Congregation Jeshuat Israel v. Congregation Shearith Israel (186 F. Supp. 3d 158, 2016)

MEMORANDUM, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

John J. McConnell, Jr., United States District Judge.

Bricks and mortar of a temple, and silver and gold of religious ornaments, may appear to be at the center of the dispute between the two parties in this case, but such a conclusion would be myopic. The central issue here is the legacy of some of the earliest Jewish settlers in North America, who desired to make Newport a permanent haven for public Jewish worship, Fidelity to their purpose guides the Court in resolving the matters now before it.

After a thorough and exhaustive review of the evidence, determination of the disputed facts, and application of the relevant law, this Court concludes that 1) Touro Synagogue is owned in charitable trust for the purpose of preserving a permanent place of public Jewish worship; 2) the pair of Myer Myers Rimonim previously owned by Newport’s earliest Jews is now owned by Congregation Jeshuat Israel, which is free to do with its property as it wishes; 3) Congregation Shearith Israel of New York should be removed as trustee of Touro Synagogue! and 4) Congregation Jeshuat Israel of Newport should be appointed as the new trustee.

I. PROCEDURAL BACKGROUND

On November 8, 2012, Congregation Jeshuat Israel brought an action in Rhode Island Superior Court (Newport County) against Congregation Shearith Israel over the ownership of a set of colonial-era fínial bells (the Rimonim) crafted by the silversmith Myer Myers, and the control of Touro Synagogue, the oldest active synagogue in the United States. Compl., ECF No. 1-2. Jeshuat Israel seeks an order: 1) pursuant to the Uniform Declaratory Judgments Act, R.I. .Gen. Laws §§ 9-30-1, et seq., declaring that it is the true and lawful owner of the Rimonim with full power to sell and convey them and to deposit the proceeds of such sale into an irrevocable endowment fund; 2) restraining Shearith Israel from interfering with Jesh-uat Israel’s planned sale of the Rimonim to the Museum of Fine Arts in Boston (MFA) for $7 million in net proceeds; 3) or in the alternative, declaring that Shearith Israel only owns the Rimonim in trust for the benefit of Jeshuat Israel, and authorizing the sale of the Rimonim as in Jeshuat Israel’s best interests; 4) removing Shear-ith Israel as trustee for Touro Synagogue and land, and declaring Jeshuat Israel’s Board of Trustees as replacement trustee; and 5) declaring that Jeshuat Israel is the true and lawful owner of unspecified other personal property in its possession, besides the Rimonim, with full power to use, sell and convey the same. Id. at 12-16.

Shearith Israel removed the action to the United States District Court for the District of Rhode Island, based on diversity of citizenship pursuant to 28 U.S.C. § 1332(a). Pet, for Removal, Nov. 14, 2012, ECF No. 1 at 1-2. Shearith Israel then filed an amended answer and six counterclaims against Jeshuat Israel, asking the Court 1) to find that Jeshuat Israel breached an agreement with Shearith Israel by filing a lawsuit; 2) to declare that Shearith Israel owns the Rimonim; 3) to enjoin the sale of the Rimonim, transfer the possession and control of the Rimonim to Shear-ith Israel, and for damages; 4) to declare that Shearith Israel owns and has all legal and equitable rights to the Touro Synagogue, its lands, and any and all historic personalty used by or for Touro Synagogue; 5) to terminate Jeshuat Israel’s lease of Touro Synagogue; and 6) to enforce .Jeshuat Israel’s contractual obligations to Shearith Israel. Am. Answer and Countercl., Dec. 6, 2012, ECF No. 8 at 17-23.

The parties zealously litigated this suit for over three years. Beginning on June 1, 2015, the Court conducted a nine-day bench trial that generated a 1,850-page transcript and approximately 900 admitted exhibits consisting of thousands of pages. The Court heard from seven live witnesses and admitted 12 depositions consisting of I,990 pages of transcripts. Post-trial, the parties submitted 895 pages of briefing and proposed findings of fact. The Court heard closing arguments on September 18, 2015.

II. FINDINGS OF FACT

After an extensive and lengthy study and review of the voluminous record in this case, the Court issues these findings of fact. Following the numbered summary of the facts is a narrative elaborating on the Court’s findings,

1. Jews first came to Newport, Rhode Island in the mid-17th century, fleeing religious persecution in Europe.

2. The Newport Jewish community formed a collective for worship that became known as Congregation Yeshuat Israel.

3. In the mid-18th century, members of the Newport Jewish community were taxed for the purchase of land for a Synagogue, and raised additional funds for building the edifice.

4. The land and Synagogue were acquired and owned in trust for the purpose of public Jewish worship.

5. The Newport Jewish community picked three leaders to serve as trustees for the Synagogue and lands, because at that time in Rhode Island, religious institutions could not incorporate, own land, or serve as trustees.

6. The three original trustees were Jacob Rodrigues Rivera, Moses Levy, and Isaac Hart. Although their names appeared on the deed to the Synagogue land, they did not own the land or Synagogue outright. They were only the legal owners and trustees, with a duty to preserve the property for public Jewish worship.

7. The construction of the Synagogue (now called Touro Synagogue) began in 1759 and ended by 1762. The Synagogue was consecrated in 1763.

8. The famous colonial-era silversmith Myer Myers made a pair of silver Rimon-im for the Newport Jewish Community around the time when Touro Synagogue was built. These Rimonim originally belonged to Congregation Yeshuat Israel.

9. The majority of Jews left Newport in 1776 because of the Revolutionary War. Regular religious services at the Synagogue ended around 1793, only 30 years after the Synagogue’s consecration. The last Jew left Newport in 1822.

