831
Chapter 52
Wills and
Trusts
Case 52.1
486 F.Supp.2d 309
United States District Court,S.D. New York.
SHAW FAMILY ARCHIVES LTD., Bradford Licensing, Inc., James E. Dougherty, and Valhalla
Productions LLC Plaintiffs/Consolidated Defendants,
v.
CMG WORLDWIDE, INC. and Marilyn Monroe, LLC, Defendants/Consolidated Plaintiffs.
No. 05 CIV. 3939(CM).
May 7, 2007.
832 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
actions in the Southern District of Indiana against other photographers and their agents concerning these same
intellectual property rights.
On April 19, 2005, apparently prior to being served in the Indiana action, SFA and others brought suit in this court
against MMLLC and CMG (the “New York Action”) seeking a declaratory judgment on whether there is any
postmortem right of privacy or publicity in the name, likeness, and image of Marilyn Monroe as well as damages for
certain alleged copyright violations, tortious interference with *311 contractual relations and tortious interference with
prospective economic advantage. On June 3, 2005, MMLLC and CMG filed a motion in this court seeking dismissal, a
stay, or transfer of the New York Action in favor of the first-filed Indiana action.
Family Archives et.al. v. CMG Worldwide, Inc.
No. 05 Civ. 3939 (S.D.N.Y. May 2, 2006), and on May 16, 2006, the
court entered a memorandum decision ruling that 1) SFA and the other defendants in the Indiana action “were
amenable to jurisdiction in Indiana”; 2) that, of the two actions pending before this Court, the Indiana action was the
first-filed; and 3) that Indiana’s choice of law principles apply to this case.
See
Memorandum Decision Regarding
Choice of Law,
Shaw Family Archives et al. v. CMG Worldwide, Inc.,
434 F.Supp.2d 203 (S.D.N.Y.2006).FN1
FN1. Familiarity with the facts set forth in that opinion is presumed.
On October 25, 2006, MMLLC moved for summary judgment on the right of publicity claims set forth in Count II of its
Second Amended Complaint, asserting that MMLLC is the holder of a 100% interest in Ms. Monroe’s postmortem
publicity rights under Indiana law, that Indiana’s postmortem publicity statute applies to its right of publicity claims
1962. In support of their cross-motion for summary judgment SFA and Bradford further argued that MMLLC should be
judicially and collaterally estopped from arguing that Ms. Monroe died a California domiciliary by virtue of four
decades of various proceedings in which representatives of the Monroe Estate purportedly maintained, and judicial
CHAPTER 52: WILLS AND TRUSTS 833
For the reasons stated below, Count II of MMLLC’s Second Amended Complaint is dismissed.
Factual Background
The parties’ cross-motions for summary judgment on MMLLC’s right of publicity claims are accompanied by numerous
Rule 56.1 Statements containing countless disputes over purportedly material issues of fact. These heated disputes
1962. (MMLLC Statement of Undisputed Facts (“MMLLC SUF”) ¶ 8). Her will, which did not expressly bequeath a
right of publicity, contained the following residuary clause:
SIXTH: All the rest, residue and remainder of my estate, both real and personal of whatsoever nature and whatsoever
situate, of which I shall die seized or possessed or to which I shall be in any way entitled, or over which I shall
possess any power of appointment by Will at the time of my death, including any lapsed legacies, I give, devise and
will. (
Id.
at ¶ 12). Upon the death of Mr. Frosch in 1989, the New York Surrogate’s Court appointed Anna Strasberg as
Administratrix, c.t.a., of the Monroe Estate. (
Id.
at ¶ 19). The Monroe Estate remained open until June 19, 2001, on
which date the Surrogate’s Court authorized the Administratrix to close the estate and transfer the residuary assets to
MMLLC, a Delaware company formed by Ms. Strasberg to hold and manage the intellectual property assets of the
residuary beneficiaries of Marilyn Monroe’s will. (
Id.
at ¶ 20).
SFA is a limited liability company organized under New York law with its primary place of business in New York.
