If a testamentary gift to a charity cannot be executed in the exact manner provided by the testator, the superior court may exercise equitable powers in such a way as will as nearly as possible effectuate the intention of the testator.
(Code 1981, §53-4-62, enacted by Ga. L. 1996, p. 504, § 10.)
Law reviews.- For article discussing the validity of charitable gifts in Georgia, see 1 Ga. B.J. 16 (1939). For article, "The Rule Against Perpetuities as Applied to Georgia Wills and Trusts," see 16 Ga. L. Rev. 235 (1982). 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). For comment on Evans v. Abney, 396 U.S. 435, 90 S. Ct. 628, 24 L. Ed. 2d 634 (1970), see 22 Mercer L. Rev. 493 (1971). For comment on Creech v. Scottish Rite Hosp. for Crippled Children, 211 Ga. 195, 84 S.E.2d 563 (1954), see 17 Ga. B.J. 512 (1955). For comment on Trammell v. Elliott, 230 Ga. 841, 199 S.E.2d 194 (1973), see 10 Ga. St. B.J. 502 (1974).
COMMENTThis section modifies former OCGA Sec. 53-2-99 by replacing the former language with language that mirrors the cy pres doctrine set out in the Georgia Trust Code, Code Sec. 53-12-113.
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1863, § 2436, former Code 1868, § 2432, former Code 1882, § 2468, former Civil Code 1910, § 3914, and former Code 1933, § 113-815, are included in the annotations for this Code section.
Doctrine of cy pres.
- When a valid charitable bequest is incapable for some reason of execution in the exact manner provided by the testator, a court of equity will carry it into effect in such a way as will as nearly as possible effectuate the intention of the testator. This doctrine has no application whatever to a case where a charitable bequest fails entirely for the reason that is in opposition to a well-settled rule of law. Kelley v. Welborn, 110 Ga. 540, 35 S.E. 636 (1900), overruled on other grounds, Hood v. First Nat'l Bank, 219 Ga. 283, 133 S.E.2d 19 (1963) (decided under former Code 1933, § 113-815).
Purpose of cy pres doctrine.
- Fundamental purpose of cy pres provisions is to allow the court to carry out the general charitable intent of the testator where 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, § 113-815).
Rules governing the 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, § 113-815); Moss v. Youngblood, 187 Ga. 188, 200 S.E. 689 (1938);(decided under former Code 1933, § 113-815).
When a charitable intent can be discovered from a will, a court of equity will carry such intent into execution, and support the charitable purpose, and will not suffer an equitable interest to fail for want of a trustee to support the trust. Moss v. Youngblood, 187 Ga. 188, 200 S.E. 689 (1938) (decided under former Code 1933, § 113-815).
In the construction of charitable bequests, the court will be liberal so as to carry into effect the intention of the testator. Moss v. Youngblood, 187 Ga. 188, 200 S.E. 689 (1938) (decided under former Code 1933, § 113-815).
Bequests for charitable purposes are looked upon with great favor by the courts of this state, and every means will be resorted to which can legally be used to carry out a charitable intent manifested by a testator in the testator's will. Moss v. Youngblood, 187 Ga. 188, 200 S.E. 689 (1938) (decided under former Code 1933, § 113-815).
Courts look with favor upon trusts for public charitable purposes, and take special care to enforce them, to guard them from assault, and protect them from abuse. Goree v. Georgia Indus. Home, 187 Ga. 368, 200 S.E. 684 (1938) (decided under former Code 1933, § 113-815); Moss v. Youngblood, 187 Ga. 188, 200 S.E. 689 (1938);(decided under former Code 1933, § 113-815).
Gifts and bequests for religious purposes are more highly favored by laws than other species of trusts. Courts of equity are placed under peculiar obligations to see, even in cases of bequests or devises, that the use is sustained and carried into effect. Trustees of First Methodist Episcopal Church v. City of Atlanta, 76 Ga. 181 (1886) (decided under former Code 1882, § 2468).
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, § 113-815) Moss v. Youngblood, 187 Ga. 188, 200 S.E. 689 (1938);(decided under former Code 1933, § 113-815).
Devises to charity are expressly authorized by the law, and are favored by the declared policy of the state. Reynolds v. Bristow, 37 Ga. 283 (1867) (decided under former Code 1863, § 2436); Jones v. Habersham, 107 U.S. 174, 2 S. Ct. 336, 27 L. Ed. 401 (1883); Monahan v. O'Byrne, 147 Ga. 633, 95 S.E. 210 (1918) (decided under former Code 1882, § 2468);(decided under former Civil Code 1910, § 3914).
Cited in Reynolds v. Bristow, 37 Ga. 283 (1867); Webb v. Hicks, 117 Ga. 335, 43 S.E. 738 (1903); 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); Houston v. Mills Mem. Home, Inc., 202 Ga. 540, 43 S.E.2d 680 (1947); Strother v. Kennedy, 218 Ga. 180, 127 S.E.2d 19 (1962); Simpson v. Anderson, 220 Ga. 155, 137 S.E.2d 638 (1964); Alexander v. Georgia Baptist Found., Inc., 245 Ga. 545, 266 S.E.2d 165 (1980).
Application
Application generally.