10. Some members of Yeshuat Israel who left Newport joined, the New York Congregation Shearith Israel. They brought with them Yeshuat Israel’s religious articles, including the Rimonim, which they deposited for safekeeping with Shearith Israel. They instructed Shearith Israel to return the Rimonim to the Jewish congregation thereafter worshiping in Newport.

11. Shearith Israel branded Yeshuat Israel’s Rimonim with the word “Newport” on their bases, to distinguish them from Shearith Israel’s own similar pair.

12. After the deaths of the three original trustees—Messrs. Rivera, Hart, and. Levy—the duties of trustee were passed on informally. Several individuals, including Moses Seixas, Moses Lopez, Abraham Touro, Judah Touro, and. Stephen Gould acted as trustees for the Touro Synagogue and lands. Shearith Israel also took on trustee duties.

13. Shearith Israél helped care for the Synagogue during the'period when there were no Jews in Newport. It held the keys to the building and made it available for occasional funerals. Shearith Israel became the trustee for the Touro Synagogue.

14. Shearith Israel never owned, the Synagogue outright or the Rimonim at all. It only held legal title to the Synagogue as trustee, and served as bailee for the Ri-monim.

15. After a sixty-year absence of Jews from Newport, a- Jewish community began to return in the 1870s. The new community began to worship at Touro Synagogue under the guidance of a rabbi selected by Shearith Israel.-

16. In 1894, the new Jewish community received articles of incorporation from the Rhode Island Legislature under the name Jeshuat Israel. Since that time, Jeshuat Israel has worshiped at Touro Synagogue under that name. It is currently the only established Jewish congregation in Newport, Rhode Island.

17. Shearith Israel returned the Rimon-im to Newport’s new Jewish community, which became Jeshuat Israel, sometime in the late 1800s or early 1900s, as Yeshuat Israel instructed it to do. Since that time, Jeshuat Israel has owned, controlled, and maintained the Rimonim without challenge, until this lawsuit over 100 years later. There is no impediment to Jeshuat Israel’s desire to sell the Rimonim in order to establish an endowment to ensure permanent public Jewish worship at the Tou-ro Synagogue.

18. A series of legal conflicts flared up between Shearith Israel and the Jews of Newport at the turn óf the 20th century. These disputes were motivated by Shear-ith Israel’s concern that Newport’s new Jewish community would not conform to the Sephardic (Spanish and Portuguese) religious traditions previously observed by Yeshuat Israel and still practiced by Shearith Israel. Shearith Israel’s concern about the form of Jewish worship was never a requirement of the original trust.

19. The disputes were mutually resolved in the early 20th century, when Shearith Israel, as trustee of the Synagogue, entered into a lease to allow Jeshuat Israel, as.tenant, to worship at the Synagogue.

20. Jeshuat Israel has continually worshiped at Touro Synagogue since at least the beginning of the 20th century. It has maintained, preserved, and protected the Synagogue as a place for public Jewish worship for over 100 years.

21. As Jeshuat Israel’s responsibilities for Touro Synagogue have expanded, Shearith Israel’s have receded. For at least the past 20 years, Shearith Israel has not taken any meaningful action in its capacity as trustee for the Touro Synagogue and lands.

22. In this litigation, Shearith Israel denies the existence of a trust, and attempts to evict Jeshuat Israel from Touro Synagogue. These actions, and the friction they have engendered, hinder and undermine the charitable trust, requiring removal of Shearith Israel as trustee.

23. Jeshuat Israel has been discharging all of the responsibilities of a trustee for the past century, and is the most appropriate new trustee over the Touro Synagogue and lands. It is the party most capable of continuing to preserve Touro Synagogue ás a place of public Jewish worship.

The Court now sets forth it findings of fact in narrative form.

NARRATIVE

The history of the ancient Synagogue in Rhode Island, now known as Touro Synagogue, begins with some of the first Jews who settled in pre-Revolutionary America. Many came to Newport in the late 1600s and early 1700s to escape the dire horrors of the Iberian Inquisition, while others sought to leave behind rampant anti-Semi-tism pervading the rest of the Old World. Regardless of their background, their overriding desire was to find a community where they could practice Judaism freely and publicly. Just as Roger Williams shaped Rhode Island, the colonial Jews made Newport known as a place of free and open public Jewish worship—memorialized more than anything else by the oldest surviving Jewish temple in America. At stake in this case is the legacy left behind by those early pioneers of Rhode Island’s ocean shores.

Before Arriving in Newport, Rhode Island

Spain and Portugal in the 17th and 18th centuries was not a place where Jews could practice their religion legally, much less publicly. Morris A. Gutstein, The Story of the Jews of Newport; Two and a Half Centuries of Judaism, 1658-1908 58-65 (1936) (Exhibits P81 and D448). At that time, those two countries were in the midst of the Inquisition—a brutal institution within the judicial systems of the royal Christian authorities and the Catholic Church, whose stated aim was to combat heresy. The Inquisition forbade Judaism and singled out its adherents for exploitation and torture. The royal authorities and the Catholic Church started by confiscating the property of anyone accused of “Ju-daizing” and filling its coffers with the ill-gotten loot. Id. at 63. Next came the autos-da-fé, burnings at the stake, and other horrors. The Inquisition “claimed the lives of thousands of Jews, yielding up their souls, with the martyr’s exclamation, ‘Hear O Israel the Lord our God, the Lord is One.’” Id. at 63.

