good Shepherd, but rather a separate entity named St. Matthias Society, Ltd.
[Why, of course, Judge Lebous! All those devout Good Shepherd parishioners should have willingly turned over their contributions to the Diocese, so it would not have to draw on its own money to sue them! What a marvelous Christian concept!]
It should also go without saying
[Then why are you saying it, Judge Lebous?]
that the Diocese and The Episcopal Church themselves no longer view Good Shepherd as an Episcopal parish. In fact, in November 2008, the Diocese's Annual Convention passed a resolution that Good Shepherd was no longer a parish in union with the Convention (Affidavit of Karen C. Lewis sworn to March 10, 2009, Exhibit A).
[Was there some dispute here over whether the Diocese and Good Shepherd parted ways? Forgive me if I missed that point, and I'm so glad you set me straight on the facts.]

So now Judge Lebous, having bolstered his reasoning beyond all necessity, winds up for the Grand Conclusion:
Based upon the foregoing, this Court finds that The Church of the Good Shepherd no longer exists as an Episcopal church, no longer exists in name, and no longer exists within the meaning of the Branan Trust. While The Church of the Good Shepherd may well exist in the legal world as a shell corporation that formerly held its property, but not (yet) dissolved under the auspices of the Not-For-Profit Corporation Law and/or Religious Corporation law, applying such a technical argument to Mr. Branan's intent would violate the spirit of his bequest.
Violate the spirit??! What about the letter of the bequest, Judge Lebous? You know, where the testator said he wanted the money to go to "the RECTOR, WARDENS and VESTRYMEN of the Church of the Good Shepherd"? Do those persons no longer exist?
Stated another way, while Good Shepherd may have abandoned the Episcopal faith,
[Oh, really? So now a church can be convicted for "abandonment" under Canon IV.9? Katharine Jefferts Schori and David Booth Beers, take note!]
Mr. Branan never did, and his intent was clearly
[Remember, judges and lawyers use the word "clearly" as a kind of flying buttress, to prop up a conclusion that cannot stand on its own merit.]
to benefit a local Episcopal Church. By all accounts,
[Really? Whose accounts? Could you name some names of those who testified to that effect? I thought there was no evidence or testimony about Mr. Branan, Judge Lebous, because you decided it wasn't necessary.]
Mr. Branan was an active member of The Episcopal Church and there is simply no basis on which to find that Mr. Branan would want his money to go to those former members of The Church of the Good Shepherd that abandoned the faith that he, apparently, held so dear.
[Why, of course! How could I have missed that? After all, he signed those papers attesting that the Church was part of an Episcopal Diocese, and that it actually had an Episcopal Bishop! From that it is only natural to conclude that when Mr. Branan said he wanted his money to go to "the Rector, Wardens and Vestrymen", he meant only if those gentlemen were still Episcopalians, and not if they remained the rector, wardens and vestrymen of the same church that he attended. It's all so perfectly clear now---thank you for that splendid bit of reasoning!]
In sum, this court finds that an examination of Mr. Branan's Will clearly [there's that word again!] leads to the conclusion that the intention of the testator was to benefit an Episcopal Church. Accordingly, defendant Good Shepherd's motion to dismiss the fourth cause of action is denied, and plaintiffs' cross-motion for summary judgment on the fourth cause of action is granted. The court finds that The Church of the Good Shepherd no longer exists within the meaning of the Branan Trust and, as such, Christ Church, as the alternative beneficiary, is now the primary beneficiary under the terms of the Branan Trust.
What a model of judicial reasoning you have placed before the world, Judge Lebous. It instructs every testator on how to make their intent clear to judges with steel-trap minds such as yours. No doubt the Episcopal Church will no want to adopt a new canon that automatically reads the word "Episcopal" into any bequest left by a parishioner. Because with that one word in a will, as you have so clearly shown us, the courts can work wonders.

[PS.: Although I was unable to contain my curmudgeonly sarcasm when it came to Judge Lebous' decision, Father Matt Kennedy has set a Christian model for us with his letter to his parishioners about the decision, which you may read here. It is a good antidote to the above---by which I mean both what I wrote, and what the judge decided. When it comes to being a curmudgeon, I can plead only what Monty Woolley said in a slightly different context: "What did you expect, madam---chimes?"]


  1. re: "Christ Church" in nearby Vestal.

    There is no Christ Episcopal Church or Anglican Church in Vestal. There was St. Andrew's Episcopal Church which is no more and St. Andrew's Anglican Church,which came into being in 2007, a CANA parish.

  2. Father Seel, thank you (as someone from Vestal) for that comment---you make my point. There is no Christ Episcopal (or Anglican) Church in Vestal, but there is a Christ Church ("of the Southern Tier", whatever that is). So had Mr. Branan simply named "Christ Church" instead of "Christ Episcopal Church" as his beneficiary, there might have been some legal confusion and uncertainty about which one he meant (given the other churches, too, with the word "Christ" in their name).

    Thus the court was not justified, I submit, in making so much flow from Mr. Branan's use of the word "Episcopal". Instead of expressing his preference for that denomination over the local church he had known all his life, the word was simply part of the other beneficiary's name, and he used it as such---nothing more, nothing less.