In this case the New York Surrogate’s Court considered a request to modify a testamentary trust to change the name of a beneficiary, based on the doctrine of “cy pres.” The cy-près doctrine allows the court to amend the terms of a charitable trust in order to keep the gift from failing. The doctrine requires that the amendment be consistent with the donor’s original intent.
The decedent died on April 13, 1968. Her will was admitted to probate on January 16, 1969. The will includes provisions naming various charities as beneficiaries, including: The Carmelite Sisters of the Aged and Infirmed, The Catholic Foreign Missionary Society of America (Maryknoll Fathers), The Nursing Sisters of the Sick Poor, The Monastery of Our Lady of Mt. Carmel, and The Confraternity of the Precious Blood. Each of these organization received a specific bequest of $5,000. The will also left the entire residuary estate to a trust for the benefit of Catholic Child Care Society and provides for the invasion of the principal of the trust annually until the trust and corpus is exhausted. The trust has a remaining principal of approximately $90,000.
The petitioner, Catholic Child Care Society of the Diocese of Brooklyn, requests that the court modify the decedent’s will to designate St. John’s Residence for Boys as a beneficiary of the testamentary trust established under the decedent’s will in lieu of Catholic Child Care Society pursuant to EPTL § 8-1.1. At the time the will was admitted to probate, Catholic Child Care Society operated two programs: St. John’s Residence for Boys and St. Joseph’s Children’s Services. In 1995 St. John’s Residence for Boys incorporated separately but continued to work with Catholic Child Care Society. In 2001, the petitioner ceased doing business. The children for whom petitioner had been providing services were transferred to other authorized agencies throughout New York City. As a result, the petitioner has filed this application pursuant to EPTL§ 8-1.1 to modify the trust. Section 8-1.1 is the statutory codification of the common law doctrine of cy pres. It gives authority to the Surrogate’s Court to direct a disposition to be applied in such manner that will most effectively accompany its general purposes.
Upon examining the decedent’s will, it is clear that the decedent’s goal was to provide for organizations within the Roman Catholic Diocese of Brooklyn that provide services for children. St. John’s Residence for Boys does just that. It provides and arranges foster care, adoption services, and emergency residential services for children at risk and in the juvenile justice system. It also provides medical services to children in its care. Furthermore, a review of the will demonstrates the decedent’s general charitable intent was to provide for a variety of Catholic organizations in addition to Catholic Child Care Society. Where a donor of a gift shows an inclination to benefit a variety of charities, as demonstrated here, it is clear that the donor had a general charitable intent. Thus, it would be appropriate to apply the cy pres doctrine to modify the failed bequest in a manner consistent with that general charitable intent.
Because the Catholic Child Care Society no longer provides services to children, the gift has failed. An appropriate recipient would be St. John’s Residence for Boys as it currently provides services to children. Thus, giving it the gift would fulfill the general charitable intent set forth in the decedent’s will. Accordingly, the petitioner’s application is granted.