Touro decision

This document consists of 106 pages. the second half is at Touro Decicision part two. There is also a link at the bottom of this page.

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CONGREGATION JESHUAT ISRAEL,

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

)

) Plaintiff, )

) C.A. No. 12·CV·822·M·LDA )

)

MEMORANDUM. FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

CONGREGATION SHEARITH ISRAEL, )

Defendant.

JOHN J. MCCONNELL, JR., United States District Judge.

Bricks and mortar of a temple, and silver and gold of religious ornaments,

may appear to be at the center of the dispute between the two parties in this case, but such a conclusion would be myopic. The central issue here is the legacy of some of the earliest Jewish settlers in North America, who desired to make Newport a permanent haven for public Jewish worship. Fidelity to their purpose guides the

Court in resolving the matters now before it.

After a thorough and exhaustive review of the evidence, determination of the

disputed facts, and application of the relevant law, this Court concludes that 1) Touro Synagogue is owned in charitable trust for the purpose of preserving a permanent place of public Jewish worship; 2) the pair of Myer Myers Rimonim previously owned by Newport's earliest Jews is now owned by Congregation Jeshuat Israel, which is free to do with its property as it wishes; 3) Congregation Shearith

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Israel of New York should be removed as trustee of Touro Synagogue; and 4) Congregation Jeshuat Israel of Newport should be appointed as the new trustee.

I. PROCEDURAL BACKGROUND

On November 8, 2012, Congregation Jeshuat Israel brought an action in Rhode Island Superior Court (Newport County) against Congregation Shearith Israel over the ownership of a set of colonial·era finial bells (the Rimonim)1 crafted by the silversmith Myer Myers, and the control of Touro Synagogue, the oldest active synagogue in the United States. Compl., ECF No. 1·2. Jeshuat Israel seeks an order< 1) pursuant to the Uniform Declaratory Judgments Act, R.I. Gen. Laws §§ 9·30-1, et seq, declaring that it is the true and lawful owner of the Rimonim with full power to sell and convey them and to deposit the proceeds of such sale into an irrevocable endowment fund; 2) restraining Shearith Israel from interfering with Jeshuat Israel's planned sale of the Rimonim to the Museum of Fine Arts in Boston (MFA) for $7 million in net proceeds;2 3) or in the alternative, declaring that Shearith Israel only owns the Rimonim in trust for the benefit of Jeshuat Israel,

1 "Torah's importance was emphasized from ancient times by covering the scroll with silk mantles and ornamenting the staves with silver and gold decorations.... After removing the mantle and before reading the Torah, the reader raised the scroll with the finials still on the staves [] and an accompanying ringing of the bells would have focused the congregation's attention." David L. Barquist, lvfyel' Myers:

Jewish Silversmith in Colonial New York 154 (Yale University Press, 2001) (Exhibit Pl50 at 3248).

The Court uses the words rimonim, (which means pomegranates in Hebrew), finial bells, and finials, interchangeably in this opinion to refer to Torah ornaments that decmate the scroll's staves or handles. When capitalized, the word "Rimonim" refers to the finials at issue in this case.

2 The Museum of Fine Arts has since withdrawn its offer to purchase the Rimonim. Trial Tr. vol. 3, 56, ECF No. 106 (Testimony of David Bazarsky).

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and authorizing the sale of the Rimonim as in Jeshuat Israel's best interests; 4) removing Shearith Israel as trustee for Touro Synagogue and land, and declaring Jeshuat Israel's Board of Trustees as replacement trustee; and 5) declaring that Jeshuat Israel is the true and lawful owner of unspecified other personal property in its possession, besides the Rimonim, with full power to use, sell and convey the same.3 Id. at 12-16.

Shearith Israel removed the action to the United States District Court for the District of Rhode Island, based on diversity of citizenship pursuant to 28 U.S.C. § 1332(a). Pet. for Removal, Nov. 14, 2012, ECF No. 1at1-2. Shearith Israel then filed an amended answer and six counterclaims against Jeshuat Israel, asking the Court 1) to find that Jeshuat Israel breached an agreement with Shearith Israel by filing a lawsuit;4 2) to declare that Shearith Israel owns the Rimonim; 3) to enjoin the sale of the Rimonim, transfer the possession and control of the Rimonim to Shearith Israel, and for damages; 4) to declare that Shearith Israel owns and has all legal and equitable rights to the Touro Synagogue, its lands, and any and all histmic personalty used by or for Touro Synagogue; 5) to terminate Jeshuat Israel's lease of Touro Synagogue; and 6) to enforce Jeshuat Israel's contractual obligations

3 Jeshuat Israel's request that the Court declare its rights to all personal property in its possession is not justiciable because it is overly broad. Jeshuat Israel has not demonstrated the existence of some present danger to its rights with respect to any other personal property, besides the Rimonim, sufficient for this Court to grant declaratory relief on this count. See Berberian v. Travisono, 332 A.2d 121, 124 (R.I. 1975) ("Section 9-30-1 is not intended to serve as a forum for the determination of abstract questions or the rendering of advisory opinions.")

4 The Court considers this count waived because Shearith Israel did not argue it at trial. See Cookish v. Cunningham, 787 F.2d 1, 6 (1st Cir. 1986) ("an issue raised in the pleadings only was not 'presented' to the trial court").

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to Shearith Israel. Am. Answer and Countercl., Dec. 6, 2012, ECF No. 8 at l 7·23.5 The parties zealously litigated this suit for over three years.6 Beginning on June 1, 2015, the Court conducted a nine-day bench trial that generated a 1,850·

page transcript and approximately 900 admitted exhibits consisting of thousands of pages.7 The Court heard from seven live witnesses and admitted 12 depositions consisting of 1,990 pages of transcripts. Post·trial, the parties submitted 895 pages of briefing and proposed findings of fact. The Court heard closing arguments on September 18, 2015.

II. FINDINGS OF FACT

After an extensive and lengthy study and review of the voluminous record in this case, the Court issues these findings of fact. Following the numbered summary of the facts is a narrative elaborating on the Court's findings.

1. Jews first came to Newport, Rhode Island in the mid·l7th century, fleeing religious persecution in Europe.

2. The Newport Jewish community formed a collective for worship that became known as Congregation Y eshuat Israel.

5 On November 16, 2012, Shearith Israel filed a six·count complaint against Jeshuat Israel about the same issues in United States District Court for the Southern District of New York. Compl., Sheal'ith Israel v. Jeshuat Israel, No. 12· CV·8406 (S.D.N.Y.), ECF No. 1. That court dismissed Shearith Israel's complaint in favor of the first·filed Rhode Island action. Op., Id. (Jan. 30, 2014), ECF No. 47.

6 The Court also gratefully acknowledges the herculean efforts of Chief Judge William E. Smith in attempting to mediate an amicable resolution of this dispute.

7The parties entered into a stipulation (ECF No. 82) that "all documents ... shall be deemed admitted, except to the extent that a party . . . provides . . . the Court with specific objections to specific exhibits ... ." No party filed an objection to any of the exhibits upon which the Court relied in this Order.

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3. In the mid-18th century, members of the Newport Jewish community were taxed for the purchase of land for a Synagogue, and raised additional funds for building the edifice.

4. The land and Synagogue were acquired and owned in trust for the purpose of public Jewish worship.

5. The Newport Jewish community picked three leaders to serve as trustees for the Synagogue and lands, because at that time in Rhode Island, religious institutions could not incorporate, own land, or serve as trustees.

6. The three original trustees were Jacob Rodrigues Rivera, Moses Levy, and Isaac Hart. Although their names appeared on the deed to the Synagogue land, they did not own the land or Synagogue outright. They were only the legal owners and trustees, with a duty to preserve the property for public Jewish worship.

7. The construction of the Synagogue (now called Touro Synagogue) began in 1759 and ended by 1762. The Synagogue was consecrated in 1763.

8. The famous colonial-era silversmith Myer Myers made a pair of silver Rimonim for the Newport Jewish Community around the time when Touro Synagogue was built. These Rimonim originally belonged to Congregation Yeshuat Israel.

9. The majority of Jews left Newport in 1776 because of the Revolutionary ·war. Regular religious services at the Synagogue ended around 1793, only 30 years after the Synagogue's consecration. The last Jew left Newport in 1822.

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10. Some members of Yeshuat Israel who left Newport joined the New York Congregation Shearith Israel. They brought with them Yeshuat Israel's religious articles, including the Rimonim, which they deposited for safekeeping with Shearith Israel. They instructed Shearith Israel to return the Rimonim to the Jewish congregation thereafter worshiping in Newport.

11. Shearith Israel branded Yeshuat Israel's Rimonim with the word "Newport" on their bases, to distinguish them from Shearith Israel's own similar pair.

12. After the deaths of the three original trustees - Messrs. Rivera, Hart, and Levy - the duties of trustee were passed on informally. Several individuals, including Moses Seixas, Moses Lopez, Abraham Touro, Judah Touro, and Stephen Gould acted as trustees for the Touro Synagogue and lands. Shearith Israel also took on trustee duties.

13. Shearith Israel helped care for the Synagogue during the period when there were no Jews in Newport. It held the keys to the building and made it available for occasional funerals. Shearith Israel became the trustee for the Touro Synagogue .

14. Shearith Israel never owned the Synagogue outright or the Rimonim at all. It only held legal title to the Synagogue as trustee, and served as bailee for the Rimonim.

15. After a sixty-year absence of Jews from Newport, a Jewish community began to return in the 1870s. The new community began to worship at Touro

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Synagogue under the guidance of a rabbi selected by Shearith Israel.

16. In 1894, the new Jewish community received articles of incorporation from the Rhode Island Legislature under the name Jeshuat Israel. Since that time, Jeshuat Israel has worshiped at Touro Synagogue under that name. It is currently

the only established Jewish congregation in Newport, Rhode Island.

17. Shearith Israel returned the Rimonim to Newport's new Jewish community, which became Jeshuat Israel, sometime in the late 1800s or early 1900s, as Yeshuat Israel instructed it to do. Since that time, Jeshuat Israel has owned, controlled, and maintained the Rimonim without challenge, until this lawsuit over 100 years later. There is no impediment to Jeshuat Israel's desire to sell the Rimonim in order to establish an endowment to ensure permanent public

Jewish worship at the Touro Synagogue.

18. A series of legal conflicts flared up between Shearith Israel and the

Jews of Newport at the turn of the 20th century. 'I'hese disputes were motivated by Shearith Israel's concern that Newport's new Jewish community would not conform to the Sephardic (Spanish and Portuguese) religious traditions previously observed by Yeshuat Israel and still practiced by Shearith Israel. Shearith Israel's concern about the form of Jewish worship was never a requirement of the original trust.

19. The disputes were mutually resolved in the early 20th century, when Shearith Israel, as trustee of the Synagogue, entered into a lease to allow Jeshuat Israel, as tenant, to worship at the Synagogue.

20. Jeshuat Israel has continually worshiped at Touro Synagogue since at

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least the beginning of the 20th century. It has maintained, preserved, and protected the Synagogue as a place for public Jewish worship for over 100 years.

21. As Jeshuat Israel's responsibilities for Touro Synagogue have expanded, Shearith Israel's have receded. For at least the past 20 years, Shearith Israel has not taken any meaningful action in its capacity as trustee for the Touro Synagogue and lands.

22. In this litigation, Shearith Israel denies the existence of a trust, and attempts to evict Jeshuat Israel from Touro Synagogue. These actions, and the friction they have engendered, hinder and undermine the charitable trust, requiring removal of Shearith Israel as trustee.

23. Jeshuat Israel has been discharging all of the responsibilities of a trustee for the past century, and is the most appropriate new trustee over the Touro Synagogue and lands. It is the party most capable of continuing to preserve Touro Synagogue as a place of public Jewish worship.

The Court now sets forth it findings of fact in narrative form. NARRA TIVE

The history of the ancient Synagogue in Rhode Island, now known as Touro Synagogue, begins with some of the first Jews who settled in pre·Revolutionary America. Many came to Newport in the late 1600s and early 1700s to escape the dire horrors of the Iberian Inquisition, while others sought to leave behind rampant anti-Semitism pervading the rest of the Old World. Regardless of their background, their overriding desire was to find a community where they could practice Judaism

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freely and publicly. Just as Roger Williams shaped Rhode Island, the colonial Jews made Newport known as a place of free and open public Jewish worship - memorialized more than anything else by the oldest surviving Jewish temple in America. At stake in this case is the legacy left behind by those early pionee1·s of Rhode Island's ocean shores.

Before Arrivingin Newport, Rhode Island

Spain and Portugal in the 17th and 18th centuries was not a place where Jews could practice their religion legally, much less publicly. Morris A. Gutstein,

The Sto1y ofthe Jews ofNewport; Two and a Half Genturies ofJudaism, 1658-1908 58·65 (1936) (Exhibits P81 and D448).s At that time, those two countries were in the midst of the Inquisition - a brutal institution within the judicial systems of the royal Christian authorities and the Catholic Church, whose stated aim was to combat heresy. The Inquisition forbade Judaism and singled out its adherents for exploitation and torture. The royal authorities and the Catholic Church started by confiscating the property of anyone accused of "Judaizing"9 and filling its coffers

8 Morris Gutstein, who served as the Rabbi for Jeshuat Israel in the 1930s, wrote a comprehensive history of the Jews of Newport. In the preface to the book, Rabbi Gutstein thanked "the spiritual leader of the Spanish·Portuguese Synagogue in New York [Rabbi De Sola Pool], for his kind assistance in reading the manuscript and offering many constructive suggestions, and for writing the Introduction." Morris A. Gutstein, The Sto1y ofthe Jews of1Vewpol't; Two and a HalfCenturies of Judaism, 1658-1908 11 (1936). Jeshuat Israel and Shearith Israel separately offered Rabbi Gutstein's immensely helpful book as an exhibit (Exhibits P81 and D448) (page references to this source are to the book's page numbers) [hereinafter

Gutstein]. The Court relied on Rabbi Gutstein's thorough and credible factual narrative, not his legal conclusions, in reaching its own conclusions in this case.

9 "Judaizing" refers to the continuing observance of the Torah by Jews who had been coerced into Christianity. See Seymour B. Liebman, The Jnquisitol's & the

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with the ill-gotten loot. Id. at 63. Next came the autos-da-fe,10 burnings at the stake, and other horrors. The Inquisition "claimed the lives of thousands of Jews, yielding up their souls, with the martyr's exclamation, 'Hear 0 Israel the Lord our God, the Lord is One.'" Id. at 63.

Some Jews were tortured and burned alive, others were expelled from the lands, and yet others were forced into compulsory baptisms. "Before long, a very large number of the population of the Iberian peninsula consisted of Crypto-Jews, who had been forced into baptism by persecution," and were referred to as "Neo- Christians" or "Marranos." Id. at 60.