- As a general rule, the doctrine of cy pres is applied in cases: (1) when 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) when the specific intention of the settlor may not be legally or practically carried into effect; and (3) when 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), for comment, see 10 Ga. St. B.J. 502 (1974) (decided under former Code 1933, § 113-815).
It never has been considered as an objection to a charitable use, that it was general, and in some respects indefinite, unless there was an uncertainty as to the amount intended to be given, or the general object of the use was of so uncertain and indefinite a character, that it could not be executed. Moss v. Youngblood, 187 Ga. 188, 200 S.E. 689 (1938) (decided under former Code 1933, § 113-815).
Objects to be benefited to some extent indefinite.
- Fact that those managing the hospital might not be able to receive and treat all of the applicants who constitute the class of beneficiaries of the benevolent scheme contained in the wills making the hospital the sole beneficiary would not be a reason for holding that the entire charitable scheme had failed, or for the application of the doctrine of cy pres. Reynolds v. Stanton, 174 Ga. 340, 162 S.E. 783 (1932) (decided under former Civil Code 1910, § 3914).
It is of the very essence of a charitable bequest that the objects to be benefited shall be to some extent indefinite. Goree v. Georgia Indus. Home, 187 Ga. 368, 200 S.E. 684 (1938) (decided under former Code 1933, § 113-815).
When it was apparent from the entire will and codicil that a 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, § 113-815).
When the finding was authorized that hospital owned and maintained by the City of Augusta, commonly known as the "University Hospital of Augusta, Georgia," and thus designated in the will in question, was a charitable institution, owned by that city and maintained primarily for the gratuitous treatment of the sick and needy of the city and county, and that by that item the testator intended the estate therein bequeathed to be applied to the promotion of the charitable objects of such hospital, the charitable bequest, being valid, would be given effect. Moss v. Youngblood, 187 Ga. 188, 200 S.E. 689 (1938) (decided under former Code 1933, § 113-815).
When the manifest intention was to create a charitable trust for tubercular children, even though the charitable institution named never existed, the purpose and object for which the trust was created still exists and the legacy does not lapse, and the cy pres doctrine applies. Creech v. Scottish Rite Hosp. for Crippled Children, 211 Ga. 195, 84 S.E.2d 563 (1954), for comment, see 17 Ga. B.J. 512 (1955) (decided under former Code 1933, § 113-815).
Legatee not designated by correct name.
- Charitable bequest will not fail merely because the legatee is not designated by its correct name, if from the will itself and admissible extrinsic evidence it can be determined whom the testator intended to receive and apply such bequest. Moss v. Youngblood, 187 Ga. 188, 200 S.E. 689 (1938) (decided under former Code 1933, § 113-815).
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), for comment, see 10 Ga. St. B.J. 502 (1974) (decided under former Code 1933, § 113-815).
Cy Pres doctrine is inapplicable.
- 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), for comment, see 22 Mercer L. Rev. 493 (1971) (decided under former Code 1933, § 113-815).
Jurisdiction of Courts of Equity
Jurisdiction of equity generally.
- Courts of chancery (now equity) have jurisdiction to carry into effect charitable bequests, the object of which are definite and specific, and capable of being executed. Newson v. Starke, 46 Ga. 88 (1872) (decided under former Code 1868, § 2432) Beall v. Ex'rs of Fox, 4 Ga. 404 (1848) See also.
Court of equity has an inherent jurisdiction in cases of charitable bequests and devises, and cases of charity in the courts of equity in England were held valid, and executed independently of, and previous to the statute of 43d Elizabeth. Moss v. Youngblood, 187 Ga. 188, 200 S.E. 689 (1938) (decided under former Code 1933, § 113-815).
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, § 113-815).
Special equity jurisdiction over charitable bequests grows out of the 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 (now equity) 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, § 113-815).
RESEARCH REFERENCES
Am. Jur. 2d.
- 15 Am. Jur. 2d, Charities, § 148 et seq.
C.J.S.- 14 C.J.S., Charities, § 45 et seq.
ALR.
- Gift to fraternal order as valid charitable gift, 5 A.L.R. 1175.
General charitable intent as essential to application of cy pres doctrine, 74 A.L.R. 671.
Law governing capacity of legatee or devisee to take, or of testator to give, to charitable or religious institutions, 91 A.L.R. 491.
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.
Validity, interpretation, and application of provisions of will making devise or bequest to or in trust for religious or educational body dependent upon adherence to particular body of principles or dogmas, or ecclesiastical connection, 120 A.L.R. 971.
Doctrine of equitable conversion as affected by discretion as to time, manner or other circumstances of sale, where the duty to sell is mandatory, 124 A.L.R. 1448.
Cy pres doctrine as affected by sectarian or doctrinal differences or factors, 3 A.L.R.2d 78.
Allowance of attorneys' fees in litigation involving cy pres doctrine, 89 A.L.R.2d 691.
Applicability of doctrine of equitable approximation to cut down to a permissible time period the time of a testamentary gift that violates rule against perpetuities, 95 A.L.R.2d 807.
Validity and effect of provision or condition against alienation in gift for charitable trust or to charitable corporation, 100 A.L.R.2d 1208.
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.
Charitable trusts: elimination or modification, by court, of restrictions on amount of donation or expenditure which trustee may make for purposes of trust, 50 A.L.R.3d 1116.
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.
Disposition of surplus trust income after payment of specific amount to charity, 96 A.L.R.3d 954.