IN RE: the Trust and Bequest of Frank W. SCHIDZICK (2025)

FRANK W. SCHIDZICK, JR. (hereinafter the “Decedent”) died a resident of Saratoga County on March 7, 2005, leaving a Last Will and Testament, dated October 4, 1996 which was amended by a codicil dated October 21, 1997 (the “Will”). Articles Ninth and Tenth of such Will effectively disposed of the Decedent's estate into an unnamed Testamentary Trust commonly known as the “Anchor-Diamond Trust” (hereinafter the “Trust”). The Trust's objectives were to facilitate the purchase and maintenance of an undeveloped parcel of land in the Town of Ballston to be used for public recreation and to be known as the “Anchor-Diamond Park”, with the balance of the estate to be used to fund a separate testamentary trust to be known as the “Anchor-Diamond Trust” to be used for scholarship purposes. The Trust provided for the appointment of four trustees, Nicholas J. Grasso, Esq., Charles J. Mango, Esq., Lawrence J. Zyra, Esq., and Lawrence P. Grasso.

On February 23, 2004, Letters of Trusteeship were issued to Nicholas J. Grasso, Esq., Charles J. Mango, Esq., Lawrence J. Zyra, Esq., and Lawrence P. Grasso (File No.: 1861-3T). Following a Decree issued on October 5, 2009, Charles J. Mango, Esq. and Lawrence J. Zyra, Esq. were permitted to resign as co-Trustees (File No.: 1861-3/C). Also following a further Petition, Nicholas J. Grasso and Lawrence P. Grasso were issued Letters of Trusteeship on March 15, 2012 (File No.: 1861-3/E). By Decree dated May 21, 2014, Paul C. Grasso was named successor co-Trustee of the Trust with Nicholas J. Grasso, Esq. following the death of then co-Trustee Lawrence P. Grasso, who continued to serve in this capacity (File No.: 1861-3/F). Nicholas J. Grasso's died on January 10, 2022 leaving Paul C. Grasso as sole-surviving Trustee.

As is relevant to the instant Petition, the parcel of land now known as the Anchor-Diamond Park was purchased by the then Trustees, with the deed conveying the same to the Town of Ballston being dated December 11, 2015 and having been recorded in the office of the Saratoga County Clerk on December 21, 2015.

Thereafter, the Court approved by Decree dated October 26, 2018 a Judicial Settlement of the Amended Accounting of Nicholas J. Grasso, Esq. (File No.: 1861/31). In such Decree, certain awards of commissions and legal fees were ordered to be paid from the Trust corpus. The Decree further directed that the Co-Trustees would remain Co-Trustees until the filing of receipts and releases for the payments therein directed and that thereafter the Co-Trustees could further petition the Court for permission to resign and for appointment of a successor trustee(s). In the ensuing six (6) years, no receipts and releases have been filed with the Court and no further petition or accounting was filed until the filing of the instant petition for cy pres. Notably, the $351,510.72 distribution Ordered to be made to the Town of Ballston for the establishment of a dedicated fund for the Anchor Diamond Park never occurred. Significantly, Nicholas J. Grasso died on January 10, 2022, leaving Paul C. Grasso as the remaining Trustee. Paul C. Grasso has never accounted to the Court although it would appear by the submissions of counsel that the Trust currently contains in excess of $538,286.35 under management.

The Town of Ballston then filed a cy pres petition on July 18, 2024 which, inter alia, sought to: (1) remove the current trustee; (2) appoint Ballston Spa National Bank as successor Trustee; (3) direct the distribution of $79,985.24 from the trust corpus to the Town for reimbursement of maintenance expenses for the Anchor Diamond Park; (4) adjudicate and declare that the entirety of the funds in the Trust be used for the care and maintenance of the Anchor Diamond Park and removing provisions of the Trust relating to scholarships which are no longer practical; (5) direct the Town and Ballston Spa National Bank to enter into a Trust Agreement for the benefit of the Town and the Anchor Diamond Park; (6) have an order directing the trust funds be transferred to Ballston Spa National Bank to be held pursuant to the new trust agreement.

