Touro Decision part 2

53

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 54 of 106 PagelD #: 6386

Synagogue's original trustees. See supra. Several of these deeds explicitly stated that the Synagogue is subject to a trust. 1894 Deeds (Exhibits P50 at 4506, P51 at 4545, and P53 at 84) ("To have and to hold, the above gl'anted premises .. . IN TRUST ...."). It is telling that even when Shearith Isl'ael was drafting documents that purported to give it a legal stake in the Synagogue, it acknowledged the existence of a trust.

• Recurring legal disputes between the Newport Jewish community and Shearith Israel about control of Touro Synagogue marked the period at the tail end of the 19th and the beginning of the 20th century. See supra. The culmination of this discord resulted in a lease of the Synagogue by Shearith Israel to Jeshuat Israel for the symbolic price of $1 per year.43 In that lease, signed in 1903 and renewed in 1908, the representatives of Shearith Israel identified themselves as "Trustees." 1903 Lease (Exhibits P71 at 473 and D150 at 2) and 1908 Leases (Exhibit P76 at 1). The lease was consistent with the terms of the trust because Shearith Israel obligated Jeshuat Israel to use the Synagogue "for the maintenance of ... religious services."44 Id. These leases show Shearith Israel acting as trustee for Touro Synagogue.

43 As trustee, Shearith Israel had the right and obligation to make the Synagogue available for Jewish worship. The nominal price of $1 reflected the lessee's equitable right to worship there.

44 Shearith Israel specifies that the religious services must be conducted in the same manner as those practiced in its own Congregation, which this Court finds is not a requirement of the charitable trust. See infra.

54

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 55 of 106 PagelD #: 6387

• In 1932, the Rhode Island General Assembly enacted legislation exempting from taxation "[t]he property located on the corner of Touro and Division streets in the city of Newport," because the property was "held in trust" and used by Congregation Jeshuat Israel "for religious and educational purposes." Rhode Island Acts and Resolves 427, Jan. 1932 (Exhibit P287 at 3076). This declaration by the Rhode Island Legislature served as a public affirmation of the trust's existence and purpose.

• In 1945, Jeshuat Israel, Shearith Israel, and the United States Government entered into a tri-party agreement about the maintenance of the Synagogue. The agreement recognized that "the Shearith Israel Trustees [are] holders of fee simple title upon certain trusts in the Touro Synagogue." Tri-Party Agreement at 1 (Exhibit D240 at 1) (emphasis added). By this recognition, Shearith Israel again acknowledged that its legal title to Touro Synagogue is subject to obligations under "certain trusts." The remainder of the document reveals that Mr. Rivera's 1759 Will dictated the substance of those obligations. In the agreement, Shearith Israel Trustees covenanted to ensure:

[t]hat the public shall be admitted to all parts of the said Touro Synagogue . . . so far as consistent with the preservation of the Synagogue fo1· the use, benefit and behoof of the Jewish Society in Newport as a place of public worship 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 Israel . . . .

55

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 56 of 106 PagelD #: 6388

Id. at 4 (emphasis added). While the second part of the duty, (to worship according to certain "rituals, rites and customs"), is selfimposecl by the 1894 deeds Shearith Israel drafted, the emphasized portion comes directly from Mr. Rivera's Will. The Tri-Party Agreement is effectively an admission by Shearith Israel that it is obligated by the terms of Mr. Rivera's Will.45

• As recently as 1996, Shearith Israel's vice president Alvin Deutsch (who later became president) reaffirmed that his Congregation is bound by the trust when he referred to Shearith Israel as "trustee of the building" in conversation with Jeshuat Israel's then-president. Trial Tr. vol. 1, 157, 160, ECF No. 104 (Testimony of David Bazarsky). Mr. Bazarsky's testimony is uncontroverted on that point.

***

Taking all the evidence together, the "proof of an intention" on the part of the Newport Jewish community "to establish a trust" for public worship is "clear and satisfactory." Blackstone Canal, 121 A. at 225. The history, the documents, and the actions of the parties involved with Touro Synagogue confirm that it was built by the community to provide a permanent place for public Jewish worship in Newport,

45 Jeshuat Israel's minutes from the time of the agreement evidence that incorporating language from Rivera's will and "[s]ubstituting the word trustees for ownership" were thoughtful revisions to an earlier draft, and that "the revised agreement was accepted by the C[ongregation] S[hearith] Hsrael]." Jeshuat Israel's minutes (Exhibit P89 at 2). Shearith Israel's minutes note that Shearith Israel's Trustees and Clerk signed the agreement, "who hold the property in trust . . " Shearith Israel's minutes (Exhibit P91).

56

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 57 of 106 PagelD #: 6389

and is held in trust for that purpose. Certainly, Shearith Israel has helped the Synagogue remain dedicated to that purpose during the time when there was no permanent Jewish settlement in the city. By its actions, Shearith Israel assumed the role of trustee over the Synagogue, and continued in its role when Jews returned to Newport. However, Shearith Israel never did, nor could it, convert its role as trustee into an equitable title to the Synagogue. Shearith Israel is obligated - just as Messrs. Rivera, Levy, and Hart once were - to preserve the Synagogue for the benefit of public Jewish worship in Newport. The Synagogue itself is the corpus of a charitable trust dedicated to that venerable purpose.

3. The Trust is for El Valid Charitable Purpose

The foregoing section sets forth the facts and law establishing that the Touro

Synagogue and lands are the corpus of a trust; that the settlor was Congregation Yeshuat Israel; and that the original trustees were Messrs. Rivera, Hart, and Levy. The final element to finding this trust valid is that it must have a charitable purpose. This one clearly does. "It is well established that a trust creating a place for public worship for the benefit of an indefinite number of persons is a good and valid trust to a charitable use." Buchanan v. McLyman, 153 A 304, 305 (R.I. 1931); see also Bmwn v. lvleeting St. Baptist Soc'y, 9 R.I. 177 (1869); Guild v. Allen, 67 A 855, 857 (R.I. 1907); B1·ice v. All Saints Mem'l Chapel, 76 A. 774, 781 (R.I. 1910);

Todd v. St. Ma1y's Church, 120 A. 577, 578 (R.I. 1923).46

46 Dedicating property for a charitable religious purpose was recognized under Rhode Island's common law, and is explicitly permitted under the state's current statutory law . R.I. Gen. Laws § 18·9·4 ("'Charitable trusts' . . . means any fiduciary relationship ... subjecting the person by whom the property is held ... to deal with

57

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 58 of 106 PagelD #: 6390

The best evidence about the purpose of this trust comes from the time closest to its creation, which in this case is Mr. Rivera's Will. The will recited that the property is "reserved as a Place of [Jewish] Public Worship forever." Rivera Will (Exhibit D16 at 2). Because the trust created a place for public worship for an indefinite number of persons, the Court concludes it has a valid charitable purpose.