Many of the Marranos cherished their love for the Jewish faith in which they had been reared. As much as possible ·they secretly observed the traditions of their fathers in spite of the high positions they held. Some attended synagogue under the most dangerous circumstances. Others assembled in underground hiding places to carry out the tenets of Jewish religion, though openly they lived in beautiful homes religiously decorated according to the custom of the date, giving no cause for suspicion.

Id. at 61.

Official conversion did not immunize Iberian Jews from persecution. The

inquisitors persisted in their charge, turning their victims against each other by undermining the persecuted group from within:

The Inquisitors promised absolution to all Marranos guilty of observing Jewish customs, if they would appear before the tribunal and recant. Many fell victims to this snare, for no absolution was granted them, unless under the seal of secrecy and under oath

Jews in the New World: Summaries ofProcesos 1500-1810 29 (Univ. of Miami Press 1973).

io Auto-de-le, which translates to "act of faith," was the public penance required of persons the inquisitors condemned as heretics.

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extracted by torture in the Inquisition chambers, they betrayed the name of others whom they knew to be Judaizers and who on their testimony would become prey for the flames.

Id. at 63·64.

Escape from their homeland was often the only way to stay alive. This was

the traumatic background of many Jews who found their way to Newport, Rhode Island in the late 17th and early 18th centuries.11

Arrival in Newport, Rhode Island

Arriving in Newport in 1658, the first Jewish families - approximately fifteen in number - were said to have "immediately set out to organize their public worship." Id. at 30; see also Melvin I. Urofsky, A Genesis ofReligious F1·eedom: The Sto1y of the Jews of Newpo1·t, RI and Toum Synagogue 20 (George Washington Institute for Religious Freedom, 2013) (Exhibit D451 at 37) [hereinafter UmfskjJ. They met to worship at private dwelling houses and formed a collective that was first known as Nefutse Israel - the Scattered of Israel - and later became Congregation Y eshuat Israel. Gutstein at 31 and 343 n. 9; UTOfsky at 54. In 1677, presumably when death came for one of their own, they purchased a plot ofland for a Jewish cemetery. Gutstein at 36·38. This act was an important milestone for the

11 For many of the survivors, the psychological scars of the Inquisition never completely healed. Many Jewish women in the colonies, who in Spain "seemingly told their [rosary] beads in public [to disarm suspicion], though their hearts formed not the Ave Maria and the Pater Noster, but the Shemang," continued the deception in their new world. Gutstein at 351 n. 17 (quoting Thomas Bicknell, The Histo1y of

the State ofRhode Island, Vol. II at 626 (1920)) "[T]hese women were so much slaves of habit and fea1· that even here, [in Rhode Island,] far from their bloodthirsty oppressors they still fingered their beads as they repeated their Hebrew prayers, though their one desire was to throw off all memory of their days of persecution." Id.

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burgeoning community, as a symbol that its families were permitted to live and die according to their true identities. Id. at 39.

The Riveras were one such family that populated Newport at the beginning of the 18th century. Abraham Rodrigues Rivera was the first of his family to arrive in North America in the early 1700s.12 Typical of many North American Jews at the time, he was born and married in Seville, Spain, where he was forced to live as a Marrano in full accordance with the Catholic rites and under a different name. Upon coming to the British Colonies, he underwent all the religious rituals required by Jewish tradition, changing his name to Abraham, his sons' names to Isaac and Jacob, and his daughter's name to Rebecca. Young Jacob Rodrigues Rivera,13 also born in Seville, would eventually grow up to become a respected Newport businessperson and the author of a key testamentary document at issue in this case.

Along with the exiles from Spain and Portugal, Jews from other European countries also populated Newport. Id. at 76-77. The Hart and Levy families are of

12 Abraham Rodrigues Rivera landed in New York City, but later relocated his family to Newport. He was president of Shearith Israel in 1729 and one of the contributors to the building of its first Mill Street Synagogue in 1730. Gutstein at 70-71.

13 Jacob Rodrigues Rivera lived for some time in the Caribbean island country of Curacao, where he married, before moving to New York. He was naturalized as a U.S. citizen in 1746 and moved his family to Newport in 1748. In his new home, he introduced the community to the manufacture of spermaceti candles, (wax extracted from whale oil), which became "one of the most important sources of Newport's prosperity" in the coming years. Gutstein at 71.

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special importance to this case. Isaac Hartl4 hailed from a London family of Ashkenazic origin.15 He settled in Newport around 1750 and soon became a successful merchant. Id. at 77. Moses Levy's family was also from London.16 Id. at 75. They arrived in New York in 1705 and eventually settled in Newport. Id. at 53. Like Jacob Rodrigues Rivera and Isaac Hart, Moses Levy also became a prominent businessperson, and was closely associated with the commercial, social, and spiritual life of Newport's Jewish community.17 Id. at 53·54.

14- Isaac Hart's relative, Aaron Hart, was the first Chief Rabbi of the Ashkenazic Jews in England. Gutstein at 77. As late as in 1763, Jews in London were facing indictments for holding public services. Id. at 342, n. 7. For them too, the hope of public worship in North America was a great draw .

15 Ashkenazic Jews generally hail from Germany, Russia, Poland, Hungary, Romania, Lithuania, Latvia and other places in Central and Eastern Europe. Sephardic Jews trace their roots back to Spain and Portugal. The two groups differ in their rituals and pronunciations. Bernard Kusinitz, The 1902 Sit-In at Touro Synagogue 44·45 (Rhode Island Jewish Historical Notes Vol. 7, No. 1 Nov. 1975) (Exhibit D445 at 5·6) [hereinafter Kusinitz]; see also Gutstein at 114·17; 268·70.

16 There is no evidence before the Court about whether Levy's family was of Sephardic or Ashkenazic origin.

17 The Court would be remiss here not to acknowledge a shameful chapter in the colonies' history, in which one prominent member of the Jewish community, Aaron Lopez, (Gutstein at 66·69), had a role. "[D]uring the eighteenth century Jews participated in the 'triangular trade' that brought slaves from Africa to the West Indies and there exchanged them for molasses, which in turn was taken to New England and converted into rum for sale in Africa. . . . Aaron Lopez of Newport in the late 1760's and early 1770's [participated in] slave trading on the American continent." Rabbi Marc Lee Raphael, Jews and Judaism in the United States: A Documenta1y Histo1y 14, 23-25 (Behrman House, 1983); see also Eli Faber, Jews, Slaves, and the Slave Trade: Setting the Record Stl'aight 136·37, 143 (New York University Press, 1998) (concluding that Mr. Lopez underwrote 21 slave ships to Africa between 1761and1774); Trial Tr. vol. 7, 201, ECF No. 110 (Testimony of Dr. Mann) ("[Aaron Lopez was] a slave trader") .

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Building the Synagogue

By the mid·18th century, the Jewish community of Newport was becoming sufficiently numerous and prosperous to plan building a synagogue. Id. at 82. They "desire[d] to build a synagogue that should equal in grandeur any other contemporary colonial structure." Id. at 87. The project required two rounds of fundraising, first to buy the land, and second to build the temple. Id. at 87·88. For the first round, the local Jewish community was taxed and the necessary funds gathered to make the purchase. Id.

A problem arose though, because in those days "patents of incorporation were not granted to religious institutions," meaning that the Congregation "could not purchase [or] hold real estate in its own name." Id. at 82; see also Kusinitz at 42 (Exhibit D445 at 3). Yeshuat Israel solved this problem by designating three ofits leaders as title·holders and trustees on behalf of the Congregation:

The procedure was this: at a public meeting of the Congregation, or of all the Jews of the community, trustworthy individuals were appointed to purchase whatever property might be necessary for building the synagogue and for whatever other use the Congregation might need. These members of the community thus became the trustees of the land, buildings and other property belonging to the Congregation. In reality the land and property belonged to the entire Jewish community; legally the title to the land and to everything with it, rested with the appointed trustees who purchased the plot as individuals.

*****

The Jewish Community of Newport found these trustworthy individuals in three noteworthy and respectable members of the Congregation, Jacob Rodrigues Rivera, Moses Levy and Isaac Hart. They were not only appointed to purchase the land, but also as "trustees for building the Synagogue."

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Gutstein at 82·83; see also Urofsky at 54. After raising the funds from the Newport Jewish community, the Congregation purchased the necessary land from Ebenezer Allen of Sandwich of the Massachusetts Bay Colony sometime in 1759. Gutstein at 85; see also 1759 Deed (Exhibits D424 and D424A).

The second step, building the Synagogue, required raising additional capital. For this task, the Jews of Newport began at home, raising "a small fund by subscription" despite being strapped for funds after "having been taxed for the purchase of the land." Gutstein at 87·88. Next, they greatly expanded their fundraising sites. Id. at 88. Nine representatives of the Newport Jewish community - Jacob Rodrigues Rivera, Jacob Isaacs, Isaac Hart, Aaron Lopez, Abraham Rodrigues Rivera, Isaac Pollock, Moses Lopez, Isaac Elizer, and Moses Levy - penned letters to congregations near and far appealing for assistance in their goal of building a synagogue and school where they could "[i]nstruct [their] [c]hildren in the [p]ath of [vhrtuous [r]eligion." Id. at 88 and 117. Congregations in New York, Jamaica, Curacao, Surinam, and London all answered the call and donated. Id. at 88.

In a constructive chapter of history between Jews in Newport and New York, Shearith Israel "reserved the seventh day of Passover to appeal for contributions for the building of Newport's Synagogue."18 Id. at 90. Newport's Naphtali Hart traveled to New York to collect the donation, and left a receipt stating, "Recd. of

18 Shearith Israel likely contributed even more funding later on toward the building and furnishing of the Synagogue. Gutstein at 95·97.

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Myer Myers [an official of Shearith Israel at the time] One Hundred and Forty nine Pounds and six pence which at my arrival at Newport, Rhode Island, I promise to deliver to Messrs. Jacob Rivera, Moses Levy and Isaac Hart, trustees fol' bwlding

the Synagogue." Id. at 92 (emphasis added).

The construction of the Synagogue lasted from August 1, 1759 until 1762,

and the dedication ceremony took place on December 2, 1763.19 Id. at 92, 98. The dedication was a public celebration of the magnificent final product, and highlighted the stature and acceptance of Jews in Newport. "The invited audience consisted of Jews and non·Jews, including a great number of notables of the city and guests from other localities." Id. at 98. At this time, there were 60 to 70 Jewish families living in Newport. Id. at 113·14. The Newpo1·t NleTcwyzo offered the following report: "The Order and Decorum, the Harmony and Solemnity of the Music, together with a handsome Assembly of People, in an Edifice the most perfect of the Temple kind perhaps in America, and splendidly illuminated, could not but raise in the Mind a faint Idea of the Majesty and Grandeur of the Ancient Jewish Worship mentioned in Scripture." Id. at 100·01. The dedication also marked a name change

19 The Synagogue - "an architectural jewel" - was designed by Peter Harrison, a British-born colonial architect who immigrated to Rhode Island in the 1740s. Urofsky at 55·57. He likely drew inspiration for Newport's Synagogue from the designs of the Bevis Marks Synagogue in London and the Great Portuguese Synagogue of Amsterdam. Id. at 56. Mr. Harrison's other works include the Redwood Library and Athenaeum in Newport, and other buildings in Newport,

Boston, Cambridge, and England. Id. at 55·56; Gutstein at 93.

20 The Newport Me1·cury is one of the oldest newspapers in the country still in

existence, dating back to 1758. Newport Public Library, Local Histo1y: Rhode Island Newspa.pe1·s (2016), http://www .newportlibraryri.org/e·resources/local· history/.

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for Newport's Jewish community. No longer would they be known as Nefutse Israel - the Scattered of Israel, but instead as Yeshuat Israel - the Salvation of Is1·ael. Urnfsky at 62. At its very beginning, the Newport Synagogue was publically dedicated to the proposition that in Newport, Jews could worship freely and

proudly, as their storied ancestors had done in the long ago past.

In sum, the Synagogue's trustees, Jacob Rodrigues Rivera, Isaac Hart, and

Moses Levy were part of the community of Sephardic and Ashkenazic Jews that came to Newport in pursuit of religious freedom, economic prosperity, and happiness.21 They helped form a Jewish society that prospered in business but stayed grounded in religion. It is heartening to imagine, as one of the trial witnesses described, the newly liberated European Jews finding a welcome place in Newport to build their Synagogue after years of furtiveness and torment:

21 By the time the Synagogue was built, the Jewish population of Newport was composed of Jews from a variety of backgrounds:

The majority of the Jewish population in [Newport before the American Revolution] were of Sepha1·dic origin [from Spain and Portugal], but a considerable number taking an active interest in the affairs of the Jewish community were of Ashkenazic stock. The Ashkenazic element came principally from Germany, though . . . the Harts came from England, the Pollocks from Poland, while the Myers came from Austria and Hungary.

In affairs of the synagogue, the Sephal'dic element dominated because of their greater number and importance. The Ashkenazic members cooperated fully, so that harmony and accord existed at all times. The synagogue was deeded to Jacob Rodrigues Rivera the Sephal'di and Isaac Hart the Ashkenazi. While Moses Lopez, a Sepha1·di, was President of the Congregation one year, Naphtaly Hart, an Ashkenazi, occupied the position another year.

Gutstein at 115.

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[T]hey found this religious tolerance. And then they built this wonderful synagogue. And they built it high up on a hill overlooking the city. And it showed how comfortable they were, and how well accepted they were. And that's particularly important, when you look at other synagogues built in the same era. .. . [S]ynagogues were built in Europe behind other buildings, in alleyways so that they don't draw attention to them. And here, here in Rhode Island, they were able to build in such an open location.

Trial Tr. vol. 3, 177, ECF No. 106 (Testimony of Bertha Ross). Far from the fires of the Inquisition, the Jews of Newport were able to build a Synagogue that would serve always as a house of public worship and a beacon of religious freedom.

Exterior of the Synagogue in 2013. Urofsky back cover (Exhibit D451 at 2).

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Interior of the Synagogue in 2008. UJ:ofskyat 59 (Exhibit D451at76). TheRimonim

Although the Touro edifice was completed by 1762, a building alone does not a synagogue make. It needed furnishings and articles of worship essential to the religious ceremonies for which it was meant. By dedication day, through the generosity of patrons from Newport and abroad, most of these necessities were gifted to the Synagogue and became part of the heritage of the Jews of Newport.

Gutstein at 96-97, 103-06. The Synagogue was adorned with brass candlesticks from Enoch Lyon, a perpetual lamp donated by Samuel Judah, wax from Hayim Myers, a Hechal (Ark where the Torah scrolls are kept) and Tebah (reading desk at the center of the synagogue) gifted by Jacob Pollock, and three Torah scrolls, including a 200-year old scroll presented by a Congregation from Amsterdam. Id. at

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97, 104-05. Soon, five beautiful candelabra were installed courtesy of Abraham Rodrigues Rivera, Naphtali Hart Myers, Aaron Lopez, and one unknown donor. Id. at 104 and 354-55 n. 45.

