Goehringer's Will, In re

• Decision Date: 06 March 1972
• Citation: 329 N.Y.S.2d 516,69 Misc.2d 145
• Parties: Proceeding for Construction of WILL of Edward B. GOEHRINGER, Deceased. Surrogate's Court, Kings County
• Court: New York Surrogate Court

Page 516

329 N.Y.S.2d 516

69 Misc.2d 145

Proceeding for Construction of WILL of Edward B. GOEHRINGER, Deceased.

Surrogate's Court, Kings County.

March 6, 1972.

Miller, Montgomery, Spalding & Sogi, New York City, for petitioning executor.

Lord, Day & Lord, New York City, for respondent-legatee Brooklyn Preparatory School.

Louis J. Lefkowitz, Atty. Gen., New York City, for State of New York.

NATHAN R. SOBEL, Surrogate.

The executor has presented for construction paragraph Fifth of testator's will. He contends that the charitable disposition made therein has 'failed' and in consequence the disposition falls into the residuary. The charitable beneficiary and the Attorney-General contend that the Cy pres doctrine (EPTL 8--1.1) should be applied. So far as pertinent the disposition provides:

'FIFTH: I give and bequeath the sum of twenty thousand dollars ($20,000) to BROOKLYN PREPARATORY SCHOOL . . . to be used to create and found 'THE EDWARD BINGHAM GOEHRINGER and ANNA DALTON GOEHRINGER SCHOLARSHIP FUND' in perpetuity, to provide funds for the education of boys chosen by the administrators of Brooklyn Preparatory School. . . . If for any reason this bequest fails, the said sum shall become a part of my residuary estate.'

Testator died November 7, 1970. On that date Brooklyn Preparatory School was in existence. At a meeting held May 28, 1971, the Regents of the University of the State of New York, in response to a petition of the Trustees of Brooklyn Preparatory School voted to dissolve the School on June 30, 1972, the close of the academic year. The Trustees applied to the Supreme Court for an order of distribution (Education Law, § 220). The order dated July 8, 1971, in addition to providing for distribution of the real estate and other tangible assets, provided that all scholarship funds be distributed to other Jesuit secondary schools for scholarships for the underprivileged.

Our statutes under which charitable corporations may be dissolved and their assets distributed (viz. Education Law, § 220; Not-For-Profit Corporation L., §§ 1005, 1008) are not quite like Cy pres statutes such as EPTL 8--1.1. Under the Cy pres statutes, courts are governed by the intention of the creator or testator expressed or presumed Cy pres i.e. 'so near or as near' as can be ascertained. In ordering distribution under the dissolution statutes, the Supreme Court is not concerned with the directions or intentions of the creator or testator but only that the funds be transferred to a charitable recipient having similar purposes to the dissolved charitable corporation. (Matter of Richmond County Soc. for Prevention of Cruelty to Children (Staten Is. Mental Health Soc.--Children's Aid Soc.), 11 A.D.2d 236, 204 N.Y.S.2d 707, affd. 9 N.Y.2d 913, 217 N.Y.S.2d 86, 176 N.E.2d 97.) The dissolution statutes are however statutes as fully effective as the Cy pres statute. Nevertheless it has been the custom, in such dissolution proceedings, as is now being done here, to also present separately to the Supreme Court or the Surrogate's Court the Cy pres issue as well. (See Matter of Syracuse Univ. (Hendricks), 1 Misc.2d 904, 148 N.Y.S.2d 245, affd. 3 A.D.2d 890, 161 N.Y.S.2d 855, affd. 4 N.Y.2d 744, 171 N.Y.S.2d 863, 148 N.E.2d 911.) As will be observed later, it is often unnecessary in a dissolution proceeding to determine the applicability of Cy pres.

The application of Cy pres may become necessary under a variety of circumstances other than the dissolution of the charitable beneficiary.

There may be inadequacy of funds to effectuate the intention of the testator. This may result in an original failure or 'lapse'. (See e.g. Matter of Lewis' Will, 308 N.Y. 795, 125 N.E.2d 598; Matter of Swan's Will, 237 App.Div. 454, 261 N.Y.S. 428, affd. Sub nom. Matter of St. John's Church of Mt. Morris, 263 N.Y. 638, 189 N.E. 734.) Or there may be because of inadequacy of funds a subsequent failure after vesting. (See Matter of Neher's Will, 279 N.Y. 370, 18 N.E.2d 625.) The purpose of the gift may before vesting no longer be necessary. (Matter of Scott's Will, 8 N.Y.2d 419, 208 N.Y.S.2d 984, 171 N.E.2d 326.) Or the purpose may have been fully accomplished after vesting. (Matter of Potter's Will, 307 N.Y. 504, 121 N.E.2d 522.)