4. Shearith Israel's Arguments against the Trust Are Unpersuasive

Shearith Israel has taken the position that no trust exists and that it alone owns the legal and equitable title to the Synagogue. Am. Answer and Countercl., Dec. 6, 2012, ECF No. 8 at 7, 9; Shearith Israel's Post·Trial Mem., ECF No. 90 at 60·68; Trial Tr. vol. 9 at 156·57, ECF No. 112 (Shearith Israel's Closing Argument). It poses five arguments against the existence of a trust. None is persuasive.

the property for . . . religious purposes.") (emphasis added). This purpose would also likely have been recognized as valid in the Colony of Rhode Island and Providence Plantations at the time of the trust's formation. See The Queen, the Attorney Genel'al, a.nd the Moden1 Chal'l'ta.ble Fiducia.1y: A Historical Pe1·spective on Charitable Enfol'cement Reform, 11 U. Fla. J.L. & Pub. Pol'y 131, 139 (2000) (characterizing religious charities as predating even the Statute of Elizabeth of 1601); 43 Eliz. c. 4, 1601 (liberalizing charitable trust law); Comm'rs ofIncome Tax v. Pemsel, (1891) A.C. 53L David Villar Patton (listing the advancement of religion as a valid charitable purpose under the Statute of Elizabeth); De1·by v. Del'by, 4 R.I. 414, 437·39 (1856) (reciting the history of Rhode Island's "Act to Redress the Misemployment of Lands, Goods, and Stocks of Money, heretofore given to certain Charitable Uses" (1721)); Howard S. Miller, The Legal Foundations of Amel'ica.n Philanthropy 1776·1844, The State Historical Society of Wisconsin Madison, 1961, 17 (describing Rhode Island's 1721 Act as "even more permissive" than the Statute of Elizabeth). But see Bogert § 376 at 153 (questioning whether Statute of Elizabeth permitted charitable trusts for general religious uses and citing Gray, J., in Jackson v. Phillips, 96 Mass. (14 Allen) 539 (1867)) . Even if the colonial courts would not have recognized the trust in 1759, the trust persisted and is valid under Rhode Island's current common and statutory laws.

58

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 59 of 106 PagelD #: 6391

First, Shearith Israel argues that it became the owner of Touro Synagogue when the Jewish community left Newport in the 1820s, and confirmed its exclusive ownership via the 1894 deeds. Shearith Israel's Proposed Findings of Fact and Conclusions of Law, June 29, 2015, ECF No. 91 at 35·40, 43·46. That argument does not bear out in law or fact. Touro Synagogue was the corpus of a charitable trust from its inception, and nothing that Shearith Israel did or the trustees' descendants signed, altered that trust. See Wakefield Tl'ust Co., 134 A. at 817 (holding that passage of time, period of disuse, and even statutory enactments do not alter title of property owned in a charitable trust.)

Shearith Israel asserts that the 1894 deeds conveyed full title and ownership of the Synagogue to it. However, because the Synagogue and lands were always owned in trust, neither the original trustees nor their descendants ever held equitable title, and so did not have full title to convey. Moreover, because the descendants had never exercised the responsibilities of a trustee, they could not transfer that role. Shearith Israel assumed legal title and the role of trustee not because of the 1894 deeds, but because of its active involvement in the affairs of the Touro Synagogue when no Jews remained in Newport. The deeds are legal nullities with absolutely no effect on the rights adjudicated in this litigation.47

47 Even if the 1894 deeds had some legal significance, they would not alter the outcome of this suit. Contrary to Shearith Israel's assertion that they confirmed its legal and equitable ownership, several of the deeds only purported to give Shearith Israel ownership "in trust." Furthermore, Shearith Israel has not produced evidence that it has collected signatures from all of Moses Levy's descendants. These shortcomings alone would have precluded the deeds from giving Shearith Israel equitable ownership of the Synagogue.

59

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 60 of 106 PagelD #: 6392

Shearith Israel's second argument is that two court decisions from the early 1900s preempted several of the claims and issues in this case. Shearith Israel's Post·Trial Mem., ECF No. 90 at 77·84. The Court disagrees. The first suit was a 1901 replevin action over a single Torah for which no primary documents survive. Kusinitz at 53 (Exhibit D445 at 14). The second was a 1903 federal action, which was dismissed on demurrer. Op. on Defs' Demurrer & Plea, David v. Levy, No. 2613 (D.R.I. 1903) (Exhibit D143).

No claim or issue preclusion can apply to the 1901 replevin action because the Court does not have sufficient information about the issues in dispute or the legal reasoning used to decide that case. The case appears to have concerned a single, recently purchased Torah scroll, and the outcome appears to have permitted the scroll to remain in Touro Synagogue. Kusinitz at 53 (Exhibit D445 at 14). The outcome of that case does not bar the Court from finding the existence of a charitable trust or deciding the ownership of the Rimonim.

David v. Levy, which the court dismissed on demurrer in 1903, also does not result in claim or issue preclusion. As Shearith Israel correctly identified, a dismissal on demurrer is "the equivalent today of a motion to dismiss for failure to state a claim." Shearith Israel's Post·Trial Mem., ECF No. 90 at 79; see also 5 BC. Wright & A. Miller, Federal P1·actice and Procedure§ 1355 at 351 (3d ed. 2004). For claim preclusion to apply, a court's judgment must be "upon the merits." Cromwell

v. Sac Cty., 94 U.S. 351, 352 (1876). While today, dismissals for failure to state a claim are considered on the merits, this is largely the result of the liberalized

60

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 61of106 PagelD #: 6393

pleading requirements and the right of amendment afforded by the Federal Rules of Civil Procedure established in 1938. 18 J. Moore, Moore's Federnl P1·actice - Civil § 131.30[3][e] at 108.1, 109 (Matthew Bender 3d ed. 2016) . David v. Levy was decided well before that, when such dismissals were not generally considered upon the merits. See Gould v. Evansville & C. R.R. Co., 91 U.S. 526, 533-34 (1875). Therefore, it would not be equitable to apply preclusive effect to a decision that did not carry such effect when it was made, and the Court declines to do so now.48 18 Moore's Federnl Practice - Civil§ 131.30[3][e] at 108.1, 109.