The riches of the Synagogue kept growing. "[B]y 1769 there were six Scrolls of the Holy Law deposited in the Ark of the Newport synagogue ... all adorned with tops and bells made of silver and washed with gold." Id. at 105. These "tops and bells" that adorn the Torah are called "rimonim," and are placed on the top of the two handles of the Torah scroll when the Torah is not in use. Gutstein described two of those pairs from 1769 this way:

One pair, having crown and bells is decorated with closed aca[nlthus leaves, open flowers, strap ornaments, and heading. They were made by Myer Myers, freeman of New York, president of the Silversmith's Society, 1776.

Another pair, by the same maker are engraved and embellished with flowers and foliage. Gilt bells are suspended from brackets. They were probably the gift of members of the Hays and Myers family as the inscription indicates.

Id. at 108.

Because the ownership of one of these pairs of Myer Myers' Rimonim is at

issue in this case, a discussion of the maker and the contested pair is fitting. Myer Myers, the son of a Jewish shopkeeper, was New York's foremost silversmith during the late colonial period. David L. Barquist, Myel' Myel'B: Jewish SilveTsmith in Colonial New York 25 (Yale University Press, 2001) (Exhibit P150 at 3234 and

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D356 at 5) [hereinafter Barquist].22 An accomplished artisan and a successful merchant, his workshop was likely the largest in New York from the mid-eighteenth century until the outbreak of the Revolutionary War.23 Id. Approximately 380 works bearing his mark survive to this day, including only six objects of Judaica: five pairs of rimonim and one circumcision shield. Id. at 48 (Exhibit D356 at 28), 152, 154, 162, and 198 (Exhibit Pl50 at 3246, 3248, 3255, and 3259). His exquisite rimonim have likely played the biggest role in establishing Mr. Myers' reputation as a great silversmith. Id. at 60 (Exhibit D356 at 40).

Although born in New York and deeply involved with the Jewish community there, Mr. Myers' personal and professional life also connected him to Jewish communities in other cities, especially NewpoTt. Id. at 27 (Exhibit P150 at 3235). As p1·esident of Shearith Israel, he facilitated his Congregation's donations for the construction of Newport's beautiful new Synagogue. Gutstein at 92. Then around the year 1770, his sister Rachel and her husband Moses Michael Hays moved to Newport, which opened up further avenues for his business interactions there.24 Barquist at 27, 98 (Exhibit Pl50 at 3235, 3259). Mr. Myers made a circumcision shield for Yeshuat Israel's mohel (circumciser), Moses Seixas, who in the 1770s served as Yeshuat Israel's president and custodian. Barquist at 152 (Exhibit P150

22 The parties submitted partly overlapping excerpts from the Barquist catalogue. The Court's citations to Barquist include the actual pages in the catalogue, as well as the exhibit and page numbers for the cited information.

23 Mr. Myers was born in 1723, and by the age of 23, he became the first Jew to join the British Guild of Silversmiths since its founding in 1327. Barquist at 8 (Exhibit P150 at 3230).

24 The Hays family is related by marriage to the Touro family, which is closely associated with Newport's Synagogue. Barquist at 98 (Exhibit P150 at 3259).

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at 3246); Exhibition of Works in Silver and Gold by Myer Mye1·s, Brooklyn Museum, 1954 (Exhibit PlOl at 3720). And most importantly, for our purposes, in 1787 Mr. Myers was commissioned to mend a pair ofYeshuat Israel's Rimonim, and was paid 12 shillings for his services. Yeshuat Israel ledger (Exhibit P30). He was likely repairing the Rimonim at issue in this case, which he had made for use in Newport's new Synagogue.

The Rimonim (Exhibit D562).

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Late 18th Century Newport, Rhode Island

The years immediately after the Synagogue was built coincided with the "Golden Era of Newport." The city, known as the "Garden of America," was a commercial rival of New York and Boston. Gutstein at 157-58, 174.25 The Jewish community in Newport was the largest and most prosperous in North America, even compared to the other major Jewish communities in New York, Philadelphia, Savannah, Richmond, and Charleston. Id. at 176. Alas, the golden era was short· lived.

As fate would have it, the Jews who built the Newport Synagogue would worship there for only 30 years. The majority of Jewish families left Newport in the year 1776, some at the outbreak of the Revolution, and others immediately after the British captured the city:

The conflict with Great Britain was a death blow to the prosperity of the city of Newport, and in particular to the Jewish community of the town. The factories gradually closed down; the extensive commerce and foreign trade slowly died out; many people threatened by the impending invasion of the British left the city, and by December 8, 1776, when the city of Newport was actually occupied by the British, there was but a handful of people left in the town.

Id. at 181·82; see also id. at 185.

The Revolutionary War and then the War of 1812 devastated the shipping

and trading industries on which Newport's Jews depended, and drove the Jewish community to other locales. Id. at 190, 225. Services ceased in the Synagogue

25 In his book, Gutstein refers to a letter from that time that was addressed, without irony, to "New York near Newport, Rhode Island." Gutstein at 158.

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sometime around the year 1793, and by 1822, it appears that no Jews remained in Newpo1·t. Id. a t 216, 225.

The wars also affected the leadership of Yeshuat Israel, including its three trustees. In 1780, one of the trustees, Isaac Hart, was killed in the midst of Revolutionary violence, and left no surviving will. Id. at 184, 365 n. 33. Another trustee, Jacob Rodrigues Rivera, waited out the Revolutionary War in Leicester, Massachusetts, and returned to Newpo1't an old man. Id. at 185. He "was gathered to his fathers" on February 18, 1789 at age 72. Id. at 200. The third trustee, Moses Levy, passed away three years later in 1792. Id. at 216. Both Mr. Rivera and Mr. Levy left behind wills that are instructive for this case, and supportive of the finding that Touro Synagogue is owned in trust.

• The Rivera. Will

In his will, Jacob Rodrigues Rivera acknowledged that he had no equitable

ownership interest in Touro Synagogue, and that his only personal interest was as the Synagogue's trustee. His will stated:

Also I do hereby declare and make known unto All People, that I have no exclusive Right, or Title, Of, in, or to the Jewish Public Synagogue, in Newport, on Account of the Deed thereof, being made to Myself, Moses Levy & Isaac Harte, which Isaac Harte, thereafter Conveyed his One third Part thereof to me, but that the same was so done, meant and intended, in trust Only, to and for the sole Use, benefit and behoof of the Jewish Society, in Newport, to be for them reserved as a Place of Public Worship forever, THEREFORE, I do for myself and my Heirs hereby remise, release, and forever quit Claim to all exclusive right, title, or Interest therein or thereto and to every part and parcel thereof, Always saving and excepting such right as I have by being A Single Member of that Society.

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Rivera Will at 19 (Exhibit D16 at 2). The will, which will be discussed in more detail infra, is incontrovertible evidence that Touro Synagogue was owned in trust.

• The Levy Will

In his will, Moses Levy stated:

I do hereby release and discharge all such ballances, as shall at the time of my Decease be due and unpaid of monies by me heretofore advanced to'>vards building the Synagogue, in Newport, on condition that there shall be a solemn prayer said for me in the said Synagogue, Yearly and every Year; on the Evening or day of Kipne, or atonement.

Levy Will (Exhibit D18 at 1).

Mr. Levy's will, probated three years after Mr. Rivera's, is consistent with the

finding that Messrs. Rivera, Hart, and Levy were trustees for the Synagogue. See infi:a.

Moses Seixas Becomes Acting Trustee

While the Revolutionary War raged, Moses Seixas, who married into the family of one of the trustee's (Moses Levy),26 took responsibility for the Synagogue and became the "lay leader of the Remnant of Israel in Newport." Gutstein at 188· 89. He "was the warden of the [S]ynagogue, and carried out the functions that had been previously vested in Jacob Rodrigues Rivera." Id. at 189, 201. In other words, Moses Seixas acted as the Synagogue's successor trustee.

2G Moses Seixas married Jochebed Levy, the daughter of Benjamin and Judith Levy. Gutstein at 189. Benjamin Levy was Moses Levy's brother. Id. at 76. Mr. Levy and Mr. Seixas were likely close, because Mr. Levy devised a large portion of his estate to Mr. Seixas, and appointed him as an executor of his will. Levy Will (Exhibit D18 at 2·4).

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Moses Seixas also played the central role in the most celebrated instance in the Synagogue's history: the correspondence with George Washington. President Washington visited Newport on August 17, 1790. Id. at 207. The following morning, Mr. Seixas presented to the President a letter on behalf of the Hebrew Congregation, extolling his new government, "which gives to bigotry no sanction to persecution no assistance; but generously affording to all liberty of conscience and immunities of citizenship, deeming everyone, of whatever nation, tongue, or language, equal parts of the great Government machine." Id. at 210 (reproducing Mr. Seixas' letter to President Washington).

The President responded in kind, writing:

To the Hebrew Congregation in Newport, Rhode Island. Gentlemen.

*****

The Citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of as if it was by the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection, should demean themselves as good citizens, in giving it on all occasions their effectual support.

*****

May the Children of the Stock of Abraham, who dwell in this land, continue to merit and enjoy the good will of the other Inhabitants, while every one shall sit in safety under his own Vine and Figtree, and there shall be none to make him afraid. May the father of all mercies scatter light and not darkness in our paths, and make us all in our

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several vocations useful here, and m his own due time and way everlastingly happy.

Go. Vlashington Id. at 212-13.

This touching and lofty correspondence is celebrated by a public reading of the Seixas and Washington letters at the Touro Synagogue every year. Trial Tr. vol. 2, 8-13, ECF No. 105 (Testimony of David Bazarsky). It is a fitting tribute to Newport's original Jewish community, which had suffered through the indignities of the Inquisition, to find in Newport a safe haven for public worship.

Jews Leave Newport, Rhode Island

The correspondence with President Washington was the last hurrah of Newport's original Jewish community. Around 1793, "the services at the synagogue completely ceased ... [and] the building was left to the bats and moles, and to the occasional invasion, through its porches and windows, of boys who took great pleasure in examining the furniture scattered about." Gutstein at 216. "By 1800, the 'Jewish Society' of Newport contained no one outside the families of Rivera and Seixas, and some of their relatives, Lopez and Levy respectively." Id. at 217. In 1809, Moses Seixas died, and was put to rest in his family's plot in the Newport Jewish Cemetery. Id. at 219. The informal role of trustee thereafter likely passed down to Moses Lopez, who was the last Jew to leave Newport on October 5, 1822. Id. at 225-26.

After services at the Synagogue stopped, the few remaining members of the Jewish community of Newport began to relocate its articles of worship and other

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treasures to safer locations. Many of Yeshuat Israel's congregants moved to New York and joined Congregation Shearith Israel. Id. at 226. They brought with them several Torah scrolls and the rimonim adorning them, which Shearith Israel agreed to keep safe, until Jews were once again worshiping in Newport's Synagogue. Id. at 216, 263; see also 1901 Letter from Shearith Israel's Rabbi to Mayor of Newport (Exhibit D133 and Dl33A at 3) ("This original congregation dwindled away through the Revolutionary war, and in 1818, the last residents sent to the New York Congregation the sacred movables."). The Rimonim were sent to Shearith Israel for safekeeping during the period when there were no Jews in Newpmt. Shearith

Israel's minutes from December 3, 1832 state:

[T]he Sepharim belonging to the New Port Shool [shul]27 & which was in the possession of the family of the late Mr. Moses Seixas and have been for about 40 years, could be obtained to be placed for safe keeping in our place of Worship until they should be required for the use of the New Port Shoal [shul].

Shearith Israel's minutes (Exhibits D25 and D25A at 2).

Shearith Israel also memorialized receiving the Torah scrolls. Shearith

Israel's minutes from February 10, 1833 state:

The Committee appointed to receive the Sepharim [Torahs] belonging to the New Port Synagogue Report that they have received the same and deposited them in our Rachal [Ark] and had given a receipt to the family of the late Moses Seixas of which the following is a duplicate.

Shearith Israel's minutes (Exhibits D26 and D26A at 1, and P38 at 5257).

Shearith Israel's representatives testified that the Rimonim were also

transferred to Shearith Israel for safekeeping around this time. Shearith Israel's

27 "Shul" means synagogue. Merriam-Webster Dictionary; see also Kusinitz at 43 (Exhibit D445 at 4).

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ritual directOl' Zachary Edinger28 stated, "it is likely that the [Rhmonim were brought to New York for safekeeping sometime" in "[elither the 1820s or the 1830s." Edinger Dep. 92:25_93:5 (May 1, 2014). Shearith Israel's vice president also testified, "the Torahs and rimonim and other ritual objects, which had been in the Touro Synagogue, we [Shearith Israel] took them for safekeeping; and that continued until the early 1880s ...." Trial Tr. vol. 6 at 61, ECF No. 109 (Testimony of Michael I. Katz) .

It is likely that four pairs of rimonim traveled with the Torah scrolls from Newport to New York. See Bal'quist at 160 (Exhibit P150 at 3254) ("it was not until 1833 that the four To1·ahs (and presumably their ornaments) were transferred to Shearith Israel 'for safekeeping ...."').29 Whether they traveled with those four Torah scrolls, or with a different scroll, or arrived separately, the Court finds that the Rimonim at issue in this case were transported to New York and held for safekeeping by Shearith Israel after services stopped at Newport's Synagogue.30 With no Jews remaining in Newport, Shearith Israel became the custodian for

28 Zachary Edinger is Shearith Israel's ritual director. Edinger Dep. 9:10-10:7 (May 1, 2014). Portions of his deposition transcript were admitted by the Court in lieu of trial testimony. Shearith Israel's objections the portions of his testimony relied upon by this Court are overruled.

29 As counsel for Shearith Israel acknowledged during opening arguments about rimonim, "[t]heir job is to stay with the Torah." Trial Tr. vol. 1 at 69, ECF No. 104.

30 When Shearith Israel returned the Rimonim to Newport in the late 1800s, it returned one finial marked "Newport" on the base, and one finial not so marked. Jeshuat Israel alleges that the Rimonim are a true pair with switched bases, while Shearith Israel alleges that they are not a true pair. The Court need not decide this issue. Shearith Israel has not asked the Court to exchange its single finial or its base, which is marked "Newport" for Jeshuat Israel's single finial that is not marked "Newport," and even if it did, both parties would retain the same number of finials.

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Yeshuat Israel's religious artifacts, including the Rimonim, and the spiritual link to Jewish worship at the abandoned Newport Synagogue.31

Touro Brothers Sa.ve Newport's Synagogue

By the time Moses Lopez left Newport in 1822, the Synagogue was in a dilapidated condition. There were no congregants to worship there, and no funds to preserve it. Mr. Lopez moved to New York and entrusted the keys and care of the Synagogue and cemetery to Stephen Gould, a non-Jew who did his best in this role without any remuneration. Gutstein at 238. In 1826, Mr. Lopez wrote to Mr. Gould about the Synagogue, stating that "th[e] building is now considered as own'd at present by the Hebrew Society [Shearith Israel] in this city." Id. at 239.