On behalf of his client, by letter to the court, counsel for the trustee consented to the relief requested in the petition filed by the Town of Ballston. On the return date of this petition, no objections were filed and the Attorney General of the State of New York consented to the relief sought in the petition. This Court issued various Orders from the bench on the return date which were incorporated in a Decree dated November 7, 2024.

In the Decree dated November 7, 2024 the Court found that the prior October 26, 2018 Decree is res judicata and resolves the issues surrounding the decedent's intent of the use of the Trust funds, that being that the funds are to be used exclusively for the care and maintenance of the Anchor Diamond Park. This is supported by the language of Article Ninth of the Last Will and Testament due to the fact that the parcel of land has been acquired and deeded to the Town.

The Court further found that “the language of the Last Will and Testament is not clear on its face, however, in reading the Articles separately, Article Tenth provides for the use of ‘[t]he balance of the estate or the entire estate if the property is not purchased ․’ (emphasis added) to be used for the formation of a separate trust (the “Anchor Diamond Trust”). This appears to be a contingency provision should the purchase of the land directed in Article Ninth fail. This is supported by the language of Article Ninth which declares that ‘I direct that the whole of my estate be held in trust and that such trust be applied in my trustees’ discretion, towards the care, maintenance and/or purchase of an undeveloped parcel ․’ ” (emphasis added).

The Court further found that the land at issue was purchased and dedicated, as such, the remainder “whole” of the estate is to be applied to its perpetual care and maintenance as directed by the decedent in Article Ninth. The Court found that there was no estate balance to form a separate trust and as such, the contingency provision that is Article Tenth was never triggered.

Based upon a review of the submitted papers and the Court's own records as well as the arguments of counsel, the Court originally determined in its Decree dated November 7, 2024 that the Trust had clearly been neglected for at least six (6) years. Fortunately, the Town continued the necessary maintenance of Anchor Diamond Park for the laudable purpose of the enjoyment of the public. The Town is entitled to be reimbursed for such costs as the costs were contemplated by the Trust. Moreover, the Town, being the owner of the Anchor Diamond Park is the appropriate party to be sole direct beneficiary of the principal and interest of the Trust.

Moreover, in its Decree the Court further determined that the Trust was in need of professional management so that its income potential can be maximized and that Ballston Spa National Bank has a competent trust department to manage the funds and make appropriate distributions of income and principal to fulfill the testator's intent of the Trust.

It is also clear that the Trust language as contained in the Last Will and Testament is insufficient for what may be a perpetual trust over a public work, and the public would benefit from the Town and Ballston Spa National Bank entering into a formal trust agreement for the management of the funds to fulfil the testator's intent.

After receiving the Court's Decree dated November 7. 2024, the Petitioner's attorney contacted Ballston Spa National Bank requesting that the bank draft the trust agreement; however, bank representatives informed the town's attorney that the bank does not draft trust agreements and that the assignment was to be referred to outside counsel, namely the Harris-Pero Law Firm, PLLC. Many conversations then ensued between the two attorneys regarding the proposed trust.

Based upon research conducted by Megan Harris-Pero, Esq., the town attorney, and the certified public accountant retained to assist with this assignment it became apparent that the Ballston Spa National Bank acting as trustee would increase the costs and burdens of the trust administration relative to a simpler solution by having the Community Foundation for the Greater Capital Region act as the Foundation to manage the funds received from the testamentary trust. Specifically, based upon the collective review of Internal Service Regulations, application to the Internal Revenue Service would need to be made to obtain IRC Section 501(c)(3) status as an exempt organization, and annual accounting and filing requirements would be necessary.

The Community Foundation suggested that a non-endowed designated fund be followed to accomplish the wishes of the decedent who indicated a desire to support the maintenance and care for Anchor Diamond Park with this gift. In fact, a non-endowed fund allows for spending beyond the Community Foundation spending policy historically established at 4%.

