cy pres doctrine in New York

1960However, if that provision had stood alone in the will, the argument of the Attorney-General of the State of New York that the cy pres doctrine should be applied would have carried great weight under subdivision 2 of section 12 of the Personal Property Law, and decisions such as Matter of Neher ( 279 N. Y. 370 ), where the powers of the court in the application of the cy pres doctrine have been broadly construed.

1959The court said (p. 194): ‘ ‘ The agreement mentioned above between the petitioner and the Town of Huntington commits the Town of Huntington to carrying out in all respect the purposes of the gift set forth in the original deed of gift, and the plan whereby the Town of Huntington would succeed to the rights of the trustees to carry out the purposes of the trust would appear to provide an effective means of carrying out the same purpose of the donors. “ Where the specific directions of the donors have been carried out since the inception of the trust, but in the course of time the conditions hav

1959It has been held that where the intention to make a gift for charitable purposes “ pervades and dominates the whole bequest and the court will give it effect if it is possible to do so by the application of the most liberal rules of construction that the law will permit.” (Matter of Durbrow, 245 N. Y. 469, 474 .) The cy pres doctrine is an admitted rule of judicial construe-' tion and its exercise involves a large measure of discretion.

1957(Matter of Durbrow, 245 N. Y. 469 .) And where there has been such a change of circumstances since the execution of the will that the particular charitable intention of testator must fail, the court may, nevertheless, sustain the dominant charitable intention under the doctrine of cy pres.

1960The cy pres rule, to be sure, went out of existence with the charitable trust doctrine, but was reinstated with it by the Tilden Act in 1893 (L. 1893, ch. 701; Allen v. Stevens, 161 N. Y. 122 ), and applies to gifts to charitable corporations as well as to what are charitable trusts in the technical sense (Sherman v. Richmond Hose Co., 230 N. Y. 462 ; Matter of Gary, 248 App. Div. 373 , affd. 272 N. Y. 635 ).

1957Laws ch. 50], sec. 113, subd. 2; Sherman v. Richmond Hose Co., 230 N. Y. 462, 472, 473 ; Matter of Gary, 248 App. Div. 373 ; 272 N. Y. 635 ; American Law Institute, Restatement of Law of Trusts, sec. 399, Comment at p. 1211.) ” Even had the University at Erivan ceased to function entirely, the gift could now be carried out by the application of the cy pres doctrine.

1960The cy pres rule, to be sure, went out of existence with the charitable trust doctrine, but was reinstated with it by the Tilden Act in 1893 (L. 1893, ch. 701; Allen v. Stevens, 161 N. Y. 122 ), and applies to gifts to charitable corporations as well as to what are charitable trusts in the technical sense (Sherman v. Richmond Hose Co., 230 N. Y. 462 ; Matter of Gary, 248 App. Div. 373 , affd. 272 N. Y. 635 ).

1957Laws ch. 50], sec. 113, subd. 2; Sherman v. Richmond Hose Co., 230 N. Y. 462, 472, 473 ; Matter of Gary, 248 App. Div. 373 ; 272 N. Y. 635 ; American Law Institute, Restatement of Law of Trusts, sec. 399, Comment at p. 1211.) ” Even had the University at Erivan ceased to function entirely, the gift could now be carried out by the application of the cy pres doctrine.

1951Before an application of the cy pres doctrine may he made, it must first be ascertained whether the legacy is a gift for religious purposes generally or was intended for the benefit of a particular institution since the applicability of the doctrine depends upon proof of a general charitable intent (City Bank Farmers Trust Co. v. Arnold, 283 N. Y. 184 ; Matter of Merritt, 280 N. Y. 391 ; Matter of Neher, 279 N. Y. 370 ).

1947In applying the cy pres doctrine requested by the respondent, the first question to be determined, is whether or not the testator created or had an intention to create a trust for a general charitable or educational use (City Bank Farmers Trust Co. v. Arnold, 283 N. Y. 184 ; Matter of Merritt, 280 N. Y. 391 ).

1961(Matter of Fletcher, 280 N. Y. 86 .) Accordingly, the court determines that the Society is not entitled to the bequests made to it under paragraph “ twelfth ” and under paragraph “twenty-seventh” of decedent’s will, and that such bequests shall be distributed under the residuary clause equally among such of the remaining residuary legatees as were functioning at the time of decedent’s death.