In its third argument against the existence of a trust, Shearith Israel challenges the veracity of Mr. Rivera's claim in his will that Mr. Hart earlier conveyed his one-third interest to Mr. Rivera. Shearith Israel's Post-Trial Mem., ECF No. 90 at 62 ("[b]ut no independent evidence of [Mr.] Hart's will exists - no evidence of the alleged conveyance."). At the outset, the Court notes that this point

48 The court in Da.vid v. Levy appears to grant the demurrer for four reasons, none of which goes to the merits. The reasons are 1) none of the plaintiffs claimed to be a Jew, 2) the plaintiffs did not allege sufficient facts that would give them an equitable or legal interest in the Synagogue or lands, 3) the plaintiffs claimed to be the Jews of Newport rather than members of the Jewish Society in Newport, and 4) the plaintiffs proceeded with unclean hands (they had broken into the Synagogue). Op. on Defs' Demurrer & Plea, David v. Levy, No. 2613 (D.R.L 1903) (Exhibit D143). The first three reasons for dismissal do not go to the merits because an amended complaint could have easily addressed them. The last reason - unclean hands - also does not go to the merits or result in claim preclusion. See Keystone Dl'illel' Co. v. Nw. Eng'g Co1p., 294 U.S. 42, 44 n.2 (1935); see also Apthf: Co1p. v.

Quick.turn Design Sys., Inc., 269 F.3d 1369, 1377 (Fed. Cir. 2001). Finally, to the extent that Davi'd v. Levy bases the demurrer on other grounds, those grounds are not decipherable to this Court and are too ambiguous to bar the current litigation. See Co1p. of Presiding Bishop of Church of Jesus Christ of LatterDay Saints v. Hodel, 830 F.2d 374, 380 (D.C. Cir. 1987) (affirming refusal to apply res judicata because decision "was ambiguous on its face").

61

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 62 of 106 PagelD #: 6394

is not relevant to the outcome of this case. The only interest that Mr. Hart ever owned was his legal interest as trustee, and nothing in this case turns on whether Mr. Hart conveyed this interest to Mr. Rivera. Furthermore, there is absolutely no evidence suggesting that Jacob Rodrigues Rivera mischaracterized the original transaction or fraudulently conveyed property that belonged to Mr. Hart and Mr.. Levy. See Blackstone Canal, 121 A. at 225 (noting that preference is to be given an interpretation "which assumes that [an] act was performed with a right rather than a wrong intention."). It appears much more likely that Mr. Hart conveyed his legal interest to Mr. Rivera, than that Mr. Rivera fabricated this conveyance in a will that was then publicly probated.49 Accordingly, the Court finds that Mr. Hart did convey his legal interest to Mr. Rivera.

Fourth, Shearith Israel protests that the will of Moses Levy "makes absolutely no mention of any trust," which "makes patently clear that at least 1/3 of the Touro land cannot possibly be held in trust." Shearith Israel's Post-Trial Mem., ECF No. 90 at 62. This Court finds more persuasive, given all the circumstances in this case, the explanation that Mr. Levy's will did not mention the Touro land

49 Mr. Rivera was a man who occupied one of the "highest position[s] in the commercial, social, and religious life of the growing and prospering Jewish community of Newport before the American Revolution," and was eulogized as a man "very much respected for his integrity and benevolence." Gutstein at 71, 166 (quoting a contemporaneous obituary in a Newport newspaper). Gutstein recounts an anecdote about Mr. Rivera's famed scrupulousness. Mr. Rivera's business had failed and he needed recourse to the bankrupt act, which eliminated his debts. When Mr. Rivera again entered into business and regained his wealth, "he arranged a banquet to which he invited all his former creditors. When all were seated at the banquet table and had removed the napkins from the plates, they found a check for the amount of their debts, together with interest on the money for the entire time." Id. at 166.

62

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 63 of 106 PagelD #: 6395

because Mr. Levy never believed that he had any equitable ownership interest in it, and therefore had nothing to convey. That explains why Mr. Levy did not devise his purported one·third interest to anyone, despite devising his other real property interests. See Levy Will (Exhibit Dl8 at 2·3) (devising interests in Newport dwelling house, spermacetae factory, and adjoining lands). When Mr. Levy's will is read in light of Mr. Rivera's, which three years earlier explained the nature of the legal relationship between the original trustees and the Synagogue, it is clear that Mr. Levy also viewed himself as only a trustee. Before he died, his duties in that capacity had already passed into the able hands of his relative, Moses Seixas. See sup1·a.

Mr. Levy did mention the Synagogue in his will once, forgiving all debts owed to him for the construction of the Synagogue, on condition that prayers are said in his name. Levy Will (Exhibit D18 at 1). This statement is further proof that the Synagogue was owned in trust, and that Messrs. Rivera, Hart, and Levy were its trustees. There are two reasons for this. First, this statement shows that Mr. Levy viewed his contributions to the Synagogue's construction as a loan to be repaid, rather than as an investment in its property value, as would have been expected if he owned an equitable interest in the Synagogue. Second, the condition requires the Jews of Newport to pray in Mr. Levy's name, in exchange for the discharge of the debt, which implicitly recognizes the Jews of Newport as the beneficial owners of the Synagogue. This condition is consistent with the finding that Touro Synagogue is the corpus of a charitable trust.

63

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 64 of 106 PagelD #: 6396

Fifth, Shearith Israel argues that the 1903 and 1908 leases, which identified Shearith Israel as the landlord and Jeshuat Israel as the tenant, preclude finding the existence of a charitable trust. That is not so. There is nothing incompatible about Shearith Israel's role as a charitable trustee and its decision to lease the Synagogue to Jeshuat Israel for the nominal price of $1 per year. See In re Ryan}s Estate, 294 N.Y. 85, 91 (1945) (referencing an arrangement where the beneficiary renting the trust's property reduced his rent from approximately $10,000 per year to a symbolic $10). On the contrary, by leasing the Synagogue at no profit to a group that uses it for public Jewish worship, Shearith Israel was executing its duties as the charitable trustee. Cf Ahuna v. Dep't ofHawaiian Home Lands, 64 Haw. 327, 338 (1982) (requiring the state to lease land to eligible native Hawaiian trust beneficiaries).

