MEMORANDUM DECISION AND ORDER
SIFTON, District Judge.
This is a diversity action for replevin, also alleging conversion and trespass, that was commenced on August 5, 1985, to recover some 400 books or the proceeds of their sale said to be in the hands of defendant Barry S. Gourary. Defendant Barry Gourary has counterclaimed for a judgment declaring that the 400 books, as well as the balance of books and manuscripts which form part of a library housed at a building at 770 Eastern Parkway, in Brooklyn, New York, owned by the plaintiff, belong to him and his mother, intervenor Hanna Gourary.
On November 22, 1985, this Court determined that a trial should proceed before the undersigned, sitting without a jury, with respect to the issue whether the library which is the subject of the litigation was part of the estate of Rabbi Joseph Isaac Schneersohn, the grandfather of Barry Gourary and the father of Hanna Gourary, at the time of the Rabbi's death in 1950. Separate trial of this issue was deemed appropriate since the issue forms the core of defendants' counterclaim and of defendant Barry Gourary's defense to plaintiff's claims in replevin and for conversion, namely, that the library belongs to his mother and to him as a result of inheritance from his grandfather, Rabbi Schneersohn.
Trial of this issue took place in December 1985. Post-trial submissions were completed in March 1986. From April through October 1986, this Court was engaged in the trial of a multi-defendant criminal case. After hearing the testimony at trial and after review of the voluminous documentary evidence introduced by both sides, I conclude that the library was not part of the estate of Rabbi Joseph Isaac Schneersohn at the time of his death. Accordingly,
Plaintiff is a corporation formed under the religious corporations law of New York on July 25, 1940, with its principal, if not only, office at 770 Eastern Parkway, Brooklyn, New York. At present, it is responsible for administering the burial society or Chevra Kadisha of the Lubavitch Chasidic community and for maintaining the building at 770 Eastern Parkway which serves as headquarters and synagogue for the community. In this latter capacity, plaintiff has possession of the library at issue in this litigation and had possession of it at the time when defendant removed certain books from it.
Defendants, as already noted, are among the direct lineal descendants of Rabbi Schneersohn, who was until his death the sixth in a line of rabbis who led a movement of Orthodox Jews known as Chabad Chasidism.
Chabad Chasidism was formed in 1775 by Rabbi Schneur Zalman, considered the first Lubavitcher Rebbe and known as the Alter Rebbe. The Alter Rebbe was a disciple of the successor of the Baal Shem Tov. The founder's son and successor, Rabbi Dov Baer, who died in 1827 and was known as the Mittler Rebbe, settled in the Russian town of Lubavich and, hence, gave the movement its present name. The third leader of the group was the son-in-law of Dov Baer and the son of the daughter of Schneur Zalman. This Rebbe, known as the Tzemach Tzedek, after the title of his major written work, was Rabbi Menahem Mendel, who died in 1866. The fourth Lubavitcher Rebbe was the youngest son of Menahem Mendel, Rabbi Samuel Schneersohn, known as the Maharash. He was succeeded by his son, Rabbi Shalom Dov Baer, known as the Rashab, who died in 1920. The sixth Rebbe, with whose estate we are concerned, was the son of Rabbi Shalom Dov Baer and succeeded his father on his father's death. The sixth Rebbe was succeeded by the present Rebbe, Rabbi Menahem Mendel Schneerson, who is a son-in-law of Rabbi Joseph Isaac Schneersohn and a great-great-grandson of the Tzemach Tzedek. This family relationship between the various generations of succeeding Lubavitcher Rebbes may explain why the issues raised by this lawsuit have not been clarified earlier, i.e., the distinction between property of the religious institutions of Chabad Chasidism and the personal property of the Rebbe is not a distinction which has had to be made with any regularity in the movement's history.
