Fay v. Hunster
| Decision Date | 20 March 1950 |
| Docket Number | No. 10188.,10188. |
| Citation | 86 US App. DC 224,181 F.2d 289 |
| Parties | FAY, United States Attorney v. HUNSTER. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. L. Clark Ewing, Assistant United States Attorney, Washington, D. C., with whom Messrs. George Morris Fay, United States Attorney, and Joseph M. Howard, Assistant United States Attorney, Washington, D. C., were on the brief, for appellant.
Mr. George E. C. Hayes, Washington, D. C., for appellee.
Before WILBUR K. MILLER, PRETTYMAN and PROCTOR, Circuit Judges.
This case involves judicial cy pres. Salvadora Elizabeth Smith died leaving a will devising a house to Lottie Carpenter and the residue of her estate in trust to pay the income to her brother during his life. Then upon his death (which has occurred) the trustee was directed to sell and convert the real estate into cash and to "pay over all of the estate so accumulated to the Pastor of the Holy Redeemer Catholic Church, * * * on condition that the said Pastor shall use the total estate so bequeathed to him to purchase a suitable home for aged colored people of the District of Columbia, or to the (sic) use so much of said fund as in his discretion will purchase a suitable home for such purpose and to use the balance of said fund, if any, after said purchase, to maintain and support said home." Concededly the residue is insufficient to carry out the testamentary scheme. For that reason the pastor and church declined to act. As a result appellant sought application of the fund cy pres to some local charitable institution which cares for aged colored persons. Three such institutions were suggested for the court's consideration. The proposal was successfully opposed by appellee, testatrix' cousin and sole heir. The court was of opinion that the dominant purpose of testatrix was not the care of aged colored persons but the establishment of a home for them in addition to any then existing. In support of this construction, the court reasoned that had testatrix "felt that her wishes would be accomplished by the contribution of the funds to any of the institutions existing at the time of her death, clearly she would have provided for such contribution to such institution." Accordingly it was held that the charitable trust had failed, and that the residue of the estate should be distributed as in case of intestacy. D.C., 80 F.Supp. 729. We cannot accept this conclusion or the reasoning upon which it is based.
Manifestly the testatrix did desire the charity to be administered according to her chosen plan. But it does not follow that the plan, rather than the charity, was her controlling influence. We cannot surmise what she would have done had she known that a home could not be established as she planned — that would be mere guesswork. But we can, and must, determine what was her dominant purpose. If it was the acquisition of a home conducted by the pastor, the trust has failed. If it was the care of aged colored people, the court will not allow a failure. It will find a way to effectuate the general charitable intent as nearly as may be with the donor's wishes. The particular mode will, of necessity, depend upon circumstances.
The fact that testatrix laid down her own plan, in preference to donating the fund to a local institution to care for the objects of her charity, is not controlling, even assuming, as the trial court did, that she knew of institutions...
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