1960The provisions of article eighth, however, do not stand alone, but are followed immediately by article ninth, which reads as follows: “In the event any of the bequests or devises herein-before made in Articles Second and Eighth hereof shall fail in whole or part for any reason, including illegality or inability or refusal of the beneficiary to accept such gift, then I direct that the bequest or devise which has so failed be added proportionately to the bequests hereinbefore made in Articles Fifth, Sixth and Seventh hereof.” Such a provision has been interpreted by the Court of Appeals as indic

1973The doctrine of cy pres has been applied in appropriate cases (Matter of Lawless, 194 Misc. 844 , affd. 277 App. Div. 1045 ; Matter of Jeglich, 14 Misc 2d 982 ).

1956(See, also, Restatement, Trusts, § 399, comment k; Matter of Lawless, 194 Misc. 844, 853 ; Matter of Bayside Red Cross League, 228 App. Div. 719 ; Graff v. Harrington, 137 Misc. 712 ; Graff v. Dunning, 137 Misc. 715 ; and Matter of Syracuse Univ., 1 Misc. 2d 904 , involving the same general problem as the present case, but the cy pres doctrine was applied to sustain the gift.) In view of the above precedents and others which could be cited, we have concluded that the income from the bequest contained in paragraph 10 of the Heffron will should be applied cy pres.

1951However, the discontinuance of the 89th street church precludes authorization of the payment of the legacy to the claimant unless such payment is permitted by an application of the cy pres doctrine (Saltsman v. Greene, 136 Misc. 497 , affd. 231 App. Div. 781 , affd. 256 N. Y. 636 ).

1933The principles enunciated in the cited cases may be summarized by saying that when there is no trust attached to the gift and none can be read into it by fair interpretation of the testator’s words as he intended them (Matter of Rappolt, 140 Misc. 239 ), or when, though a trust is attached to the gift, the trust is specifically limited to a purpose which cannot be accomplished (Saltsman v. Greene, supra), the gift wholly fails if the intended recipient is non-existent or disabled to take;- and intestacy results unless other clauses in the will cover the lapse. _ There is no basis in the instan

1956Under the circumstances I do not think the court should attempt to make a new testamentary disposition for the decedent concerning such property. ’ ’ The rationale of the decision in the Saltsman case was concisely stated by Justice Edgcomb in writing for the Appellate Court in Matter of Swan ( 237 App. Div. 454, 461 ), as follows: “ Inasmuch as the Virgil Church had ceased to exist, and as there was nothing in the will to indicate that the testator intended that the money should be used for any purpose other than the one specified in the will, the court refused to apply the cy pres doctrine.

1949The cy pres doctrine has been applied to such class of gifts where a literal compliance with the terms of the bequest or devise is impracticable or impossible because of inadequacy of the funds or property made available therefor or for other reasons (City Bank Farmers Trust Co. v. Arnold, 283 N. Y. 184, 193-194 , supra, 268 N. Y. 297, 305 , supra; Matter of Neher, 279 N. Y. 370 , supra; Unger v. Loewy, 236 N. Y. 73, 79 ; Sherman v. Richmond Hose Co., 230 N. Y. 462, 473 ; Matter of MacDowell, 217 N. Y. 454, 465, 466 ; Trustees of Sailors’ Snug Harbor v. Carmody, 211 N. Y. 286, 300 ; Matter of

2025EPTL 8-1.l(c) provides that "whenever it appears to such court that circumstances have so changed since the execution of an instrument making a disposition for ... charitable ... purposes as to render impracticable or impossible a literal compliance with the terms of such disposition," the court may make an order directing that such disposition be made in a manner which the court finds "will most effectively accomplish its general purposes." To invoke the cy pres doctrine, the court must find: 1) that the gift or trust is charitable in nature, 2) that the language in the trust demonstrates a g

2005As stated in Matter of Othmer ( 185 Misc 2d 122 [Sur Ct, Kings County 2000]), to apply the doctrine of cy pres, a court must find three conditions: (1) the gift or trust must be charitable in nature; (2) the language of the will or trust instrument, when read in the light of all attendant circumstances, must indicate that the donor had a general charitable purpose in mind and not just an intent to benefit a particular charitable institution; and (3) it must be determined to the court’s satisfaction that circumstances have so changed since the execution of the instrument making a disposition fo

1990Charitable trusts do not need the same degree of certainty as to the beneficiaries that other gifts do (Allen v Stevens, 161 NY 122 ), and a charitable gift should be sustained whenever possible under the cy pres doctrine in the light of the intention of the testator (Matter of Kirkbride, 261 App Div 853 ).” In Carper (supra, at 336) the court went on to note that "[a] gift in trust to be distributed among various charities as the trustee sees fit, is a valid charitable gift”.