The library at issue is appropriately divided in two parts for purposes of this discussion: first, the ksovim, manuscripts either in the handwriting of the Lubavitcher Rebbes or recording oral statements by
The defendant Hanna Gourary has described the extraordinary consideration given the ksovim as follows:
The reason for such special consideration accorded the ksovim appears to be the extraordinary significance attributed to the Rebbe's words by Chabad Chasidism. As described by one expert:
Reputation as to events of general history important to the Lubavitcher community has it that the ksovim of the Alter Rebbe and the Mittler Rebbe were collected by the Third Rebbe, the Tzemach Tzedek, who added to them his own manuscripts. This collection was thereafter acquired by the youngest of six sons of the Tzemach Tzedek, the Maharash, apparently over the protests of the other five sons. A similar dispute over the ownership of the ksovim occurred in the next generation when the Rashab became the Fifth Rebbe. In a letter to a friend and prominent Chabad rabbi, Yitzchok Wilensky, the Rashab wrote of threats of litigation with his two brothers over ownership of the ksovim. Apparently, however, the Rashab took custody of them, justifying his actions both in terms of religious tradition and ordinary property law concepts. From the Rashab the ksovim passed to Rabbi Joseph Isaac Schneersohn by will. The will provided that "all the books, except for those itemized below, I leave as an inheritance to my son." A limited number of books were left to the Rashab's granddaughters "obviously in order that they give these to their husbands for study." Throughout its long history, the collection appears to have been added to by acquisition or gift. For example, what is said to be the only known surviving letter in the handwriting of the Baal Shem Tov is described as having been acquired
The larger part of the library at issue in this lawsuit are the seforim or less than sacred books which became known as the Lubavitch library, a collection of over 40,000 volumes and manuscripts collected by Rabbi Joseph Isaac Schneersohn over the course of his life. While this portion of the library was not acquired by inheritance, it is clear that the collection, possession and study of a large library was part of the function of each successive Rebbe, at least from the Third Rebbe on. Thus, Rabbi Joseph Isaac Schneersohn is recorded as stating:
According to defendant Hanna Gourary, "the library occupied three rooms by my grandfather [the Rashab], all the walls." Both the Rashab and his son, Joseph Isaac Schneersohn, were described as collectors of seforim. Indeed, Rabbi Joseph Isaac Schneersohn so described himself.
While each of the Rebbes appears to have treated the library as personal property, disposing of it by will for example, there can also be no question that the library came to be conceived as one to be used for the benefit of the religious community of Chasidim by the leader of the community, the Rebbe. Thus, just as the Fifth Rebbe, when it became clear that he would succeed his father, made it his business to collect the family ksovim, so the Fifth Rebbe made it explicit in his will that the bulk of the seforim with certain itemized exceptions were to pass to his own son, Joseph Isaac Schneersohn. As one expert testified, the Lubavitch Rebbes have, for generations, had "very large working libraries."
The large library of the Fifth Rebbe, described above by Hanna Gourary and inherited by Rabbi Joseph Isaac Schneersohn, was confiscated by the communist government in the Soviet Union. According to Mrs. Gourary the Sixth Rebbe attempted to repurchase the library, but the Soviet government "wanted too much money. My father didn't have the money, so he couldn't redeem the library." As it is described by the man who eventually became the librarian of the Lubavitch library, Rabbi Chaim Liberman:
A means of acquiring a working library presented itself in the form of the personal library of the former head of the Asiatic Museum in Leningrad, Shmuel Wiener. The library was purchased pursuant to a contract of sale with the Rebbe agreeing to pay Wiener fifty dollars a month over a period of years. The reference to a purchase price in American dollars was in apparent recognition of the fact that, as of the date of the purchase in 1925 and subsequently, the Rebbe was principally dependent on contributions from a sizeable group of followers of the Lubavitch movement living in the United States, who had, by that time, become known as the Agudas
The librarian Liberman testified that in addition to buying Hebrew pamphlets from the Soviet censor "by the pound," books were acquired by gifts solicited by advertisement such as the following, placed in the American rabbinic journal Ha Pardes:
Similar efforts at solicitation emphasizing the communal nature of the library were made after the Rebbe left Latvia for Poland. An advertisement from this period states:
In late 1933, Rabbi Liberman, in his capacity as "director of the Lubavitch Book and Manuscript Collection," sent a letter to the British scholar and collector David Sassoon:
Other letters in evidence written by Liberman or by Rabbi Schneersohn seek gifts "in the name of the library," "for us," or for "our library," "the library," or for "the Lubavitch Library," from "whoever knows and honors the name of Lubavitch."