At this juncture, Shearith Israel assumed trustee responsibilities for the Newport Synagogue, most likely because so many members of the disbanded Yeshuat Israel moved to New York and joined Shearith Israel. By 1826, the keys to Touro Synagogue were transferred to Shearith Israel. See Newport Council Records Apr. 17, 1826 (Exhibit D23) (noting that keys to Synagogue resided with Shearith Israel). However, Shearith Israel could not be expected to "invest thousands and thousands of dollars to restore and maintain [a] building, which was in a state of ruinous disrepair when they ffrst took possession of it, for the possible use of co- religionists who might or might not one day in the distant indefinite future come back to that city and ask for the use of the facility." Bernard Kusinitz, How Touro

31 The Rimonim were certainly in the care of Shearith Israel by 1869, because they appear in the Congregation's inventory for that year. Shearith Israel's Inventory at 36 (Exhibits D34 and D34A).

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Synagogue Got Its Name 93 n. 7 (Rhode Island Jewish Historical Notes Vol. 9, No. 1 Nov. 1983) (Exhibit D446 at 12) [hereinafter Tow·o's Name]. The future of public Jewish worship in Newport was in grave danger of crumbling alongside the building.

Newport's Synagogue was rescued from the brink by the progeny of its first Rabbi. Abraham and Judah Touro, sons of the Synagogue's first minister, Isaac Touro, devoted their resources to ensuring that the Synagogue survived through the lean decades to come. The brothers were born in Newport, but raised in Boston by their uncle, (and Myer Myers' brother-in-law), Moses Michael Hays, who prepared them for careers in business. Gutstein at 229-30. Both attained considerable financial success, Abraham Touro in Boston, and Judah Touro after he moved to New Orleans. Id. at 230. Both also "always remained faithful to the traditions of their father, and to their Jewish heritage," and "never forgot their cemetery and their synagogue." Id. at 229-30.

In 1822, the same year that Moses Lopez had left Newport, Abraham Touro took on the duty of maintaining Newport's Synagogue. He corresponded with Stephen Gould, whom Moses Lopez left in charge of the grounds, and sent him a sum of one thousand dollars to build a brick wall to replace the remnants of the wooden fence that enclosed the Jewish cemetery. Id. at 230-31. Unfortunately, Abraham Touro did not live to see the fence completed. He died on October 18, 1822, at age 48, when his horse bolted at the firing of artillery during a Boston military parade. Id. at 233.

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Abraham Touro left a will, which accomplished what he had started a few months before - the preservation of Newport's Synagogue. He left $10,00032 "for the pm·pose of supporting the Jewish Synagogue in that State, in Special Trust to be appropriated to that object, in such man[n]er as the [Rhode Island] Legislature together with the Municipal Authority of the Town of Newport may from time to time direct and appoint." Id. at 232. He also left $5,000 to the Town of Newport for the repair and preservation of the street leading· out of the Jewish Cemetery, which was later renamed Touro Street. Id. at 232.33

With these gifts, Abraham Touro stepped into the shoes of the colonial Newport Jews and echoed their wish to preserve the Synagogue for the Jewish Society of Newport as a place of public worship forever. The wish was granted: ''[n]ot long after [the General Assembly approved the Touro Jewish Synagogue

32 This was a large sum of money at the time. For reference, the Bureau of Labor Statistics provides a consumer price index inflation calculator. In 1913, the earliest year that this calculator makes available, $10,000 had the same purchasing power as $240,537 has in 2016. U.S. Department of Labor, CPI Inflation Calculator (2016), http://www.bls.gov/data/inflation_calculator.htm.

33 As Abraham Touro's charitable gift was being processed by the authorities, Titus Welles, the executor of Abraham Touro's estate and the donor's "close and intimate friend" wrote the following· to the Rhode Island General Assembly:

It may be timely for me to remark on the subject of this Bequest regarding what I suppose to have been the intention of the Donor. From the decayed state of the Synagogue in Newport, and the want of any family or persons of the Jewish persuasion there, the deceased with some others seriously resolved to look into the situation of the property and devise some plan to revive the Jewish religion there; and in such way and manner as to induce some of that nation to settle and keep up a worship at least in such a degree that the building enclosures and the Institution itself should not go entirely to ruin and decay.

Gutstein at 236.

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Fund], the synagogue was repaired properly, and once again appeared as in the days before the Revolution." Id. 238. Stephen Gould continued to guard the shrine, as he had done before, and only after the Touro Fund appropriated some money was he "partly repaid for his faithful services." Id. at 238-39.

Judah Touro picked up where his brother Abraham left off. In 1842, when the brick wall around the cemetery commissioned by Abraham began to show signs of decay, Judah paid for a beautiful Quincy granite wall to replace it. Id. at 244. He contributed about $12,000 that year to completely restore the cemetery, repair the monuments, and beautify the grounds. Id. Upon Judah Touro's death in 1854, he also requested, like his brother before him, to be buried in the Jewish Cemetery in Newport. In his will, he gave the following bequest:

[T]en thousand dollars for the purpose of paying the salary of a Reader or Minister to officiate in the Jewish Synagogue of Newport, Rhode Island, and to endow the Ministry of the same, as well as to keep in repair and embellish the Jewish Cemetery in Newport aforesaid; the said amount to be appropriated and paid, or invested for that purpose in such manner as my executors may determine concurrently with the corporation of Newport aforesaid, if necessary.

Id. at 246.

On January 11, 1855, the City Council approved Judah Touro's bequest, with

$200 to be expended annually for the upkeep of the cemetery, "subject to the control ofDavidJ.GouldandNathanH.Gould,"descendantsofStephenGould. Id.at248· 49. Thereafter, "[t]he Judah Touro Ministerial and Cemetery Fund . . . grew steadily with the accumulation of interest, so that in later years an adequate amount was available for the salary of the minister." Id. at 249. Between the two

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of them, the Touro brothers provided for the upkeep of the Synagogue, the cemetery, the connecting street, and for the eventual retainer of a Jewish minister in their ancestral prayer house. But for their "foresight, one doubts whether the synagogue would have survived to the time when Jews again began to settle in Newport towards the end of the nineteenth century." Id. at 234.

Between 1822 and the 1870s, the Synagogue remained in good repair, but infrequently used. It was opened for the funeral services of Moses Lopez, who died in New York in 1830 at the age of 86, and again for the funeral services of Rebecca Lopez, Reverend Isaac Touro's only daughter, who died in 1831. Id. at 240. In 1832, the Synagogue was opened for the funeral of Judah Hays, then in 1836 for the interment of Slowey Hays, and for other burials in 1842, 1866, and in the 1870s. Id. at 241, 251. In the summer of 1850, the Synagogue was reopened briefly - "after an interruption of about sixty years" - for regular services. Id. at 245. These moments, which kept the candle of public worship flickering in Newport, were facilitated by personnel from Shearith Israel, and made possible with funds from the Touro brothers. Id.

Despite these moments of worship and remembrance, Jewish life in Newport was in hibernation during the early and mid·1800s. In 1858, Henry Wadsworth Longfellow published a poem, The Jewish Cemetez:v a.t Newpo1·t, about the ancient Synagogue and cemetery, which reflected its state of dignified disuse:

Closed are the portals of their Synagogue, No Psalms of David now the silence break,

No Rabbi reads the ancient Decalogue In the grand dialect the Prophets spake.

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Gone are the living, but the dead remain,

And not neglected; for a hand unseen, Scattering its bounty, like a summer rain,

Still keeps their graves and their remembrance green. Id. at 251·54 (excerpt); 241-42.

The Touro brothers - as well as the Gould family - were the unseen hand discerned by Longfellow. Without them, "almost certainly there would be no Touro Synagogue as we see it today," and perhaps it would no longer still be standing at all. Tourn Name at 88 (Exhibit D446 at 7). It is no accident that the Synagogue has since taken the Touro name as its own.34 Id.

The New Jewish Settlement in Newport - Synagogue Reopens

In the 1870s, Newport was blessed with new Jewish immigrants arnvmg from Germany, Austria, Italy, Russia, Romania, and other parts of Eastern Europe, many likely drawn to the city by the preservation of its beautiful Synagogue. Gutstein at 256; Touro Name at 92 n. 5 (Exhibit D446 at 11) (stating that the

"world-famous Touro Synagogue" was a draw for "Jews from small European shtetls (villages)"). Once again, Newport beckoned as a haven for public worship, which "the Colonial Jews had willed to posterity." Touro Name at 92 n. 5 (Exhibit D446 at 11). The newly arriving families offered the elusive promise of a new Jewish

34 Touro Synagogue was referred to as the "Jews' Synagogue," the "Jewish Synagogue,'' the "Newport Synagogue," or just "The Synagogue" until the latter part of the nineteenth century. Touro Name at 84·85 (Exhibit D446 at 3-4). In 1834, the Newport Town Council renamed the street where the Synagogue stands, "Touro Street," in honor of Abraham Touro, who donated funds for its maintenance. Id. at 86. Around the time of the Synagogue's reconsecration in 1893, Rabbi Abraham Pereira Mendes likely renamed the Synagogue "Touro Synagogue" after that street. Id. at 88-89.

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community worshiping in the same place as the ancient Congregation Yeshuat Israel. Through the foresight of the Touro brothers, a majestic and sparkling Synagogue awaited their ready prayers, and a generous fund was in place to support their minister. The new Jewish community, which became Congregation Jeshuat Israel, soon applied for the use of these blessings.

Shearith Israel held the keys to Touro Synagogue during the decades when there were no Jews in Newport. Gutstein at 257-58. It was concerned that the new Ashkenazic population (those Jews mostly from Eastern Europe that recently immigrated to Newport) seeking to worship there would not use it according to Sephardic tradition. Id. at 271, 275 ("The attitude of the New York Congregation was motivated by the determination to preserve the ancient traditions ....") See also Kusinitz at 45 ("[T]he newcomers to town, who were Ashkenazic, found alien the traditional Sephardic minhag, or ritual in use in Touro Synagogue."). Although not a condition of Mr. Rivera's Will, or either of the Touro brothers' Wills, this one issue dominated Shearith Israel's approach to the future of Tom·o Synagogue, and posed legal problems that linger to this day.35

At first, Shearith Israel's concerns did not present any problems. Shearith Israel commissioned Rabbi Abraham Pereira Mendes, the father of its own Congregation's rabbi, to leave London for Newport, and become Touro Synagogue's official rabbi. Rabbi Mendes was embraced by Newport's Jewish community, and

35 "So real and passionate were such feelings [about Sephardic traditions] that they account in part for some of the bitterness that was engendered in the sequence of events that followed." Kusinitz at 45 (Exhibit D445 at 6).

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on May 25, 1883, he presided over the reconsecration of the Synagogue in a beautiful ceremony reminiscent of the original 1763 dedication. Gutstein at 261 ·65. The reconsecration symbolized that Newport's most recent Jewish arrivals would be planting permanent roots in the city.

The reconsecration also signaled the return of Yeshuat Israel's articles of worship from New York back to Newport. Shearith Israel returned "the scrolls of the Law, which had been kept in New York ... to be permanently deposited in the Ark of the Newport Synagogue." Id. at 263. "In 1887, an additional Sefer Tornh, which had belonged to Newport, was brought back from New York and deposited in the Ark." Id. at 266. It is undisputed that around this time, though the exact date is unknown, Shearith Israel sent the Rimonim to Newport.36 Shearith Israel's Prop. Findings of Fact and Conclusions of Law, ECF No. 91 at 56 ,I 263. The Rimonim have remained in Jeshuat Israel's possession and control ever since. See sup1·a; Edinger Dep. 106:20-109:13.

Rabbi Mendes passed away m 1893, which precipitated the first conflict between Shearith Israel and Newport's resurgent Jewish community. See Gutstein .at 270-74; Kusinitz at 44 (Exhibit D445 at 5). The Newporters worshiping at Touro Synagogue applied for a charter from the Rhode Island legislature under the same name as the old Newport Congregation Yeshuat Israel, except spelling "Jeshuat"

36 There is photographic evidence that the Rimonim were back at Touro Synagogue by the year 1913, and they may have been back as early as 1895. Id.; E. Alfred Jones, The Old Silver of American Churches (National Society of Colonial Dames of America, 1913) (Exhibit P77) (containing description and photograph of Rimonim in Newport); Touro Monthly, Congregation Jeshuat Israel 3 (Vol. 11, No. 6 Feb. 1975) (Exhibit P124 at 4111) (reproducing photograph of Rimonim dated 1895).

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with a "J" instead of a "Y."37 Gutstein at 271. Shearith Israel opposed the Congregation's incorporation under this name, fearing that it would amount to recognizing that the new Congregation was the successor to Yeshuat Israel. It even submitted a petition to the Rhode Island State Assembly objecting to the name on account of the backgrounds of the new immigrants:

[N]one of them belong to the Sephardic or Spanish and Portuguese section of the Jewish nation . . . they being of the German or Polish contingent ... and by their action in endeavoring to adopt this name, are manifestly perpetrating an injury upon the citizens of Newport in attempting to establish a relation between the ancient Congregation and themselves, while as a matter of fact they are totally different in form of worship, and in social standing, as well among the Israelites as Gentiles . ..."

Shearith Israel Petition at 3 (Exhibit P48 at 4057).

Shearith Israel worried that if Jeshuat Israel were recognized as the

successor to Yeshuat Israel, then Shearith Israel would no longer be able to enforce Sephardic worship at Touro Synagogue. Gutstein at 272. To stave off this threat, Shearith Israel endeavored to formalize its legal relationship to Touro Synagogue. In April 1894, Shearith Israel drafted "Deeds of Trust," and obtained signatures from several alleged descendants of the Newport Synagogue's original three trustees, which purported to convey the descendants' interests in the Synagogue to Shearith Israel. Id. at 272·73. These deeds, for the first time, contained the condition that Jews practicing in the Touro Synagogue must observe the same rituals, rites, and customs of the Orthodox Spanish and POTtuguese Jews as

37 Whether spelled with a "J" or "Y," the name of the Congregation is the transliteration of the same Hebrew words, meaning "Salvation of Israel." Gutstein at 378.

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practiced and observed by Shearith Israel. Id.; see, e.g., 1894 Deeds (Exhibit D78 at 3, 9, 18, 21, 22, 23, and 26). ·In the meantime, Congregation Jeshuat Israel successfully received its charter from the Rhode Island Legislature on June 13, 1894. See State Charter (Exhibit P284). With both sides now armed with documents allegedly supporting their claims to the Synagogue, the conflict continued to simmer below the surface.

Shearith Israel next appointed Rabbi David Baruch to serve as the minister at Touro Synagogue. For the six years that he served in that post, Rabbi Baruch was also successful at keeping at bay the more serious problems between the Newport and New York congregations. The death of Rabbi Baruch on March 30, 1899 precipitated a formal split in Newport's Jewish community, multiple rounds of litigation, and the temporary closing of the Synagogue. Gutstein at 274·75; Kusinitz at 47 (Exhibit D445 at 8). On April 10, 1899, a group split off from Jeshuat Israel, and incorporated under the name of "Touro Congregation." Kusinitz at 47 (Exhibit D445 at 8). This group attempted to hold its own services at Touro Synagogue, but was removed from the Synagogue pursuant to an 1899 court order, and eventually rejoined with Congregation Jeshuat Israel. Id. at 47·50 (Exhibit D445 at 8·11).

