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FILED: ERIE COUNTY CLERK 11/18/2020 01:39 PM INDEX NO. 814747/2020

NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 11/18/2020

STATE OF NEW YORKSURROGATE'S COURT : COUNTY OF ERIE

In the Matter of the Construction of the Last Will PETITION

And Testament of

CAROLYN H. FRANK, File No. 2003-3536

Deceased.

TO THE SURROGATE'S COURT OF THE COUNTY OF ERIE:

The Petition of AUDREY HORBETT respectfully shows:

L Your Petitioner is a citizen of the United States and resides at 156

Westcliff Drive in the Town of West Seneca, County of Erie, State of New York.

2. On the8th

day of January, 2004, the Last Will and Testament of

CAROLYN H. FRANK, dated the8'h

day of August, 2002, was admitted to probate in

this Court and Letters Testamentary were issued to your Petitioner who qualified as

executor and who continues to act in that capacity. A copy of said Will is attached to and

made a part of this petition as Exhibit A.

3. The reason that your Petitioner has filed this petition is because it is not

clear from a plain reading of said Will what the testatrix intended with respect to the

various bequests to individual beneficiaries and to charities.



.

4. The first issue that is presented by the Will is found in the first bequest

under Article SECOND. There the decedent purports to give a bequest to FR. ROY

HERBERGER. However, a plain reading of the bequest suggests that only part of the

bequest may be personal to him and that the balance of the bequest may be charitable in

nature to benefit SS COLUMBA BRIGID CHURCH as is shown by the phrase "10% to

SS Columba BrigidChurch"

and also by the use of the terms, "outreach fund" and

"bathroom fund". Presumably the"wheelchairramp" is not for personal use but rather

for the Church. It is possible that "3% for acar" is a personal bequest but that "5% for a

van ortruck"

is meant for SS COLUMBA BRIGID CHURCH. Since the total

percentage amount equals 29%, it is essential that a determination be made as to the

nature of the bequest, whether charitable or personal.

5. The next issue relates to the fact that at least three of the charitable

bequests are to ill-defined charities. They are "Support-a-Priest", "Prison Ministry"and

"Mustard Seed". They are each discussed below:

A. Upon information and belief, when the decedent used the term

"Support-A-Priest" that she may have been motivated by the third world seminarians

whom she often met and entertained through her close friend, FR. ROY HERBERGER,

and that a certain foundation called "ADOPTING A SEMINARIAN FOR

PRIESTHOOD" was discussed with her, which foundation funds the training of third

world priests. She may also have been motivated by advertisements in the magazine, "St.

Anthony's Messenger", which she read regularly, which advertisements urged supporting

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apriest as a way of having a priest in one's own family, presumably the support would be

of a missionary priest. She may also have been motivated by the visits she received from

a seminarian associated with St. Lawrence Church. Your Petitioner found no listings at

all related to the term used in the Will in the Internal Revenue Services'publication,

"Cumulative List of Organizations", an annual publication of charitable organizations

which are designated under section 501(c)(3) of the Code.

B. Upon further information and belief, when the decedent used the

term, "Prison Ministry", it is quite likely that she meant the "Hope PrisonMinistry"

which operates at the FATHER JOSEPH BISSONETTE CENTER on Grider Street in

Buffalo, New York through the services of SISTER KAREN KLIMCZAK. The

decedent was a member of the board of directors of that organization and a friend of

SISTER KAREN KLIMCZAK.

C. Upon further information and belief, the third term, "Mustard

Seed", is likely to be an organization in the country of Ghana which has a stateside

presence at SS COLUMBA BRIGID ROMAN CATHOLIC CHURCH, with whom the

decedent was also affiliated. At the time of her death, the decedent was on the local

group's mailing list and she had been a contributor to the MUSTARD SEED through SS

COLUMBA BRIGID ROMAN CATHOLIC CHURCH since February, 1997.

6. The final issue relates to the order in which the bequests occur within the

residuary clause. The first 11 bequests are made in the form of a percentage, presumably

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of the residuary estate. The next 8 bequests are bequests of specific cash amounts,

tangible property or real property. These are followed by 2 more bequests made in the

form of a percentage followed by a bequest of a specific amount and then a bequest of the

remainder. There are several possible alternatives, four of which are listed below:

A. First Alternative - Because of the order of the bequests it is not

clear if the percentage bequests should be multiplied against the whole net estate and the

specific and general bequests simply subtracted with the residue being paid to SS

COLUMBA BRIGID CHURCH. If it is done in the order listed in Article SECOND of

the Will as part of the "residuary estate", then the specific and general bequests will each

bear its share of the expenses. That calculation is attached to and made a part of this

Petition as Exhibit B.

