Last Will and Testament of Teeters, In re
| Decision Date | 20 February 1980 |
| Docket Number | No. 42638,42638 |
| Citation | 288 N.W.2d 735,205 Neb. 576 |
| Court | Nebraska Supreme Court |
| Parties | In re Trust Created by the LAST WILL AND TESTAMENT of John L. TEETERS, Testator. Dorothy Evans WOOD et al., Appellants, v. LINCOLN GENERAL HOSPITAL ASSOCIATION et al., Appellees. |
Syllabus by the Court
1. Trusts: Charities: Intent. If property is given in trust to be applied to a particular charitable purpose, and it is or becomes impossible or impracticable or illegal to carry out the particular purpose, and if the settlor manifested a more general intention to devote the property to charitable purposes, the trust will not fail but the court will direct the application of the property to some charitable purpose which falls within the general charitable intention of the settlor.
2. Gifts: Charities: Wills. No gift, grant, bequest, or devise to religious, educational, charitable, or benevolent uses which shall in other respects be valid under the laws of this state shall be invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries thereunder in the instrument creating the same.
3. Trusts: Charities. If the dominant purpose of a charitable trust is certain, it will not be denied execution because of absence of perfection of detail or the presence of immaterial and inappropriate language in the instrument creating the trust.
4. Trusts: Charities: Intent. A general charitable intent of the settlor is a precondition to the exercise of the court's cy pres power. If the trust instrument evidences no general charitable intention, then the trust fails and the devise or bequest lapses.
5. Trusts: Wills: Intent. The primary rule of construction of wills and trust instruments is that the court must, if possible, ascertain the intention of the testator or creator of the trust.
Richard H. Williams of Barney & Carter, P. C., Lincoln, for appellants.
Charles D. Humble of Ginsburg, Rosenberg, Ginsburg, Cathcart, Curry & Gordon, Lincoln, for appellees.
Heard before BOSLAUGH, McCOWN, CLINTON and HASTINGS, JJ., and COLWELL, District Judge.
The issue on this appeal is, shall the doctrine of cy pres be applied in the case of a charitable trust established by the will of John L. Teeters, or shall the bequest lapse and pass to his residuary legatees. Paragraph XII of the will, which was admitted to probate in the county court of Lancaster County, Nebraska, on October 29, 1946, provided as follows:
The trustee administered the trust in accordance with its terms until sometime after May 30, 1975, when Lincoln General Hospital ceased to operate a school of nursing. The trustee then commenced this action in the county court of Lancaster County under the provisions of section 30-2806, R.R.S.1943, asking for construction of paragraph XII in the light of the change of circumstances, direction as to the proper beneficiaries of the trust, or modification so that the trust provisions would carry out the intent of the testator.
Pursuant to the prayer of the petition, notice was given to all interested parties, including the Attorney General of the State of Nebraska as attorney for public charities. The county court found that the purpose of the trust had failed and that the will evidenced no general charitable intention. It directed that the trust res and accumulated income pass to the heirs at law of John L. Teeters, the residuary legatees named in his will. The Lincoln General Hospital Association appealed to the District Court for Lancaster County which reversed the decision of the county court and directed that the trust be continued for the benefit of: "(a) nurses and student nurses of Lincoln General Hospital, (b) any employees of Lincoln General Hospital, including nurses and student nurses, who might hereafter reside in the Sophy H. Teeters Nurses Home, and (c) any School of Nursing that might hereafter be established by Lincoln General Hospital, all in conformity with paragraph XII of the Last Will and Testament of John L. Teeters." The heirs at law perfected their appeal to this court. We modify by including employees as beneficiaries of the trust and as so modified affirm the judgment of the District Court.
The evidence tends to establish the following. The structure used as a nurses home is named for Sophy, the deceased wife of the testator. Pursuant to the provisions of paragraph I of the will of John L. Teeters, at his death his body was cremated and the ashes placed in a copper urn on which were engraved his name and the dates of his birth and of his death. The urn was then placed in a previously provided bronze-door cabinet in the Sophy L. Teeters Nurses Home (hereafter Teeters home), in which cabinet the ashes of Sophy were already similarly enshrined.
The facts disclosed at trial reveal that, while a school of nursing is no longer in operation at the hospital, the hospital is not devoid of student nurse training. An arrangement has been made with the University of Nebraska nursing program whereby university student nurses receive their clinical training at Lincoln General Hospital. Anyone using the Teeters home, whether it be student nurses, faculty, nurses, or employees, is allowed to use the lounges and other facilities established through the trust.
At the time of testator's death and for many years thereafter, student nurses lived in the Teeters home. Employees and nurses did not live in the building. Although not all the student nurses lived in the building, all were entitled to use the facilities in the building during their time spent at the hospital. When the nursing program was discontinued in 1975, the student nurses, nurses, and employees continued to use the facilities provided in the Teeters home, although it is no longer used as a residence.
The present use of the Teeters home is that of an adjunct to the hospital in which chemically dependent patients are treated. Nurses and employees of the hospital work therein. No nurse or employee resides in the building. It is located immediately adjacent to the hospital building.
The income from the trust has in the past been used to furnish amenities, such as lounge and recreation furnishings for student nurses, licensed nurses, and other employees of the hospital who have occasion to be in the Teeters home. The record indicates that the same functions can still be carried out by using the income for the same purpose in the lounges of the Teeters home and Lincoln General Hospital.
The trust corpus was the sum of $20,000. At the time of trial the res plus accumulated income totaled $22,901.66.
The Restatement sets forth the doctrine of cy pres in the following language: "If property is given in trust to be applied to a particular charitable purpose, and it is or becomes impossible or impracticable or illegal to carry out the particular purpose, and if the settlor manifested a more general intention to devote the property to charitable purposes, the trust will not fail but the court will direct the application of the property to some charitable purpose which falls within the general charitable intention of the settlor." Restatement, Trusts 2d, § 399, p. 297.
Insofar as the indefiniteness of beneficiaries is concerned, the equitable doctrine of cy pres has been embodied in our statute. Section 30-239, R.R.S.1943, provides in part: "No gift, grant, bequest or devise to religious, educational, charitable or benevolent uses which shall in other respects be valid under the laws of this state, shall be invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries thereunder in the instrument creating the same." In Garwood v. Drake University, 188 Neb. 605, 198 N.W.2d 336, we sai...
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