Although the two Newport congregations prayed together for some time, friction between them continued, while the discord between Newport's Jewish community and Shearith Israel had never completely died down. Id. at 51 (Exhibit D445 at 8·11). The main point of contention was likely the Newport congregations'

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efforts to appoint their own minister, mther than accepting a minister selected by Shearith Israel. Id. at 54-56 (Exhibit D445 at 15-17). In the midst of this hostility, Shearith Israel and their representatives in Newport chose to close Touro Synagogue on January 1, 1901. Id. at 53 (Exhibit D445 at 14); see also Shearith Israel's minutes from July 2, 1900 authorizing closure (Exhibits D128 and D128A at 2). The Synagogue was shuttered for over a year, until a Newport group consisting mostly of members from Touro Congregation, broke into the Synagogue to pray on April 21, 1902. Id. at 53 (Exhibit D445 at 14). Relying on a state law that forbade interference with an ongoing religious gathering, the Newport group conducted a sit-in and held continuous services at Touro Synagogue for almost a year, until early 1903. Id. at 57 (Exhibit D445 at 18).

While the Newport group was occupying the Synagogue, lawyers from Newport and New York sought to resolve the issue in the courts. Shearith Israel prevailed in the Rhode Island Superior Court in May 1902, only to have the decision reversed on procedural grounds by the Rhode Island Supreme Court on June 11, 1902. Id. at 66-67 (Exhibit D445 at 27-28). Parallel to the state litigation, the Newport group was pressing its case in equity, which Shearith Israel removed to the United States District Court for the District of Rhode Island. On January 10, 1903, Judge Arthur L. Brown of this court sustained Shearith Israel's demurrer and dismissed the Newport group's case in a cryptic opinion, David v. Levy, which brought the parties back to the position they were in before litigation began. Opinion on Defs' Demul'l'er & Plea, David v. Levy, No. 2613 (D.R.I. 1903) (Exhibit

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D143); Kusinitz at 68 (Exhibit D445 at 29). The Newport group could continue in its occupation, while Shearith Israel could continue to assert its title.

Fortunately, by this point in the dispute, "attitudes softened and a spirit of conciliation once again permeated the air" both as between the two Newport congregations, which had coalesced under the banner of Jeshuat Israel, and between Newport's Jews and Shearith Israel. Kusinitz at 69 (Exhibit D445 at 30). After ,Judge Brown's decision, "[l]awyers for the New York trustees of Congregation Shearith Israel . . . approached [Newport's attorney] and posed the question of reconciliation so that the controversy could be settled once and for all." Id. Newport's attorney "indicated that if the New York group would be reasonable,

[reconciliation] could be accomplished." Id. By January 30, 1903, the pa1·ties reached a compromise that resolved the conflict for the next 100 years. Settlement Agreement (Exhibit D146).

1908 and 1908 Leases

The compromise was that Shearith Israel, which held the keys to Toure Synagogue as its trustee from the time when no Jews were in Newport, agreed to lease the Synagogue to Jeshuat Israel for five years at the nominal price of $1 per year. 1903 Lease (Exhibit D148 at 2). As part of the agreement, Jeshuat Israel could select its own minister, subject to Shearith Israel's approval, rather than Shearith Israel unilaterally appointing a minister for Jeshuat Israel. Kusinitz at 70 (Exhibit D445 at 31). That same year, Jeshuat Israel selected Touro Synagogue's first Ashkenazic rabbi, Jacob M. Seidel. Gutstein at 277. Jeshuat Israel also

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agreed in the lease to use the Synagogue according to Sephardic ritual as practiced by Shearith Israel. 1903 Lease (Exhibit 148 at 3). On February 2, 1903, Jeshuat Israel passed a resolution, directing its trustees "to surrender the possession of the Synagogue building, premises and paraphernalia belonging thereto at Newport, to the [Shearith Israel] Trustees, owners of the property," which formally ended the sit-in. Jeshuat Israel Resolution (Exhibit Dl47). On February 18, 1903, the parties signed the lease.38 1903 Lease (Exhibit Dl48). The lease39 was renewed for another five years in 1908, and never again.

The lease was a compromise that again permitted Newport's Jews to use Touro Synagogue for public worship, while maintaining Shearith Israel in its role as trustee for the building. From that point forward, Jeshuat Israel continued to use Touro Synagogue as its own with no interference from Shearith Israel. After this brief flurry of litigation at the turn of the 20th century, Jeshuat Israel and Shearith Israel did not have any major conflicts of relevance until the present.

38 Al'ound this time, Shearith Israel endeavored to include "personal property" into the terms ofthe lease, in an apparent effort to shore up its rights to Yeshuat Israel's articles of worship. On February 10, 1903, Shearith Israel's trustee L. Napoleon Levy instructed Dr. H. P. Mendes to insert the words "with the paraphernalia" into the lease, which would echo Jeshuat Israel's February 2 resolution. In the same letter, Levy gave Mendes a seven-point list of conditions to check off before Shearith Israel would hand the keys to Jeshuat Israel. February 10, 1903 Correspondence from Levy to Mendes (Exhibit D151). From this correspondence, it appears that Shearith Israel used the word "paraphernalia" to refer to "personal property." There is no evidence that Jeshuat Israel understood the term to have that meaning. Moreover, the inclusion of the term "paraphernalia" in the lease had no operative effect over the Rimonim because Shearith Israel did not own the Rimonim. See infra .

39 In its briefing, Shearith Israel refers to the 1903 and 1908 Leases as "Indentures with Lease."

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1945 Tii-Party Agreement

One noteworthy event involving both Congregations was a November 7, 1945 agreement among Jeshuat Israel, Shearith Israel, and the United States Government to protect and preserve Touro Synagogue, and to establish it as a national historic site. Tri·Party Agreement (Exhibit D240). The Agi:eement named "Shearith Israel Trustees" as "holde1·s of the fee simple title upon certain trusts in the Touro Synagogue...." Id. at 1 (emphasis added). Echoing the 1787 will of Mr. Rivera, the 1945 Agreement obligated Shearith Israel to ensure:

[t]hat the public shall be admitted to all parts of the said Touro Synagogue . . . so far as consistent with the pTeservation of the Synagogue for the use, benefit and behoof of the Jewish Society in Newport as a place ofpublic wo1·ship forever and for the maintenance of divine services in accordance with the ritual, rites and customs of the Orthodox Spanish and Portuguese Jews as practiced and observed in the Synagogue of said Congregation Shearith Is1·ael . ...

Id. at 4 (emphasis added).

The parties settled on this language after amending an earlier draft, with the

understanding that "Congregation Jeshuat Israel will not be prevented from presenting in any future Legal action the full story of the trusts originally established for the Jewish Society of Newport." Letter from William MacLeod to Jeshuat Israel dated September 25, 1945 at 4 (Exhibit P86 at 507); see also Shearith Israel Letters (Exhibits P87 and PSS) (discussing MacLeod letter).

Modern Da.y History- To the Present

Over time, the ip.teractions between Jeshuat Israel and Shearith Israel decreased. Each Congregation attended to its own business affairs, with little cause

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for communication. At some point, the parties reached an agreement that Jeshuat Israel could hire any rabbi from Yeshiva University, without seeking Shearith Israel's approval. Trial Tr. vol. 2, 55·56, ECF No. 105 (Testimony of David Bazarsky). Jeshuat Israel had also several times amended its governing documents, and by 1983, those documents no longer even mentioned Shearith Israel. Jeshuat Israel By·Laws as amended in 1969, 1983, 1987, 1994, 1999, and 2011 (Exhibits Pll6, P129, P132, P137, P146, and P216). Jeshuat Israel paid its symbolic dollar rent payment sporadically, and only once during the period from 1987 to the present. Trial Tr. vol. 3, 12-13, ECF No. 106 (Testimony of David Bazarsky). By 1993, when David Bazarsky became president of Jeshuat Israel, there was no communication between Jeshuat Israel and Shearith Israel. Trial Tr. vol. 1, 162, ECF No. 104 (Testimony of David Bazarsky) ("[W]hen I became president in 1992, nobody knew anything about Shearith Israel. We heard about Shearith Israel. We didn't know, we didn't know anything about them.").

This litigation came about when Shearith Israel objected to Jeshuat Israel's proposed sale of the Rimonim to the Boston Museum of Fine ATts. In 2008, Jeshuat Israel was struggling because of the global financial crisis. Trial Tr. vol. 4, 29, ECF No. 107 (Testimony of Bertha Ross). The Congregation adopted a series of cost cutting measures, including eliminating its part-time administrator, closing down its community center in the winter months, bidding out its insurance programs, and even scrapping its stamp machine. Trial Tr. vol. 3, 68·70, ECF No. 106 (Testimony of Michael Pimental). The only paid employee remaining at Jeshuat Israel was its

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rabbi. Trial Tr. vol. 1, 177, ECF No. 104 (Testimony of David Bazarsky). Jeshuat Israel also attempted to raise income through a one·time assessment on its members, and other fund raising programs. Trial Tr. vol. 3, 70·77, ECF No. 106 (Testimony of Michael Pimental). Nonetheless, the Congregation was "one sort of large financial responsibility away from insolvency." Id. at 78.

To solve its financial difficulties, Jeshuat Israel formed a committee to examine its assets and determine whether it could sell any of them to fund an endowment to ensure continued public Jewish worship in Newport. Trial Tr. vol. 1, 179, ECF No. 104 (Testimony of David Bazarsky) and Trial Tr. vol. 4, 29·30, ECF No. 107 (Testimony of Bertha Ross). Jeshuat Israel owned two pairs ofrviyer Myers rimonim, which it asserts were the only asset whose sale could protect Jeshuat Israel's financial future. Trial Tr. vol. 1, 182·83, ECF No. 104 (Testimony of David Bazarsky) and Trial Tr. vol. 4, 36, ECF No. 107 (Testimony of Bertha Ross). Around October 2, 2009, Jeshuat Israel engaged Christie's, an auction house and private sales broker, to seek a buyer for one pair of its rimonim. Agreement between Jeshuat Israel and Christie's Inc. (Exhibit P195); Trial Tr. vol. 4, 42·43, ECF No.

107 (Testimony of Bertha Ross). In 2011, Christie's negotiated an offer of $7.4 million from the Boston Museum of Fine Arts for the one pair of the Rimonim, which was formalized in a January 31, 2012 letter. Trial Tr. vol. 1, 188, ECF No. 104 (Testimony of David Bazarsky); Trial Tr. vol. 4, 52·53, ECF No. 107 (Testimony of Bertha Ross); Preliminary Sale Agreement (Exhibit P223). Jeshuat Israel's committee concluded that selling the Rimonim at that price would secure the

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financial future of Touro Synagogue, the Congregation, and ensure the preservation of public Jewish worship in Newport. Jeshuat Israel therefore decided to proceed with the sale. Trial Tr. vol. 4, 53, ECF No. 107 (Testimony of Bertha Ross). On June 29, 2012, Shearith Israel issued a letter demanding that Jeshuat Israel cease and desist from selling the Rimonim, and this litigation followed. Trial Tr. vol. 5, 156-57, ECF No. 108 (Testimony of Michael I. Katz); Shearith Israel Letter (Exhibit P231).

III. CONCLUSIONS OF LAW

The Court has jurisdiction over this dispute based on the parties' diversity of

citizenship and the requisite amount in controversy. 28 U.S.C. § 1332(a) (2012). When sitting in diversity, a federal court must abide by state substantive law. Hanna v. Plumer, 380 U.S. 460, 465 (1965) (citing Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)). The Court therefore turns to Rhode Island law to resolve the issues presented.

A. TOURO SYNAGOGUE AND LANDS ARE THE CORPUS OF A CHARITABLE TRUST

The first issue before the Coul't is ownership of Touro Synagogue. As explained below, the evidence is clear and convincing that Touro Synagogue is owned in trust for the purpose of public Jewish worship. Desnoyers v. Metropolitan Life Ins. Co., 272 A.2d 683, 688-91 (R.I. 1971) (holding that certain types of trusts must be proved by clear and convincing evidence). The charitable trust established for public Jewish worship over 250 years ago - lives on to this day.

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1. Legal Standard

A "trust" is a term that describes a web of legal relationships among parties and property. The four basic elements needed to create a trust are a settlor, a trustee, a beneficiary, and some trust property. A. Hess, G. Bogert, & G. Bogert,

The Law of Trusts and Tl.'ustees § 1 at 5·8 (3d ed. 2007) [hereinafter BogeTtJ. Most often, a settler creates a trust by giving legal title over trust property to a trustee, while imposing on the trustee a duty to use that property solely for the benefit of a third party, the beneficiary. Id. § 1 at 7. When the trust is a charitable one, "the beneficiary . . . is the public, or a substantial class thereof, and not the institutions or individuals who obtain and administer benefits from the trust." Id. §1 at 8.

Unlike private trusts, which must have specified beneficiaries, charitable trusts must have a public purpose:

A fundamental distinction between private and charitable trusts lies in the character of the benefits to flow from their administration. In private trusts money or money's worth is to be distributed by way of gift to the beneficiaries or in satisfaction of an obligation of the settlor. In charitable trusts the benefits to be provided through the trust are to be intangible advantages to the public or to some significant class thereof which improve its condition mentally, morally, physically or in some similar manner. The trustees pay out money and other property not for the personal benefit of the donees, but rather to secure for society certain advantages.

Bogel't § 362 at 19·20.

Rhode Island defines a charitable trust as "any fiduciary relationship with

respect to property arising as a result of a manifestation of an intention to create it and subjecting the person by whom the property is held to equitable duties to deal with the property for charitable, educational, or religious purposes." R.I. Gen. Laws

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§ 18-9-4. Therefore, the elements of a charitable trust in Rhode Island are a settlor, a trustee, some trust property, and a duty imposed by the settlor on the trustee to use that property for a charitable, educational, or religious purpose.

Creation of a trust simply requires "a present intent to make a trust or gift at the time ... [plus] an execution of the intent by some act, [which] ... must be such as to give a present right or benefit to the donee." Desnoyers, 272 A.2d at 688 (quoting People's Savings Bank v. Webb, 42 A. 874 (R.I. 1899)); see Br. of Att'y General at 61 July 10, 2015, ECF No. 95. Creating a trust does not require the settlor to use any special words or perform any particular ceremony. Ray v. Simmons, 11 R.I. 266, 268 (1875). "The intention to create a trust is the essential thing; this intention must be expressed and must be clearly established by proof, the nature of which naturally varies in different cases." Knagenhjelm v. Rhode Island Hosp. T1·ust Co., 114 A. 5, 9 (R.I. 1921). The court's inquiry into determining whether the intention to create a charitable trust exists should not be derailed by formalism. See City ofProvidence v. Payne, 134 A. 276, 280 (R.I. 1926) (counseling that equity favors charitable trusts).