(SFA, Marcus, and Stevens Amended *313 Complaint ¶ 3). Its principals are the three children of the late
photographer Sam Shaw. (
Id.
at ¶ 11). Among the photographs owned by SFA and comprising the Shaw Collection is
a series of photographs of Marilyn Monroe, including many “canonical” Marilyn images. (
Id.
at ¶¶ 10-11). The
appropriate “where the nonmovant’s evidence is merely colorable, conclusory, speculative, or not significantly
probative.”
Travelers Ins. Co. v. Broadway W. Street Assoc’s.,
164 F.R.D. 154, 160 (S.D.N.Y.1995) (citing
Anderson,
477 U.S. at 248, 106 S.Ct. at 2510). Before a district court grants summary judgment, however, “the record must
clearly establish both ‘the losing party’s inability to enhance the evidence supporting its position and the winning
party’s entitlement to judgment.’ ”
Pangburn v. Culbertson,
200 F.3d 65, 69 (2d Cir.1999) (citing
Ramsey v. Coughlin,
1.
Ms. Monroe did not have the testamentary capacity to devise property rights she did not own at the time of her
death.
[1] MMLLC argues that its ownership interest in Ms. Monroe’s postmortem right of publicity-assuming
arguendo
that
such a right exists-stems from Ms. Monroe’s valid devise of this right to Lee Strasberg through the residuary clause in
408-09, 114 Cal.Rptr.2d 307 (2001). Indiana first recognized a descendible, postmortem right of publicity in 1994,
when it passed the Indiana Right of Publicity Act. See Ind.Code §§ 32–36-1-1-20;
Phillips v. Scalf,
778 N.E.2d 480,
483 (Ind.App.2002). Prior to that time, rights of publicity were inalienable in Indiana, since they could only be
vindicated through a personal tort action for invasion of privacy.
See Continental Optical Co. v. Reed,
119 Ind.App.
643, 86 N.E.2d 306, 309 (1949);
see also Time Inc. v. Sand Creek Partners, L.P.,
825 F.Supp. 210, 212
is absolutely no doubt that she was
not
domiciled in Indiana.) However, it is not necessary to resolve the question of
domicile because neither New York nor California-the only two states in which Ms. Monroe could conceivably have
been domiciled-permitted a testator to dispose by will of property she does not own at the time of her death.
[4] It is well-settled that, under New York law, “A disposition by the testator of all his property passes all of the
property he was entitled to dispose of
at the time of his death.
” N.Y. Est. Powers & Trusts Law § 3-3.1 (formerly N.Y.
that it was enacted to codify the rule that a will is deemed pass all of the property the testator owns at the time of his
death, rather than only the property owned at the time when the will was executed. Thus, when the
Gernon
court and
others refer to “after–acquired” property, the term signifies property acquired after the execution of the will and before
the testator’s death-not property acquired after the testator’s death. Nothing in EPTL § 3-3.1 or
Gernon
stands for the
proposition that any intent on the part of the testator can overcome his testamentary incapacity to devise property he
testator may validly dispose of non-existent property.
Id.
(citations omitted).
See also McKay v. Lauriston,
204 Cal. 557, 569-70, 269 P. 519 (1928)(holding that wife could
not devise an interest in community property that terminated and became her husband’s upon her death);
See
generally,
*316
In re Estate of Braman,
435 Pa. 573, 258 A.2d 492, 494 (1969)(“During his lifetime, a person cannot
give or dispose of property which he does not own or in which he has no interest; no more so can a person make a
language of the provisions and cases that are precisely on point, the court is unpersuaded by MMLLC’s endeavor to
reason from attenuated analogies.
Nor does § 2-602 of the Uniform Probate Code, which states that a will may pass “property acquired by the estate
after the testator’s death,” have anything to do with the present case, because neither New York nor California is
among the 18 states that have adopted the Uniform Probate Code in whole or even in part. This court has not found,
Third,
In re Hite
reaffirmed, rather than undermined, the rule that only property owned at death can be devised by will.
