LOCKPORT – Niagara County has been denied a share of the Oppenheim Zoological Society’s trust fund, but a judge has yet to rule on whether the county may grab the 15.3-acre site of the former Oppenheim Zoo.

County Judge Matthew J. Murphy III ruled Dec. 14 that the trust fund must be divided among the organizations Max M. Oppenheim said in his will he wanted to his money to support if the zoo ever folded.

The county was not one of them, although Assistant County Attorney R. Thomas Burgasser says that Oppenheim’s will gives the county a right of first refusal for the land.

In 1944, Oppenheim, a Niagara Falls real estate man, deeded land to the newly created zoological society to construct a zoo on Niagara Falls Boulevard in Wheatfield. That document contains the right of first refusal for the county, according to Burgasser.

He died in 1958, and the zoological society deeded 80 acres to the county to create Oppenheim Park. The zoo closed in 1988, and the society is all but defunct. Its attorney, Robert J. O’Toole, says it intends to dissolve for good once the current litigation is settled.

The lawsuit was filed by the Kiwanis Activities Corp. of Niagara Falls. Oppenheim was a Kiwanis member, and the club’s attorney, Mary E. Maloney, insists that Oppenheim’s will calls for the zoo site to go to Kiwanis if there were no zoo.

She said, “Max Oppenheim gave it to us free and clear. We would sell it and use the money to continue the community service work that we do.”

Burgasser said, “Max Oppenheim wanted [the county] to have it because he thought we would do the best job with it after the zoo.”

Maloney and Burgasser are slated to argue in front of Murphy on Jan. 4.

Kiwanis has listed the land for sale, which Burgasser said shouldn’t have been done. O’Toole said, “I think the land should ultimately go to the county, but [for now] the land should stay with the Oppenheim Zoological Society, free and clear.”

He said the society probably would give the land to the county for free, having no need for money since it’s shutting itself down.

Murphy granted the society $5,000 from the trust fund for closing costs; O’Toole said that may be sufficient.

“We wouldn’t ask for anything from the county in that case,” he said.

Besides that $5,000 for the society, the $229,789 trust fund will pay $7,105 to William D. Broderick, attorney for the trustee, Alliance Bank. The bank itself collected $5,309.

Of the remaining amount, Temple Beth El of Niagara Falls, of which Oppenheim was a member, receives 50 percent, or $106,187.

The Kiwanis Club receives 20 percent, or $42,475. Ten percent each, or $21,237, goes to the Salvation Army, Niagara Falls Memorial Medical Center and the United Way of Greater Niagara, the successor of the defunct Beeman Foundation.