The Court must rely on the totality of the "circumstances which appear in evidence" to determine whether property was "intended" to be devoted to a "charitable object." Tillinghast v. Council at Nal'l'agansett R.I, ofBoy Scouts ofAm., 133 A. 662, 663 (R.I. 1926). Even when title to land is "absolute in form," the courts will find "a charitable trust if . .. such appears to have been the [settlor's) intention." Town of S. Kingstown v. Wakefield Trust Co., 134 A. 815, 816 (R.I.

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1926). Furthermore, "trusts which cannot be upheld in ordinary cases . . . will be established and carried into effect when created to support a gift to a charitable

use." Payne, 134 A. at 280 (citing Jackson v. Phillips, 96 Mass. (14 Allen) 539, (1867)).

Jeshuat Israel argues Shearith Israel is only the legal owner and trustee for Touro Synagogue, which is dedicated to public Jewish worship. Shearith Israel argues that that it owns Touro Synagogue outright, rather than in trust. The Court finds for Jeshuat Israel.

2. Establishing the Trust

The evidence in this case is clear and convincing: the Touro Synagogue and lands have been the corpus of a charitable trust since the lands were acquired and the Synagogue built. This charitable trust was established to ensure a permanent place for public Jewish worship in Newport.

The factual circumstances around the purchase of the land and the construction of the Synagogue support the recognition of a trust. We know that the Newport Jewish community was first "taxed for the purchase of the land," and that the greater Jewish community was later solicited for funds toward the building of a temple. Gutstein at 87. It would defy common sense to think that these funds were gathered so three individuals could enrich their own stock. Primary documents from the time belie such an implausible assertion. See, e.g., July 13, 1759 receipt for contribution to building the Synagogue (Exhibit P20) (referring to Messrs. Rivera, Hart, and Levy as "trustees for building the Synagogue"). The three men

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whose names are on the deed did not own this property outright. Rather, the Jewish community of Newport, organized as Congregation Yeshuat Israel, settled the trust and selected these three men to serve as trustees.

The legal circumstances of the time explain why the deed to the property listed Messrs. Rivera, Hart, and Levy, rather than Congregation Yeshuat Israel, as the grantees. Prevailing law forbade a religious "association . . . in its aggregate name as an organization, [from] hold[ing] real estate or act[ing] as trustee." Guild v. Allen, 67 A. 855, 857 (R.I. 1907). Therefore, Y eshuat Israel itself could not own the property. As a workaround, it singled out three leaders to take title to the real estate in its stead. See Gutstein at 82-83; Kusinitz at 42 (Exhibit D445 at 3). In light of this context, the lack of trust language on the face of the original deed is not indicative of the absence of a trust. See lvlalley's Estate v. Malley, 34 A.2d 761 (R.I. 1943) (disregarding ownership attribution on the face of a document because of circumstantial evidence); Blackstone Canal Nat. Bank v. Oast, 121 A. 223, 225 (R.I.

1923) (relying on circumstances of transaction and the relationship between the relevant parties to find existence of a trust).

One need not look far beyond the Last Will and Testament of a revered leader of Congregation Yeshuat Israel, Jacob Rodrigues Rivera, to reach the conclusion that the Jews of Newport intended to establish a trust. In his January 9, 1787 Will, Mr. Rivera stated:

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One third Part thereof to me, but that the same was so done, meant and intended, in trust Only, to and for the sole Use, benefit and behoof ofthe Jewish Society, in Newport, to be for them·reserved as a Place of Public Worship forever, THEREFORE, I do for myself and my Heirs hereby remise, release, and forever quit Claim to all exclusive right, title, or Interest therein or thereto and to every part and parcel thereof, Always saving and excepting such right as I have by being A Single Member of that Society.

Rivera Will at 19 (Exhibit D16 at 2).4o

Mr. Rivera's will recited that the three named purchasers - Messrs. Levy,

Hart, and he - had always held legal title only,41 for the purpose of preserving public Jewish worship. The history of the Jews who built the Synagogue reveals the significance of that purpose. In Newport, Jews no longer had to hide their identities and pretend to believe what others forced upon them. They no longer had to fear persecution and burnings at the stake. Instead, they could gather at a beautiful temple, and say their prayers openly and proudly. Public worship was the embodiment of their freedom from oppression, and they dedicated their Synagogue to that purpose.

In his will, Mr. Rivera does not devise his interest in the Synagogue or declare that he is therein forming a trust. What he does is "declare" that he never

40 The Rivera Will is not a newly discovered archival relic. It is a much·quoted founding document in Touro Synagogue's lore, long familiar to both parties in this dispute. The existence of the trust, apparent from the face of that document, could not come as a surprise to Shearith Israel. It has been reaffirmed many times over by various documents from later in the Synagogue's history, many of which Shearith Israel signed on to. See infra.

41 "Legal title refers to that which 'evidences apparent ownership but does not necessarily signify full and complete title or a beneficial interest.' Equitable title, on the other hand, pertains to that which 'indicates a beneficial interest in property."' Bucci v. Lehman Brns. Bank, FSB, 68 A.3d 1069, 1088 (R.I. 2013) (citing Black's Law Dictiona1y 1622 (9th ed. 2009)).

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had any "exclusive right or title" to the "Synagogue." He explains that although the deed to the Synagogue named Messrs. Levy, Hart, and him as owners, that this "was so done, meant, and intended, in trust only," for the benefit of "the Jewish Society, in Newport, to be for them reserved as a place of public worship forever." Then, out of an abundance of caution, Mr. Rivera "quit claim[s]" any right to the Synagogue that a court might mistakenly attribute to him because of the language in the deed. Mr. Rivera's will is not a conveyance, but rather it is persuasive evidence that the Synagogue was always the object of a charitable trust from the time it was built to the present.

Tracing the legal ownership of the Synagogue only confirms that position. From a legal standpoint, Moses Levy was the sole trustee for the Synagogue when he died in 1792, because he was the last surviving original trustee. See Bogel't § 530 at 109 (co-trusteeship usually considered a joint tenancy under the common law). Mr. Levy did not name a successor trustee at his death, likely because his relative Moses Seixas was already taking care of the Synagogue. See supra. There are several terms that might describe Moses Seixas' role at that point - de facto trustee, constructive trustee, or trustee de son tort42 - but suffice it to say that he was subject to the same obligations as the 01·iginal trustees, and carried out those obligations. Bogert§ 529 at 104-06; see also Jones v. Katz, 325 Ill. App. 65, 80 (Ill. App. Ct. 1945) (holding that an individual who "treated the trust as an obligation to

42 "[T]rustees de son tort are not expressly declared by the settlor to be trustees but rather are deemed to be constructive trustees by operation of law, due to their meddling with trust affairs ...." Thomas and Hudson, The Law ofTrusts ir 30.03 (2d ed. 2010).

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which he had succeeded .. . and exercised the same duties and responsibilities toward the beneficiaries of the trust as though he were the original trustee" therefore "became successor trustee . . . either by construction, implication or operation oflaw .. . .").

After Mr. Seixas' death, Moses Lopez likely took over the role of acting

trustee. When Mr. Lopez left Newport in 1822, the Gould family took over on the

ground, the Touro brothers contributed the necessary funding to preserve the

Synagogue, and Shearith Israel provided religious oversight from New York. All

those parties - the Gould family, the Touro brothers, and Shearith Israel - served

a role in helping the Synagogue survive until Jews were once again practicing within its walls. By the time that Jews returned to Newport in the late 1800s, Shearith Israel was the lone surviving acting trustee for the Touro Synagogue and lands.

Numerous documents spanning centuries support the conclusion of a trust drawn from Mr. Rivera's Will. These documents include the 1894 deeds executed by several descendants of the original trustees, the 1903 and 1908 leases, a 1932 enactment by the Rhode Island legislature, the 1945 tri-party agreement, and numerous other references to Touro Synagogue trust throughout history.

The Court next turns to these documents:

• In 1894, in the face of a new Jewish settlement in Newport, Shearith

Israel attempted to shore up its legal relationship to Touro Synagogue by drafting deeds and obtaining signatures from the descendants of the

ference to the Rimonim in the record, but it is not helpful to Shearith Israel's assertion of ownership. The relevant portion of the inventory is reproduced below:

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Id. (boxes added).

The only appropriate inference the Court draws from this record is that the

Rimonim were in Shearith Israel's possession in 1869. This record does not advance Shearith Is1·ael's claim to better title, because its possession in the mid· 19th century is fully consistent with Shearith Israel's role as bailee for the Rimonim. The parties do make arguments based on the position of the ditto marks and other aspects of this inventory to support their owne1·ship claims, but these arguments are so tenuous they are most properly relegated to a footnote.65 This inventory does not advance Shearith Israel's claim to better title.66

65 Above the listing of the Rimonim is the note, "property of Kahal [written in Hebrew, meaning Congregation] in keeping of Shamas [the sexton]," and ditto marks apply this note to all of the rimonim below. Inventory at 34 (Exhibits D34 and D34A at 36). Shearith Israel focuses the Court on the first part of this phrase to argue that the Rimonim were marked as property of their Congregation, while

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c. 1894 Deeds Do Not Reinforce Shearith Israel's Ownership Claim

Shearith Israel argues that whether it originally held title to the Rimonim or if it obtained title in the 1820s, "the heirs and descendants of the colonial Newport congregation confirmed Shearith Israel's rights in the ... [Rimonim] in 1894 when they executed deeds conveying the synagogue and personalty to Shearith Israel." Shearith Israel's Post-Trial Mem., ECF No. 90 at 54. Shearith Israel further argues that the 1903 lease of the Synagogue, and the 1908 renewal of the lease, confirmed that position. Id. at 42-49.

Jeshuat Israel focuses on the second part to argue that they were in the safekeeping of the Congregation's sexton, but not the Congregation's property. The document does not allow an inference one way or the other, especially in light of the inventory's title page, which is labeled: "Inventory of all Property & Effects belonging to 01· in keeping of[the Congregation]." Id. at 1 (emphasis added).

Shearith Israel also points to the last three rimonim listed on this document, all of which have separate notations to the left attributing them as property of specific persons. Id. at 34; Trial Tr. vol. 6, 164, ECF No. 109 (Testimony of Dr. Mann). Dr. Mann argues that because the Myers Rimonim do not have an analogous notation attributing them to Yeshuat Israel, they must have always belonged to Shearith Israel. There are two problems with this argument. First, Yeshuat Israel had disbanded by this time, so it would not have been apparent to Rabbi Lyons how to attribute its Rimonim. Second, even the rimonim that are marked as property of specific persons, nonetheless have ditto marks apparently attributing the phrase "property of [the Congregation] in keeping of [the Sexton]" to them as well, which undercuts Shearith Israel's theory that those rimonim belong to the persons listed on the left.

Finally, the most that this document could indicate, which the Court holds it does not, is that Rabbi Lyons, who had conducted the inventory, believed that the Rimonim belonged to Congregation Shearith Israel as of 1869. It could not prove that Myer Myers originally made the Rimonim for Shearith Israel.

GG Dr. Mann made one more argument for Shearith Israel's original ownership: the fact that someone from Shearith Israel sent two allegedly mismatched rimonim to Touro Synagogue suggested to her that this person viewed all four finials as being the property of Shearith Israel. Trial Tr. vol. 6, 144, ECF No. 109 (Testimony of Dr. Mann). This argument is unsupported, pure speculation, and too tenuous to be credible.

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Shearith Israel points to language in the 1894 Deeds, which purport to convey the Synagogue "[t]ogether, with the appurtenances and all the estate" to its Congregation. Shearith Israel's Prop. Findings of Fact and Conclusions of Law, ECF No. 91 at 52 (citing 1894 Deeds at 2 (Exhibit D78)).67 Then on January 30, 1903, following litigation between the parties, Shearith Israel and Jeshuat Israel signed a settlement agreement, where Congregation Jeshuat Israel agreed, "to admit and recognize without qualification the title and ownership of L. Napoleon Levy and other Trustees to the synagogue building, premises, and fixtures." Settlement Agreement (Exhibit P68). Three days later, on February 2, 1903, Jeshuat Israel and Shearith Israel signed a lease agreement for Touro Synagogue, which encompassed "the appurtenances and paraphernalia belonging thereto."

1903 Lease (Exhibit D148 at 2). The same words were included in the renewed lease in 1908. 1908 Lease (Exhibit Dl74 at 1). Shearith Israel's expert, Dr. Fisher, testified that "these various terms . . . appurtenances, paraphernalia, fixtures, furnishings .. . . all refer to the same ritual items that are within a synagogue that are desirable and necessary to conduct services for a congregation." Trial Tr. vol. 8, 26, ECF No. 111 (Testimony of Dr. Fisher).

67 Shearith Israel states there are "at least nine separate deeds[, which] were executed by 57 heirs of Jacob R. Rivera, Isaac Hart, and Moses Levy." Shearith Israel's Prop. Findings of Fact and Conclusions of Law, ECF No. 91 at 52. It does not allege that every descendent was tracked down and executed a deed. Shearith Israel admits that three of the deeds, signed by 22 heirs, purport to convey the property in trust. Id. at 53. Only one of the deeds purports to convey "appurtenances of worship." Id. (citing 1894 Deed at 20 (Exhibit D78)).

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Shearith Israel's argument that the 1894 Deeds reinforce its claim to the Rimonim fails from the outset, because the Court found that Shearith Israel never held or obtained title to the Rimonim. Instead, the Court found that in the 1820s, Shearith Israel became a trustee for the Synagogue and the bailee for some of its possessions; it did not usurp ownership over everything that previously belonged to the Newport Jewish community. It never owned the Rimonim. Shearith Israel does not argue that the Deeds gave them title, and it follows that the Deeds could not "reinforce" a claim to title that was never valid. Furthermore, the Court concluded suprn. that the Deeds were legal nullities, and therefore could not have any effect on the parties' rights.

Likewise, the 1903 and 1908 leases could not create title to the Rimonim in Shearith Israel. Even if Shearith Israel purported to include the Rimonim within those leases, this action could not alter title to the Rimonim.68 In any event, the leases do not clearly refer to the Rimonim, and are therefore not nearly sufficient to overcome Jeshuat Israel's strong presumption of ownership.

5. Shearith Israel Cannot Block the Sale ofthe Rimonim

Failing in its bid to claim ownership of the Rimonim, Shearith Israel seeks to block their sale by relying on Jeshuat Israel's 1897 By·Laws. Exhibit D95. The By-

68 Shearith Israel may have believed that it owned all of the property previously belonging to Yeshuat Israel at the signing of the 1903 lease. See, e.g., 1893 letter (Exhibit D67 at 2) (identifying Shearith Israel as "Trustees and owners of the [Touro] Synagogue and personal property therein"); Shearith Israel correspondence (Exhibit D151) (instructing Shearith Israel's representatives in Newport to include the phrase "with the paraphernalia" into the 1903 lease). This belief gives short shrift to Shearith Israel's obligations as bailee, and its duties to Newport's new Jewish population as trustee for the Touro Synagogue.

