Howard Savings Inst. of Newark v. Peep

■ Haneman, J.

(dissenting). I agree that the executor has a standing to prosecute this appeal and that the testator created a trust of charitable nature which should not fail because of the refusal of the designated trustee to accept and carry out his express directions. I as well agree that the purpose of the testator was to provide scholarship loans for students of Amherst College. However, I conceive that the application of the cy pres doctrine to delete so much of testator’s expressed objectives as are allegedly repugnant to the charter of the named corporate trustee is not here warranted. Instead, the court should appoint a substituted trustee to administer the trust in strict accordance with the directions of the testator. To that extent I dissent.

Gy pres has been called the theory of approximation and is applied only to prevent a charitable trust from failing. The phrase literally means “as near as.” It is the principle under which courts save a charitable trust from failure by reason of the stated charitable objectives being or becoming impossible, impracticable or illegal of fulfillment. This result is accomplished through the instrumentality of carrying out the more general charitable purposes of the testator by substituting, for the object which would otherwise fail, another charitable object which is believed to approximate the originally stated purpose. 2A Bogert, Trusts and Trustees (1953), § 431; IV Scott on Trusts 2d, § 399 (1956); *512 Restatement 2d, Trusts, § 399 (1959); Mirinda v. King, 11 N. J. Super. 165, 177 (App. Div. 1951); MacKenzie v. Trustees of Presbytery of Jersey City, 67 N. J. Eq. 652, 672 (E. & A. 1904).

Impossibility or impracticability of fulfillment may arise as a result of a variety of circumstances. We are here concerned with only one of such set of facts, i. e., whether the refusal of the designated corporate trustee to accept the administration of the trust, for the stated reason that the acceptance for the declared charitable objectives is repugnant to its charter, would cause a failure of the trust absent the interposition of the cy pres doctrine.

Only where the testator intended that the method of applying property to a charitable purpose should lie wholly and solely within the discretion of the named trustee will a trust fail upon the refusal or inability of such trustee to function. Eor such a resulting failure to occur the trustee must be an essential part of the testatorial scheme. Where property is left to a corporation for designated charitable purposes and the corporation is unwilling or unable to assume the administration for the designated purposes, the trust will not fail unless the gift to the corporation was testator’s primary or general intention. If the testator manifested his primary intention to devote the property to certain specific charitable purposes and the designation of a trustee was a secondary or particular object, the secondary object must be sacrificed to accomplish the primary object. The choice of the donee trustee then is not of the essence of the gift but merely incidental thereto. In MacKenzie v. Trustees of Presbytery of Jersey City, supra, the court said, at p. 674:

“* s * Where the testator or donor had two objects in view ■—one primary or general, and the other secondary or particular— and these are, literally speaking, incompatible, the particular object must be sacrificed in order that effect may be given to the general object, according to law, and ‘as near as may be’ to the testator’s or donor’s intention. Again, the principle may be more briefly stated as that of applying property, as nearly as possible, according to the donor’s intentions, when those intentions cannot be exactly carried out.”

*513 And again, at p. 675:

“* * * The sound rule now is—at least in America—that courts will not execute charitable trusts in a manner different from that intended, unless the intent cannot in the original mode be literally carried but; that they will preserve the substance, although the mode be departed from, and that they will not presume or invent an intention which the testator or donor has not fairly indicated.”

In In re Young Women's Christian Ass'n, 96 N. J. Eq. 568 (Ch. 1924), the court said, at p. 574:

“Where a testator has two objects in view, one primary or general and the other secondary or particular, and these are, literally speaking, incompatible, the secondary object must be sacrificed in order that effect may be given to the general object. Where the will exhibits an intention that the donation shall be devoted to a specific charitable purpose and prescribes a particular mode or means by which the purpose shall be carried out, the failure of the mode or means, after the donation has taken effect, will not defeat the charitable purpose.”