Ma'amad was also used by Liberman and the Rebbe to purchase books to enlarge the collection. The fact that the Rebbe was afforded almost complete discretion in deciding on the application of the money does not detract from the fact, apparent from the evidence, that monies he received in the form of ma'amad he considered as received to further the purposes of the religious community of which he was the leader.
According to Dr. Louis Jacobs, an acknowledged scholar on Chasidism, unlike other Chasidic groups which support their rebbes by gifts known as pidyon (redemption) or pidyon nefesh (redemption of the soul) delivered personally to a rebbe, Lubavitch Chasidim primarily support their Rebbe and the community institutions he directs through an organized, regular program of contributions collected by emissaries of the Rebbe. The contributions are known as ma'amad (meaning support or dues) or ma'amad bais chayenu (literally, support for the house of our life). Dr. Jacobs explained: "It is a due, for which every member of of the movement is expected to consider himself responsible, and ... there is an amount according to means which every member pays or is expected to pay." Whereas pidyon is "a personal gift, as it were ... for [spiritual] services rendered" by the Rebbe, ma'amad "is best
Ma'amad is provided to support the Rebbe in his needs and those of his family and also to support the community institutions he oversees. An itemization by Rabbi Schneersohn in his own hand of ma'amad expenditures separates the expenditures into six categories: Hakria v'Hakedusha (a monthly publication of the movement), books, free loans, charity, personal expenses, and salaries and telegrams, etc. As one exhibit reveals, of the $18,481 accounted for by Rabbi Schneersohn, only $2,102, or roughly 11%, was classified as personal expenses. Dr. Jacobs concluded that "it seems as clear as can be that the ma'amad is for the upkeep of the organization."
The library put together in this period from gifts and acquisitions was described by Chaim Liberman, its librarian, as follows:
The Sixth Rebbe's daughter, the defendant Hanna Gourary, also describes her father's library as a library for researchers. Rabbi Liberman quoted the Rebbe as saying in this period of time that he contemplated a fifteen-year period of collecting books:
This community purpose for the library is confirmed by the nature of the books collected. Rabbi Liberman testified that he gathered for the library books of all kinds relating to Jews and Judaism and that the collection was not limited to rabbinic or sacred writings in Hebrew. In fact, he testified, some of the books he obtained were so far beyond the acceptable standards for a Chasidic Rebbe that he could not acknowledge that he was buying these books for the Rebbe and instead said he was buying them for a library in Riga.
One expert who testified about the types of books found in the library stated that they found among them "a large number of books ... which the Rebbe would not read but which contain opinions which he would consider to be heretical, and which he would strongly discourage his followers from reading," including anti-semitic material and communist writings in Hebrew. Since the Chasidic movements were hostile to literature that is not "sacred," the expert, Dr. Jacobs, believed that "its contents [are] very strange for a Chasidic Rebbe to have." Therefore, he concluded:
The problems of conveying this community asset from generation to generation of Rebbes might have remained, as it had in the past, one to be sorted out among members of the Rebbe's family through the laws relating to private transactions, including those of inheritance and sale, had it not been for the holocaust.
The unsuccessful efforts of Americans to rescue the library from the Germans during the Second World War is only a footnote to the by-and-large successful efforts of plaintiff and others to secure the safe passage of the Rebbe and most of his family to this country. In September 1939, after the outbreak of the war, the Rebbe left Otwock, Poland, for Warsaw. The address where he registered in Warsaw was the subject of bombings which destroyed the building. The Rebbe, however, fled to a relative and then went into hiding. The library was, however, not destroyed but left behind in Otwock. In December 1939, the Rebbe, with the assistance of the American government, left Warsaw for Riga. Prior to his departure from Warsaw in November 1939, the Rebbe wrote to Rabbi Liberman, then in Latvia, in German, a description of his circumstances and that of his library, which Liberman immediately forwarded to plaintiff's representatives in New York.
