     09-3043-cv
     Kennedy v. The Trustees of the Testamentary Trust of the Last Will and Testament of President John F. Kennedy


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                   SUMMARY ORDER

     Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after
     January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s
     Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either
     the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a
     summary order must serve a copy of it on any party not represented by counsel.


 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 28th day of October, two thousand ten.
 4
 5   PRESENT:           GUIDO CALABRESI
 6                      DEBRA ANN LIVINGSTON,
 7                                      Circuit Judges,
 8                      PAUL A. CROTTY,
 9                                      District Judge.*
10
11
12   JOHN FITZGERALD KENNEDY,
13              Plaintiff-Appellant,
14
15            -v.-                                                      No. 09-3043-cv
16
17   THE TRUSTEES OF THE TESTAMENTARY TRUST OF THE LAST WILL AND TESTA-
18   MENT OF PRESIDENT JOHN F. KENNEDY,
19             Defendants-Appellees.**
20
21
22                                         Paul Benjamin Dalnoky, New York, NY, for Plaintiff-
23                                         Appellant
24
25                                         Harlan A. Levy, Boies, Schiller & Flexner LLP, New York, NY, for
26                                         Defendants-Appellees.
27



              *
              The Honorable Paul A. Crotty, of the United States District Court for the Southern
     District of New York, sitting by designation.
              **
              The Clerk of the Court is directed to amend the official caption to conform with the
     caption above.
 1           UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED

 2   that the judgment of the district court be AFFIRMED.

 3           Plaintiff-Appellant John Fitzgerald Kennedy appeals from a judgment of the District Court

 4   entered on June 19, 2009 (Pauley, J.), dismissing his Amended Complaint based on the probate

 5   exception to the federal courts’ diversity jurisdiction and on Federal Rule of Civil Procedure

 6   12(b)(6). Plaintiff alleged that he was a biological son of the late President Kennedy and that the

 7   Defendants breached fiduciary duties to him in their handling of his demand to share in the proceeds

 8   of the testamentary trust established by the late President for the benefit of his children. We assume

 9   the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues

10   on appeal.

11           With respect to the dismissal of one of Plaintiff's claims due to the “probate exception” to

12   diversity jurisdiction, “[w]e review questions of subject-matter jurisdiction de novo.” Lefkowitz v.

13   Bank of New York, 528 F.3d 102, 107 (2d Cir. 2007). We apply the same de novo standard of review

14   to the dismissal of the remainder of his complaint for failure to state a claim under Rule 12(b)(6).

15   Kuck v. Danaher, 600 F.3d 159, 162 (2d Cir. 2010). “[A]s a matter of substance, ‘[t]o survive a

16   motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a

17   claim to relief that is plausible on its face.”’” Id. (alteration in original) (quoting Ashcroft v. Iqbal,

18   129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))).

19           As this Circuit has recently noted, “[t]he ‘probate exception’ is an historical aspect of federal

20   jurisdiction that holds ‘probate matters’ are excepted from the scope of federal diversity

21   jurisdiction.” Lefkowitz v. Bank of New York, 528 F.3d 102, 105 (2d Cir. 2007). In Marshall v.

22   Marshall, 547 U.S. 293 (2006), the Supreme Court clarified the scope of this exception, stating that


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 1   it “reserves to state probate courts the probate or annulment of a will and the administration of a

 2   decedent's estate; it also precludes federal courts from endeavoring to dispose of property that is in

 3   the custody of a state probate court. But it does not bar federal courts from adjudicating matters

 4   outside those confines and otherwise within federal jurisdiction.” Id. at 311-12. We have thus found

 5   that the exception applied to claims in which the plaintiff sought “in essence, disgorgement of funds

 6   that remain under the control of the Probate Court,” Lefkowitz, 528 F.3d at 107, but not to claims

 7   of breach of fiduciary duty in which the defendant sought “damages from Defendants personally

 8   rather than assets or distributions from [an] estate.” Id. at 107-08.

 9           The district court found that the exception applied to Plaintiff’s request for an order

10   compelling Defendants, upon proof of his claim to being a beneficiary of a class gift in President

11   Kennedy’s will, to pay to him funds from the testamentary trust representing his past, present, and

12   future entitlement under the will. It found that the exception did not apply, however, to his request

13   for an order that would compel Defendant Edelman to investigate Plaintiff’s claim. We agree with

14   respect to both claims. The Supreme Court has noted that “while a federal court may not exercise

15   its jurisdiction to disturb or affect the possession of property in the custody of a state court, it may

16   exercise its jurisdiction to adjudicate rights in such property where the final judgment does not

17   undertake to interfere with the state court's possession save to the extent that the state court is bound

18   by the judgment to recognize the right adjudicated by the federal court.” Markham v. Allen, 326