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Laws vest the government of Jeshuat Israel "in the President, Vice President and three Trustees elected by this Congregation [Jeshuat Israel] and four Trustees appointed by the Spanish and Portuguese Congregation Shearith Israel . ..." 1897 By-Laws at 1 (Exhibit D95 at 2). There is no evidence of Shearith Israel appointing trustees to govern Jeshuat Israel since 1899. Compare Shearith Israel's July 1, 1897 minutes (Exhibits D99 and D99A at 1); July 1, 1898 minutes (Exhibits D105 and D105A at 2); and June 30, 1899 minutes (Exhibits D114 and D114A at 2) (appointing trustees to Jeshuat Is1·ael's board) with Shearith Israel's July 2, 1900 minutes (Exhibit D128 and D128A) (resolving to close Touro Synagogue and failing to appoint trustees). Shearith Israel does not allege that it has appointed trustees to govern Jeshuat Israel in over 110 years.

The By-Laws also restrict the sale of property owned by Jeshuat Israel "unless by unanimous vote of the members present and represented by proxy at a Special Meeting convened for that purpose." 1897 By-Laws at 8 (Exhibit D95 at 10). The By-Laws prohibit amendment to these sale restrictions and to the status of Shearith Israel's four Trustees "unless the said four Trustees of the said

Congregation Shearith Israel vote affirmatively for such proposed .. . amendment." Nonetheless, on January 28, 1945, Jeshuat Israel adopted a new set of By-Laws, which prohibited Shearith Israel's Trustees from voting by proxy. 1945 By-Laws at 18 (Exhibit P85 at 689). The 1945 By-Laws also eliminated restrictions on the sale of Jeshuat Israel's personal property, and the requirement that Shearith Israel's Trustees must affirmatively vote to change their status. Id. at 22, 37-38 (Exhibit

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P85 at 691, 698·99). Jeshuat Israel provided these amended by·laws to Shearith Israel, with no record of an objection from Shearith Israel. See Jeslrnat Israel's minutes from October 28, 1945 (Exhibit P90 at 101). Finally, in 1983, Jeshuat Israel amended its By-Laws again to remove any reference to Shearith Israel. Jeshuat Israel's 1983 By-Laws (Exhibit P129).

Over 110 years after last exercising power to appoint trustees, over 70 years after its power was restricted, and over 30 years after its power was rejected, Shearith Israel is now too late to challenge Jeshuat Israel's governance. See Puleio

v. Vose, 830 F.2d 1197, 1203 (1st Cir. 1987) ("The law ministers to the vigilant not to those who sleep upon perceptible rights.") Jeshuat Israel has adapted to Shearith Israel's abdication by running its own operations at its own discretion, and Shearith Israel's attempted takeover of Jeshuat Israel's governance at this late date would cause it prejudice. Laches bars Shearith Israel's attempt at upending Jeshuat Israel's corporate governance in this way. See Hazard v. E. HiJls, Inc., 45 A.3d 1262, 1271 (RI. 2012) (applying laches and finding prejudice when party delayed an extremely long time in bringing suit); Arena v. City ofProvidence, 919 A.2d 379, 395·96 (R.I. 2007) (applying laches in declaratory action). The Court finds that Shearith Israel cannot rely on the 1897 By-Laws to intervene in Jeshuat Israel's governance or affairs.

6. Jeshuat Israel Has Title to the Rimonim

The Court found that Congregation Yeshuat Israel was the original owner and possessor of the Rimonim. When Y eshuat Israel disbanded, it left the Rimonim

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in the care of Shearith Israel, charging it with the duty to return the Rimonim to "the Congregation [thereafter] worshipping" in Newport. Shearith Israel's minutes (Exhibits D26 and D26A at 1, 3). While Shearith Israel may have believed that it became the owner of Touro Synagogue and its contents in the 1820s, it nonetheless executed its obligations to Yeshuat Israel and returned the Rimonim to the congregation then worshiping in Newport - Jeshuat Israel. At that time, Jeshuat Israel became the lawful owner of the Rimonim, in accordance with the wishes of the original owners of the Rimonim - Y eshuat Israel.69

Since that time, Jeshuat Israel has possessed and controlled the Rimonim for over 100 years. It has used them in its public worship, insured and repaired them, and sent them on various exhibitions all across the country. Even if Y eshuat Israel had not dedicated the Rimonim to the congregation thereafter worshiping in Newport, Jeshuat Israel's long-standing possession of the Rimonim entitles it to a strong presumption of ownership, which Shearith Israel has failed to overcome. Hamilton v. Colt, 14 R.I. 209, 212 (1883) (treating possession of property as prima facie evidence of ownership). On the record before us, and in the absence of other challenges to Jeshuat Israel's title, the Court finds, as a matter of fact and law, that Jeshuat Israel is the true and lawful owner of the Rimonim. There are no outstanding challenges before this Court that would prevent Jeshuat Israel from dealing with its personal property in any manner that it deems appropriate.

69 Jeshuat Israel also argues that it is the legal successor to Yeshuat Israel. The Court does not need to reach this argument in making its decision.

-----------------------

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C. SHEARITH ISRAEL IS REMOVED AS TRUSTEE

Jeshuat Israel seeks to remove Shearith Israel from its position as trustee over the Touro Synagogue and lands. Shearith Israel argues first that Jeshuat Israel does not have standing to call for removal, and second that grounds for removal do not exist. The Court concludes that Jeshuat Israel has standing as an interested third party, and that the overwhelming weight of the evidence compels this Court to remove Shearith Israel as trustee.

1. Jeshuat Israel Has Standing to Bring an Action Removing the Trustee

Who has standing to remove a charitable trustee can be a thorny question and Tequires some further background about trust law. In private trusts, beneficiaries are the equitable owners of a trust's corpus and the natural parties to police trustees. Charitable trusts are different, because everybody - the public - benefits from their existence. By definition, charitable trusts must have a charitable purpose that benefits society, rather than just one person or group. See gene1·ally Boge1·t § 362·63 at 19·36. For that reason, states' attorneys general, as the representatives of the public, have traditionally shouldered the responsibility of enforcing charitable trusts. Id.§ 411at11·12.

Although a charitable trust must benefit the public at large, oftentimes "the settlor directs that his bounty be distributed among a class or group," which serves as the "conduit through which the settlor desires the public benefits to flow." Id. § 365 at 45. In other words, charitable trusts often work through a conduit, who uses the trust's assets to further the trust's purpose. Sometimes, courts colloquially refer

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to these conduits as "'beneficiaries', although it is more accurate to say that the real beneficiary is the public or community and the persons involved are merely instrumentalities through which the community benefits flow." Id. § 363 at 28. In Rhode Island, the party that directly benefits from a charitable trust is considered the holder of the beneficial interest in the trust, and is colloquially referred to as the "beneficiary." See Webster v. Wiggin, 31 A. 824, 827-28 (R.I. 1895) ("[T]he beneficiaries [of charitable trusts] are a succession of persons, in each of whom the beneficial interest vests from time to time, in the future, to remote ages."); Bogert§ 411at3.

When the conduit of a charitable trust is a religious organization,70 courts have often allowed it to enforce the terms of the trust, without invoking the attorney general:

If a trust exists ... to advance the cause of religion through support of [a] local church, the members and pewholders of that church have a rather certain and definite interest in the enforcement of the trust. Though the benefits will go to all in the community who elect to take advantage of the services, and also to the general public, it is nearly certain that all the members of the church will obtain some advantage. Therefore, a number of courts have allowed a church member or pewholder in such a case to sue to enforce the trust's charitable puTpose.

Bogert§ 414 at 56.

This is an altogether sensible approach that alleviates the burden on the

attorney general and involves the actual parties in interest, all without opening up the floodgates of vexatious litigation. See The Queen, the Attorney Genernl, and

10 This doctrine is not limited to religious mganizations. 91

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the lvlodern Charitable Fiducia1y: A Historical Pel'Spective on Charitable Enfol'cement Refo1·m, 11 U. Fla. J.L. & Pub. Pol'y 131, 162-63 (2000). It is also endorsed by the Restatement, which grants standing "for the enforcement of a charitable trust" to any "person who has a special interest in the enforcement of the trust." Restatement (Third) of Trusts § 94(2) (2012). Simply said, when there is a ready party that has a distinguishable interest in enforcing a charitable trust, there is no justification for also requiring the attorney general to join as plaintiff. See Cannon v. Stephens, 159 A. 234, 237 (Del. Ch. 1932).

This is true under Rhode Island law as well. Rhode Island does not vest exclusive enforcement power over charitable trusts in the attorney general. Instead, the law requires that "[t]he attorney general shall be notified of all judicial proceedings ... in any manner dealing with[] a trustee who holds in trust within the state property ... for charitable[ ] or religious purposes ... and [the attorney general] shall be deemed to be an interested party to the judicial proceedings." R.I. Gen. Laws § 18·9·5. This provision would be illogical if the attorney general were required to be a plaintiff in all such proceedings, because that would obviate the need to deem the attorney general an interested party.71 By requiring notification

71 In this action, the Rhode Island Attorney General intervened as amicus curiae and filed a post-trial memorandum expressing the opinions that Touro Synagogue is part of the corpus of a charitable trust, and that Shearith Israel is the current trustee. The Attorney General expressed no position on the issues of removal of the current trustee or on the ownership of the Rimonim. See Mot. for Leave to Intervene as Amicus Curiae, ECF No. 61; Text Order dated Apr. 22, 2015 granting Attorney's General motion to intervene ("The Court grants the motion with the understanding that the state's Attorney General, as amicus curiae, will fully assist the Court with legal and factual analysis because of its statutory and common law

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of the Attorney General, Rhode Island law presupposes that third parties may commence suit, and proceed without the attorney general as a plaintiff.72 In fact, Rhode Island state courts have entertained numerous challenges brought by interested third parties against charitable trustees, without the attorney general joining as a plaintiff. See, e.g., Darcy v. Bwwn Univ. & Pine, C.A. No. KC 94-774, 1997 WL 839894 (R.I. Super. Feb. 20, 1997) (plaintiff is potential recipient of a charitable fund for needy students); Jt!feyer v. Jewish Home for the Aged ofR.l, C.A. No. 93·5374, 1994 WL 930887 (R.I. Super. Jan. 19, 1994) (plaintiffs are residents of charitable home).

Having decided in Rhode Island that third parties may enforce charitable trusts without joining the attorney general as a plaintiff, the Court has little difficulty concluding that Congregation Jeshuat Israel has standing to do so in this case. Any concerns about vexatious litigation arising in such enforcement suits are incorporated into a standard standing inquiry. See Chu v. Legion ofChrist, Inc., 2 F. Supp. 3d 160, 171 (D.R.I. 2014) (applying standing inquiry to determine who can sue a religious charity in a different context). The standing inquiry prevents "kibitzers, bureaucrats, publicity seekers, and 'cause' mongers from wrestling control of litigation from the people directly affected." Id. at 170 (citing Valley

special interest in this matter, untethered by any restrictions on its advocacy."); and Br. of R.I. Attorney General, ECF No. 95.

72 This interpretation is consistent with the canon against surplusage, or "verba cum effectu sunt accipienda," because this entire statute would be superfluous if the attorney gene1'al were required to be a plaintiff in enforcement and removal proceedings. See, e.g., Stul'ges v. C1·owninshield, 17 U.S. 122, 202 (1819) (Marshall, J.); New Pwcess Steel, L.P. v. NL.R.B., 560 U.S. 674, 680 (2010) (applying this canon).

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Fo1-ge ChPistian Coll. v. Ams. United for Separntion of Church & State, Inc., 454 U.S. 464, 471 (1982)). These same considerations animate the inquiry into third party standing to remove a charitable trustee. Jeshuat Israel satisfies the constitutional and prudential standing requirements to bring this suit for removal because it has been the only congregation praying at Touro Synagogue for over 100 years and is now facing eviction.

a. Constitu6onal Standing

To satisfy the constitutional minimum standing requirements, a plaintiff must allege an injury in fact caused by the defendant, which could be redressed by a favorable court decision. Lujan v. Defendel's of vVildlife, 504 U.S. 555, 560 (1992). Jeshuat Israel easily satisfies this floor. Among other harms, Jeshuat Israel is facing eviction at the hands of Shearith Israel, the trustee. Am. Answer and Countercl., ECF No. 8 at 23 (asking this Court to "order the eviction of the Plaintiff [Jeshuat Israel] from the Touro Synagogue and related real property.") Potential eviction from its place of worship certainly qualifies as an injury in fact, caused by the defendant, which could be redressed by the requested relief of removing Shearith Israel as trustee.

b. Prudential Standing

The standing inquiry also incorporates three prudential considerations: "(1) whether a plaintiff's complaint falls within the zone of interests protected by the law invoked; (2) whether the plaintiff is asserting [its] own rights and interests, and not those of third parties; and (3) that the plaintiff is not asking the court to

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adjudicate abstract questions of public significance." Chiz, 2 F . Supp. 3d at 171. Jeshuat Israel again easily satisfies all th1·ee. The zone of interests protected by the process of removing a charitable trustee includes protecting the interests of third parties who serve as conduits of the trust's benefits. Here, Jeshuat Israel is asserting its own rights and interests because it has been worshiping at Touro Synagogue since the late 1800s, and it has developed strong ties to the building and lands.73 Finally, as Shearith Israel admits, there is "a live dispute and controversy ... over the ownership, rights, status, and legal relations relating to the building, real estate, and any and all personalty used by or for Touro Synagogue." Am. Answer and Countercl., ECF No. 8 at 20. If any third party has standing to enforce this charitable trust, that party is Congregation Jeshuat Israel.

2. Shearith Israel's Conduct Requires its Removal as Trustee

Shearith Israel's single role as charitable trustee is to ensure the preservation of Touro Synagogue for public Jewish worship. When Jews returned to Newport, Shearith Israel executed its duties by facilitating the use of the Synagogue by the new community. In 1903, after some unfortunate legal spats, Shearith Israel again executed its duties as trustee by leasing the Synagogue to

73 Jeshuat Israel is the only congregation that presently prays at Touro Synagogue, and some of its members' families have been praying there for four generations. Trial Tr. vol. 1, 104, 112, ECF No. 104 (Testimony of David Bazarsky). Jeshuat Israel has also purchased land abutting the Synagogue, and built a visitor center there, from where it runs tours from Memorial Day through Columbus Day. Id. at 118·19.

Furthermore, Jeshuat Israel is the only Jewish congregation in the city of Newport. Id. at 128. Of the 1,000 Jews or 300 Jewish families living in the six towns of Newport, Middletown, Portsmouth, Jamestown, Tiverton, and Little Compton, approximately 100 families belong to Touro Synagogue. Id. at 128·29.

