Harvard, not family relatives, should inherit the $3.5 million in a trust established by the mother of former Sen. Joseph S. Clark Jr. ’23, a Pennsylvania appellate court ruled two weeks ago.

The trust was created by Kate R. Avery Clark in 1942 for her son Avery B. Clark, Joseph’s brother. A three-judge panel of the Pennsylvania Supreme Court—upholding a lower court’s decision—found valid a 1949 amendment that Kate Clark added, naming Harvard as the recipient if no one else qualified under the original trust terms.

Joseph Clark Jr.’s daughter, Noel Clark Miller, and the estate of his late son, Joseph S. Clark III ’50, asserted that the money is rightfully theirs, because Kate Clark intended to keep the money in the family. They said that an unlikely series of deaths is the reason Harvard may stand to inherit the trust’s money.

William C. Bullitt ’68, the Philadelphia lawyer representing Miller and Joseph Clark III’s estate, said yesterday that his clients are filing for a reargument of the case before the entire 15-judge Superior Court. The petition must be approved by a vote of the judges and will be decided within 60 days, according to the court’s internal operating procedures.

Bullitt said the brief six-page Superior Court opinion failed to dispose of some of his client’s major arguments.

“I think there are significant arguments that the court did not address, and it would have been nice if they had addressed them head-on,” he said.

One of the circumstances cited in the court’s procedures in which it would grant reargument is “where it appears that a panel may have overlooked or misapprehended one or more material facts of record.”

“We think they’ve done that in this case, in failing to determine Kate Avery Clark’s intent in 1942 when she set up the trust in accordance with rules mandated by a long history of judicial precedent in Pennsylvania, together with the failure of the court to apply the holdings of a line of cases dealing with what is called implied gifts,” Bullitt said. “They’re not addressed in the decision of the Superior Court, and therefore leads us to believe they were not adequately considered by the court in reaching its conclusions.”

Philadelphia attorney Martin A. Heckscher ’56, who represents Harvard, said it would be difficult to overturn the ruling.

“I think he’s got a very steep path up the hill because the three judges who decided this case for us were unanimous,” he said. “There wasn’t a dissent or wasn’t a concurrent opinion.”

A court decision in 1949 threatened to expose the trust to further tax liability if any chance existed that the money could return to Kate Clark. As a result, she amended the terms to name Harvard the recipient of the trust money if no other heir survived.

A series of unlikely deaths left the trust without such an heir. Avery Clark died in 1957, his only child died in 1966 and his widow died in 2000 without having remarried.

Both sides agree that Kate Clark made the change and named Harvard as a potential heir in order to avoid paying extra taxes.

“We all know why she did it—it was for tax reasons,” Heckscher said.

But they disagree about her intent. Heckscher said she wanted Harvard to have the money in this scenario.

“What’s nice about it, from Harvard’s point of view and I think from her son’s point of view [is that] he loved Harvard, he was generous to Harvard,” he said.

In a statement, Miller asserts that Harvard inheriting the trust money “clearly is not what my grandmother would have wanted” and “would have been anathema to her.”

“She wanted to make sure that this money—which she regarded as a Godsend—was conserved and put to work for the family. She was adamant on the subject,” she said. “Protecting her family financially became very important to her.”

The court disagreed with this argument.

“Had Kate intended to keep the reversionary interest in the trust property in the family, as appellants argue, she could have executed a Recital that did so,” the opinion says. “But instead, she named Harvard University as the remainderman.”

Heckscher said the Clark descendants are “off their bearings” in claiming the money should be theirs.

“I would have been surprised if [the decision] had been the other way,” he said.

But Miller criticized Harvard for trying “to profit from our family tragedy” in her statement. She said the award represents “a windfall into Harvard’s overstuffed lap.”

She added that the Clark family had already been very generous to the University, citing Joseph Clark Jr.’s service on the Board of Overseers and other work with Harvard, as well as the sale of his Wyoming ranch to fund an endowed professorship.

“I think, too, that Harvard has gotten enough from the Clarks,” Miller said.

If the petition for reargument is not granted, Bullitt said his clients would then have 30 days to appeal to the Pennsylvania Supreme Court.

A spokesperson for Harvard declined to comment because legal proceedings in the case may continue.

—Staff writer Stephen M. Marks can be reached at marks@fas.harvard.edu.