Both Liberman and those to whom this message was conveyed in the United States interpreted this letter as an appeal to Agudas Chabad for its assistance in securing the passage of the books to America. Liberman's letter was immediately forwarded by Rabbi Israel Jacobson, the then President of Agudas Chabad, to Samuel Kramer, a New York lawyer who had already been working for several months to effect the escape of the Rebbe and his family to the United States, with the comment: "This letter from the Rebbe refers to his valuable library which he would like to get out from Poland, as the property of Agudas Chabad." Kramer and Max Rhoade, a Washington attorney retained by Agudas Chabad, then communicated a few days later with Robert Pell, then Assistant Chief of the European Desk at the State Department, concerning the library as follows:
In response to this letter from Rhoade, Pell wrote:
At the same time, the Rebbe, now himself in Latvia, wrote directly to Rabbi Jacobson in New York concerning the library as follows:
It is apparent from the record of correspondence left behind that the Rebbe's comments concerning ownership of the library ("for I have told them that a part of the library is the property of Agudas Chabad of New York and a part is mine") were somewhat bewildering to his followers and representatives in the United States. A request by Rhoade to Jacobson for the affidavit of ownership and title requested by the State Department was responded to by Jacobson as follows: "I am sending you under separate cover the affidavit for the books, but will have to consider the matter of the evidence for same." A memo from Kramer to Rhoade states:
An unsigned and conclusory affidavit of Jacobson included in the record simply states: "The assets of the American denomination includes a library of religious books and manuscripts ... now housed in the Central Rabbinical College, Tomche Tmimim at Otwock, near Warsaw, Poland." In late January 1940, Rhoade writes to Kramer that he is still "awaiting the proof of the American Chabad's title to the library before I can do anything further regarding that particular problem." No more is heard of the matter from the American side until after the war.
From Latvia, immediately before his departure from Sweden and thence to the United States, the Rebbe made one final effort to secure the departure of the library for American through a German attorney. The letter in German appears to contradict earlier descriptions (also in German) of the library as belonging at least in part to Agudas Chabad:
Neither the description of the library as belonging to Agudas Chabad or as belonging to the Rebbe succeeded in convincing the Nazis to permit the transportation of the books to America. They remained in Poland throughout the war.
Rabbi Joseph Isaac Schneersohn arrived in America in mid-March 1940. In July of that year, plaintiff was incorporated and acquired a building at 770 Eastern Parkway where the Rebbe and his family took up residence and remained for the balance of the Rebbe's life.
Defendants seek to explain this letter as duplicitous and of a piece with the wartime letters in German intended to be read by the Nazi censor. For reasons to be discussed more at length hereinafter, the explanation must be rejected. Suffice it to note at this point that there is no reason to suppose that the Rebbe contemplated that the contents of the letter would fall into the hands of what defendants characterize as anti-semitic, post-war communist regime in Poland, which in their view had to be deceived as to the ownership of the library. On the contrary, it was addressed to the librarian of the Jewish Theological Seminary in New York, the then largest Judaica collection in the world. Not only does the letter, even in translation, ring with feeling and sincerity, it does not make much sense that a man of the character of the Sixth Rebbe would, in the circumstances, mean something different than what he says, that the library was to be delivered to plaintiff for the benefit of the community.
Post-war dealings with the library, which thereafter was in fact delivered to plaintiff to be housed in 770 Eastern Parkway, make clear that ownership of the library by plaintiff for the benefit of the community necessitated by wartime events was nonetheless real because of the circumstances under which it came about. Purchases for the library were made in the name of plaintiff, and payments for books purchased were made from its accounts both before and after the death of the Sixth Rebbe in 1950.
The treatment of the library at the time of Rabbi Joseph Isaac Schneersohn's death supports the conclusion that the library was no longer considered by him or by those familiar with his thought on the matter as his personal property. Despite a family history of disputes concerning the transmission of the ksovim and seforim from generation to generation of Rebbes, the Sixth Rebbe left no will. The Rebbe's estate, after some initial uncertainty, was closed without listing the library as an asset, despite its recognized value. The widow and each of the Rebbe's two daughters, including the defendant Hanna Gourary, signed releases reciting that they had received what they were entitled to under the estate without taking possession of the library. Not until twenty years after the Rebbe's death did his widow evidence a view that the library was hers as an inheritance from her husband in a letter stating that her two daughters should divide the library as well as the building at 770 Eastern Parkway, a building which is undisputably owned by plaintiff. In the 1970's upon discovery of an additional 25 crates
What is at issue is whether the Rebbe divested himself of private ownership of the library at some time prior to his death by making it the res of a charitable trust for the benefit of the Lubavitch community. There is little dispute between the parties as to the applicable law. To create a charitable trust, the settlor must (1) describe with definiteness a charitable purpose, (2) name the group of beneficiaries, either definite or indefinite, and (3) either deliver the trust property to the trustee with an intent expressed clearly and unequivocally by words or actions to create a trust or declare through clear and unequivocal words or acts that he holds the property in trust. G. Bogert, The Laws of Trusts and Trustees, § 232 (Rev.2d ed. 1977); 4 A. Scott, The Law of Trusts, § 348 (3d ed. 1967).
