2020 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 12 - Trusts
Article 9 - Charitable Trusts
§ 53-12-172. Cy Pres

If a charitable trust or gift cannot be executed in the manner provided by the settlor or donor, the superior court shall exercise equitable powers in such a way as will as nearly as possible effectuate the intention of the settlor or donor.

(Code 1981, §53-12-172, enacted by Ga. L. 2010, p. 579, § 1/SB 131.)

- For article, "Private Trusts for the Provision of Private Goods," see 37 Emory L.J. 295 (1988). For note on discriminatory charitable trusts in Georgia, with regard to application of the cy pres doctrine, in light of Evans v. Newton, 382 U.S. 296, 86 S. Ct. 486, 15 L. Ed. 2d 373 (1966), see 6 Ga. St. B.J. 428 (1970).

ANALYSIS

• General Consideration
• Purpose of Cy Pres
• Applicability
• Jurisdiction

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 108-202 and 108-203, former O.C.G.A. § 53-12-77, and former O.C.G.A. § 53-12-113 of the 1991 Trust Act are included in the annotations for this Code section.

Subjects stated in former Code 1933, § 108-203 may constitute proper matters for charitable bequests or devises under former Code 1933, §§ 108-201 and 108-202. Trust Co. v. Williams, 184 Ga. 706, 192 S.E. 913 (1937) (decided under former Code 1933, § 108-102).

Courts look with special favor upon trusts for public charitable purposes. Goree v. Georgia Indus. Home, 187 Ga. 368, 200 S.E. 684 (1938) (decided under former Code 1933, §§ 108-102 and 108-103).

Rules governing establishment and administration of charitable trusts are different from those applicable to private trusts in giving effect to the intention of the donor and in establishing the charity. Goree v. Georgia Indus. Home, 187 Ga. 368, 200 S.E. 684 (1938) (decided under former Code 1933, § 108-102).

Cited in Murphy v. Johnston, 190 Ga. 23, 8 S.E.2d 23 (1940); Perkins v. Citizens & S. Nat'l Bank, 190 Ga. 29, 8 S.E.2d 28 (1940); Taylor v. Trustees of Jesse Parker Williams Hosp., 190 Ga. 349, 9 S.E.2d 165 (1940); Houston v. Mills Mem. Home, Inc., 202 Ga. 540, 43 S.E.2d 680 (1947); Alexander v. Georgia Baptist Found., Inc., 245 Ga. 545, 266 S.E.2d 165 (1980); Hospital Auth. v. First Nat'l Bank, 250 Ga. 55, 296 S.E.2d 54 (1982).

Purpose of Cy Pres

Purpose of cy pres.

- Fundamental purpose of cy pres provisions is to allow the court to carry out the general charitable intent of the testator when this intent might otherwise be thwarted by the impossibility of the particular plan or scheme provided by the testator. Evans v. Abney, 396 U.S. 435, 90 S. Ct. 628, 24 L. Ed. 2d 634 (1970) (decided under former Code 1933, § 108-202).

Applicability

Applicability generally.

- As a general rule, the doctrine of cy pres is applied in cases: (1) where there is the presence of an otherwise valid charitable grant or trust, that is, one that has charity as its purpose and sufficiently offers benefits to an indefinite public; (2) where the specific intention of the settlor may not be legally or practicably carried into effect; and (3) where there is exhibited a general charitable intent on the part of the settlor. Trammell v. Elliott, 230 Ga. 841, 199 S.E.2d 194 (1973) (decided under former Code 1933, §§ 108-202 and 108-203).

When it was apparent from entire will and codicil that bequest to the governing authorities of a named association, "same being an Orphan's Home located at Macon, Georgia," was intended as a charitable trust for the benefit of orphans as a class, and that the designated "governing authorities" were merely to perform the office of trustee, the bequest was sufficiently definite and specific to be capable of execution, and since a trust will not fail for the want of a trustee, the legacy would not lapse merely because there may have been no such orphan's home and "governing authorities" as were mentioned in the will; in such case a court of equity could, by approximation, effectuate the general charitable purpose of the testator in a manner most similar to that indicated by the testator. Goree v. Georgia Indus. Home, 187 Ga. 368, 200 S.E. 684 (1938) (decided under former Code 1933, §§ 108-202 and 108-203).

If a gift is made for a public charitable purpose, it is immaterial that the trustee is uncertain or incapable of taking, or that the objects of the charity are uncertain and indefinite; it will nevertheless be sustained. Goree v. Georgia Indus. Home, 187 Ga. 368, 200 S.E. 684 (1938) (decided under former Code 1933, §§ 108-202 and 108-203).

- Fact that a religious, charitable, or educational organization named as a beneficiary in a will discontinues its active functions after the execution of the will does not impair its right to take the gift so long as its identity, whether corporate or associative, continues without dissolution until the death of the testator. Crisp Area YMCA, Inc. v. NationsBank, N.A., 272 Ga. 182, 526 S.E.2d 63 (2000) (decided under former O.C.G.A. § 53-12-113).

Doctrine of cy pres cannot be applied to establish trust for entirely different purpose from that intended by testator. Evans v. Abney, 224 Ga. 826, 165 S.E.2d 160 (1968), aff'd, 396 U.S. 435, 90 S. Ct. 628, 24 L. Ed. 2d 634 (1970) (decided under former Code 1933, § 108-202).

