United States District Court, D. Rhode Island
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 l) 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 finial 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: l) 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 Jeshuat 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 Shearith 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 l) 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 Shearith 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 1, 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 Rimonim 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 Israel 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 Rimonim.
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 Rimonim 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 Touro Synagogue.
18. A series of legal conflicts flared up between Shearith Israel and the Jews of Newport at the turn of the 20th century. These disputes were motivated by Shearith 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 as a place of public Jewish worship.
The Court now sets forth it findings of fact in narrative form.
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-Semitism 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 "Judaizing" and filling its coffers with the ill-gotten loot. Id. at 63. Next came the autos-da-fe,  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- Christians" 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 their 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 1658, the first Jewish families - approximately fifteen in number - were said to have "immediately set out to organize their public worship." Id., at 30; see a7so Melvin I. Urofsky, A Genesis of Religious Freedom: The Story of the Jews 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 Nefutse Israel - the Scattered of Israel - and later became Congregation Yeshuat Israel. Gutstein at 31 and 343 n. 9; Urofsky at 54. 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 Rodrigues 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 building 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 Rodrigues Rivera, Moses Levy and 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 from 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 "[i]nstruct [their] [c]hildren in the [p]ath of [v]irtuous [r]eligion." 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, 1763. 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 Mercuryoffered 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 Nefutse 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 publically 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 Sephardic 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. . . . [Slynagogues 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.
Exterior of the Synagogue in 2013. ZTraryback cover (Exhibit D451 at 2).
Interior of the Synagogue in 2008. Urofsky at 59 (Exhibit D451 at 76).
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. Gutstein 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 "rimonim, " 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. Gutstein 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 3246); 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.
The Rimonim (Exhibit D562).
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 shortlived.
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 ...