In
In re Hite,
the court refused to alter the disposition of property as between two beneficiaries under a will in light of
events that occurred after the testatrix’s death. In her will, the testatrix devised to her husband an undivided one-half
interest in “all oil and gas royalties to which I may be entitled” from leases on land, with the remainder passing to her
son. At the time of her death, the testatrix owned a fee mineral estate that had no operating leases on it.
Id.
at 714-16.
immediately in the devisees at the very moment of the testator’s death, though title to the estate is subject to
administration. Here, at the time of the testatrix’ death, she owned an undivided interest in a fee mineral estate which
was not burdened with any royalty interests. This fee mineral estate was devised to appellee (her son) in the
residuary clause of her will.
Id.
(citations omitted). Thus, far from holding that property in which the testatrix held no ownership interest at the time
2.
Ms. Monroe did not “intend” to devise any rights she may have acquired under the Indiana of California right of
publicity statute through the residuary clause of her will.
[6] MMLLC argues that Marilyn Monroe intended to bequeath a postmortem right of publicity to her testamentary
legatees. The argument is unpersuasive. Adhering to the well-settled principles of probate law discussed above does
no violence to Ms. Monroe’s testamentary intent, the touchstone in construing her will under both New York and
of her death, much less an intent to devise a postmortem right of publicity whose existence Ms. Monroe could not
have contemplated.
The entire residuary clause reads as follows:
All the rest, residue and remainder of my estate, both real and personal of whatsoever nature and whatsoever situate,
of which I shall die seized or possessed or to which I shall be in any way entitled, or over which I shall possess any
court cannot take this common phrase out of its context and attribute to it the preternatural foresight that MMLLC
suggests.
[7] Second, a testator is presumed, as a matter of law, to know that he cannot dispose of property over which he has
no testamentary power, including property he does not own at the time of his death.
In re Buzza’s Estate,
194
838 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
produce the effect of subjecting property not owned by a testator at the date of his death to any disposition whatever.”
86 N.Y.S.2d at 600;
see also In re Buzza’s Estate,
194 Cal.App.2d at 601, 15 Cal.Rptr. 518.
Finally, MMLLC’s argument that refusing to allow property that did not exist at the time of Ms. Monroe’s death to pass
through the residuary clause of her will improperly favors intestacy without any countervailing considerations borders
on the absurd. The countervailing consideration that MMLLC refuses to recognize is Ms. Monroe’s legal incapacity to
3.
Neither the California nor the Indiana postmortem right of publicity statutes allows for testamentary disposition of
the rights it recognizes by celebrities already deceased at the time of its enactment.
[8] Finally, MMLLC’s case is doomed because both the California and Indiana postmortem right of publicity statutes
recognize that an individual cannot pass by will a statutory property right that she did not possess at the time of her
death. California’s Civ.Code § 3344.1(b)-(d) provides that, if no transfer of a personality’s postmortem right of publicity
under this chapter.”
See
Ind.Code §§ 32–36-1-16 to -18. Ms. Monroe’s legatees under her will are not her statutory
heirs for intestacy purposes.
Thus, even if a postmortem right of publicity in Marilyn Monroe’s persona could have been created after her death,
neither of the statutes that arguably bestowed that right allows for it to be transferred through the will of a “personality”
who, like Ms. Monroe, was already deceased at the time of the statute’s enactment. To the extent that other courts,
Case 52.2
Ga.,2010.
Peterson v. Harrell
286 Ga. 546, 690 S.E.2d 151, 10 FCDR 241
Supreme Court of Georgia.
53-5-23 (methods of examining witnesses to a will). Caveators presented no evidence challenging either the validity
of the signatures on the will or testator’s capacity at the time the will was executed. Accordingly, the evidence
supports the trial court’s finding that the will was duly executed. OCGA § 53-4-20(b).
2. The will contained a bequest to Lucas in the form of a trust and provided that upon Lucas’ death the trustee shall
distribute any remaining assets to four beneficiaries, including caveators. Some time after the will was executed,
FN1. The parties do not dispute that these handwritten alterations were made by testator.