Some Jews were tortured and burned alive, others were expelled from the lands, and yet others were forced into compulsory baptisms. “Before long, a very large number of the population of the Iberian peninsula consisted of Crypto-Jews, who had been forced into baptism by persecution,” and were referred to as “Neo-Chris-tians” or “Marranos.” Id. at 60.

Many of the Marranos cherished their love for the Jewish faith in which they had been reared. As much as possible they secretly observed the traditions of their fathers in spite of the high positions they held. Some attended synagogue under the most dangerous circumstances. Others assembled in underground hiding places to carry out the tenets of Jewish religion, though openly they lived in beautiful homes religiously decorated according to the custom of the date, giving no cause for suspicion.

Id. at 61.

Official conversion did not immunize Iberian Jews from persecution. The inquisitors persisted in their charge', turning their victims against each other by undermining the persecuted group from within:

The Inquisitors promised absolution to all Marranos guilty of observing Jewish customs, if they would appear before the tribunal and recant. Many fell victims to this snare, for no absolution was granted them, unless under the seal of secrecy and under oath extracted by torture in the Inquisition chambers, they betrayed the name of others whom they knew to be Judaizers and who on théir testimony would become prey for the flames.

Id. at 63-64.

Escape from their homeland was often the only way to stay alive. This was the traumatic background of many Jews who found their way to Newport, Rhode Island in the late 17th and early 18th centuries.

Arrival in Newport, Rhode Island

Arriving in Newport in 1668, the first Jewish families—approximately fifteen in number—were said to have “immediately set out to organize their public worship.” Id. at 30; see also Melvin I. Urofsky, A Genesis of Religious Freedom: The Story of the Jetos of Newport, RI and Touro Synagogue 20 (George Washington Institute for Religious Freedom, 2013) (Exhibit D451 at 37) [hereinafter Urofsky]. They met to worship at private dwelling houses and formed a collective that was first known as Nefutsé Israel—the Scattered of Israel—and later became Congregation Yeshuat Israel. Gutstein at 31 and 343 n. 9; Urofsky at 64. In 1677, presumably when, death came for one of their own, they purchased a plot of land for a Jewish cemetery. Gutstein at 36-38. This act was an important milestone for the burgeoning community, as a symbol that its families were permitted to live and die according to their true identities. Id. at 39.

The Riveras were one such family that populated Newport at the beginning of the 18th century. Abraham Rodrigues Rivera was the first of his family to arrive in North America in the early 1700s. Typical of many North American Jews at the time, he was born and married in Seville, Spain, where he was forced to live as a Marrano in full accordance with the Catholic rites and under a different name. Upon coming to the British Colonies, he underwent all the religious rituals required by Jewish tradition, changing his name to Abraham, his sons’ names to Isaac and Jacob, and his daughter’s name to Rebecca. Young Jacob Rodrigues Rivera, also born in Seville, would eventually grow up to become a respected Newport businessperson and the author of a key testamentary document at issue in this case.

Along with the exiles from Spain and Portugal, Jews from other European countries also populated Newport. Id. at 76-77. The Hart and Levy families are of special importance to this case. Isaac Hart hailed from a London family of Ashkenazic origin. He settled in Newport around 1750 and soon became a successful merchant. Id. at 77, Moses Levy’s family was also from London. Id. at 75. They arrived in New York in 1705 and eventually settled in Newport. Id. at 53. Like Jacob Rodri-gues Rivera and Isaac Hart, Moses Levy also became a prominent businessperson, and was closely associated with the commercial, social, and spiritual life of Newport’s Jewish community. Id. at 53-54.

Building the Synagogue

By the mid-18th century, the Jewish community of Newport was becoming sufficiently numerous and prosperous to plan building a synagogue. Id. at 82. They “desire[d] to build a synagogue that should equal in grandeur any other contemporary colonial structure.” Id. at 87. The project required two rounds of fundraising, first to buy the land, and second to build the temple. Id. at 87-88. For the first round, the local Jewish community was taxed and the necessary funds gathered to make the purchase. Id.

A problem arose though, because in those days “patents of incorporation were not granted to religious institutions,” meaning that the Congregation “could not purchase [or] hold real estate in its own name.” Id. at 825 see also Kusinitz at 42 (Exhibit D445 at 3). Yeshuat Israel solved this problem by designating three of its leaders as title-holders and trustees on behalf of the Congregation:

The procedure was this: at a public meeting of the Congregation, or of all the Jews of the community, trustworthy individuals were appointed to purchase whatever property might be necessary for budding the synagogue and for whatever other use the Congregation might need. These members of the community thus became the trustees of the land, buildings and other property belonging to the Congregation. In reality the land and property belonged to the entire Jewish community; legally the title to the land and to everything with it, rested with the appointed trustees who purchased the plot as individuals.

The Jewish Community of Newport found these trustworthy individuals in three noteworthy and respectable members of the Congregation, Jacob Rodri-gues Rivera, Moses Levy arid Isaac Hart. They were not only appointed to purchase the land, but also as “trustees for building the Synagogue.”

Gutstein at 82-83; see also Urofsky at 54. After raising the funds from the Newport Jewish community, the Congregation purchased the necessary land frorn Ebenezer Allen of Sandwich of the Massachusetts Bay Colony sometime in 1759. Gutstein at 85; see also 1759 Deed (Exhibits D424 and D424A).