Shearith Israel has pointed to no evidence, direct or circumstantial, that would lead this Court as fact finder to conclude that Shearith Israel possesses legal and equitable title to Touro Synagogue. The Court concludes, as a matter of fact and law, that the Touro Synagogue and lands are the corpus of a charitable trust, and that the original trustees were Jacob Rodrigues Rivera, Moses Levy, and Isaac Hart. Neither the Synagogue nor the lands ever belonged to Messrs. Rivera, Levy, and Hart alone - each had only an equitable interest equal to that of any other single member of their community. Shearith Israel has only ever served as trustee for that charitable trust, which has operated continuously in fact and law for over

64

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 65 of 106 PagelD #: 6397

250 years, and whose valid purpose is best enunciated in Mr. Rivera's Will: "to be .. . rese1·ved as a Place of [Jewish] Public Worship forever." Rivera Will (Exhibit D16).

B. JESHUAT ISRAEL OWNS THE RIMONIM

1. Summary

Jeshuat Israel proved by a preponderance of the evidence that it is the owner ofthe Rimonim. The Court finds that Myer Myers made the Rimonim for Yeshuat Israel; that Yeshuat Israel transferred the Rimonim to Shearith Israel for safekeeping, with instructions to return them to the Jewish congregation thereafter worshiping in Newport; and that Shearith Israel complied with those instructions. As the Congregation worshiping in Newport, Jeshuat Israel became the owner of the Rimonim. Moreover, even absent the proof of Jeshuat Israel's ownership, its continuous possession of the Rimonim for the past century entitles it to a strong presumption of ownership, which Shearith Israel did not come close to overcoming. The Court concludes that Jeshuat Israel owns the Rimonim and is free to do with them as it wishes.

2. ProofofOwnership

Myer Myers made the Rimonim between the years 1766 and 1776 for use by Yeshuat Israel.5° While there is no direct evidence about the provenance of the Rimonim, the Court concludes that Yeshuat Israel originally owned them for three reasons. First, Yeshuat Israel's payment to Mr. Myers for "mending rimonim," at a time when there were several practicing silversmiths in Newport and Boston,

50 The maker's mark on the Rimonim dates their creation to that year interval. Barquist at 154, 160, and 257 (Exhibit 150 at 3248, 3254, and 3265).

65

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 66 of 106 PagelD #: 6398

suggests that the Congregation was employing the Rimonim's original maker to make the repair. Yeshuat Israel ledger (Exhibit P30).51 Second, as discussed supra, Shearith Israel took possession of the Rimonim in the 1820s for safekeeping, and sometime between then and 1869, engraved the words "Newport" on them, to differentiate them from a similar pair that it owned. Ba1·quist at 160 (Exhibit P150 at 3254). The most natural interpretation of this act is that Shearith Israel regarded the Rimonim as belonging to Newport's congregation. This interpretation is consistent with Shearith Israel's return of the Rimonim to Newport sometime after 1869. See sup1·a. Finally, there is a unanimous scholarly consensus, apart from Shearith Israel's trial experts, that the Rimonim originally belonged to Congregation Yeshuat Israel.52 Trial Tr. vol. 7, 45, 53-76, ECF No. 110 (Testimony of Vivian Mann) (admitting scholarly consensus against her); see, e.g., Barquist at

154 and 160 (Exhibit 150 at 3248 and 3254) (attributing the Rimonim to "Yeshuat (now Jeshuat) Israel"); Guido Schoenberger, The Ritual Silver !via.de by lvlyer Myel'S 5 (1953) (Exhibit P99) (discussing "pair of [Myer Myers'] rimonim made circa 1770

51 There we1·e practicing silversmiths at that time in Newport and Boston. Trial Tr. vol. 7, 109, ECF No. 110 (Testimony of Dr. Mann).

52 The consensus is so unanimous that when Shearith Israel filed its first pleadings in this case, it referred to Y eshuat Israel as the "original possessor of the Rimonim." Answer and Countercl. at 10, Dec. 4, 2012, ECF No. 6; Am. Answer and

Countercl. at 11, Dec. 6, 2012, ECF No. 8. It made the same statement in the later filed and since-dismissed Southern District of New York action. Compl. at 6, Shearith Israel v. Jeshuat lsl'ael, No. 12-CV-8406 (S.D.N.Y.), ECF No. 1.

Shearith Israel has since moved to excise these statements from its pleadings in this case by moving to amend its complaint. Defendant's Motion to Amend (ECF No. 92) is GRANTED. The amendment does not alter that Shearith Israel previously acknowledged Y eshuat Israel's original possession of the Rimonim in this action. In addition, Shearith Israel never amended this statement in its pleadings filed in the New York action.

66

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 67 of 106 PagelD #: 6399

for the new Synagogue at Newport"); Jeanette W. Rosenbaum, Jvlyel' Mye1·s, Goldsmith 1723-1795 24, 33, 36 and 67 (Philadelphia, The Jewish Publication Society of America, 1954) (Exhibit PlOO) (attributing the Rimonim to Touro Synagogue since 1765); Tom L. Freudenheim, Myel' Jvlyel's: American Silvel'smith (The Jewish Museum, 1965) (Exhibit P114 at 1577) (explaining connection between Mr. Myers and Touro Synagogue); Library of Congress Exhibition: From Haven to Home: 350 Years of Jewish Life in America 2 (Exhibit P172 at 3226) (stating that the Myers rimonim belong to Newport's Touro Synagogue); Rabbi Marc D. Angel,53 Remnant oflKrael 63 (Riverside Book Company, 2004) (Exhibit P162) (stating that Mr. Myers made rimonim for Newport); Rabbi Marc D. Angel, The Tol'ah Bells of Mye1· lvlyel's: Ancient Traditions in a New Land 1, 3 (Lecture at Yale University Art Museum, 2001) (Exhibit P158) (same); Angel Dep. 41:9-42:13 (July 17, 2014)54 (same); Edinger Dep. 91:23-92:19 (naming Yeshuat Israel as Rimonim's original

possessor).

Furthermore, there is simply no persuasive evidence in the record that these

Rimonim belonged to any person or entity except Yeshuat Israel during the early colonial period.55 The Court concludes by a preponderance of the evidence that

53 Rabbi Marc D. Angel has served as Congregation Shearith Israel's rabbi since 1969. Angel Dep. 5:25-7:9 (July 17, 2014).