B. Second Alternative - It is also possible that the decedent intended

to have the specific and general bequests of cash, tangible personal property and real

property paid without regard to expenses. Then the percentage bequests would be

deducted against the net probate estate and would bear the full share of the expenses.

This would be the usual practice of most drafters of Wills. That calculation is attached to

and made a part of this Petition as Exhibit C.

C. Third Alternative - Another scenario could be that the first 11

percentage bequests should be taken against the net estate. Then the specific and general

bequests which comprise the12*

to the19*

bequests should be paid in full without

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bearing any share of the expenses. Then the next two percentage bequests would be

based on the remaining subtotal after those 19 bequests with the general bequest of

$2,000 then subtracted leaving the balance to SS COLUMBA BRIGID CHURCH. That

calculation is attached to and made a part of this Petition as Exhibit D.

D. Fourth Alternative - Another scenario could be that the decedent

intended that the specific and general bequests be paid first with the percentage bequests

through #20 being calculated against the gross estate with only the last bequest bearing

the total expenses given the use of the phrase "rest, residue andremainder"

in paragraph

22 of Article SECOND. That calculation is attached to and made a part of this Petition as

Exhibit E.

E. A comparison of Alternatives 1, 3 and 4 with Alternative 2 is

attached to and made a part of this Petition as Exhibit F.

7. It is respectfully requested that this Court determine the issues described

above in order to determine to whom distributions shall be made and in what amounts.

5



.

8. The names and post office addresses of the persons who are interested in

this proceeding are as follows:

NAME AGE RELATIONSHIP ADDRESS

AIJDREY HORBETT Full Petitioner, 156 Westcliff Drive

Executor West Seneca, New York 14224

R. ROY HERBERGER Full Beneficiary418 N. Division Street

Buffalo, New York 14204

BARBARA MOSS Full Beneficiary21 Congleton Road

Sandbach, Cheshire

CW11 ODG England

JOAN MOSS Full Beneficiary21 Congleton Road

Sandbach, Cheshim

CW11 ODG England

EÚCY PANEK a/k/a Full Beneficiary66 Summer Street

LUCILLE PANEK Buffalo, New York 14209

ALFIE FOLDES a/k/a ELFI Full Beneficiary6809 Revere Drive

FOLDES Derby, New York 14047

JOE FOLDES a/k/a JOSEPH Full Beneficiary6809 Revere Drive

V FOLDES Derby, New York 14047

ANTOINETTE ANDOLINA Full Beneficiary39 Hinman Avenue


FATHER PAUL SEIL Full Beneficiary1520 E. Delavan Avenue


MARY ANN CROTTY a/k/a Full Beneficiary1103 Delaware Avenue

MARY ANN CROTTY- Buffalo, New York 14222

LOGUE

UPPORT-A-PRIEST - BeneficiaryWWOWN

CATHOLIC CHARITIES --- Beneficiary525 Washington Street


PRISON MINISTRY --- BeneficiaryKNOWN

11USTARD SEED --- Beneficiary418 N. Division Street

Buffalo, New York I4204

ST. LAWRENCE CHURCH --- Beneficiary1520 E. Delavan Avenue


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THOMAS MERCER Full BeneficiaryP.O. Box 632

. Ellicottville, New York 14731

STELLA FRANCISCANS -Beneficiary

4421 Lower River Road

,NUNS a/k/a SISTERS OF Lewiston, New York 14144

ST. FRANCIS

MARY DREWER a/k/a Full Beneficiary8473 Wooster Pike

MARY DRUAR KAJTAR Seville, Ohio 44273

,PAT MAIER . Full Beneficiary60 W. Balcom Street


HARON SMITH a/k/a Full Beneficiary39 Hinman Avenue

SHARRON SMITH Buffalo, New York 14216

ÍDA BALDWIN Full Beneficiary458 N. Division Street


FRANCES PEREZ Full Beneficiary115 Hollings Drive


1½IMI ZINGLANG a/k/a Full Beneficiary8700 County Road

MARILYN ZAENGLEIN East Amherst, New York 14051

£AVE ZINGLANG a/k/a Full Beneficiary8700 County Road

DAVID ZAENGLEIN East Amherst, New York 14051

SPCA a/k/a SOCIETY FOR --- Beneficiary205 Ensminger Road

fHE PREVENTION OF Tonawanda, New York 14150

CRUELTY TO ANIMALS

'SS COLUMBA BRIGID --- Beneficiary418 N. Division Street

CHURCH Buffalo, New York 14204

ATTORNEY GENERAL OF ---Statutory

107 Delaware Avenue - 4th

THE STATE OF NEW Buffalo, New York 14202

YORK

Upon information and belief, all of the interested parties are of full age and sound

mind or are charitable entities and there are no other interested parties in this proceeding.