The second step, building the Synagogue, required raising additional capital. For this task, the Jews of Newport began at home, raising “a small fund by subscription” despite being strapped for funds after “having been taxed for the purchase of the land.” Gutstein at 87-88. Next, they greatly expanded their fundraising sites. Id. at 88.- Nine representatives of the Newport Jewish community—Jacob Rodrigues Rivera, Jacob Isaacs, Isaac Hart, Aaron Lopez, Abraham Rodrigues Rivera, Isaac Pollock, Moses Lopez, Isaac Elizer, and Moses Levy—penned letters to congregations near and far appealing for assistance in their goal of building a synagogue and school where they could “[ijnstruct [their] [c]hildren in the [p]ath of [v]irtuous [religion.” Id. at 88 and 117. Congregations in New York, Jamaica, Curacao, Surinam, and London all answered the call and donated. Id. at 88.

In a constructive chapter of history between Jews in .Newport and New York, Shearith Israel “reserved the seventh day of Passover to appeal for contributions for the building of Newport’s Synagogue.” Id. at 90. Newport’s Naphtali Hart traveled to New York to collect the donation, and left a receipt stating, “Reed, of Myer Myers [an official of Shearith Israel at the time] One Hundred and Forty nine Pounds and six pence which at my arrival at Newport, Rhode Island, I promise to deliver to Messrs. Jacob Rivera, Moses Levy and Isaac Hart, trustees for building the Synagogue” Id. at 92 (emphasis added).

The construction of the Synagogue lasted from August 1, 1759 until 1762, and the dedication ceremony took place on December 2, Í763. Id. at 92, 98. The dedication was a public celebration of the magnificent final product, and highlighted the stature and acceptance of Jews in Newport. “The invited audience consisted of Jews and non-Jews, including a great number of notables of the city and guests from other localities.” Id. at 98. At this time, there were 60 to 70 Jewish families living in Newport. Id. at 113-14. The Newport Mercury offered the following report: “The Order and Decorum, the Harmony and Solemnity of the Music, together with a handsome Assembly of People, in an Edifice the most perfect of the Temple kind perhaps in America, and splendidly illuminated, could not but raise in the Mind a faint Idea of the Majesty and Grandeur of the Ancient Jewish Worship mentioned in Scripture.” Id. at 100-01. The dedication also marked a name change for Newport’s Jewish community. No longer would they be known as Nefutsé Israel—the Scattered of Israel, but instead as Yeshuat Israel— the Salvation of Israel. Urofsky at 62. At its very beginning, the Newport Synagogue was publieally dedicated to the proposition that in Newport, Jews could worship freely and proudly, as their storied ancestors had done in the long ago past.

In sum, the Synagogue’s trustees, Jacob Rodrigues Rivera, Isaac Hart, and Moses Levy were part of the community of Se-phardic and Ashkenazic Jews that came to Newport in pursuit of religious freedom, economic prosperity, and happiness. They helped form a Jewish society that prospered in business but stayed grounded in religion. It is heartening to imagine, as one of the trial witnesses described, the newly liberated European Jews finding a welcome place in Newport to build their Synagogue after years of furtiveness and torment:

[T]hey found this religious tolerance. And then they built this wonderful synagogue. And they built it high up on a hill overlooking the city. And it showed how comfortable they were, and how well accepted they were. And that’s particularly important, when you look at other synagogues built in the same era. ... [Synagogues were built in Europe behind other buildings, in alleyways so that they don’t draw attention to them. And here, here in Rhode Island, they were able to build in such an open location.

Trial Tr. vol. 3, 177, ECF No. 106 (Testimony of Bertha Ross). Far from the fires of the Inquisition, the Jews of Newport were able to build a Synagogue that would serve always as a house of public worship and a beacon of religious freedom.

The Rimonim

Although the Touro edifice was completed by 1762, a building alone does not ,a synagogue make. It needed furnishings and articles of worship essential to the religious ceremonies for which it was meant. By dedication day, through the generosity of patrons from Newport and abroad, most of these necessities were gifted to the Synagogue and became part of the heritage of the Jews of Newport. Gut-stein at 96-97, 103-06. The Synagogue was adorned with brass candlesticks from Enoch Lyon, a perpetual lamp donated by Samuel Judah, wax from Hayim Myers, a Hechal (Ark where the Torah scrolls are kept) and Tebah (reading desk at the center of the synagogue) gifted by Jacob Pollock, and three Torah scrolls, including a 200-year old scroll presented by a Congregation from Amsterdam. Id. at 97, 104-05. Soon, five beautiful candelabra were installed, courtesy of Abraham Rodrigues Rivera, Naphtali Hart Myers, Aaron Lopez, and one unknown donor. Id. at 104 and 354-55 n. 45.

The riches of the Synagogue kept growing. “[B]y 1769 there were six Scrolls of the Holy Law deposited in the Ark of the Newport synagogue ... all adorned with tops and bells made of silver and washed with gold.” Id. at 105. These “tops and bells” that adorn the Torah are called “ri-monim,” and are placed on the top of the two handles of the Torah scroll when the Torah is not in use. Gutstein described two of those pairs from 1769 this way:

One pair, having crown and bells is decorated with closed aca[n]thus leaves, open flowers, strap ornaments, and heading. They were made by Myer Myers, freeman of New York, president of the Silversmith’s Society, 1776. Another pair, by the same maker are engraved and embellished with flowers and foliage. Gilt bells are suspended from brackets. They were probably the gift of members of the Hays and Myers family as the inscription indicates.

Id. at 108.