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Jeshuat Israel for only a nominal fee. By this action, Shearith Israel recognized that Jeshuat Israel is the representative of the Jews of Newport. Since that time, Jeshuat Israel has been the only congregation worshiping at Touro Synagogue.

"Trustees exist for the benefit of those to whom the creator of the trust has given the trust estate." Petition of 275 A.2d 272, 276 (R.I. 1971). In this case, Yeshuat Israel created the trust estate for the benefit of public Jewish worship, which can only be accomplished if Jews have access to the Synagogue. Under Rhode Island law, the present beneficial interest in the charitable trust is held by Jeshuat Israel. See Webster, 31 A. at 827-28 (holding that beneficial interest in a charitable trust vests in the party receiving its benefits). Shearith Israel's single obligation is to act for the benefit of Jeshuat Israel, unless doing so no longer ensures public worship at Touro Synagogue.

Removal of Shearith Israel as trustee is appropriate because it has strayed from that obligation. See Petition of 275 A.2d at 276 ("In deciding [removal] cases, the court's paramount duty is to see that the trust is properly executed and that beneficiaries are protected.") Specific grounds for removal can include a serious breach of trust, a lack of cooperation between the trustee and beneficiary, or even a substantial change of circumstances. See generally Unif. Trust Code § 706(b) (Removal of Trustee). Here, Shearith Israel repudiated the existence of the trust and sought to evict Newport's only Jewish congregation from the trust estate. Furthermore, the conditions that required Shearith Israel to step in as acting trustee no longer exist. In these circumstances, the Court finds it

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necessary to remove Shearith Israel from its position as trustee, for the reasons stated below.

a. Sel'ious Breach ofTrust

No breach of trust is more egregious than when a trustee claims to own the trust property outright, and refuses to admit the trust's very existence. "[R]epudiation of the trust is a clear ground of removal even though the trust property has not yet been devoted to personal uses." Bogert§ 527 at 87; see also In Te Matthew W.T. Goodness Trust, No. PM/08-7349, 2009 WL 3328364, at *6-7 (R.I. Super. May 4, 2009), 5-8 (discussing appropriation of trust property by trustees as grounds for removal) .

In this action, Shearith Israel claims to own the trust property - Touro Synagogue - outright, and refuses to acknowledge that a trust exists. Shearith Israel claims in its pleadings that "[f]or over 100 years Shearith Israel has owned the Touro Synagogue, including its land, building, and religious objects," and seeks "a declaration of Shearith Israel's ownership of legal and equitable rights in the Rimonim along with the land, building, and other personalty used by Touro Synagogue . . . . " Am. Answer and Countercl., 7, 9, ECF No. 8. Shearith Israel denies that Jacob Rodrigues Rivera's Will and Testament provided sufficient evidence of a trust, and repudiates any acknowledgement of a trust that could be gleaned from the 1894 deeds, the 1945 Agrnement with the federal government, or any other sources. Shearith Israel's Post-Trial Mem., ECF No. 90 at 60-68. At

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closing argument, when the Court directly asked Shearith Israel about this issue, it provided the following response:

Our position . . . is that Shean'th Israel owns equitable and legal title, and the title is subject to a condition.... And when we obtained title, it was with the understanding that there was going to be a public place of Jewish worship in accordance with the specific kind of ritual forever. That is how we hold it. We will have breached - I'm not sm·e who can enforce it at that point- but will have breached it if we ever tried, if we turned it into a bowling alley or a bingo alley. So there is plenty that we have the right to do.

Trial Tr. vol. 9, 156·57, ECF No. 112 (Shearith Israel's Closing Argument) (emphasis added). In its briefing, Shearith Israel doubled down on its position, arguing "the Shearith Israel trustees ... hold [the Touro Synagogue] property for the benefit ofSheal'ith Israel." Shearith Israel's Post·Trial Rebuttal Mem., ECF No. 97 at 80 (emphasis added).

Sheat·ith Israel's claim to own legal and equitable title to Touro Synagogue renders it unsuitable to act as trustee. By claiming to own the Synagogue outright, Shearith Israel committed a serious breach of trust. Such a renunciation of one's role requires a trustee's removal.

b. Lack ofCooperatio11

"When friction between the trustee and beneficiary ... impairs the proper administration of the trust . . . or if the trustees' continuing to act as such would be detrimental to the interest of the beneficiary, the trustee may be removed." Petition of 275 A.2d at 276. Charitable trustees are subject to the same standard. See Nugent ex rel. Lingard v. Hal'l'is, 184 A.2d 783, 785 (R.I. 1962) (stating that a charitable trustee's "lack of sympathy for the objects of the trust" is grounds for

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removal).74 The animosity between the parties is evaluated by a subjective standard from the point of view of the holder of the equitable interest. See Petition of 275 A.2d at 276 ("When the ill feeling has reached the point that it interferes with the administration of the trust, the trustee may be removed even though the charges of his misconduct are either not made out or greatly exaggerated." (internal citations omitted)).

Congregation Jeshuat Israel is currently the holder of the equitable interest in the Touro charitable trust. It has used the Synagogue for public Jewish worship for over 100 years. As discussed infra, the trustee, Shearith Israel, has not had any relationship with the trust property or with Jeshuat Israel for at least the past 20 years. Furthermore, Shearith Israel's positions in the current litigation have engendered such animosity in the relationship, that its continued service as trustee would be detrimental to the trust's purpose.

Jeshuat Israel had absolutely no relationship with Shearith Israel when David Bazarsky became president of Jeshuat Israel in 1993.75 Trial Tr. vol. 1, 162, ECF No. 104 (Testimony of David Bazarsky). Mr. Bazarsky testified that during his

7·1 Rhode Island law recognizes that the conduits of charitable trusts often occupy the same position as the beneficiaries of private trusts, and are entitled to similar rights and protections. See Webstel', 31 A. at 827·28; see also R.I. Gen. Laws§ 18·9· 16 ("A charitable trust . .. may be terminated at any time ... with the consent of .. . Unter alia] the beneficiary or beneficiaries by delivery of the assets to the beneficiary or beneficiaries."); see also R.I. Gen. Laws § 18·9·9 (beneficiary, among other parties, must comply with attorney general's investigation into administration of charitable trust); § 18·9·10 (similar); § 18·9·11 (similar); § 18·9· 13(a) (charitable trustee shall make annual written report that includes names and addresses of trust's beneficiaries).

75 The Court found Mr. Bazarsky to be a credible witness, and his testimony was compelling.

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tenure as president, he unsuccessfully attempted to reestablish a connection with Shearith Israel. In 1996, he organized a trip to New York to meet with members of Shearith Israel, in part to discuss fundraising efforts to restore Touro Synagogue. Id. at 163-64. He summarized Shearith Israel's response as, "[w]e're not paying; [w]e're not giving you any money; [y]ou're on your own.... We have our own synagogue to take care of, [w]e're not taking care of your synagogue." Id. at 165. He testified that Shearith Israel even refused to provide Jeshuat Israel's delegation with its membership list, because they did not want Jeshuat Israel syphoning off its members' resources. Id. Mr. Bazarsky reported that Jeshuat Israel's delegation left that meeting with the impression that Shearith Israel had "no interest in us." Id. at 166. Mr. Bazarsky's impression was confirmed by another fruitless meeting between the two Congregations about restoring Touro Synagogue in 2004. Id. at 166-69. The record is entirely devoid of any meaningful interaction or cooperation between the two Congregations for the past several decades. This shows a lack of sympathy by trustee Shearith Israel toward the object of the charitable trust.

Through this litigation, Shearith Israel is seeking to evict Jeshuat Israel from Touro Synagogue, without any other congregation standing ready to take its place. This act would undermine the very reason for the trust's existence - public Jewish worship in Newport. Witnesses for Jeshuat Israel have testified with one voice that the eviction threatened by Shearith Israel "would be devastating . .. [because] it would be the destruction of . .. the congregation." Trial Tr. vol. 1, 126-27, ECF No. 104 (Testimony of David Bazarsky).

100

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Bertha Ross, the current co·President of Jeshuat Israel, described the relationship between the two Congregations as follows: "I would say there is a lot of friction, a lot of tension between the organizations. I think Shearith Israel has been disloyal to us." Trial Tr. vol. 4, 56, ECF No. 107.76 Ms. Ross concluded that Jeshuat Israel could no longer work with the leadership of Shearith Israel. Id. Shearith Israel offered no evidence to refute this testimony of an acrimonious relationship between the two Congregations.

Shearith Israel's bid to evict the only organized Jewish congregation in Newport from Touro Synagogue does not bode well for its continuing capacity to maintain the Synagogue for public Jewish worship. The contentious course of this litigation also renders unlikely "the smooth functioning of the [t]rust" with Shearith Israel as trustee. See Dennis v. Rhode Island Hosp. Trust Nat. Bank, 571 F. Supp. 623, 639 (D.R.I. 1983) affd as modified 744 F.2d 893 (1st Cir. 1984) (citing parties' litigation positions, rather than any conduct by trustee, as independent reason for removal). In sum, the Court finds that the lack of cooperation between Jeshuat Israel and Shearith Israel over at least the past 20 years, and the recent animosity between the parties engendered by this litigation, require the removal of Shearith Israel from its role as trustee.

c. Substantial Change ofCircumstances

Shearith Israel was a valuable trustee for Touro Synagogue from the 1820s through the 1880s, when no Jews were permanently settled in Newport. Several

76 The Court found Ms. Ross to be a credible witness, and her testimony was compelling.

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times during those lean decades, Shearith Israel sent its own religious representatives to officiate lifetime events in Newport. See supra. While the Synagogue was maintained and restored with funds from the Touro brothers, Shearith Israel stepped in to provide a religious lifeline to the Newport Jewish tradition.

Likewise, Shearith Israel was instrumental in restarting organized Jewish worship at Touro Synagogue by sending its own officials to hold regular services there in the late 1800s. It then arranged for the father of its own rabbi to relocate from London to Newport and serve as Touro Synagogue's first permanent rabbi for Newport's new Jewish community. In sum, despite some discord at the turn of the 20th century, Shearith Israel contributed positively to Newport's Jewish revival.

These events all took place well over 100 years ago. In the meantime, Shearith Israel's involvement with public Jewish worship in Newport waned. By 1993, there was no longer any communication between Shearith Israel and Jeshuat Israel. It is natural that Shearith Israel's involvement with Touro Synagogue receded over the last several decades, while Jeshuat Israel has assumed responsibility for the building and lands. Speaking plainly, Shearith Israel has long ago ceased to function as the trustee.

Shearith Israel's attempt to disturb that desuetude by seeking to evict Jesh"uat Israel from Touro Synagogue in this legal action is contrary to its duties. It did not need to do so to prosecute its claim for the Rimonim.

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By disavowing the trust and seeking to evict Jeshuat Israel from its place of worship, Shearith Israel has shown itself unfit to continue to serve as trustee. The law and the evidence in this case support removing Shearith Israel from its position as trustee over the Touro Synagogue and lands, and the Court does so now. As a result, Shearith Israel no longer holds legal title to Touro Synagogue.

D. THE COURT APPOINTS JESHUAT ISRAEL AS THE NEW TRUSTEE

Having removed Shearith Israel, this Court must next address the question of who shall serve as the new trustee. The documents the Court relied upon to find that the trust exists, do not name a residuary trustee. In this circumstance, the trial court is authorized to appoint an appropriate successor trustee. Lux v. Lux, 288 A.2d 701, 705 (R.I. 1972) (citing R.I. Gen. Laws§ 18·2·1) ("the Superior Court . . . is authorized to appoint a trustee whenever an instrument creating a trust fails to name the residuary fiduciary"). Because this Court, when sitting in diversity, has the same role as the state superior court, and because it is familiar with the parties and issues animating this charitable trust, this Court will exercise its power to appoint a new trustee in order to avoid an interruption in the operations of Touro Synagogue .

"A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate." Cuzzo11e v. Ploul'de, No. 03-0524, 2005 WL 2716749, at *3 (R.I. Super. Oct. 17, 2005) (quoting Meinhard v. Salmon, 249 N.Y. 458, 464 (1928)

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(Cardozo, C.J.)). The new trustee must serve with "the punctilio of an honor the most sensitive" in the furtherance of the trust's original purpose, passed down from Yeshuat Israel through Jacob Roch·igues Rivera's Will, by preserving the Touro Synagogue and lands for public Jewish worship. Id.

For over 100 years, Congregation Jeshuat Israel has done exactly that. Jeshuat Israel "maintains the synagogue [and] pays the utilities ... rnow[s] the lawn . .. [and] make[s] repairs on the synagogue." Trial Tr. vol. 4, 17, ECF No. 107 (Testimony of Bertha Ross). But more than just taking care of the building, Jeshuat Israel has ensured that Touro Synagogue is available for public Jewish worship. It holds services at Touro Synagogue at least twice a week, which are open to any member of the public. Trial Tr. vol. 1, 104, 112, ECF No. 104 (Testimony of David Bazarsky). In the summer, the Congregation opens up the Synagogue seven days a week to accommodate visitors from all over the world. Id. at 117, 119. The

Congregation also offers free membership to naval officers serving at the nearby Naval War College. Id. at 118. Significantly, Jeshuat Israel is the only Jewish congregation in the city of Newport. Id. at 128.

This litigation has clarified that Jeshuat Israel is the party responsible for public Jewish worship in Newport. Even without the Court's appointment, Jeshuat Israel has been executing all of the duties of a trustee for many years. Evicting it from Touro Synagogue is unthinkable. Appointing it as the legal owner and trustee for the Synagogue only recognizes in law, that which is already obvious in fact.

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IV. CONCLUSION

A. PLAINTIFF'S CLAIMS

I. The Court finds for Plaintiff, Congregation Jeshuat Israel as to Count I and DECLARES, pursuant to the Uniform Declaratory Judgments Act, R.I. Gen. Laws §§ 9-30·1, et seq., that Congregation Jeshuat Israel is the true and lawful owner of the Rimonim, with full power to sell and convey them, and to deposit the proceeds of such sale into an irrevocable endowment; and

II. The Courts finds that Count II is moot in light of its finding on Count I and therefore DISMISSES Count II; and

III. The Courts finds that Count III is moot in light of its finding on Count I and therefore DISMISSES Count III; and

IV. The Court finds for Plaintiff, Congregation Jeshuat Israel as to Count IV and DECLARES that the Touro Synagogue and its lands are owned in a charitable trust for the purpose of public Jewish worship. The Court orders the removal of Congregation Shearith Israel as trustee over that Touro Synagogue charitable trust. The Court appoints Congregation Jeshuat Israel as trustee of the Touro Synagogue and its lands; and

V. The Court dismisses Count V because the declaration sought is overly broad and therefore not justiciable.

B. DEFENDANTS COUNTERCLAIMS

The Court DISMISSES all of Congregation Shearith Israel's counterclaims. Both parties' requests for attorneys' fees and costs are DENIED.

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John J.McConnell, Jr. United States District J udge

l\!Iay 16, 2016

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