54 Shearith Israel's objections to the portions of Rabbi Angel's testimony relied upon by this Court are overruled.

55 Dr. Mann, Shearith Israel's expert, differentiated between original possession of the Rimonim, which she conceded might have been with Yeshuat Israel, and ownership, which she testified was with Shearith Israel. Trial Tr. vol. 7, 158·60, ECF No. 110 (Testimony of Vivian Mann). The Court finds this difference is pure

67

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 68 of 106 PagelD #: 6400

Myer Myers made the Rimonim for Newport's Synagogue. Yeshuat Israel used the Rimonim before regular services there ended in 1793. Sometime after 1793, the Rimonim were transported to New York, where Shearith Israel took possession of them for safekeeping. Shearith Israel agreed to store Yeshuat Israel's religious items, including the Rimonim, which were "to be redelivered when duly required for the use of the Congregation hereafter worshipping in the Synagogue [a]t New Port Rhode Island." Shearith Israel's minutes (Exhibits D26 and D26A at 1, 3, and Exhibit P38) (discussing the four Torah scrolls that Yeshuat Israel deposited with Shearith Israel in 1833).

By accepting Yeshuat Israel's religious items under these conditions, Shearith Israel assumed the obligations of a gratuitous bailee. See Don-Lin Jewehy Co. v. The Westin Hotel Co., 877 A.2d 621, 624 (R.I. 2005) (describing gratuitous bailee as possessor of personalty subject to instructions for dealing with it without

remuneration). The terms of bailment instructed Shearith Israel to deal with the Rimonim according to Yeshuat Israel's directions, which it did by redelivering them to the congregation thereafter worshiping at Newport Synagogue. Id. This action terminated Shearith Israel's obligations as bailee, and terminated any relationship it had to the Rimonim. Jeshuat Israel has proven that it is the owner of the Rimonim.

speculation, and the record is devoid of any support for it. The Court finds that Y eshuat Israel was the original owner and possessor of the Rimonim.

68

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 69 of 106 PagelD #: 6401

3. Presumption ofOwnership

One of the few undisputed facts in this litigation is that for over 100 years, the Rimonim have been in the possession of Congregation Jeshuat Israel. Jeshuat Israel's Prop. Findings of Fact, June 29, 2015, ECF No. 94 at 25 and Shearith Israel's Prop. Findings of Fact, June 29, 2015, ECF No. 91 at 72.56 Even without the Court's findings about the provenance of the Rimonim, possession alone, especially of that length, entitles Congregation Jeshuat Israel to a strong presumption of ownership. Hamilton v. Colt, 14 R.I. 209, 212 (1883) ("the introduction of any proof .. . by the defendant, under his plea of property, to the action of replevin, is entirely unnecessary, his title by possession being sufficient until the plaintiff can show a better title . . . .") ; see also BaxteP v. Bwwn, 59 A. 73, 74 (1904) (requiring plaintiff to show "good title from some unimpeachable source in order to overcome the presumption of ownership which arises from occupation" in

56 Over this entire time, Jeshuat Israel not only used the Rimonim in its services, but also exercised various other responsibilities of ownership with respect to them. In 2001, Jeshuat Israel paid $25,000 for the restoration of the Rirnonim. Trial Tr. vol. 1 at 147, ECF No. 104 (Testimony of David Bazarsky). Jeshuat Israel also paid the insurance premiums for the Rimonim, and conducted appraisals to ensure that they had adequate insurance. Id. at 155. Jeshuat Israel also facilitated displays of the Rimonim by loaning them to various museums and exhibitions, where the Rimonim were always attributed to Touro Synagogue or Congregation Jeshuat Israel. See, e.g., 1953 Boston MFA catalogue (Exhibit P97 at 1961); 1954 Brooklyn Museum catalogue (Exhibit PlOl at 3720); 1955 Rhode Island School of Design catalogue (Exhibit P103 at 1390); 1965 Jewish Museum in New York catalogue (Exhibit P114 at 1581); 2001 Yale catalogue (Exhibit P150 at 3248). The Rimonim are currently on loan at the Boston Museum of Fine Arts. Trial Tr. vol. 3 at 203·04, ECF No. 106 (Testimony of Bertha Ross); MFA Display (Exhibit D564). When not on display, Jeshuat Israel now stores the Rimonim in a safety deposit box. Trial Tr. vol. 1, 133, ECF No. 104 (Testimony of David Bazarsky); Trial Tr. vol.

3, 63·66, ECF No. 106 (Testimony ofMichael Pimental). 69

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 70 of 106 PagelD #: 6402

an ejectment action); In Te J. K Chemicals, Inc., 7 B.R. 897, 898 (Bankr. D.R.I. 1981) ("the general rule [is] that possession of property raises a presumption of ownership"). Shearith Israel is unable to overcome the presumption in favor of Jeshuat Israel.

The purpose, pedigree, and good sense of this presumption of ownership were discussed at length in a Fourth Circuit case that bears key similarities to our own. Willcox v. Stroup, 467 F.3d 409 (4th Cir. 2006). In that case, the plaintiff filed for a declaratory judgment that certain historic documents, which were valued at $2.4 million and had been in his family's possession for over 140 years, were part of his estate. The State of South Carolina contended that these documents, concerning

two of its Civil War·era governors, constituted public property and therefore belonged to the State. The Fourth Circuit could have been writing about the Rimonim when it observed:

The exceptional nature of the [items] in dispute - their early vintage, their unknown history - presents issues distinct from those of the typical personal property case. Without the benefit of clear chain of title, evidence of original ownership, eyewitness testimony, and any number of documentary aids usually helpful in the determination of ownership, the court must utilize the legal tools that remain at its disposal. In this situation, tenets of the common law that usually remain in the background of ownership determinations come to the forefront, their logic and utility revealed anew.

Id. at 412.

Those common law tenets dictated that long-standing "possession . . .

trigger[ed] the presumption [] of ownership." Id. at 413. The court in Willcox noted that this presumption, often stated as the "truism" that "possession is nine·tenths of

70

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 71of106 PagelD #: 6403

the law" is nearly as old as the common law itself. Id. at 412 (citing a collection of adages from 1616 and other sources); see also McFa1·land v. B1i.e1', 850 A.2d 965, 968 (R.I. 2004) (citing approvingly "the old saw that 'possession is nine-tenths of the law'"). The Fourth Circuit summarized that "the presumption of ownership in the possessor[] resolves otherwise insoluble historical puzzles in favor of longstanding distributions and long·held expectations. Such a rule both protects the private interests of longtime possessors and increases social utility." Willcox, 467 F.3d at 414. The court then ruled in favor of the plaintiff, finding that the State had adduced insufficient evidence "to rebut the strong prnsumption of possession." Id. at 417. Faced with the same burden to overcome over 100 years of uncontested possession, Shearith Israel has also failed to meet the mark.