IV Scott, supra, § 397.3 states:

“Where a testator devises or bequeaths property to a charitable corporation to be applied to a particular charitable purpose, it is to be inferred that the application of the property to the designated purpose is the testator’s primary intention, and that the choice of the organization to make the application is secondary. In such a case the fact that the corporation named is unwilling or unable to accept the gift and to apply the property to the designated purpose does not cause the disposition to fail. Even though the gift is to a corporation for its general purposes, the disposition does not fail if the primary intention of the testator was that the property should be applied to those purposes, and the choice of the particular donee was merely incidental and not of the essence.”

See also Mirinda v. King, supra; Litcher v. Trust Co. of N. J., 18 N. J. Super. 101 (Ch. Div. 1952), affirmed 11 N. J. 64 (1952); Brown v. Condit, 70 N. J. Eq. 440 (Ch. 1905); Levin v. Attorney-General, 136 N. J. Eq. 568 (Ch. 1945); Martin v. Haycock, 140 N. J. Eq. 450 (Ch. 1947); Restatement of the Law, Trusts, supra, § 397, comment g; *514 § 399, comment o; IV Scott, supra, § 397, § 397.3; Bogert, supra, § 438.

The line of demarcation between impossibility and impracticability is most difficult to draw. It is one of degree rather than of kind. IV Scott, supra, § 399.4; Bogert, supra, § 439.

“Impracticability” does not connote that the objects of the trust could be attained by some method of administration other than provided by the creator with greater facility or less trouble, but rather that to carry out the literal directions of the testator would, in effect, result in a failure to accomplish his general charitable intent, or in a frustration thereof. Restatement of the Law, Trusts, supra, § 399, comment q; cf. St. James Church v. Wilson, 82 N. J. Eq. 546 (Ch. 1913), affirmed sub nom. West v. Rector, etc. of St. James Episcopal Church, 83 N. J. Eq. 324 (E. & A. 1914); MacKenzie v. Trustees of Presbytery of Jersey City, supra; Guaranty Trust Co. of N. Y. v. The N. Y. Community Trust, 139 N. J. Eq. 144 (Ch. 1946); In re Young Women’s Christian Ass’n, 96 N. J. Eq. 568 (Ch. 1924).

Related to but distinct from the cy pres doctrine is the doctrine of deviation which concerns the administrative provisions of a trust. Under this doctrine a trust will not fail for want of a trustee. IV Scott, supra, § 397, § 397.1; Mirinda v. King, supra; Restatement of the Law, Trusts, supra, § 388, § 397; Martin v. Haycock, supra. This is sometimes confused with the cy pres doctrine.

We should therefore proceed to analyze the McKinney will and the extrinsic testimony adduced in the light of the foregoing basic legal concepts, in order to determine whether the refusal by Amherst to serve as a trustee would normally cause a failure of the trust and hence warrant the invoking of the cy pres doctrine.

This is not a holographic will prepared by an unlettered layman but rather a will prepared for the testator by a member of the bar of this State. A perusal of the entire *515 instrument demonstrates a complete familiarity with, and intentional and apt use of technical expressions. The bequest here is not to Amherst for its general charitable purposes but rather, in classical language, to Amherst as trustee, for a specifically defined and restricted purpose. Where the testator intended an outright gift to a charitable foundation for its general charitable purposes he employed apt words to express that intent. Observe paragraph twenty-eighth of his will, which reads:

“I give and bequeath unto American Board of Congregational Foreign Missions, of Boston, Massachusetts, the sum of Two Thous- and Dollars ($2,000.) in memory of my father who was born at Amensomtote, Umlazi River, Natal, South Africa, Adams Mission.”