Cy pres will not be applied when there is demonstrated an intention of the settlor contrary to the inference of general charitable intent that the property should be applied exclusively to the purpose which is or has become impracticable or illegal. Such demonstration of a specific intent of the settlor as would result in a failure of the devise must be clear, definite, and unambiguous. In such event the trust will fail, and a resulting trust will be implied for the benefit of the testator or the testator's heirs. Trammell v. Elliott, 230 Ga. 841, 199 S.E.2d 194 (1973) (decided under former Code 1933, §§ 108-202 and 108-203).

When the accomplishment of the particular purpose and only that purpose was desired by the testator and the testator had no more general charitable intent and the testator would presumably have preferred to have the whole trust fail if the particular purpose is impossible of accomplishment, the cy pres doctrine is not applicable. Evans v. Abney, 396 U.S. 435, 90 S. Ct. 628, 24 L. Ed. 2d 634 (1970) (decided under former Code 1933, § 108-202).

- Trial court's application of cy pres doctrine to impose a constructive trust in a corporation's favor was error under circumstances in which the decedent improperly named the corporation as a payable on death beneficiary of certificates of deposit and a trust account because, while the trial court may have been able to apply the doctrine of cy pres to as nearly as possible effectuate the decedent's intentions by, for example, allowing the decedent's charitable gift to go to some authorized entity that served much the same function as the corporation, the trial court did not do that; the trial court specifically imposed a constructive trust in favor of the corporation on the financial instruments, and this was error. Indeed, the trial court's use of cy pres in a manner that would have effectuated a payment that expressly violated the law turned the doctrine of cy pres on its head. Tuvim v. United Jewish Cmtys., Inc., 285 Ga. 632, 680 S.E.2d 827 (2009) (decided under former O.C.G.A. § 53-12-113).

Special chancery (now equity) jurisdiction over charitable bequests grows out of rule that, in cases of private right, courts will not enforce uncertainties, and that the parties at interest must be capable of definite ascertainment; but it is of the very nature of a charity that this is impossible, and from the most ancient times courts of chancery in England have applied very different rules in determining the validity of charitable bequests from the rules applied to such as were not charitable. Goree v. Georgia Indus. Home, 187 Ga. 368, 200 S.E. 684 (1938) (decided under former Code 1933, §§ 108-202 and 108-203).

When the framers of the Code declared the courts of chancery (now equity) to have jurisdiction to enforce charitable bequests, declared what were charities and recognized the doctrine of cy pres, the framers intended to say something more than that courts of equity could enforce trusts; there was no propriety in giving this special jurisdiction or in defining charitable purposes if a bequest for charitable purposes, to be valid, must have the same certainty and definiteness as to its objects and mode of division, as bequests, not for charitable purposes. Goree v. Georgia Indus. Home, 187 Ga. 368, 200 S.E. 684 (1938) (decided under former Code 1933, §§ 108-202 and 108-203).

RESEARCH REFERENCES

Am. Jur. 2d.

- 15 Am. Jur. 2d, Charities, § 157.

Charitable Intent of Trust Settlor - Cy Pres Doctrine, 9 POF2d 199.

Circumstances Warranting Application of Cy Pres Doctrine to Modify Terms of Charitable Trusts, 88 POF3d 469.

- 90 C.J.S., Trusts, § 84.

- Validity of trust for religious purposes not limited by sect or denomination, 22 A.L.R. 697.

Avoidance or reverter of valid charitable trust, purpose of which has failed, in absence of express provision therefor, 38 A.L.R. 44.

General charitable intent as essential to application of cy pres doctrine, 74 A.L.R. 671.

Legacy or devise to religious or other society as affected by discontinuance of its active functions, or its merger or association with other organization, 91 A.L.R. 840.

Who may maintain suit or proceeding to enforce or administer benevolent or charitable trusts, 124 A.L.R. 1237.

Charitable trust as affected by insufficiency of assets, 169 A.L.R. 266.

Cy pres doctrine as affected by sectarian or doctrinal differences or factors, 3 A.L.R.2d 78.

Devolution of property to testator's heirs or next of kin, or to his residuary devisees or legatees, where testamentary charitable trust which became operative later fails, 62 A.L.R.2d 763.

Validity, as a charitable trust, of gift to church, church society, or trustees or officers thereof, without declaration or restriction as to its use or purpose, 81 A.L.R.2d 819.

Allowance of attorneys' fees in litigation involving cy pres doctrine, 89 A.L.R.2d 691.

Validity and effect of gift for charitable purposes which excludes otherwise qualified beneficiaries because of their race or religion, 25 A.L.R.3d 736.

Merger or consolidation of corporation as terminating charitable trust of which corporation is beneficiary, 34 A.L.R.3d 749.

Validity and construction of testamentary gift to political party, 41 A.L.R.3d 833.

Application of cy pres doctrine to trust for promulgation of particular political or philosophical doctrines, 67 A.L.R.3d 417.

Division of charitable gift among several claimants where named donee is nonexistent, 67 A.L.R.3d 442.

Effect on charitable trust or bequest for particular school or school district, or students or graduates thereof, of change in school or district structure or organization, 68 A.L.R.3d 997.

Extension of charitable trust benefits to persons residing outside geographic area prescribed by trust instrument, under doctrines of cy pres or equitable deviation, 68 A.L.R.3d 1049.

Disposition of surplus trust income after payment of specific sum to charity, 96 A.L.R.3d 954.