4. Shearith Israel's Arguments for Ownership

To overcome Jeshuat Israel's presumption of ownership, Shearith Israel mounts an effort to prove better title to the Rimonim. Shearith Israel introduced testimony from two experts in support of its position.57 Relying on the experts' testimony, Shearith Israel cited "three junctures during which Shearith Israel would have obtained ownership rights to the [R]imonim." Shearith Israel's Post- T1'ial Mem., ECF No. 90 at 53. These three junctures are: 1) "Shearith Israel paid for the [R]imonim in 1765," 2) "title to the Touro Synagogue and its contents passed

57 Shearith Israel's experts were Dr. Vivian Mann and Dr. Linford Fisher. Dr. Mann is a professor of Jewish Art at the Jewish Theological Seminary in New York. Trial Tr. vol. 6, 97-98, ECF No. 109 (Testimony of Dr. Mann). Dr. Fisher is an assistant professor of history, with a focus on religious history, at Brown University. Trial Tr. vol. 8, 11, ECF No. 111 (Testimony of Dr. Fisher).

71

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16116 Page 72 of 106 PagelD #: 6404

to Shearith Israel in the 1820s," and 3) "Shearith Israel reinforced its title to the Touro Synagogue ... and its contents [including the RimonimJ, in 1894 by obtaining Deeds of Conveyance." Id. Reviewing each juncture in turn, the Court determines that Shearith Israel failed to prove better title to the Rimonim.

a. Failure to Pl'Ove that the Rimonim Were Made for Shearith Israel

Before this lawsuit, every scholar who had ever studied the Rimonim had concluded that the Rimonim originally belonged to the ancient Newport Congregation Yeshuat Israel. Trial Tr. vol. 7, 45, 53·76, ECF No. 110 (Testimony of Dr. Mann); see suprn. Litigation has altered Shearith Israel's view of this settled historical opinion.58 Based on its experts' testimony, Shearith Israel now maintains that Myer Myers made the Rimonim for its own Congregation and denies that Congregation Yeshuat Israel ever owned or even possessed the Rimonim.

The lynchpin of Shearith Israel's novel theory is a record in its 1765 accounting ledger, which reads, "Cash paid Myer Myers Balla. of his accot. passed Shearith Israel ledger (Exhibits D9 and D9A). Dr. Mann singled out this record to argue that it must have been a payment for the Rimonim. Dr. Mann pointed to the notation, timing, amount, wording, and circumstances of this notation as evidence for her position. On cross·examination, Dr. Mann's position crumbled as Jeshuat Israel demonstrated that this record was actually a repayment

58 "And, on information and belief, Shearith Israel did say that it believed at the beginning of the lawsuit, before we spent countless amounts finding the evidence andpaying the expeds to tell us what we think- what the facts are, that Yeshuat Israel was the original possessor." Trial Tr. vol. 1, 61, ECF No. 104 (Shearith Israel's Opening Argument) (emphasis added).

72

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 73 of 106 PagelD #: 6405

of Myer Myer's advance to the Congregation in his capacity as president, to cover Shearith Israel's cash shortfall from the previous year. This payment had nothing to do with the Rimonim. The Court is persuaded that Jeshuat Israel's position is factually correct.

Dr. Mann acknowledged that Myer Myers was the parnas (president) of Shearith Israel in 1764. Trial Tr. vol. 7, 101, 105, ECF No. 110 (Testimony of Dr. Mann); David and Tamar De Sola Pool, An Old Faith in the New World: Portrnit of Shearith Isrnel 1654-1954 502-03 (Columbia University Press 1955) (Exhibit P102 at 3193-94). She also acknowledged the practice at Shearith Israel that whenever the Congregation's debits exceeded its credits at the end of a year, the sitting President would cover that difference, and the Congregation would repay that same amount in the next year. Trial Tr. vol. 7, 106, ECF No. 110 (Testimony of Dr. Mann).

In 1764, the difference between Shearith Israel's credits and debits was exactly £36.4.1. Shearith Israel ledger (Exhibit P23). Shearith Israel's debits, which appeared on the left side of its ledger, included such expenses as cleaning the Synagogue and pu1·chasing wood and a ladder.59 Id. They totaled £246.2.2. Id. On the right side of the ledger are Shearith Israel's credits from various sources of

59 The first expense on the debit side is actually a payment to the previous year's president, with the notation, "To Cash Paid Mr. Jacob Franks his Ballance 59.12.4." Shearith Israel ledger (Exhibit P23); David and Tamar De Sola Pool, An Old Faith in the New World: Portrait ofShea1ith Isrnel 1654-1954 502 (1955) (Exhibit P102 at 3193) (listing Jacob Franks as the president in 1763-64, immediately before Myer Myers); Trial Tr. vol. 7, 102-03, ECF No. 110 (Testimony of Dr. Mann). The notation for this payment to Jacob Franks is similar to the notation for the payment to Myer Myers in 1765.

73

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 74 of 106 PagelD #: 6406

mcome. Id. These credits include cash received for rent, payments from outstanding debts, cash from the charity box, and the year's offerings from the congregants. Id. The total credits in 1764 were £209.18.1. Id. Below that amount, still on the credit side of the ledger, which tallies up the Congregation's sources of income, is the notation "Ballance Due to Myer Myers [£]36.4.1." Id. When the ledger pages are viewed side·by·side, the conclusion is inescapable that Myer Myers contributed £36.4.1 in 1764 to cover the Congregation's deficit, as was expected of him in his role as President of Shearith Israel.

Shearith Israel ledger (Exhibit P23) (left side) (boxes added).

74

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 75 of 106 PagelD #: 6407

Shearith Israel ledger (Exhibit P23) (right side) (boxes added).

Confirmation of this conclusion, if any is needed, appears in Shearith Israel's

minutes and ledger for the next year. At the beginning of the next Hebrew year, Shearith Israel's minutes contain the following notation: "At a meeting of the assistants with the Parnassim [presidents] the following articles were agreed to, and resolved- 1st That Mr Myer Myers may be paid the Ballance of his Sedakah accot: £ 36.4.1."60 The Lyons Collection 88 (American Jewish Historical Society No. 21 Vol. 1, 1913) (Exhibit P78 at 3391). And in turn, the first expense tallied on the debit side of Shearith Israel's ledger for the next year is "Cash paid Myer Myers Balla. of his accot. passed £36[.]4[.] 1-." Shearith Israel ledger (Exhibits D9 and D9A). Given this trail of documents, it is incredible that Dr. Mann concluded that

60 While sedakah usually means "charity" in Hebrew, the "Holy Sedakah" was also "the name given to all the incoming disbursements of [Shearith Israel]." Trial Tr. vol. 6, 136, ECF No. 109 (Testimony of Dr. Mann). The Court concludes that in the quotation above, the word "Sedakah" refers to the debt owed Myer Myers for covering the Congregation's budget shortfall.