Because the ownership of one of these pairs of Myer Myers’ Rimonim is at issue in this case, a discussion of the maker and the contested pair is fitting. Myer Myers, the son of a Jewish shopkeeper, was New York’s foremost silversmith during the late colonial period. David L. Barquist, Myer Myers: Jewish Silversmith in Colonial New York 25 (Yale University Press, 2001) (Exhibit P150 at 3234 and D356 at 5) [hereinafter Barquist]. An accomplished artisan and a successful merchant, his workshop was likely the largest in New York from the mid-eighteenth century until the outbreak of the Revolutionary War, Id. Approximately 380 works bearing his mark survive to this day, including only six objects of Judaica: five pairs of rimonim and one circumcision shield. Id. at 48 (Exhibit D356 at 28), 152, 154, 162, and 198 (Exhibit P150 at 3246, 3248, 3255, and 3259). His exquisite rimonim have likely played the biggest role in establishing Mr. Myers’ reputation as a great silversmith. Id. at 60 (Exhibit D356 at 40).

Although born in New York and deeply involved with the Jewish community there, Mr. Myers’ personal and professional life also connected him to Jewish communities in other cities, especially Newport. Id. at 27' (Exhibit P150 at 3235). As president of Shearith Israel, he facilitated his Congregation’s donations for the, construction of Newport’s beautiful new Synagogue. Gut-stein at 92. Then around the year 1770, his sister Rachel and her husband Moses Michael Hays moved to Newport, which opened up further avenues for his business interactions there. Barquist at 27, 98 (Exhibit P150 at 3235, 3259). Mr. Myers made a circumcision shield for Yeshuat Israel’s mohel (circumciser), Moses Seixas, who in the 1770s served as Yeshuat Israel’s president and custodian. Barquist at 152 (Exhibit P150 at 8246); Exhibition of Works in Silver and Gold by Myer Myers, Brooklyn Museum, 1954 (Exhibit P101 at 3720). And most importantly, for our purposes, in 1787. Mr. Myers was commissioned to mend a pair of Yeshuat Israel’s Rimonim, and was paid 12 shillings for his services. Yeshuat Israel ledger (Exhibit P30). He was likely repairing the Rimonim at issue in this case, which he had made for use in Newport’s new Synagogue.

Late 18th Century Newport, Rhode Island

The years immediately after the Synagogue was built coincided with the “Golden Era of Newport.” The city, known as the “Garden of America,” was a commercial rival of New York and Boston. Gutstein at 157-58, 174. The Jewish community in Newport was the largest and most prosperous in North America, even compared to the other major Jewish communities in New York, Philadelphia, Savannah, Richmond, and Charleston. Id. at 176. Alas, the golden era was short-lived.

As fate would have it, the Jews who built the Newport Synagogue would worship there for only 30 years. The- majority of Jewish families left Newport in the year 1776, some at the outbreak of the Revolution, and others immediately after the British captured the city:

The conflict with Great Britain was a death blow to the prosperity of the city of Newport, and in particular to the Jewish community of the town. The factories'gradually closed down; the extensive commerce and foreign trade slowly died out; many people threatened by the impending invasion of the British left the city, and by December 8,1776, when the city of Newport was actually occupied by the British, there was but a handful of people left in the town.

Id. at 181-82; see also id. at 185.

The Revolutionary War and then the War of 1812 devastated the shipping and trading industries on which Newport’s Jews depended, and drove the Jewish community to other locales. Id. at 190, 225. Services ceased in the Synagogue sometime around the year 1793, and by 1822, it appears that no Jews remained in Newport. Id. at 216, 225.

The wars also affected the leadership of Yeshuat Israel, including its three trustees. In 1780, one of the trustees, Isaac Hart, was killed in the midst of Revolutionary violence, and left no surviving will. Id. at 184, 365 n. 33. Another trustee, Jacob Rodrigues Rivera, waited out the Revolutionary War in Leicester, Massachusetts, and returned to Newport an old man. Id. at 185. He “was gathered to his fathers” on February 18, 1789 at age 72. Id. at 200. The third trustee, Moses Levy, passed away three years later in 1792. Id. at 216. Both Mr. Rivera and Mr. Levy left behind wills that are instructive for this case, and supportive of the finding that Touro Synagogue is owned in trust.

• The Rivera Will

In his will, Jacob Rodrigues Rivera acknowledged that he had no equitable ownership interest in Touro Synagogue, and that his only personal interest was as the Synagogue’s trustee. His will stated:

Also I do hereby declare and make known unto All People, that I have no exclusive Right, or Title, Of, in, or to the Jewish Public Synagogue, in Newport, on Account of the Deed thereof, being made to Myself, Moses Levy & Isaac Harte, which Isaac Harte, thereafter Conveyed his One third Part thereof to me, but that the same was so done, meant and intended, in trust Only, to and for the sole Use, benefit and behoof of the Jewish Society, in Newport, to be for them reserved as a Place of Public Worship forever, TherefoRE, I do for myself and my Heirs hereby remise, release; and forever quit Claim to all exclusive right, title, or Interest therein or thereto and to every part and parcel thereof, Always saving and excepting such right as I have by being A Single Member of that Society.

Rivera Will at 19 (Exhibit D16 at 2). The will, which will be discussed in more detail infra, is incontrovertible evidence that Touro Synagogue was owned in trust.

• The Levy Will

In his will, Moses Levy stated:

I do hereby release and discharge all such ballances, as shall at the time of my Decease be due and unpaid of monies by me heretofore advanced towards building the Synagogue, in Newport, on condition that there shall be a solemn prayer said for me in the said Synagogue, Yearly and every Year; on the Evening or day of Kipne, or atonement.

Levy Will (Exhibit D18 at 1).

Mr. Levy’s will, probated three years after Mr. Rivera’s, is consistent with the finding that Messrs. Rivera, Hart, and Levy were trustees for the Synagogue. See infra.

