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., 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.: 1861/3J). 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 now brings the instant cy pres petition which seeks 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. On the return date, no objections were filed and the Attorney General of the State of New York consented to the relief sought in the petition and this Court issued various Orders from the bench, which are now incorporated herein.

The Court finds 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 language of the Last Will and Testament is not clear on its face, however, in reading [*2]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).

Here the land 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. There is 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 Trust has clearly been neglected for at least six (6) years. Fortunately, the Town has continued the necessary maintenance of the 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, the Trust is in need of professional management so that it's income potential can be maximized. 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 ^[FN1] 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.

Accordingly, it is therefore,

ORDERED, ADJUDGED, AND DECREED based upon all of the foregoing, that Paul C. Grasso is removed 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; and it is further

ORDERED, ADJUDGED, AND DECREED that the requirement of Paul C. Grasso to account for his tenure as Trustee is waived, subject to further order of this Court. However, Paul C. Grasso is not released from any legal responsibility or liability pertaining to his management of the Trust funds during his tenure as Trustee absent the filing and approval of a judicial accounting; and it is further

ORDERED, ADJUDGED, AND DECREED that a new trust be formed to receive the funds currently held in trust. Such trust shall be known as the"Frank W. Schidzick Anchor Diamond Park Trust" and the Town of Ballston and the Ballston Spa National Bank shall enter into a formal trust agreement for the same, such agreement to be approved by this Court and the Attorney General of the State of New York; and it is further

ORDERED, ADJUDGED, AND DECREED that Ballston Spa National Bank is hereby appointed as Trustee of the funds currently being held by Paul C. Grasso in the testamentary [*3]trust known as the Anchor-Diamond Trust upon properly qualifying for such office. Upon the said Ballston Spa National Bank filing it's Oath and Designation, Letters of Trusteeship will issue to Ballston Spa National Bank; and it is further

ORDERED, ADJUDGED, AND DECREED that any remaining funds of the Trust shall be delivered to Ballston Spa National Bank by Paul C. Grasso or any other financial institution/ investment firm which may hold such funds upon demand by the said Ballston Spa National Bank to be held in Trust and to be expended for the purposes set forth in this Order; and it is further

ORDERED, ADJUDGED, AND DECREED that Ballston Spa National Bank shall hold such funds in escrow until such time as the Frank W. Schidzick Anchor Diamond Park Trust is formed and approved by this Court, or a further order of this Court issues; and it is further,

ORDERED, ADJUDGED, AND DECREED that Petitioner's counsel shall submit a proposed trust agreement within forty-five (45) days from the issuance of this Decision and Order for approval by the New York State Attorney General and this Court; 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 Decision and Order.