Published on:

Petitioner, a Charity, Seeks to Modify Decedent’s Will


In this miscellaneous proceeding, the petitioner, Catholic Child Care Society of the Diocese of Brooklyn (hereinafter Catholic Child Care Society) seeks to modify the decedent’s will to designate St. John’s Residence for Boys as a beneficiary of a testamentary trust (hereinafter Dowdall Testamentary Trust) established under the decedent’s will in lieu of Catholic Child Care Society pursuant to EPTL 8-1.1.

The decedent E.M. Dowdall died on April 13, 1968. Her will was admitted to probate in this court on January 16, 1969. Article Fourth of the will sets forth various charitable beneficiaries which include 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 organizations receives a specific bequest of $5,000.

Article Fifth of the will for which relief under EPTL 8-1.1 is sought bequeaths the entire residuary estate to a trust for the benefit of Catholic Child Care Society. Article Fifth further provides for the invasion of the principal of the trust annually until the trust and corpus is exhausted. The Dowdall Testamentary Trust has a remaining principal of approximately $90,000.

The Catholic Child Care Society was incorporated by special act of the legislature, as a charitable society under the name “The Roman Catholic Orphan Asylum Society, in the city of Brooklyn, in the County of Kings, for the purpose of relieving the poor, and of protecting and educating orphan children. By Act 531 of the Laws of 1960, the legislature changed the name of the corporation to Catholic Child Care Society of the Diocese of Brooklyn, and extended the charitable purpose to include care for destitute, abandoned, neglected and dependent children placed in its care by their parents or guardians, to provide for the physical, mental and spiritual welfare of such children and for such purposes to establish, maintain and conduct children’s homes and summer camps. 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 affiliate with Catholic Child Care Society. Catholic Child Care Society ceased doing business in June 2001, and no longer admits children into its care. The children for whom Catholic Child Care Society had been providing services were eventually 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.

Estates, Powers and Trusts Law 8-1.1 is the statutory codification of the common law doctrine of cy pres. The phrase “cy pres” is Anglo-French in origin and means literally as near as possible. The doctrine proceeds upon the principle that it is the duty of the court to give effect to the general charitable intention of the testator as nearly as possible, when the subsidiary intent that a gift take effect in a particular manner is impossible to implement. If the general charitable purpose of the testator can still be fulfilled, the cy pres doctrine will be invoked to save the gift. Thus, a testator’s general charitable intent may be evidenced from the substantial number of bequests to particular organizations, the combination and number of such bequests, and the failure of the testator to make provisions for her relatives.

Under the governing statute, the court has the authority to direct the manner in which a charitable disposition is to be administered in order to accomplish the testator’s intent when the terms of a charitable bequest become impracticable or impossible. Prior to making such a determination, the court must find that: (1) the gift or trust is charitable in nature; (2) the donor demonstrated a general rather than a specific charitable intent; and (3) the particular purpose for which the gift was created has failed or become impossible to achieve.

Upon examination of Article Fifth of the decedent’s will, it is clear that the general intent of the decedent was to benefit organizations within the Roman Catholic Diocese of Brooklyn providing services for children. The record reflects that St. John’s Residence for Boys is the organization that the petitioner seeks permission to substitute as the beneficiary of the testamentary trust. This organization provides and arranges foster care, adoption services, emergency residential services for children at risk and in the juvenile justice system and medical services to children in its care.

Furthermore, a review of the will demonstrates the decedent’s general charitable intent in bequeathing her entire residuary estate for the benefit of Catholic Child Care Society as well as numerous specific legacies to Catholic organizations. Where a donor of a gift shows an inclination to benefit a variety of charities, as demonstrated here by the bequests under Articles Fourth and Fifth, a court can justifiably conclude that the donor had a general charitable intent and to apply the cy pres doctrine to modify the failed bequest.

The court notes that the devise of the residuary estate in trust for the benefit of Catholic Child Care Society contains no gift over provision in the event that a disposition fails, and that this further evidences an intent for a general charitable gift, rather than a gift to a specific program or organization. It is well settled that where a charitable disposition has vested and there is no specific gift over provision, the doctrine of cy pres will invariably apply.

As Catholic Child Care Society is no longer providing services to children, the disposition in the Dowdall Testamentary Trust to Catholic Child Care Society has failed and the charitable bequest has become impossible to achieve. As an agency under the auspices of the Roman Catholic Diocese of Brooklyn, which provided multiple and necessary services for children, St. John’s Residence for Boys would be a proper recipient of the decedent’s residuary estate and fulfill the general charitable intent set forth in her will.

Accordingly, the petitioner’s application is granted. The trustee is directed to distribute the funds under Article Fifth of the will to St. John’s Residence for Boys.

If you found yourself in a similar situation same as the above, contact Stephen Bilkis and Associates who are experts and well experienced in the field of probate proceedings.

Contact Information