840 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
her will or directed another to do so and that testator intended for this act to revoke the will. See OCGA §§ 53-4-41,
53-4-44. Joint operation of act and intention is necessary to revoke a will.
Lovell v. Anderson,
272 Ga. 675, 676, 533
S.E.2d 64 (2000). The intent to revoke the will in its entirety shall be presumed from the obliteration or cancellation of
a material portion of the will, but such presumption may be overcome by a preponderance of the evidence. OCGA §
53-4-44. See
Hartz v. Sobel,
136 Ga. 565, 71 S.E. 995 (1911) (cancellation of material portion of will raises
presumption of intention to revoke the whole). “Revocation pro tanto by obliteration, canceling, or destroying such part
is not authorized in Georgia.”
Price v. Hill,
184 Ga. 191, 195, 190 S.E. 575 (1937);
Hartz,
supra.
[4] Even assuming, arguendo, that the alterations to testator’s will constituted a material cancellation within the
meaning of OCGA § 53-4-44, we find no error in the trial court’s conclusion that testator did not intend to revoke her
at 25-26, 194 S.E. 201. Because the evidence showed only an intent to effect a revocation in part, which is not
allowed in Georgia by obliteration or cancellation, we concluded that the will was properly admitted to probate. Id. at
26, 194 S.E. 201. See also
Carter v. First United Methodist Church,
246 Ga. 352(2), 271 S.E.2d 493 (1980) (pencil
Case 52.3
CHAPTER 52: WILLS AND TRUSTS 841
Conn.App.,2009.
Garrigus v. Viarengo
112 Conn.App. 655, 963 A.2d 1065
Appellate Court of Connecticut.
Diane B. GARRIGUS et al.
v.
Genevieve VIARENGO.
No. 28396.
Argued Oct. 17, 2008.
Decided Feb. 17, 2009.
McLACHLAN, J.
*657 The defendant, Genevieve Viarengo, appeals from the judgment of the trial court, rendered after a trial to the
court, awarding the plaintiff Matthew Vaccarelli, administrator c.t.a. of the estate of Stella Jankowski, FN1 damages in
the amount of $496,070, and imposing a constructive trust for the benefit of the plaintiff on the certificates of deposit,
bank accounts and savings bonds that the defendant had held jointly with Stella Jankowski. The defendant claims
that the court improperly found that the plaintiff satisfied the heightened burden of proof with respect to his claim of
fraud and the elements necessary for the imposition of a constructive trust. We affirm the judgment of the trial court.
FN1. The original complaint was brought by Diane B. Garrigus, Richard Golebiewski, Jerry W. Golebiewski,
Edward Szydlik, John Szydlik, Lori G. Woscyna and Vaccarelli, administrator c.t.a. of the estate of Stella
Jankowski. The defendant filed a motion to dismiss the complaint as to all plaintiffs except Vaccarelli, which
was granted by the court,
Gallagher, J.,
on February 22, 2005. Accordingly, in this opinion, we refer to
Vaccarelli as the plaintiff.
Walter’s will and the drafting of a new will for Stella. When Wabiszczewicz inquired as to Walter’s assets, Stella did
not disclose most of the bank accounts or any of the savings bond holdings that she had held jointly with Walter, nor
did she mention that she had added the defendant as a joint owner of most of those assets.
In discussing the provisions of her new will, Stella told Wabiszczewicz that she wanted each of her ten nieces,
nephews and cousins to receive 10 percent of her estate. She directed Wabiszczewicz to name the defendant and
defendant, who informed *659 him that she had taken everything and that she would review them. Within two weeks
after Stella’s death, the defendant began sending jointly held certificates of deposit and savings bonds in varying
amounts to Stella’s heirs with little explanation. When those heirs questioned the defendant as to the amounts
received, she gave vague responses concerning their share in the estate and did not disclose her jointly owned
accounts and bonds.