However, the identities of SUPPORT-A-PRIEST and PRISON MINISTRY are uncertain

and their addresses are unknown.

No previous application has been made for the relief sought in this Petition.

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. WHEREFORE, it is respectfully requested that this Court issue an Order to Show

Cause to FR. ROY HERBERGER, BARBARA MOSS, JOAN MOSS, LUCILLE

PANEK, ELFI FOLDES, JOSEPH FOLDES, ANTOINETTE ANDOLINA

FATHER PAUL SEIL, MARY ANN CROTTY-LOGUE, CATHOLIC CHARITIES,

MUSTARD SEED, ST. LAWRENCE CHURCH, THOMAS MERCER, SISTERS OF

ST. FRANCIS, MARY DRUAR KAJTAR, PAT MAIER, SHARRON SMITH, IDA

BALDWIN, FRANCES PEREZ, MARILYN ZAENGLEIN, DAVID ZAENGLEIN,

SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS, SS COLUMBA

BRIGID CHURCH and the ATTORNEY GENERAL OF THE STATE OF NEW

YORK, directing them to show cause before this Court why an Order should not be made

construing those portions of the Last Will and Testament of CAROLYN H. FRANK

referred to in this petition as follows: NA. FR. ROY HERBERGER shall be entitled to receive 3% of the net

estate towards the purchase of an automobile for his personal use, which bequest is not a

charitable bequest;

B. SS COLUMBA BRIGID CHURCH shall be entitled to receive the

balance of the bequest in the first paragraph of Article SECOND to include 5% toward its

outreach fund, 5% for a van or truck, 10% for its general purposes, 1% toward its

bathroom fund and 5% for a wheelchair ramp, which bequest qualifies for a charitable

deduction;

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C. SUPPORT-A-PRIEST shall mean a certain foundation called

"ADOPTING A SEMINARIAN FOR PRIESTHOOD", if such foundation is in

existence, which bequest qualifies for a charitable deduction;

D. PRISON MINISTRY shall mean the "Hope PrisonMinistry"

which is run out of the FATHER JOSEPH BISSONETTE CENTER on Grider Street in

Buffalo, New York by SISTER KAREN KLIMCZAK, which bequest qualifies for a

charitable deduction;

E. MUSTARD SEED shall mean the organization in the country of

Ghana which has a stateside presence at SS COLUMBA BRIGID ROMAN CATHOLIC

CHURCH and the funds shall be paid over to SS COLUMBA BRIGID ROMAN

CATHOLIC CHURCH to be used for MUSTARD SEED as it shall determine, which

bequest qualifies for a charitable deduction; and

F. The specific and general bequests shall be paid first from the gross

estate. The percentage bequests shall be paid from the net estate after the payment of all

debts and expenses related to the naministration of the estate; and for such other and

further relief as may be just and proper.

AUD V ORBETT

9



STATE OF NEW YORK )COUNTY OF ERIE ) ss.:

TOWN OF WEST SENECA )

AUDREY HORBETT, being duly sworn, says that she is the Petitioner in the

above-entitled proceeding; that she has read the foregoing Petition by her subscribed and

knows the contents thereof and that the same is true to the knowledge of deponent, except

as to any matters therein stated to be alleged on information and belief, and that as to

those matters she believes it to be true.

AUDREY HORBETT

Subscribed and sworn to before me

this ay of p b , 2004

Notary PuÛlic

SANDRA J. CARLOCGIogmyPubt.StatoofNewYA

QuaMedinElisonmiySpimsNov.8,..-.k'

JAECKLE FLEISCHMANN & MUGEL, LLPBy·

730269.wp

10



.

ORIGINAL FILED IN

ERIE COUNTYE's COURT At a Surrogate's Court, held in and for the CountySU of Erie, State of New York, at the Erie County

ON -- Courthouse, in the City of Buffalo, N.Y. on the

/d day of April, 2004.