Moses Seixas Becomes Acting Trustee

While the Revolutionary War raged, Moses Seixas, who married into the family of one of the trustee’s (Moses Levy), took responsibility for the Synagogue and became the “lay leader of the Remnant of Israel in Newport.”' Gutstein at 188-89. He “was the warden of the [S]ynagogue, and carried out the' functions that had been previously vested in Jacob Rodrigues Rivera.” Id. at 189, 201. In other words, Moses Seixas acted as the Synagogue’s successor trustee.

Moses Seixas also played the central role in the most celebrated instance in the Synagogue’s history: the correspondence with George Washington. President Washington visited Newport on August 17,1790. Id. at 207. The following morning, Mr. Seixas presented to the President a letter on behalf of the Hebrew Congregation, extolling his new government, “which gives to bigotry no sanction to persecution no assistance; but generously affording to all liberty of conscience and immunities of citizenship, deeming everyone, of whatever nation, tongue, or language, equal parts of the great Government machine.” Id. at 210 (reproducing Mr. Seixas’ letter to President Washington).

The President responded in kind, writing:

To the Hebrew Congregation in Newport, Rhode Island.

Gentlemen,

The Citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty, of conscience and immunities of citizenship. It is now no more that toleration is spoken of as if it was by the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights. For happily the - Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection, should demean themselves as good citizens, in giving it on all occasions their effectual support.

May the Children of the Stock of Abraham, who dwell in this land, continue to merit and enjoy the good will of the other Inhabitants, while every one shall sit in safety under his own Vine and Figtree, and there shall be none to .make him afraid. May the father of all mercies scatter light and not darkness in our paths, and make us all in our several vocations useful here, and in his own due time and way everlastingly happy.

Go. Washington

Id. at 212-13.

This touching and lofty correspondence is celebrated by a public reading of the Seixas and Washington letters at the Tou-ro Synagogue every year. Trial Tr. vol. 2, 8-13, ECF No. 105 (Testimony of David Bazarsky). It is a fitting tribute to Newport’s original Jewish community, which had suffered through the indignities of the Inquisition, to find in Newport a safe haven for public worship.

Jews Leave Newport, Rhode Island

The correspondence with President Washington was the last hurrah of Newport’s original Jewish community. Around 1793, “the services at the synagogue completely ceased ... [and] the building was left to the bats and moles, and to the occasional invasion, through its porches and windows, of boys who took great pleasure in examining the furniture scattered about.” Gwtstein at 216. “By 1800, the ‘Jewish Society1 of Newport contained no one outside the families of Rivera and Seixas, and some of their relatives, Lopez and Levy respectively.” Id, at 217. In 1809, Moses Seixas died, and was put to rest in his family’s plot in the Newport Jewish Cemetery. Id. at 219. The informal role of trustee thereafter likely passed down to Moses Lopez, who was the last Jew to leave Newport on October 5, 1822, Id. at 225-26.

After services at the Synagogue stopped, the few remaining members of the Jewish community of Newport began to relocate its articles of worship and other treasures to safer locations. Many of Yesh-uat Israel’s congregants moved to New York and joined Congregation Shearith Israel. Id. at 226. They brought with them several Torah scrolls and the rimonim adorning them, which Shearith Israel agreed to keep safe, until Jews were once again worshiping in Newport’s Synagogue. Id. at 216, 263; see also 1901 Letter from Shearith Israel’s Rabbi to Mayor of Newport (Exhibit D133 and D133A at 3) (“This original congregation dwindled away through the Revolutionary war, and in 1818, the last residents sent to the New York Congregation the sacred movables.”). The Rimonim were sent to Shearith Israel for safekeeping during the period when there were no Jews in Newport. Shearith Israel’s minutes from December 3, 1832 state:

[T]he Sepharim belonging to the New Port Shool [shul] & which was in the possession of the family of the late Mr. Moses Seixas and have been for about 40 years, could be obtained to be placed for safe keeping in our place of Worship until they should be required for the use of the New Port Shool [shul].

Shearith Israel’s minutes (Exhibits D25 and D25A at 2).

Shearith Israel also memorialized receiving the Torah scrolls. Shearith Israel’s minutes from February 10,1833 state:

The Committee appointed to receive the Sepharim [Torahs] belonging to the New Port Synagogue Report that they have received the same and deposited them in our Hachal [Ark] and had given a receipt to the family of the late Moses Seixas of which the following is a duplicate.

Shearith Israel’s minutes (Exhibits D26 and D26A at 1, and P38 at 5257).

Shearith Israel’s representatives testified that the Rimonim were also transferred to Shearith Israel for safekeeping around this time. Shearith Israel's ritual director Zachary Edinger stated, “it is likely that the [R]imonim were brought to New York for safekeeping sometime” in “[e]ither the 1820s or the 1830s.” Edinger Dep. 92:25-93:5 (May 1, 2014). Shearith Israel’s vice president also testified, “the Torahs and rimonim and other ritual objects, which had been in the Touro Synagogue, we [Shearith. Israel] took them for safekeeping; and that continued until the early 1880s Trial Tr. vol. 6 at 61, ECF No. 109 (Testimony of .Michael I. Katz).

It is likely that four pairs of rimonim traveled with the Torah scrolls from Newport to New York, See Barquist at 160 (Exhibit P160 at 3254) (“it was not until 1833 that the four Torahs (and presumably their ornaments) were transferred to Shearith Israel ‘for safekeeping ... ,”’). Whether they traveled with those four Torah scrolls, or with a different scroll, or arrived separately, the Court finds that the Rimonim at issue in this case were transported to New York and held for safekeeping by Shearith Israel after services stopped at Newport’s Synagogue. With no Jews remaining in Newport, Shearith Israel became the custodian for Yeshuat Israel’s religious artifacts,' including the Rimonim, and the spiritual link to Jewish worship at the abandoned Newport Synagogue.

