cy pres doctrine in Alabama

1952If the societies or either of them did not exist at the time of the testator’s death, or cannot now be fotmd, organized and known as above stated, then the bequest to such society or societies should be considered and disposed of as lapsed legacies * * * ” (Emphasis supplied.) ( 19 Ala. 830 .) And in Williams v. Pearson, 38 Ala. 299, 307 , in the following language: “The power exercised by the English court of chancery, in the two classes of cases just mentioned is not judicial power, and does not belong to our courts. * * * But, [1] the cy-pres doctrine and [2] the prerogative power to carry

1952If the societies or either of them did not exist at the time of the testator's death, or cannot now be found, organized and known as above stated, then the bequest to such society or societies should be considered and disposed of as lapsed legacies * * *" (Emphasis supplied.) ( 19 Ala. 830 .) And in Williams v. Pearson, 38 Ala. 299, 307 , in the following language: "The power exercised by the English court of chancery, in the two classes of cases just mentioned is not judicial power, and does not belong to our courts. * * * But, [1] the cy-pres doctrine and [2] the prerogative power to carry o

1946The cy pres doctrine, § 145, Title 47, Code, was not in effect in Alabama when the trusts came into being, and does not seem to apply to what is proposed here, if it were in effect. 11 C.J. 360, 362; see also 14 C.J.S., Charities, § 52; Crim et al. v. Williamson et al., 180 Ala. 179 , 60 So. 293 ; Carter and Wife et al. v. Balfour’s Adm’r, 19 Ala. 814 ; Tarver et al. v. Weaver et al., 221 Ala. 663 , 130 So. 209 .

1946The cy pres doctrine, § 145, Title 47, Code, was not in effect in Alabama when the trusts came into being, and does not seem to apply to what is proposed here, if it were in effect. 11 C.J. 360, 362; see also 14 C.J.S., Charities, § 52; Crim et al. v. Williamson et al., 180 Ala. 179 , 60 So. 293 ; Carter and Wife et al. v. Balfour’s Adm’r, 19 Ala. 814 ; Tarver et al. v. Weaver et al., 221 Ala. 663 , 130 So. 209 .

1946The cy pres doctrine, § 145, Title 47, Code, was not in effect in Alabama when the trusts came into being, and does not seem to apply to what is proposed here, if it were in effect. 11 C.J. 360, 362; see also 14 C.J.S., Charities, § 52; Crim et al. v. Williamson et al., 180 Ala. 179 , 60 So. 293 ; Carter and Wife et al. v. Balfour’s Adm’r, 19 Ala. 814 ; Tarver et al. v. Weaver et al., 221 Ala. 663 , 130 So. 209 .

1907The doctrine of cy pres, as-recognized and administered by the English Court of Chancery, was based upon prerogative power of the king, and the principle, therefore, is by us, under our institutions, without recognition. — Carter v. Balfour, 19 Ala. 814 ; Williams v. Pearson, 38 Ala. 299 ; Johnson v. Holifield, 79 Ala. 423 , 58 Am.

1919Woodruff v. Hundley, 147 Ala. 287 , 292 , 39 So. 907 .

1912The want of a trustee will not defeat the charity, but the object of the charity must be ascertained, else the court would have to substitute its own' selected charity or permit the trustee to select the charity and which the law does not authorize .—Wil liams v. Pearson, 38 Ala. 299 ; Woodroof v. Hundley, 147 Ala. 287 , 39 South. 907 ; Tilden v. Green, 130 N. Y. 29 , 28 N. E. 880 , 14 L.

1919Woodruff v. Hundley, 147 Ala. 287 , 292 , 39 So. 907 .

1912The want of a trustee will not defeat the charity, but the object of the charity must be ascertained, else the court would have to substitute its own' selected charity or permit the trustee to select the charity and which the law does not authorize .—Wil liams v. Pearson, 38 Ala. 299 ; Woodroof v. Hundley, 147 Ala. 287 , 39 South. 907 ; Tilden v. Green, 130 N. Y. 29 , 28 N. E. 880 , 14 L.

2006The cy pres doctrine originated as a rule of construction to save a testamentary *1080 charitable gift that would otherwise fail, allowing `the next best use of the funds to satisfy the testator's intent as near as possible.' Id. (internal quotation omitted).

