Gallaudet University v. National Soc. of the Daughters of the American Revolution

• Decision Date: 01 September 1996
• Docket Number: No. 1733,1733
• Citation: 699 A.2d 531,117 Md.App. 171
• Parties: GALLAUDET UNIVERSITY v. The NATIONAL SOCIETY OF THE DAUGHTERS OF THE AMERICAN REVOLUTION, et al. ,
• Court: Court of Special Appeals of Maryland

Page 171

117 Md.App. 171

699 A.2d 531

GALLAUDET UNIVERSITY v. The NATIONAL SOCIETY OF THE DAUGHTERS OF THE AMERICAN

REVOLUTION, et al.

No. 1733, Sept. Term, 1996.

Court of Special Appeals of Maryland.

Sept. 4, 1997.

Scott T. Kragie (Stephanie A. Goldfine and Squire, Sanders & Dempsey, on the brief), Washington, DC, for Appellant

Christine N. Kearns (Michelle M. Huhnke and Shaw, Pittman, Potts & Trowbridge, on the brief), Washington, DC, for Appellees.

Argued before HARRELL, SALMON and THIEME, JJ.

HARRELL, Judge.

Gallaudet University (Gallaudet) appeals from a judgment of the Circuit Court for Baltimore County in which the court, employing the equitable doctrine of cy pres as conferred upon it by the legislature in Md.Code (1974, 1991 Repl.Vol., 1996 Supp.) Est. & Trusts § 14-302, saved an ineffective bequest to charity and awarded The National Society of the Daughters of the American Revolution (the DAR) a portion of the residuary estate of Mrs. Olive Swindells. Appellant contends that (1) the circuit court should have applied Md.Code, Est. & Trusts § 4-404, rather than cy pres, to determine the proper devolution of the ineffective charitable bequest, and alternatively, (2) the testator did not manifest a general charitable intent, thereby eliminating a pre-requisite for the application of the cy pres doctrine. Because we conclude that the trial court applied an incorrect analytical framework in determining whether the testator manifested a general charitable intent, we shall reverse the judgment of the circuit court and remand

this case for further proceedings not inconsistent with this opinion.

ISSUES

This case presents the following issues, condensed and rephrased by us as:

I. Whether an ineffective charitable bequest can be saved by Maryland's Cy Pres Statute rather than being devolved according to other rules regarding lapsed or void legacies.

II. Whether the trial court erred in concluding that Mrs. Swindells manifested a general charitable intent.

III. Whether the trial court, in framing an alternate scheme of distribution for the ineffective bequest, abused its discretion by distributing the proceeds of that bequest to the DAR.

FACTS ¹

This case involves a dispute over the proper devolution of an ineffective charitable bequest contained in the Last Will and Testament executed by Olive Swindells. Mrs. Swindells suffered from a severe hearing impairment and was legally deaf in her later years. Bertram Swindells, her husband, had been profoundly deaf since early childhood. The Swindells had no family.

On or about 25 October 1994, Mrs. Swindells engaged the services of Bruce E. Goodman, Esquire, of Baltimore to assist her in the preparation of a will. Mrs. Swindells instructed Mr. Goodman to prepare a will that would establish a trust to provide for the care of her husband, if she predeceased him, and contain a residuary clause leaving 80% of her estate to Gallaudet and 20% to the DAR Nursing Home for the benefit of destitute members of the DAR who could not afford nursing Sometime in late October 1994, Mr. Goodman drafted the Last Will and Testament of Olive Swindells that devised the residuary estate as follows:

home care. Mrs. Swindells, however, was unable to furnish Mr. Goodman with the DAR Nursing Home's location. Despite her advanced age--she was 94 years old at the time--Mr. Goodman concluded that Mrs. Swindells was competent and able to understand the importance and significance of a will executed with the requisite formalities.

1. 80% to Gallaudet College.

2. 20% to the (DAR) Daughters of the American Revolution Nursing Home for the use of destitute members of the (DAR) Daughters of the American Revolution.

On 2 November 1994, Mrs. Swindells executed this will. ²

The American Society of the Daughters of the American Revolution (the DAR) is a service organization founded in 1890 whose objective is to "perpetuate the memory and spirit of the men and women who achieved American Independence; to develop and enlighten public opinion; and, to foster true patriotism and love of country." The DAR has engaged in a variety of historical, educational, and charitable functions since its inception. DAR members perform volunteer service in several medical centers and nursing homes certified by the Veterans Administration. Although some of the DAR's philanthropic activities may indirectly benefit elderly, deaf, or hard-of-hearing persons, the DAR does not operate any programs specifically for that constituency. As of the date Mrs. Swindells executed her will, the DAR had never administered a specific program for the study or care of solely the elderly.