Touro Brothers Save Newport’s Synagogue

By the time Moses Lopez left Newport in 1822, the Synagogue was in a dilapidated condition. There were no congregants to worship there, and no funds to preserve it. Mr. Lopez moved to New York and entrusted the keys and care of the Synagogue and cemetery to Stephen Gould, a non-Jew who did his best in this role without any remuneration. Gutstein at 238. In 1826, Mr. Lopez wrote to Mr. Gould about the Synagogue, stating that “th[e] building is now considered as own’d at present by the Hebrew Society [Shearith Israel] in this city.” Id. at 239.

At this juncture, Shearith Israel assumed trustee responsibilities for the Newport Synagogue, most likely because So many members of the disbanded Yeshu-at Israel moved to New York and joined Shearith Israel. By 1826, the keys to Tou-ro Synagogue were transferred to Shearith Israel. See Newport Council Records Apr. 17,1826 (Exhibit D23) (noting that keys to Synagogue resided with Shearith Israel). However, Shearith Israel could not be expected to “invest thousands and thousands of dollars to restore and maintain [a] building, which was in a state of ruinous disrepair when they first took possession-of it, for the possible use of coreligionists who might or might not one day in the distant indefinite future come back to that city and ask for the use of the facility.” Bernard Kusinitz, How Touro Synagogue Got Its Name 93 n. 7 (Rhode Island Jewish Historical Notes Vol. 9, No. 1 Nov. 1983) (Exhibit D446 at 12) [hereinafter Touro’s Name]. The future of public -Jewish worship in Newport was in grave danger of crumbling alongside the building.

Newport’s Synagogue was rescued from the brink by the progeny, of its first Rabbi.

Abraham and Judah Touro, sons of the Synagogue’s first minister, Isaac Touro, devoted their resources to ensuring that the Synagogue survived through the lean decades to come. The brothers were bom in Newport, but raised in Boston by their uncle, (and Myer Myers’ brother-in-law), Moses Michael Hays, who prepared them for careers in business. Gutstein at 229-30. Both attained considerable financial success, Abraham Touro in Boston, and Judah Touro after he moved to New Orleans. Id. at 230. Both also “always remained faithful to the traditions of their father, and to their Jewish heritage,” and “never forgot their cemetery and their synagogue.” Id. at 229-30.

In 1822, the same year that Moses Lopez had left Newport, Abraham Touro took on the duty of maintaining Newport’s Synagogue. He corresponded with Stephen Gould, whom Moses Lopez left in charge of the grounds, and sent him a sum of one thousand dollars to build a brick wall to replace the remnants of the wooden fence that enclosed the Jewish cemetery. Id. at 230-31. Unfortunately, Abraham Touro did not live to see the fence completed. He died on October 18, 1822, at age 48, when his horse bolted at the firing of artillery during a Boston military parade. Id. at 233.

Abraham Touro left a will, which accomplished what he had started a few months before—the preservation of Newport’s Synagogue. He left $10,000 “for the purpose of supporting the Jewish Synagogue in that State, in Special Trust to be appropriated to that object, in such man[n]er as the [Rhode Island] Legislature together with the Municipal Authority of the Town of Newport may from time to time direct and appoint.” Id. at 232. He also left $5,000 to the Town of Newport for the repair and preservation of the street leading out of the Jewish Cemetery, which was later renamed Touro Street. Id. at 232.

With these gifts, Abraham Touro stepped into the shoes of the colonial Newport Jews and echoed their wish to preserve the Synagogue for the Jewish Society of Newport as a place of public worship forever. The wish was granted: “[n]ot long after [the General Assembly approved the Touro Jewish Synagogue Fund], the synagogue was repaired properly, and once again appeared as in the days before the Revolution.” Id.. Stephen Gould continued to guard the shrine, as he had done before, and only after the Touro Fund appropriated some money was he “partly repaid for his faithful services.” Id. at 238-39.

Judah Touro picked up where his brother Abraham left off. In 1842, when the brick wall around the cemetery commissioned by Abraham began to show signs of decay, Judah paid for a beautiful Quincy granite wall to replace it. Id. at 244. He contributed about $12,000 that year to completely restore the cemetery, repair the monuments, and beautify the grounds. Id. Upon Judah Touro’s death in 1854, he also requested, like his brother before him, to be buried in the Jewish Cemetery in Newport. In his, will, he gave the following bequest:

[T]en thousand dollars for the purpose of paying the salary of a Reader or Minister to officiate in the Jewish Synagogue of Newport, Rhode Island, and to endow the Ministry of the same, as well as to keep in repair and embellish the Jewish Cemetery in Newport aforesaid; the said amount to be appropriated and paid, or invested for that purpose in such manner as my executors may determine concurrently with the corporation of Newport aforesaid, if necessary.

Id. at 246.

On January 11, 1855, the City Council approved Judah Touro’s bequest, with $200 to be expended annually for the upkeep of the cemetery, “subject to the control of David J. Gould and Nathan H. Gould,” descendants of Stephen Gould. Id, at 248-49. Thereafter, “[t]he Judah Touro Ministerial and Cemetery Fund ... grew steadily with the accumulation of interest, so that in later years an adequate amount was available for the salary of the minister.” Id. at 249. Between the two of them, the Touro brothers provided for the upkeep of the Synagogue, the cemetery, the connecting street, and for the eventual retainer of a Jewish minister in their ancestral prayer house. But for their “foresight, one doubts whether the synagogue would have survived to the time when Jews again began to settle in Newport towards the end of the nineteenth century.” Id. at 284.