owned assets formed the bulk of the estate, with a value in excess of $706,000. At the time of Stella’s death, the
accounts and bonds she held jointly with the defendant totaled $496,070, and the defendant claimed that those
accounts were hers and not part of the estate property. The remainder of the jointly held bank accounts, certificates of
deposit and savings bonds *660 were jointly held by Stella and twelve other individuals. The disagreement as to the
ownership of the jointly held assets resulted in several unproductive probate hearings, leading to the resignations of
therefore, the plaintiff could not prevail on the claim of undue influence; (2) the plaintiff proved his claim of fraud by
clear and convincing evidence, thereby rebutting the presumption that the joint bank accounts and savings bonds
held by Stella and the defendant were the property of the defendant; (3) the plaintiff, with respect to his statutory theft
claim, failed to prove by clear and convincing evidence that the defendant possessed the specific intent to
permanently deprive Stella of her assets; (4) the plaintiff could not recover under his claim for unjust enrichment
FN2. The plaintiff has not cross appealed from the court’s judgment in favor of the defendant on the counts of
undue influence, statutory theft or unjust enrichment or the count requesting the imposition of a resulting trust.
I
[1] The defendant’s first claim is that the court improperly found that the plaintiff**1070 satisfied the heightened
burden of proof with respect to his claim of fraud. Specifically, the defendant argues that the plaintiff failed to establish
FN3. General Statutes § 36a-290 provides: “(a) When a deposit account has been established at any bank, or
a share account has been established at any Connecticut credit union or federal credit union, in the names of
two or more natural persons and under such terms as to be paid to any one of them, or to the survivor or
survivors of them, such account is deemed a joint account, and any part or all of the balance of such account,
FN4. Section 353.70 of title 31 of the Code of Federal Regulations provides in relevant part: “The following
rules govern ownership or entitlement where one or both of the persons named on a bond have died without
the bond having been surrendered for payment or reissue …
“(b)
Coowner bond
-(1)
One owner deceased.
If one of the coowners named on a bond has died, the
surviving coowner will be recognized as the sole and absolute owner, and payment or reissue will be made
asserted are highly probably true, that the probability that they are true or exist is substantially greater than the
probability that they are false or do not exist.” (Internal quotation marks omitted.)
Boccanfuso v. Green,
91 Conn.App.
296, 305-306, 880 A.2d 889 (2005).
[4][5][6] “Fraud and misrepresentation cannot be easily defined because they can be accomplished in so many
different ways. They present, however, issues of fact…. The trier of facts is the judge of the credibility of the testimony
evidence was submitted to show that she had made
any
representation to Stella with respect to the creation of joint
accounts or the manner in which the defendant intended to distribute Stella’s assets after her death. Because there
was no proof that any representations had been made, the defendant argues, the plaintiff failed to prove the
remaining elements of fraud, i.e., that she had made representations to Stella that she had known to be untrue and
that she had made representations for the purpose of inducing Stella to establish joint assets.
would be circumstantial rather than direct.
[8][9][10] Although “[t]he party alleging fraud bears the burden of proving it with **1072 clear, precise, and
unequivocal evidence…. The evidence can be direct or circumstantial…. Proof by circumstantial evidence is sufficient
where rational minds could reasonably and logically draw the necessary inferences…. Each inferential fact need not
be proven by the quantum of proof required to find the ultimate fact.” (Citations omitted; internal quotation marks
Walter’s death, the defendant’s visits were infrequent. Within days of his death, the *666 defendant transported Stella
to the bank, and the defendant’s name was added as a joint owner on savings bonds worth approximately $80,000.
The defendant claimed that Stella did not tell her why she had transferred the assets into a joint account and that she
did not ask her the reason for the transfer. Within six months of Walter’s death, the defendant was added as a joint
owner on several of Stella’s savings and checking accounts, certificates of deposit and savings bonds.
was to be divided equally among the ten beneficiaries.