1979Charitable trusts do not need the same degree of certainty as to the beneficiaries that other gifts do (Allen v Stevens, 161 NY 122 ), and a charitable gift should be sustained whenever possible under the cy pres doctrine in the light of the intention of the testator (Matter of Kirkbride, 261 App Div 853 ).

1938Morris, 263 N. Y. 638 .) In the application of the cy pres doctrine to a charitable trust, the courts take a most liberal and practical view in order to sustain the trust.

1938(Matter of MacDowell, 217 N. Y. 454 ; Sherman v. Richmond Hose Co., 230 id. 462; Matter of Swan, 237 App. Div. 454 ; affd., 263 N. Y. 638 ; Matter of Gary, 248 App. Div. 373 ; affd., 272 N. Y. 635 ; Matter of Harrington, 243 App. Div. 235 ; Matter of Walter, 150 Misc. 512 ; Matter of Nelson, 143 id. 843.) It is this very fact of inability to administer the fund in strict compliance with the testator’s wishes that gives rise to the application of the cy pres doctrine by the court.

1951However, the discontinuance of the 89th street church precludes authorization of the payment of the legacy to the claimant unless such payment is permitted by an application of the cy pres doctrine (Saltsman v. Greene, 136 Misc. 497 , affd. 231 App. Div. 781 , affd. 256 N. Y. 636 ).

1933Appellants rely largely upon the case of Saltsman v. Greene ( 136 Misc. 497 ; affd., without opinion, 231 App. Div. 781 ; 256 N. Y. 636 ), where the court refused to apply the cy pres doctrine as embodied in subdivision 2 of section 12 of the Personal Property Law.

1951However, the discontinuance of the 89th street church precludes authorization of the payment of the legacy to the claimant unless such payment is permitted by an application of the cy pres doctrine (Saltsman v. Greene, 136 Misc. 497 , affd. 231 App. Div. 781 , affd. 256 N. Y. 636 ).

1933Appellants rely largely upon the case of Saltsman v. Greene ( 136 Misc. 497 ; affd., without opinion, 231 App. Div. 781 ; 256 N. Y. 636 ), where the court refused to apply the cy pres doctrine as embodied in subdivision 2 of section 12 of the Personal Property Law.

1953Where the specific directions of the testatrix have been carried out since the inception of the trust, but in the course of time conditions have changed so that it is impossible or impracticable to carry out such directions, the cy pres doctrine is almost invariably applied (3 Scott on Trusts, § 399.3; see Matter of Stuart, 183 Misc. 20 ; Matter of Neher, 279 N. Y. 370 , and Matter of Gary, 161 Misc. 351 , affd. 248 App. Div. 373 , affd. 272 N. Y. 635 ).

1949The cy pres doctrine has been applied to such class of gifts where a literal compliance with the terms of the bequest or devise is impracticable or impossible because of inadequacy of the funds or property made available therefor or for other reasons (City Bank Farmers Trust Co. v. Arnold, 283 N. Y. 184, 193-194 , supra, 268 N. Y. 297, 305 , supra; Matter of Neher, 279 N. Y. 370 , supra; Unger v. Loewy, 236 N. Y. 73, 79 ; Sherman v. Richmond Hose Co., 230 N. Y. 462, 473 ; Matter of MacDowell, 217 N. Y. 454, 465, 466 ; Trustees of Sailors’ Snug Harbor v. Carmody, 211 N. Y. 286, 300 ; Matter of

2006In its decision the court found that the gift to LICH was charitable in nature (Matter of Syracuse Univ. [Hendricks], 4 NY2d 744 [1958]; Matter of Lawless, 194 Misc 844 [Sur Ct, Kings County 1949], affd 277 App Div 1045 [1950]; Knickerbocker Hosp. v Goldstein, 181 Misc 540 [Sup Ct, NY County 1943]).