Between 1822 and the 1870s, the Synagogue remained in good repair, but infrequently used. It was opened for the funeral services of Moses Lopez, who died in New York in 1830 at the age of 86, and again for the funeral services of Rebecca Lopez, Reverend Isaac Touro’s only daughter, who died in 1831. Id. at 240. In 1832, the Synagogue was opened for the funeral of Judah Hays, then in 1836 for the interment of Slowey Hays, and for other burials in 1842, 1866, and in the 1870s. Id. at 241, 251. In the summer of 1850, the Synagogue was reopened briefly—“after an interruption of about sixty years”—for regular services. Id. at 245. These moments, which kept the candle of public worship flickering in Newport, were facilitated by personnel from Shearith Israel, and made possible with funds from the Touro brothers. Id.

Despite these moments of worship and remembrance, Jewish life in Newport was in hibernation during the early and mid-1800s. In 1858, Henry Wadsworth Longfellow published a poem, The Jeivish Cemetery at Newport, about the ancient Synagogue and cemetery, which reflected its state of dignified disuse:

Closed are the portals of their Synagogue,

No Psalms of David now the silence break,

No Rabbi reads the ancient Decalogue

In the grand dialect the Prophets spake.

Gone are the living, but the dead remain,

And not neglected; for a hand unseen,

Scattering its bounty, like a summer rain,

Still keeps their graves and their remembrance green.

Id. at 251-54 (excerpt); 241-42.

The Touro brothers—as well as the Gould family—were the unseen hand discerned by Longfellow. Without them, “almost certainly there would be no Touro Synagogue as we see it today,” and perhaps it would no longer still be standing at all. Touro Name at 88 (Exhibit D446 at 7). It is no accident that the Synagogue has since taken the Touro name as its own. Id.

The New Jewish Settlement in Newport—Synagogue Reopens

In the 1870s, Newport was blessed with new Jewish immigrants arriving from Germany, Austria, Italy, Russia, Romania, and other parts of Eastern Europe, many likely drawn to the city by the preservation of its beautiful Synagogue. Gutstein at 256; Touro Name at 92 n. 5 (Exhibit D446 at 11) (stating that the “world-famous Touro Synagogue” was a draw for “Jews from small European shtetls (villages)”). Once again, Newport beckoned as a haven for public worship, which “the Colonial Jews had willed to posterity.” Touro Name at 92 n. 5 (Exhibit D446 at 11). The newly arriving families offered the elusive promise of a new Jewish community worshiping in the same place as the ancient Congregation Yeshuat Israel. Through the foresight of the Touro brothers, a majestic and sparkling Synagogue awaited their ready prayers, and a generous fund was in place to support their minister. The new Jewish community, which became Congregation Jeshuat Israel, soon applied for the use of these blessings.

Shearith Israel held the keys to Touro Synagogue during the decades when there were no Jews in Newport. Gutstein at 257-58. It was concerned that the new Ashken-azic population (those Jews mostly from Eastern Europe that recently immigrated to Newport) seeking to worship there would not use it according to Sephardic tradition. Id. at 271, 275 (“The attitude of the New York Congregation was motivated by the determination to preserve the ancient traditions ....”) See also Kusinitz at 45 (“[T]he newcomers to town, who were Ashkenazic, found alien the traditional Sephardic minhag, or ritual in use in Touro Synagogue,”). Although not a condition of Mr. Rivera’s Will, or either of the Touro brothers’ Wills, this one issue dominated Shearith Israel’s approach to the future of Touro Synagogue, and posed legal problems that linger to this day.

At first, Shearith Israel’s concerns did not present any problems. Shearith Israel commissioned Rabbi Abraham Pereira Mendes, the father of its own Congregation’s rabbi, to leave London for Newport, and become Touro Synagogue’s official rabbi. Rabbi Mendes was embraced by Newport’s Jewish community, and on May 25, 1883, he presided over the re consecration of the Synagogue in a beautiful ceremony reminiscent of the original 1763 dedication. Gutstein at 261-65. The reconsecration symbolized that Newport’s most recent Jewish arrivals would be planting permanent roots in the city.

The recoriseeratioh also signaled the return of Yeshuat Israel’s articles of worship from New York back to Newport. Shearith Israel returned “the scrolls of the Law, which had been kept in New York ... to be permanently deposited in the Ark of the Newport Synagogue;” Id. at 263. “In. 1887, an additional Safer Torah, which had belonged to Newport, was brought back from New York and deposited in the Ark.” Id. at 266. It is undisputed that around this time, though the exact, date is unknown, Shearith Israel sept the Rimonim to Newport. Shearith Israel’s Prop. Findings of Fact and Conclusions of Law, EOF No. 91 at 56 ¶ 263. The Rimonim have remained in Jeshuat Israel’s possession and control ever since. See supra* Edinger Dep. 106:20-109:13.

Rabbi. Mendes passed away in 1893, which precipitated the first. conflict between Shearith Israel and Newport’s resurgent Jewish community. See Gutstein at 270-74; Kminitz at 44 (Exhibit D445 at 5). The Newporters worshiping at Touro Synagogue applied for a charter from the Rhode Island legislature under the same name as the old Newport Congregation Yeshuat Israel, except spelling “Jeshuat” with a “J” instead of a