COMMENT

This section is taken from the Model Act. It provides that certain declared transfers of property to a corporation that will disappear in a merger will inure to the benefit of the corporation that survives the merger. If the will or other instrument otherwise specifically provides, of course, it will control and the gift, bequest, devise or promise will not inure to the surviving corporation.

A provision in a will or other instrument requiring that a bequest or gift be used for a specified purpose must be complied with by the surviving corporation, even if that corporation is not engaged in the same activities as the disappearing corporation. If the surviving corporation cannot or does not want to use the bequest or gift for the specified purpose, it must seek judicial approval for the variance. Whether the variance should be granted is left to the cy pres doctrine and other applicable state law.