75

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 76 of 106 PagelD #: 6408

·this payment is anything but a reimbursement of Myer Myers' prev10us year's advance for the Congregation's deficit. The Court finds Dr. Mann's testimony and opinions on this topic not credible.GI

Shearith Israel ledger (Exhibit D9) Cleft side) (boxes added).

Gl Although clearly a learned scholar, the Court discounts Dr. Mann's opinions because at trial she was a zealot rather than an objective expert witness. She was often blind to the many contrary facts. Moreover, her trial testimony differed from her prior testimony in important respects. See id. at 39-40 (changing her position about existence of a record dated 1910 or before that attributed the Rimonim to Shearith Israel), 60 (denying that Dr. Barquist is a recognized authority on Myer Myers after naming him as an authority), 129-31 (changing her position on the significance of the Rimonim's "Newport" inscription), 141 (refusing to answer a question she had previously answered in the affirmative), 143-44 (same), 152-53 (same), 203-04 (stating that it is inappropriate for a historian to ignore contrary evidence or only look at part of the available evidence, after saying the opposite at deposition). When quoting primary documents in her report, Dr. Mann simply excised portions not helpful to her position. Id. at 32, 115-16. She admitted to speculating in her explanations for parties' actions. Id. at 139. She also admitted that she is not an expert on accounting ledgers, and that she did not know which side of a ledger debits and credits generally occupy. Id. at 30-31. For all these reasons, the Court found her testimony not credible.

76

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 77 of 106 PagelD #: 6409

Dr. Mann also found persuasive the timing of the 1765 payment to Myer Myers, which occurred within the 11·year period between 1764 and 1775, when Mr. Myers used the particular maker's mark that appears on the Rimonim at issue. Trial Tr. vol. 6, 110-11, 128, 132, and 143-44, ECF No. 109 (Testimony of Dr. Mann). More persuasive to the Court is that Mr. Myers was Shearith Israel's president in 1764, and was responsible for covering the Congregation's budget shortfall, which equaled exactly the amount that he was paid in 1765.

Dr. Mann also supported her theory about the 1765 payment with some back· of-the-envelope calculations suggesting that £36.4.1 would have been a fair price for Rimonim. Id. at 135-38, 143-44. Jeshuat Israel pointed to significant flaws in her analysis, including problems with the price of silver and the weight of the Rimonim used in her calculations, all of which the Court finds further discredited her analysis. Trial Tr. vol. 7, 77-85, ECF No. 110 (Testimony of Dr. Mann); see also John J . McCusker, Money and Exchange in Europe and America 1600-1775 (1978) (Exhibit P135) (listing silver prices for relevant years).

Dr. Mann also opined that the £36.4.1 payment to Myer Myers in 1765 was not consistent with other reimbursements made to him previously, but was similar to a different payment to another person, which was for a specific item. Shearith Israel's Prop. Findings of Fact and Conclusions of Law, ECF No. 91 at 28-30. Specifically, she testified that the payment could not be a reimbursement to a past president because it did not have the notation "late parnas" next to it. Trial Tr. vol. 6, 141-42, ECF No. 109 and Trial Tr. vol. 7, 106·07, ECF No. 110 (Testimony of Dr.

77

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 78 of 106 PagelD #: 6410

Mann); Shearith Israel ledger (Exhibits DlO and DlOA) (containing notation "late Parnas"). She then concluded that it must be for an item, because she thought it similar to the following payment, which was for an item: "For balance due me per agreement ('consiertto') of the holy synagogue, on account of another item which is charged here." Trial Tr. vol. 6, 142·43, ECF No. 109 (Testimony of Dr. Mann); The Lyons Collection at 40 (Exhibit P78 at 3378).

Dr. Mann's opinion on this issue does not persuade the Court that the 1765 payment was for the Rimonim. First, when Shearith Israel paid Myer Myers for a different pair of Rimonim in 1774 and for a silver plate in 1759, it specified exactly which items it was paying for in its ledger. Trial Tr. vol. 7, 88·92, ECF No. 110 and Trial Tr. vol. 6, 146, ECF No. 109 (Testimony of Dr. Mann); Shearith Israel ledgers (Exhibits P16 and P29) (paying Mr. Myers £20.0.0 "for a piece of plate" and £10.15 for "rimonim"). Unlike those two examples, the 1765 payment does not say that it is for rimonim. Second, the presence of the words "late parnas" next to payments that all turn out to be reimbursements does not convert those words into a necessary condition for a reimbursement. All that Dr. Mann has proved is that the notation "late parnas" signals reimbursement, not that its absence signals non· Teimbursement.62 Finally, the logical leap from discovering another payment for an

unspecified item in the Shearith Israel ledgers, to concluding that the payment to

62 In fact, a substantial payment to Shearith Israel's president from the year before Myer Myers became president also lacks the notation "late parnas," which Dr. Mann apparently dealt with by asserting that it must not be a reimbursement. Trial Tr. vol. 7, 102·03, ECF No. 110 (Testimony of Dr. Mann). This type of"heads I win, tails you lose" reasoning does not persuade the Court.

78

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 79 of 106 PagelD #: 6411

Mr. Myers must also be for an unspecified item is astronomical. The wording of this payment in Shearith Israel's ledger does not persuade the Court it was for the Rimonim.

Turning to circumstantial evidence, Dr. Mann opined that Yeshuat Israel could not have obtained the Rimonim through purchase or gift. She pointed to Yeshuat Israel's financial difficulties in building the Synagogue as evidence that it could not have afforded the Rimonim. Id. at 117, 144. She also opined that it was unlikely that anybody gifted the Rimonim to Yeshuat Israel, because the Rimonim did not have a donor's name inscribed on them. Id. at 144-45. She specifically ruled out Shearith Israel and Myer Myers as potential donors because Shearith Israel did not have a record of the gift and Mr. Myers was allegedly frugal. Trial Tr. vol. 6, 117·18, 129, ECF No. 109 (Testimony of Dr. Mann). This evidence is speculative and insubstantial. Having discarded Dr. Mann's theory about the 1765 ledger, the Court finds her remaining arguments not credible and insufficient to prove that Shearith Israel has better title.

b. Failure to Prove Shea1·ith Isrnel Acqufred Title Ai·ound 1820

In the absence of any documents contemporaneous with the making of the Rimonim that clearly established their original owner, Shearith Israel turned to some later documents in attempting to prove its ownership stake. Shearith Israel argued that by returning the Rimonim to New York around the 1820s, Yeshuat Israel conceded that it originally only held the Rimonim on loan from Shearith Israel. In the alternative, Shearith Israel argued that Yeshuat Israel gifted the

79

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16116 Page 80 of 106 PagelD #: 6412

Rimonim to Shearith Israel when the Jewish community of Newport disbanded. The Court does not find either theory persuasive or supported by the credible evidence. Instead, the Court concludes that Yeshuat Israel brought the Rimonim to New York for safekeeping, with the instruction that Shearith Israel return them to the congregation thereafter worshiping in the Newport Synagogue. The evidence shows that Shearith Israel complied with that instruction when they returned them to Newport. See supra.