The Court now finds that based upon the language that the decedent included in Article 9 of his Last Will and Testament, the proposed Anchor Diamond non-endowed designated fund mirrors his desire and provides the town board with discretion on spending beyond the care and maintenance of the park should there be a need for capital improvements. Moreover, the Court determines that all requests for spending from the proposed designated fund shall require a duly authorized Town Board resolution in addition to final approval of the distribution by the Community Foundation's Board of Directors.

As a result of these considerations the Town filed a second petition seeking that the court issue a Decree discharging Ballston Spa National Bank as Trustee without the necessity of an accounting; that the Ballston Spa National Bank be relieved of any obligation to file tax returns of the Estate and/or Trust for 2025 or any prior years; that the Town be reimbursed for expenses in the amount of $82,919.27 paid for the care and maintenance of Anchor Diamond Park; that the Community Foundation for the Greater Capital Region be designated as the Foundation to manage the corpus; that reasonable attorney's fees be paid to the Harris-Pero Law Firm, PLLC in the amount of $9,046.22; that accounting fees be paid to Campoli and Associates CPA's PLLC in the amount of $900.00; that the necessity of filing a bond be dispensed with for the Community Foundation for the Greater Capital Region.

The attorneys representing the parties to this proceeding appeared before me on April 30, 2025 with the exception of any attorney or party representing the New York State Department of Taxation and Finance. Based upon the pleadings filed with this court and the arguments conducted in court on April 30, 2025, it is therefore,

ORDERED, ADJUDGED, AND DECREED that the testamentary trust is terminated and the relief requested by the Petitioner is granted in all respects; and it is further

ORDERED, ADJUDGED, AND DECREED that Ballston Spa National Bank is discharged as Trustee of the Anchor-Diamond Trust pursuant to Articles Ninth and Tenth of the Last Will and Testament of Frank W. Schidzick, Jr. dated October 4, 1996 effective immediately without the necessity of an accounting and is relieved of any obligation to file tax returns of the Estate and/or Trust for 2025 or any prior years; and it is further

ORDERED, ADJUDGED, AND DECREED that the requirement of Paul C. Grasso to account for his tenure as Trustee is waived and that no liability shall be imposed upon Paul C. Grasso for his failure to file any prior income tax returns in connection with his duties as Trustee; and it is further

ORDERED, ADJUDGED, AND DECREED that legal fees in the amount of $9,046.22 be paid to the Harris-Pero Law Firm, PLLC as follows: $4,100.61 to be paid by the Ballston Spa National Bank; $4,945.61 be paid from the principal of the Trust; and it is further

ORDERED, ADJUDGED, AND DECREED that accounting fees in the amount of $900.00 be paid to Campoli and Associates CPA's PLLC from the principal of the Trust; and it is further

ORDERED, ADJUDGED, AND DECREED the Town be reimbursed in the amount of $82,919.27 from the principal of the Trust for previously incurred expenses for the maintenance and care of Anchor Diamond Park; and it is further

ORDERED, ADJUDGED, AND DECREED that the purported objections filed by the New York State Department of Taxation are dismissed with prejudice due to the failure to appear on the return date of this proceeding; and it is further

ORDERED, ADJUDGED, AND DECREED that the remaining funds be transferred to the Community Foundation for the Greater Capital Region and that any principal and interest be disbursed for the care and maintenance of Anchor Diamond Park or for any capital improvements to be made to the park and be based upon a resolution of the Town of Ballston Town Board then constituted and be approved by the Community Foundation's Board of Directors; and it is further

ORDERED, ADJUDGED, AND DECREED that any party herein shall be entitled to seek relief at the foot of this Decision and Order for specific performance and/or such additional remedies as may be available and/or necessary to enforce any provision of this Decree.

Jonathan G. Schopf, S.