There is also little dispute concerning the factual support necessary to establish the first two elements of this required showing. Both sides are in apparent agreement that the Sixth Rebbe throughout his life looked upon the library as both a research library to be used by scholars and as a repository for those treasures of Chabad Chasidism constituting the ksovim required for the leader of the movement to serve the group's religious needs — both indisputably appropriate charitable purposes. Moreover, there can be little dispute that the Sixth Rebbe, like his predecessors, regarded the community of Chabad Chasidim as the beneficiaries of these activities, directly in the case of the Rebbe's use of the ksovim and indirectly through the prestige created by the existence of such a library with respect to the seforim. What is in dispute between the parties is whether at some point in his life the Rebbe, unlike his predecessors, gave up personal ownership and control over the library and delivered it to trustees with the stated intent that it be held by them in trust, subject to their being called to legal account, for the benefit of the community, and for the charitable purposes outlined above.
Much of the dispute arises because of strained and implausible arguments made on plaintiff's behalf seeking to establish such propositions as that the library was an outright gift by the Sixth Rebbe to plaintiff without charitable intent or the imposition of trust obligations in consideration for Agudas Chabad's expenditures in securing the Rebbe's escape from Europe and paying his debts. There is little evidence to support such an interpretation of the facts in this record and much which refutes it.
So, too, the argument of plaintiff that ma'amad was given to the Rebbe in trust to acquire a library to be held in trust is quite correctly refuted by, inter alia, defendants' quotation of a reply by one of Rabbi Joseph Isaac Schneersohn's secretaries, Rabbi Feigin in Warsaw, to a request from plaintiff's predecessor for an accounting of ma'amad funds:
Ma'amad monies were given to the Sixth Rebbe with the same lack of restriction on their disposition that is said to have characterized gifts to another church leader whose conviction for tax evasion was recently upheld by the Court of Appeals for this Circuit. United States v. Moon, 718 F.2d 1210 (2d Cir.1983), cert. denied, 466 U.S. 971, 104 S.Ct. 2344, 80 L.Ed.2d 818 (1984).
However, defendants' efforts to expand their argument, based on the patent readiness of the Rebbe's followers to permit him to do what he pleased with their money, into a more general proposition that no trust relationship can ever exist within the Chasidic movement must be rejected.
Which brings us back to defendants' argument that the Sixth Rebbe's letter to Dr. Alexander Marx is a lie. Without lengthening this opinion with a discussion of ample evidence that demonstrates that lies are as roundly condemned by the Jewish religion as by most others,
The Clerk is directed to mail a copy of the within to all parties.
As Hanna Gourary's example from the Fifth Rebbe's life illustrates, although private property law was resorted to, the net effect of the inheritance and sale was that the ksovim passed from Rebbe to Rebbe. As Rabbi Liberman stated:
Asked to explain these understood reasons at trial, one witness stated:
That the establishment of these legal forms had such a motivation does not make them any less real or legally binding.
Following the acquisition of 770 Eastern Parkway by plaintiff, the property was mortgaged to the Rebbe, thus giving the Rebbe and his heirs a formal legally binding claim on the building of which his heirs thereafter availed themselves. Tax exemption was obtained from the State of New York for those portions of the building that remained in the possession of plaintiff and where the library was located following its delivery to the United States. All of these circumstances tend to support the finding expressed in these pages that the Rebbe delivered the library into plaintiff's hands on the express understanding that it be held by plaintiff subject to legally enforceable fiduciary obligations for the benefit of the religious community of which the Rebbe was the leader.
What the record makes poignantly clear is the drastic change in the Rebbe's affairs brought about by World War II and his rigorously honest acceptance of the realities which those events forced him to recognize.