Mrs. Swindells had had a lengthy on-again, off-again relationship with the DAR. On 11 December 1925, she was admitted to the DAR as a member-at-large. Approximately three years later she was dropped from the DAR's membership rolls on account of non-payment of dues. During the 1950's she Gallaudet University (Gallaudet) has been in continuous operation since 1857. Prior to 1954, Gallaudet was known as the Columbia Institution for the Deaf, Dumb, and Blind. It was renamed Gallaudet College in 1954 and obtained university status in 1986. Gallaudet is a private, non-profit corporation dedicated to furnishing educational and related services to hearing-impaired individuals of all ages, and to their families and care-givers. Gallaudet also provides a wide array of services specifically for the benefit of hearing impaired senior citizens. Neither Mr. or Mrs. Swindells ever attended or had any formal affiliation with Gallaudet.

rekindled her affiliation with the DAR and became a member of their Baltimore Chapter. In 1958 she resigned. Ten years later, she became an organizing member of the DAR's Big Cypress Chapter in Naples, Florida, and served as that chapter's recording secretary. In 1984, she specifically requested to be designated an honorary member of the DAR. In recognition of her long relationship with the DAR, the Big Cypress chapter, in 1986, conferred a "unique honor" upon Mrs. Swindells by paying her membership dues for life. Mrs. Swindells attended meetings of the Big Cypress Chapter though 1984, and remained a member of the society until her death in 1995.

By letter dated 28 October 1994, Mr. Goodman notified the Maryland Chapter of the DAR (MD-DAR) that Mrs. Swindells wished to "leave a bequest to the DAR Nursing Home facility that cares for indigent members of the DAR." Mr. Goodman received a written reply from the MD-DAR on or about 15 December 1994, which stated in relevant part:

The Maryland State Society regrets that as far as we have ascertained, there is not a DAR Nursing Home facility. We would appreciate any knowledge your client has on this facility.

Suggestions have been made:

1. Client could create a trust fund in her name, the interest from which would be paid for preservation of the Maryland State Chapter House.

2. Client could create a fund for a scholarship of her choice such as medical [sic.].

3. The National Society, DAR owns a complex of Historic Buildings ... in Washington, DC. The renovations and preservation of this complex is a constant project and is of great importance to all DAR members.

Only this week have had [sic.] another request for a DAR Nursing home. It would certainly be a goal for the future.

Soon thereafter, Mr. Goodman telephoned Mrs. Swindells and read verbatim the MD-DAR letter to her. Mrs. Swindells responded to the news that the nursing home did not exist by informing Mr. Goodman that she wished to leave her entire residuary estate to Gallaudet, and directed him to prepare a new will accordingly. Mr. Goodman prepared a revised will that provided for a trust for Mr. Swindells and named Gallaudet as the sole residuary legatee. This revised will omitted any reference to the DAR. By 27 December 1994, Mrs. Swindells had not yet executed the revised will.

Bertram Swindells died on 27 December 1994. Thereafter, Mrs. Swindells instructed Mr. Goodman to revise her will once again to delete the trust for Mr. Swindells. She also requested that a limiting clause be inserted into the will so as require that her bequest to Gallaudet be utilized only for scholarships. She also said that she did not want the money from the gift used for constructing a building. Consequently, Mr. Goodman prepared a further revised will, which stated in relevant part:

ITEM II: I hereby give, devise and bequeath, all of the rest residue and remainder of my Estate to Gallaudet College, an educational institution now located in Washington, D.C. This gift may, in the discretion of the Board of Trustee maybe [sic.] merged and mingled with and become a part of the general investment assets of said College, and shall be known as the BERTRAM L. SWINDELLS AND OLIVE R. SWINDELLS Scholarship Fund, and the income, but not the principal, thereof shall be used to establish a Scholarship or Scholarships and the selection of the beneficiaries thereof shall be determined by the President or such other After drafting the revised residuary clause, Mr. Goodman telephoned Mrs. Swindells to inform her that she needed to execute the new will and attempted to schedule an appointment with her. Mrs. Swindells told him she would not be able to schedule that appointment for some time because she was busy preparing to take her driver's license renewal test and was also attending to matters arising out of the death of her husband. She told Mr. Goodman that once things settled down, she would schedule the appointment. That was the last time Mr. Goodman communicated with Mrs. Swindells. Olive Swindells died on 16 March 1995, at the age of 94, without executing any will other than the will of 2 November 1994. Mrs. Swindells's estate included a portfolio of stocks and bonds with a fair market value in excess of $4 million as of the date of her death.

authority as may be designated by the said Board of Trustees for said purpose.

By letter dated 19 ...