PRESENT: Hon. BARBARA HOWE

In the Matter of the Construction of the Last Will ORDERAnd Testament of

CAROLYN H. FRANK, File No. 2003-3536

Deceased.

Upon reading and filing the Petition of AUDREY HORBETT, the Executor of the

Estate of CAROLYN H. FRANK, duly verified on the 18*day of February, 2004, from which

it appears that the intervention of this Court is necessary in order to construe the language of the

Last Will and Testament of CAROLYN H. FRANK admitted to probate before this Court on the

8*day of January, 2004;

AND FRANCIS J OFFERMANN, JR., Esq. having appeared on behalf of the

SISTERS OF ST. FRANCIS;

AND JOSEPH A. STOECKL, Esq. having appeared on behalf of CATHOLIC

CHARITIES and the ROMAN CATHOLIC DIOCESE OF BUFFALO;

AND CHARLES E. MILCH, Esq. having appeared on behalf of the ERIE

COUNTY SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS;



AND ANDREW P. FLEMING, Esq. having appeared on behalf of a group known

as MARY MOTHER OF GOD OF PRIESTS;

AND JAECKLE, FLEISCHMANN & MUGEL, LLP, GAYLE L. EAGAN, Esq.

of Counsel, having appeared on behalf of the Petitioner;

AND the ATTORNEY GENERAL OF THE STATE OF NEW YORK having

appeared by WILLIAM D. MALDOVAN, Esq., of Counsel;

AND there having been no other appearances;

AND FR. ROY HERBERGER having been present in the court on behalf of SS

COLUMBA BRIGID ROMAN CATHOLIC CHURCH;

AND the Court having satisfied itself that it has jurisdiction over all of the

necessary parties;

AND the parties having determined that it would be in the best interests of such

parties to settle all of the outstanding issues and claims between them;

AND a Stipulation having been entered on the record as to all of the outstanding

issues before the Court by and among the petitioner, AUDREY HORBETT, by her attorneys,

JAECKLE, FLEISCHMANN & MUGEL, LLP, GAYLE L. EAGAN, Esq. of Counsel, the

2



SISTERS OF ST. FRANCIS by their attomey, FRANCIS J. OFFERMANN, JR., CATHOLIC

CHARITIES and the ROMAN CATHOLIC DIOCESE OF BUFFALO by their attorney

JOSEPH A. STOECKL, Esq., the SOCIETY FOR THE PREVENTION OF CRUELTY TO

ANIMALS by its attorney, CHARLES E. MILCH, Esq., the group known as MARY MOTHER

OF GOD OF PRIESTS by its attorney, ANDREW P. FLEMING, Esq.; and the ATTORNEY

GENERAL OF THE STATE OF NEW YORK by WILLIAM D. MALDOVAN, Esq., of

Counsel;

AND FR. ROY HERBERGER having consented to the Stipulation on behalf of

himself, individually, and SS COLUMBA BRIGID ROMAN CATHOLIC CHURCH;

AND the terms of the Stipulation are as follows:

An Order shall be made construing those portions of the Last Will and Testament

of CAROLYN H. FRANK referred to in the petition as foUows:

A. FR. ROY HERBERGER shall be entitled to receive 3% of the net estate

towards the purchase of an automobile for his personal use and any unspent money shall be for

his personal use, which bequest is not a charitable bequest;

B. SS COLUMBA BRIGID ROMAN CATHOLIC CHURCH shall be

entitled to receive the balance of the bequest in the first paragraph of Article SECOND to include

5% toward its outreach fund, 5% for a van or truck, 10% for its general purposes, 1% toward its

3



bathroom fund and 5% for a wheelchair ramp, and any unspent money shall be used for its

general purposes, which bequest qualifies for a charitable deduction;

C. The share designated for "SUPPORT-A-PRIEST"shall be paid over to the

FOUNDATION OF THE ROMAN CATHOLIC DIOCESE OF BUFFALO and shall be held in

a segregated fund to be used, as the Board of Directors of said Foundation shall determine, for

the support of seminarians who are from "third world" countries and who are committed to

working in "thirdworld"

countries, which bequest qualifies for a charitable deduction;

D. PRISON MINISTRY shall mean "HOPE OF BUFFALO, INC.", which

organization is run out of the FATHER JOSEPH BISSONETTE CENTER at 335 Grider Street

in Buffalo, New York by SISTER KAREN KLIMCZAK, which bequest qualifies for a


E. MUSTARD SEED shall mean the organization in the country of Ghana

which has a stateside presence at SS COLUMBA BRIGID ROMAN CATHOLIC CHURCH and

the funds shall be paid over to SS COLUMBA BRIGID ROMAN CATHOLIC CHURCH to be

used for MUSTARD SEED as it shall determine, which bequest qualifies for a charitable

deduction; and

F. The specific and general bequests and the devises of real property shall be

paid first from the gross estate in accordance with Alternative 2 attached to and made a part of

the Petition. The percentage bequests shall be paid from the net estate after the payment of all

4



debts and expenses related to the administration of the estate, also in accordance with said

Alternative 2.