1952In applying this doctrine, the Brigham federal case stated [ 134 F. 525 ]: “And in such cases, and in such cases only, if the mode pointed out fail, it will provide another mode by which the charity may take, but by which no other than charitable legatees can take.” And in the Codman case, the Massachusetts Supreme Court stated: “If, for any reason, it should be impossible to establish such a corporation, the gift would not fail, but the court would apply the doctrine of cy pres, and would provide some other method of administering the charity to accomplish substantially the same result.” [ 18

1952In applying this doctrine, the Brigham federal case stated [ 134 F. 525 ]: "And in such cases, and in such cases only, if the mode pointed out fail, it will provide another mode by which the charity may take, but by which no other than charitable legatees can take." And in the Codman case, the Massachusetts Supreme Court stated: "If, for any reason, it should be impossible to establish such a corporation, the gift would not fail, but the court would apply the doctrine of cy pres, and would provide some other method of administering the charity to accomplish substantially the same result." *835

1952As said by the Alabama court (Lovelace v. Marion Institute et al., 215 Ala. 271 , 110 So. 381 ), “The appeal in this case is not to any cy pres power of the court, but to the equitable doctrine of approximation, in virtue of which the court of Chancery exercises jurisdiction merely to vary the details’ of administration, in order to preserve the trust, and carry out the general purpose of the donor.” ’ ” The following is a good explanation of the application of judicial cy pres by the jurisdictions holding to that doctrine, and is distinctly apposite to the case in hand: “ * * * [a] gift may b

1952As said by the Alabama court (Lovelace v. Marion Institute et al., 215 Ala. 271 , 110 So. 381 ), “The appeal in this case is not to any cy pres power of the court, but to the equitable doctrine of approximation, in virtue of which the court of Chancery exercises jurisdiction merely to vary the details’ of administration, in order to preserve the trust, and carry out the general purpose of the donor.” ’ ” The following is a good explanation of the application of judicial cy pres by the jurisdictions holding to that doctrine, and is distinctly apposite to the case in hand: “ * * * [a] gift may b

1952Thurlow v. Berry, 249 Ala. 597 , 32 So.2d 526 ; Id., (on first appeal), 247 Ala. 631 , 25 So.2d 726 .

1952Thurlow v. Berry, 249 Ala. 597 , 32 So.2d 526 ; Id., (on first appeal), 247 Ala. 631 , 25 So.2d 726 .

1946The cy pres doctrine, § 145, Title 47, Code, was not in effect in Alabama when the trusts came into being, and does not seem to apply to what is proposed here, if it were in effect. 11 C.J. 360, 362; see also 14 C.J.S., Charities, § 52; Crim et al. v. Williamson et al., 180 Ala. 179 , 60 So. 293 ; Carter and Wife et al. v. Balfour’s Adm’r, 19 Ala. 814 ; Tarver et al. v. Weaver et al., 221 Ala. 663 , 130 So. 209 .

1946The cy pres doctrine, § 145, Title 47, Code, was not in effect in Alabama when the trusts came into being, and does not seem to apply to what is proposed here, if it were in effect. 11 C.J. 360, 362; see also 14 C.J.S., Charities, § 52; Crim et al. v. Williamson et al., 180 Ala. 179 , 60 So. 293 ; Carter and Wife et al. v. Balfour’s Adm’r, 19 Ala. 814 ; Tarver et al. v. Weaver et al., 221 Ala. 663 , 130 So. 209 .

1912The want of a trustee will not defeat the charity, but the object of the charity must be ascertained, else the court would have to substitute its own' selected charity or permit the trustee to select the charity and which the law does not authorize .—Wil liams v. Pearson, 38 Ala. 299 ; Woodroof v. Hundley, 147 Ala. 287 , 39 South. 907 ; Tilden v. Green, 130 N. Y. 29 , 28 N. E. 880 , 14 L.

1912The want of a trustee will not defeat the charity, but the object of the charity must be ascertained, else the court would have to substitute its own' selected charity or permit the trustee to select the charity and which the law does not authorize .—Wil liams v. Pearson, 38 Ala. 299 ; Woodroof v. Hundley, 147 Ala. 287 , 39 South. 907 ; Tilden v. Green, 130 N. Y. 29 , 28 N. E. 880 , 14 L.

1907The doctrine of cy pres, as-recognized and administered by the English Court of Chancery, was based upon prerogative power of the king, and the principle, therefore, is by us, under our institutions, without recognition. — Carter v. Balfour, 19 Ala. 814 ; Williams v. Pearson, 38 Ala. 299 ; Johnson v. Holifield, 79 Ala. 423 , 58 Am.