So too with respect to the nonexistence of the charitable recipient. There may be an original failure or lapse. An original failure may exist at the date of death of testator. An original failure or lapse may exist at the termination of an intervening life estate. The charitable beneficiary may have dissolved, merged, or have been taken over by the state or municipality or been nationalized by a foreign government in the intervening period between execution of the will and date of death or during the intervening life estate. A great number of cases have dealt with such situations. (Matter of Zumstine's Will, 13 A.D.2d 780, 215 N.Y.S.2d 11, affd. 10 N.Y.2d 957, 224 N.Y.S.2d 278, 180 N.E.2d 60; Matter of Syracuse Univ. (Heffron), 3 N.Y.2d 665, 171 N.Y.S.2d 545, 148 N.E.2d 671; Matter of Ablett's Will, 3 N.Y.2d 261, 165 N.Y.S.2d 63, 144 N.E.2d 46; Matter of Bishop's Will, 3 N.Y.2d 294, 165 N.Y.S.2d 86, 144 N.E.2d 63; Matter of Price's Will, 264 App.Div. 29, 35 N.Y.S.2d 111, affd. 289 N.Y. 751, 46 N.E.2d 354; Saltsman v. Greene, 136 Misc. 497, 243 N.Y.S. 576, affd. 231 App.Div. 781, 246 N.Y.S. 913, affd. 256 N.Y. 636, 177 N.E. 172; Wright v. Wright, 225 N.Y. 329, 122 N.E. 213; Matter of Aker, 21 A.D.2d 935, 251 N.Y.S.2d 144; Matter of Harrington's Estate, 243 App.Div. 235, 276 N.Y.S. 868; Matter of Dunton, 28 Misc.2d 939, 214 N.Y.S.2d 157; Matter of Swope's Estate, 204 Misc. 510, 121 N.Y.S.2d 181.)

The very same circumstances mentioned which cause an original failure or lapse may result in a 'failure' after the charitable gift has vested, viz. dissolution, merger, consolidation, nationalization, etc. (Matter of Syracuse Univ. (Hendricks), 1 Misc.2d 904, 148 N.Y.S.2d 345, affd. 3 A.D.2d 890, 161 N.Y.S.2d 855, affd. 4 N.Y.2d 744, 171 N.Y.S.2d 863, 148 N.E.2d 911, Supra; Matter of Neher's Will, 279 N.Y. 370, 18 N.E.2d 625, Supra; Sherman v. Richmond Hose Co., 230 N.Y. 462, 130 N.E. 613; Rose v. Hawley et al., 118 N.Y. 502, 23 N.E. 904; Van de Bogert v. Reformed Dutch Church, 219 App.Div. 220, 220 N.Y.S. 58; Matter of Bowne's Estate, 11 Misc.2d 597, 173 N.Y.S.2d 723; Matter of Lee's Will, 3 Misc.2d 1072, 156 N.Y.S.2d 813; Matter of Clark's Will, 1 Misc.2d 869, 150 N.Y.S.2d 65; Matter of Stuart, 183 Misc. 20, 46 N.Y.S.2d 911.)

This distinction between an original failure or lapse and a subsequent failure after vesting, although rarely articulated, is often of controlling influence in applying the Cy pres doctrine.

In applying Cy pres we must be mindful that courts have no more power to make wills for the dead than contracts for the living. Therefore basic to that determination is the intention of the testator. A broad generality is that the Cy pres doctrine (EPTL 8--1.1) will be applied (though impossible to carry out fully testator's expressed desires) if from the will as a whole there may be discerned a primary intention of the testator to devote his property to a general charitable purpose rather than to give the gift to a particular charity or for a particular purpose. Where the issue arises because of the nonexistence, merger or dissolution of the charitable beneficiary, the test applied is--if a general charitable purpose is primary and the particular beneficiary is only secondary, Cy pres will be applied. On the other hand if the particular beneficiary is primary and the general charitable purpose only secondary then Cy pres will not be applied. (Cf. Matter of Syracuse Univ. (Hendricks), 1 Misc.2d 904, 148 N.Y.S.2d 245, affd. 3 A.D.2d 890, 161 N.Y.S.2d 855, affd. 4 N.Y.2d 744, 171 N.Y.S.2d 863, 148 N.E.2d 911, Supra, with Matter of Syracuse Univ. (Heffron), 3 N.Y.2d 665, 171 N.Y.S.2d 545, 148 N.E.2d 671, Supra.) However, a close scrutiny of the cases will establish that a specific intent will be found quite frequently where there is an original failure or lapse; but infrequently, indeed almost never, when there has been a failure After vesting. Matter of Scott's Will, 8 N.Y.2d 419, 208 N.Y.S.2d 984, 171 N.E.2d 326, Supra; Matter of Merritt's Will, 280 N.Y. 391, 21 N.E.2d 365; Matter of Aker, 21 A.D.2d 935, 251 N.Y.S.2d 144, Supra; Matter of Syracuse Univ. (Heffron), 3 N.Y.2d 665, 171 N.Y.S.2d 545, 148 N.E.2d 671, Supra.) The reason is clear. The testator does not perhaps foresee the possible failure of his gift. But when he does, he generally does not look ahead beyond the vesting of the gift. Up to the point of vesting he may very well have an intention to benefit a particular institution. But all institutions must ultimately fail, if not soon after vesting then decades later. Of course, those dispositions which are outright gifts will have then been consumed. Those which are in charitable trust (EPTL 8--1.1(a)) and not consumed will invariably be subjected to Cy pres. The reasons--this is what most testators probably intend should the gift fail long after vesting: judicial policy favoring charitable gifts prompts courts to find a general charitable intent.

Another most significant indicia of general versus particular intent is the presence or absence of a Specific gift over in the event that the charitable disposition fails. Such a gift over must be in the form of a Specific direction to pay the disposition to another charitable beneficiary, to an individual or to the residuary legatees in the event that the gift fails. The presence of such a gift over is a clear manifestation that testator had a particular rather than general charitable intention. Contra, the absence of a specific gift over is a manifestation that testator had a general charitable intent.

Here too the cases distinguish between a gift over in the event of an original failure or lapse and a failure after vesting of the charitable trust.

If there...