Sometime during Stella’s final hospitalization, the defendant removed all of the joint assets from Stella’s safe without
informing Golebiewski, the coexecutor of Stella’s will. After Stella’s death, when Golebiewski opened the safe, he
discovered that most of the contents *667 had been removed, and he contacted the defendant. The defendant
admitted that she had taken the safe’s contents and the financial records from the basement because she “needed to
necessary to file the estate tax returns. Golebiewski, as the coexecutor, was forced to contact the Department of the
Treasury for an accounting of the savings bonds that had been held by Stella. The defendant also refused to
cooperate with Wabiszczewicz when he instructed her to disclose all of the joint holdings and, thereafter, advised her
to seek other legal advice regarding his direction to disclose those assets.
Months after Stella’s death, Golebiewski and the other beneficiaries became aware of the fact that the defendant
In its lengthy memorandum of decision, the court often commented that it found the defendant’s testimony “not worthy
of belief” or her claims “not to be credible.” On the basis of its findings of fact and credibility determinations, the court
concluded: “It is clear to the court that Stella made arrangements to have the defendant’s name on her accounts out
of convenience and not as an intention to make a gift to her. It is also clear to this court, based on the credible
testimony, that Stella informed the defendant that the moneys and bonds that they held jointly were to be divided
that she did so. The credible testimony was that Stella told the defendant that she was to divide the assets among the
ten ‘children.’ When faced with Stella’s direction, the court can only imagine that the defendant had three options:
agree or consent to divide the assets, refuse to divide the assets or to remain silent. Given the testimony that Stella
was a strong willed individual, the defendant would not have remained as a confidant of Stella’s if she refused her
direction. If the defendant remained silent, Stella undoubtedly assumed the defendant’s assent, as she thereafter
defendant was the coexecutor of Stella’s will, was entrusted to make health care decisions for Stella, was given
Stella’s power of attorney and helped Stella with her financial affairs. Stella told the defendant how she wanted her
assets to be distributed. Under those circumstances, the court’s conclusion that the defendant’s silence constituted
fraud was not clearly erroneous.
Having found, by inference, that the defendant made false representations or that she made false representations
353.70(b).
The defendant’s challenge of the evidence focuses on the contradictory evidence**1075 that was presented at trial
and the claim that the testimony of the plaintiff’s witnesses was not believable. Such an argument challenges the
credibility of the witnesses and not the sufficiency of the evidence. The court, as the finder of fact, was the final arbiter
of credibility and was free to believe the testimony of the plaintiff’s witnesses and to disbelieve the testimony of the
[14] “A court’s determination of whether to impose a constructive trust must stand unless it is clearly erroneous or
involves an abuse of discretion…. This limited *672 scope of review is consistent with the general proposition that
equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the
trial court.” (Internal quotation marks omitted.)
Menard v. Gaskell,
92 Conn.App. 551, 555, 885 A.2d 1254 (2005).
[15][16][17] “A
constructive trust arises
contrary to intention and in invitum,
against one who, by fraud, actual or
reciting the previously stated standards in its memorandum of decision and finding that the plaintiff had proved by
clear and convincing evidence that the defendant committed fraud in obtaining those assets and was unjustly
enriched by holding the personal property that in equity and good conscience belonged to the ten beneficiaries of
Stella’s estate. The court, in its **1076 discussion, stated that Stella told the defendant to divide the jointly held assets
among her ten “children,” *673 that the defendant failed to do so and that the defendant was unjustly enriched
FN5. The defendant cited cases, which do not hold as she stated, and cited § 183 of the Restatement of
Restitution (1937). The Restatement, however, addresses a situation in which a constructive trust can be
imposed on an interest in land, and provides that such a trust may be enforced by a third person if (a) the
transferee induced the transfer by fraud, duress or undue influence,
or
(b) the transferee was in a confidential
relation to the transferor at the time of the transfer,
or
(c) the transfer was made by the transferor in
disagree.
Count four of the plaintiff’s operative complaint, titled “Unjust Enrichment,” alleged that the defendant benefited from
her wrongful acts by failing to justly compensate Stella’s estate or its heirs, thereby unjustly enriching herself. In its
memorandum of decision, the court found in favor of the defendant on this claim because “the plaintiff failed to show
sufficient facts to prove the existence of a contract between the defendant and the plaintiff or the decedent. Absent