2000The cy pres doctrine also applies when the grant in question .is general in character, or gives the charitable trustee/donee substantial discretion in the use of the funds (see, e.g., Matter of Hendrick, 4 NY2d 744 [cy pres was applied to save a grant to a medical college that became part of the State University, because the grant was to be used in the manner that the faculty, in its discretion, considered most likely to promote medical and surgical knowledge]; see also, Matter of Kittinger, 36 Misc 2d 385 ).

1990Charitable trusts do not need the same degree of certainty as to the beneficiaries that other gifts do (Allen v Stevens, 161 NY 122 ), and a charitable gift should be sustained whenever possible under the cy pres doctrine in the light of the intention of the testator (Matter of Kirkbride, 261 App Div 853 ).” In Carper (supra, at 336) the court went on to note that "[a] gift in trust to be distributed among various charities as the trustee sees fit, is a valid charitable gift”.

1979Charitable trusts do not need the same degree of certainty as to the beneficiaries that other gifts do (Allen v Stevens, 161 NY 122 ), and a charitable gift should be sustained whenever possible under the cy pres doctrine in the light of the intention of the testator (Matter of Kirkbride, 261 App Div 853 ).

1979(Holmes v Mead, supra, pp 338-339 .) In 1891 the Court of Appeals reinforced its post-Williams holdings by abrogating a trust created by Samuel Tilden for the establishment and maintenance of a free library system in New York City, 1 noting that, "The equitable rule that prevailed in the English Court of Chancery known as the cy pres doctrine and which was applied to uphold gifts for charitable purposes when no beneficiary was named has no place in the jurisprudence of this State. [Citations omitted]”. 2 (Tilden v Green, 130 NY 29, 45 .) The public uproar resulting from the loss of such a subs

1933To render these statutes applicable, the property must be given to the corporation upon some trust thereby authorized.’ (Holmes v. Mead [ 52 N. Y. 332, 339 ].) ” The gift in Matter of Griffin was ultimately saved by the application of the cy pres doctrine.

1973(Matter of Potter, 307 N. Y. 504 .) The absence of such motivation in the instant situation is convincingly demonstrated by" Dr. Nurse’s words and actions.

1960The circumstances called for the cy pres rule, but these statutes require that the direction made shall be such as “ will most effectually accomplish the general purpose ” of the testament, where due to change in circumstances a literal compliance has become ‘ ‘ impracticable or impossible ’ In the construction of wills ‘ ‘ ‘ where the intent of the testator is to be ascertained from his language alone, or from his language and surrounding circumstances about which there is no dispute ’ ”, the intention of the testator is “ a question of law and not one of fact ” (Matter of Potter, 307 N. Y. 5

1962(Mount v. Tuttle, 183 N. Y. 358 ; Matter of Merritt, 280 N. Y. 391 ; Wright v. Wright, 225 N. Y. 329 ; Matter of Lawless, 194 Misc. 844 , affd. 277 App. Div. 1045 , motion for leave to appeal denied 302 N. Y. 949 ; Matter of Scott, 8 N Y 2d 419.) It appears that there does not now exist nor has there ever been an institution known as “ The National Memorial Theatre of Stratford-on-Avon, England” to which the decedent bequeathed one half of the remainder of the trust for the benefit of his widow for the purpose of promoting performances and productions of Shakespearian drama.

1953(Wright v. Wright, supra.) No subsequent decision of the Court of Appeals has changed that rule.” It is to be noted that in none of the above-cited cases was the Attorney-General a party to the action or proceeding and the conclusion to be drawn is that the courts did not consider the absence of that official as consequential so long as there was no occasion to employ the cy pres principle in the determination of the issues presented.

1959(Matter of Dillenback, 189 Misc. 538 , affd. 273 App. Div. 1051 ; Matter of Colgan, 204 Misc. 109 .) Instances can be cited where its adaptation was unwarranted by reason of the fact that the donative instrument already contained a gift over should the initial bequest prove inoperative (Matter of Fletcher, 280 N. Y. 86 ; Matter of Price, 264 App. Div. 29 , affd. 289 N. Y. 751 ) or where the donee, after accepting the gift for a strictly confined purpose, acts on its own initiative to apply it to another use.

1956(Matter of Dillenback, 189 Misc. 538 ; Sherman v. Richmond Hose Co. No. 2, 230 N. Y. 462, 473 .) A charitable gift should be sustained whenever possible under the cy pres doctrine in the light of the intention of the testator.