There is no extant record of the Rimonim leaving Newport or arriving in New York. One surviving record is Shearith Israel's minutes from February 10, 1833, which states:

Received from the family of the late Mr. Moses Seixas of New Port Rhode Island, Four Sepharim Belonging to the Congregation of that place, and Which are now to be deposited in the Synagogue In New York of the Congregation "Shearith Israel" Under the charge of the Trustees of said Congregation to be redelivered when duly required for the use of the Congregation hereafter worshipping in the Synagogue At New Port Rhode Island casualties excepted New York 19 Kislev 5593 - 11th December 1832; In behalf and by resolve of the Trustees of the Congregation Shearith Israel Signed by N. Phillips; Isaac B Seixas.

Shearith Israel's minutes (Exhibits D26 and D26A at 1, 3, and Exhibit P38).63

The parties drew vastly different conclusions from this record. Shearith Israel argued that this record proves that Yeshuat Israel used sepharim (Torah books) and other items that belonged to Shearith Israel, and that this record memorialized their return to New York. Shearith Israel's expert, Dr. Mann,

63 "Sepharim," which is a word that can be spelled in various ways, is the plural for books of Torah. See Trial Tr. vol. 7, 121, ECF No. 110 (Testimony of Dr. Mann) ("there was an entry in 1833 about getting the Sifrei Torah back, that's the Torah").

80

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 81of106 PagelD #: 6413

testified that the minutes "lay the groundwork for [her] opinions that the items that were used in Newport [included] ... the silver [rimonim, which] w[ere] returned to C[ongregation] S[hearith] Hsrael]." Trial Tr. vol. 7, 111-12, ECF No. 110 (Testimony of Dr. Mann).64 That is not a reasonable reading of the record.

Shearith Israel's February 10, 1833 minutes do not advance its claim to the Rimonim; quite the opposite. This record plainly references four Torah scrolls arriving in New York from Newport, to be returned when needed by Newport's Jews. This is credible evidence that Shearith Israel served as the bailee for certain religious items, including the Rimonim, belonging to the Jews of Newport. Shearith Israel's other expert, Dr. Fisher, admitted, "the historical evidence, both primary and secondary, is that ... every Torah, [when possible], is adorned by a set of rimonim." Trial Tr. vol. 8, 165, ECF No. 111 (Testimony of Dr. Fisher). In its opening, Shearith Israel said of the Rimonim: "Their job is to stay with the Torah." Trial Tr. vol. 1, 69, ECF No. 104 (Shearith Israel's Opening Argument).

Although Shearith Israel's 1833 minutes do not specifically reference the Rimonim, they raise the inference - that this Court adopts as a finding of fact - that the Rimonim traveled with the Torah scrolls from Newport, and that Shearith Israel took hold of these items under the instruction to return them. This

64 Dr. Mann bolstered her opinion by referencing another document from that time, which allegedly memorialized Shearith Israel receiving silver back from Newport. Trial Tr. vol. 7, 121-24, ECF No. 110 (Testimony of Dr. Mann). The problem with that document is that Dr. Mann is the only person who remembers ever having seen it, and that it is now nowhere to be found. Id. at 122 (Question: "Now, that document [] seems to have disappeared; correct?" Dr. Mann's Answer: "That is correct.").

81

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 82 of 106 PagelD #: 6414

interpretation also best explains Shearith Israel's later actions, specifically branding the Rimonim with the words "Newport" to differentiate them from its own pair, and returning them to the congregation thereafter worshiping in Newport. In other words, Shearith Israel's handling of the Rimonim is fully consistent with the terms of bailment described in the 1833 minutes, not ownership by Shearith Israel, and the Court so finds.

The next record that Shearith Israel offered to prove its ownership claim was an 1869 inventory conducted by its own officials. Inventory (Exhibits D34 and D34A). Shearith Israel's president asked Rabbi J.J. Lyons to undertake an inventory of the Congregation's possessions on May 23, 1869, and less than three months later, he had completed the project. Shearith Israel's minutes (Exhibits D33 and D33A) (requesting that Rabbi Lyons prepare an inventory). The Myer Myers Rimonim appear toward the encl of the inventory, which describes them as "marked Myers New Port" and lists their weight. Inventory at 34 (Exhibits D34 and D34A at 36). This inventory is noteworthy because it is the first direct reference 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:

82

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 83 of 106 PagelD #: 6415

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

83

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 84 of 106 PagelD #: 6416

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.

84

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 85 of 106 PagelD #: 6417

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)).

85

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 86 of 106 PagelD #: 6418

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.

86

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 87 of 106 PagelD #: 6419

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

87

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 88 of 106 PagelD #: 6420

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

88

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 89 of 106 PagelD #: 6421

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.

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

89

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 90 of 106 PagelD #: 6422

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

90

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 91of106 PagelD #: 6423

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

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 92 of 106 PagelD #: 6424

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

\

92

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 93 of 106 PagelD #: 6425

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).

93

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 94 of 106 PagelD #: 6426

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

94

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 95 of 106 PagelD #: 6427

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.

95

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 96 of 106 PagelD #: 6428

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

96

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 97 of 106 PagelD #: 6429

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

97

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 98 of 106 PagelD #: 6430

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

98

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 99 of 106 PagelD #: 6431

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.

99

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 100 of 106 PagelD #: 6432

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

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 101of106 PagelD #: 6433

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.

101

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 102 of 106 PagelD #: 6434

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.

102

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 103 of 106 PagelD #: 6435

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)

103

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 104 of 106 PagelD #: 6436

(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.

104

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16116 Page 105 of 106 PagelD #: 6437

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.

105

Case 1:12-cv-00822-M-LDA Document 118 Filed 05/16/16 Page 106 of 106 PagelD #: 6438

106