19   U.S. 490, 494 (1946) (citations omitted). Unlike in Markham, in which the federal court simply

20   declared the plaintiff was entitled to share in the estate in dispute, the Plaintiff in this case is seeking

21   not simply a declaration of entitlement to funds from the testamentary trust, but rather a court order

22   compelling payment to the extent he is found to be so entitled. Thus, while Plaintiff’s first claim


                                                          3
 1   seeks only to compel Defendant Edelman to perform his purported fiduciary duty to investigate

 2   Plaintiff’s claim, the second asks the Court “to dispose of property that is in the custody of a state

 3   probate court,” Marshall, 547 U.S. at 293, in this case, the court administering the testamentary

 4   trust, and thus falls within the exception. As a result, while the probate exception does not bar

 5   consideration of the first claim, we are without jurisdiction to consider Plaintiff’s second claim.

 6          With respect to the first claim, that Defendants breached a fiduciary duty to Plaintiff in

 7   failing to investigate his claim, we affirm the District Court’s dismissal under Rule 12(b)(6). The

 8   parties agree and the plain terms of the will reflect that the testamentary trust in President Kennedy’s

 9   will was established for the benefit of his “children.” In order for the Defendants-Trustees to owe

10   the Plaintiff a fiduciary duty as a beneficiary of this trust, then, he must fall within the meaning of

11   the term “children” in the will. The Plaintiff alleges that he made a demand for his share of the

12   inheritance, in a letter to each of the Defendants, pursuant to his status as a purported biological son

13   of the late President. As the letters to each trustee, attached to his complaint, reflect, however, he

14   does not claim to be a legitimate child of the President but rather an illegitimate son of the President

15   and the late actress Marilyn Monroe. The district court held that under Massachusetts law at the

16   time that President Kennedy's will was executed, “in the absence of anything indicating a contrary

17   intent,” words like “issue” or “children” referred only to “persons of the class who were born in

18   lawful wedlock.” Kennedy v. The Trustees of the Testamentary Trust of the Last Will and Testament

19   of President John F. Kennedy, No. 08 Civ. 8889 (WHP), slip op. at 7 (S.D.N.Y. June 19, 2009)

20   (quoting Powers v. Wilkinson, 506 N.E.2d 842, 844 (Mass. 1987)). Finding no such indicia of

21   contrary intent in the will, the court dismissed Plaintiff’s claim.



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 1          As an initial matter, we agree with the district court that Massachusetts law applies to the

 2   construction of the will at issue in this case. Sitting in diversity, we apply the choice-of-law rules

 3   of the forum state, here New York. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97

 4   (1941). Under New York law, “[i]nterpretation of a testamentary disposition of personal property

 5   shall be made in accordance with the local law of the jurisdiction in which the testator was domiciled

 6   at the time the will was executed.” N.Y. Estates, Powers and Trusts Law § 3-5.1. As President

 7   Kennedy's will indicates he was domiciled in Massachusetts at the time of its execution, we look to

 8   Massachusetts law in construing its terms.

 9          As the district court noted, under Massachusetts law applicable to wills executed before

10   1987, terms like “children” were presumed to include only marital children to the exclusion of any

11   non-marital children. Powers, 506 N.E.2d at 844. Even with that presumption, however, “[i]t is

12   fundamental that a trust instrument must be construed to give effect to the intention of the donor as

13   ascertained from the language of the whole instrument considered in the light of circumstances

14   known to the donor at the time of its execution.” Id. at 843 (quoting Groden v. Kelley, 415 N.E. 2d

15   850 (Mass. 1981)). However, in seeking to establish that intention, Plaintiff alleges only that

16   President Kennedy used variants of “child” rather than “issue” in describing the class gift to his

17   children, that he never used a more specific phrase to limit the class gift to children of his marriage,

18   and that an Executive Order signed almost nine years after his will was executed defined “child” for

19   the purposes of the Selective Service Regulations as including both legitimate and illegitimate

20   children. Manifestly, none of these allegations suffice even to suggest intent on the part of President

21   Kennedy to provide for non-marital children through the use of the term “children” in his will.

22   While presumptions may be overcome, the lack of anything in President Kennedy’s will indicating

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 1   an intent to include non-marital children as beneficiaries and the failure to allege any facts that

 2   could, if true, overcome the presumption makes dismissal for failure to state a claim appropriate in

 3   this case. As the Massachusetts Supreme Court, construing the word “issue” held, “Because nothing

 4   indicates an intent by the donor to include nonmarital issue, precedent requires us to presume that

 5   the donor intended, in accordance with the law extant at the time the instrument was executed, to

 6   exclude nonmarital descendants from the class denoted by [the] use of the word ‘issue.’” Powers,

 7   399 Mass. at 654.

 8          We have considered Kennedy’s other arguments on appeal and find that they are without

 9   merit or moot. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

10

11

12                                                        FOR THE COURT:

13                                                        Catherine O’Hagan Wolfe, Clerk

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15

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