NOW, therefore, it is hereby ORDERED that those portions of the Last Will and

Testament of CAROLYN H. FRANK referred to in the petition be, and they hereby are

construed as follows:

A. FR. ROY HERBERGER shall be entitled to receive 3% of the net estate

towards the purchase of an automobile for his personal use and any unspent money shall be for

his personal use, which bequest is not a charitable bequest;

B. SS COLUMBA BRIGID ROMAN CATHOLIC CHURCH shall be

entitled to receive the balance of the bequest in the first paragraph of Article SECOND to include

5% toward its outreach fund, 5% for a van or truck, 10% for its general purposes, 1% toward its

bathroom fund and 5% for a wheelchair ramp, and any unspent money shall be used for its

general purposes, which bequest qualifies for a charitable deduction;

C. The share designated for"SUPPORT-A-PRIEST"

shall be paid over to the

FOUNDATION OF THE ROMAN CATHOLIC DIOCESE OF BUFFALO and shall be held in

a segregated fund to be used, as the Board of Directors of said Foundation shall determine, for

the support of seminarians who are from "thirdworld"

countries and who are committed to

working in "third world"countries, which bequest qualifies for a charitable deduction;

5



D. PRISON MINISTRY shall mean "HOPE OF BUFFALO,INC."

which

organization is run out of the FATHER JOSEPH BISSONETTE CENTER at 335 Grider Street

in Buffalo, New York by SISTER KAREN KLIMCZAK, which bequest qualifies for a


E. MUSTARD SEED shall mean the organization in the country of Ghana

which has a stateside presence at SS COLUMBA BRIGID ROMAN CATHOLIC CHURCH and

the funds shall be paid over to SS COLUMBA BRIGID ROMAN CATHOLIC CHURCH to be

used for MUSTARD SEED as it shall determine, which bequest qualifies for a charitable

deduction; and

F. The specific and general bequests and the devises of real property shall be

paid first from the gross estate in accordance with Alternative 2 attached to and made a part of

the Petition. The percentage bequests shall be paid from the net estate after the payment of all

debts and expenses related to the administration of the estate, also in accordance with said

Alternative 2.

BARBARA HOWE

HON. BARBARA HOWE

ENTERED:

730616.wp

6



FOUNDATION==ROMAN CATHOLIC

D1OCESE OF BUFFALO795MainStreet• Suffalo,NY14208

NEW ACCOUNT SETUP

To be completed by the Foundation Staff Project # EEoFund Name:¶qf, b(1/c n K Fr/mb Ev3dow ,,w,st FootDate of Origin: / A Do Y Origin & Amount of Initial Deposit : 2 S†a_†e.

- ? ZE 2 / 6 † ý

Contract O Management E Other O CGA Agreement Form #H. Frot

Donor Name: Estocte of C,goyn Contac1Name:

Contact Address: Contact Phone:

Additional Contacts (cc: for mailing)

Category: Ministry _ Human Services Education Formation X All_

Project Type: Endowment S CGA O Philanthropic O Other

Permanently restricted Temporarily restricted Unrestricted Short Term Long Term

Donor Designated: or NO Specifically for: 8 dv ed , o n of fr)eiSS-T|n't yrf L<)nr |ob

Pledge Agreement Pledge Payment Schedule attachedC ou v&v e s

+ Soppot t - A PrTo be completed by the Finance Department Staff

DISTRIBUTION:

Distribution Calculation Method:

(Default: 3 year Rolling Average & Foundatic: Spsñding Policy) ___

Distribution begins:

Distribution frequency: Annual Semi-Annual Quarterly Monthly Other

Distribution Schedule:

Limitations:

Charitable Gift Annuity: One Life Two Life Other

ACH Direct Deposit (Annuities Only) Yes No

If yes Bank Name

Address

Type: Checking or Savings

Account #

ABA #

***MUST ATTACH VOIDED CHECK***

NYSPMIFA AUDIT COMPLETED on: by:



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