And so, had testator intended either an outright gift to Amherst’s general purposes or for student loans to any needy student, in Amherst’s discretion, it would have been a simple matter for a member of the bar to express that intent. The fact that testator was an Amherst alumnus; had attended various class reunions; had contributed amounts varying from $5 in 1932 to $50 in 1947 to the Amherst College Alumni Eund served to prove only that he was interested in his alma mater and not in all needy students at Amherst. The bequest to the Board of Congregational Missions displays an interest in that Protestant church. The so-called modesty of the bequest does not detract from that conclusion. The absence of any further bequest to a church and of any evidence that he was a regular church attendant ox active in any church activities raised at best only an inference that he was not a regular church communicant, not that he was not a practicing and convinced Protestant. The totality of the facts fails to give rise to any legitimate inference that he was not primarily interested in student loans to the class described in his will, i. e., “Protestant, Gentile boys” rather than to any needy student at Amherst.

The description of the cestuis que trust is so exact that a substituted trustee could easily select persons meeting the qualifications. The element of discretion is reduced to *516 a minimum. There is not exhibited either in the will or in the extrinsic testimony any evidence that such selection should lie wholly and solely in the discretion of Amherst. The testator’s primary purpose was to create scholarship loans for a certain class of Amherst students. The appointment of Amherst College as a trustee was not an essential part of that scheme. Scholarship loans to designated Amherst students was of primary importance and the nomination of a trustee to select those students was of secondary importance. The designated trustee was a mere conduit through which the funds should flow to the specially qualified persons. The question is not whether some benefit will redound to Amherst but rather whether that benefit was of paramount interest to the testator. It does not follow that this indirect benefit was the testator’s primary concern. Plainly, his principal concern was the rendering of financial aid and assistance to “Protestant Gentile boys” so that they might be in a position to take advantage of the cultural facilities furnished by Amherst and so obtain a rounded education. There can be no dispute with the conclusion that Amherst will benefit, in the broad connotation of that word, to some extent by the furnishing of funds to aid students in paying their tuition and thus attract those who might otherwise not attend that college. The trust does not make funds available to Amherst to assist it in discharging its corporate educational purposes by paying for plant, equipment or personnel. It follows that the benefit which will be received by Amherst is only incidental to and arises from the benefit which will be received by “Protestant Gentile” students.

There is a multitude of possible means for publicizing the existence and availability of this fund for scholarship loans to “deserving American born, Protestant, Gentile boys of good moral repute, not given to gambling, smoking, drinking or similar acts” attending Amherst College. A simple medium to employ would be the insertion of a paid advertisement in the college newspaper. After application by a student, the essential relevant information for qualifica *517 tion for such a loan could be obtained by the applicant from the college. As noted in the majority opinion, Amherst has signified its willingness to cooperate to the extent that “upon a student’s direct request, the College would provide information concerning that student, so far as that information may be readily available in the College’s records and so far as its disclosure is consistent with general policies bearing upon confidentiality of the records.” Admittedly, Amherst could administer the fund with greater ease. This is not to say, however, that administration by a substituted trustee is either impossible or impracticable. Eor examples of cases in which trusts for the benefit of college students were administered by trustees other than the particular college at which such students were attending, see Harrold v. First National Bank of Fort Worth, 93 F. Supp. 882 (D. C. N. D. Texas 1950); Hoyt v. Bliss, 93 Conn. 344 , 105 A. 699 (Sup. Ct. Err. 1919); Sessions v. Skelton, 163 Ohio St. 409 , 127 N. E. 2d. 378 (Sup. Ct. 1955); Speer v. Colbert, 200 U. S. 130 , 28 S. Ct. 201 , 50 L. Ed. 403, 413 (1906); Barnard v. Adams, 58 F. 313 (C. C. N. D. Iowa 1893); Field v. Drew Theological Seminary, 41 F. 371 (C. C. D. Del. 1890). That scholarship grants and loans can be efficiently administered by trustees other than educational institutions is evidenced by the some 825 pages of descriptive matter contained in Feingold, Scholarships, Fellowships and Loans (1955), which catalogues such grants and loans from funds administered by other than academic trustees.

I would therefore reverse and remand with directions to the trial court to appoint a substituted trustee to administer the trust under the exact terms of the will.

For affirmance—Chief Justice Weiftra-db, and Justices Jacobs, Erancis, Proctor and Hail—5.

For reversal—Justice Haneman—1.