cy pres

the fundamental purpose of these 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

As near as [possible.] The rule of cy-pres is a rule for the construction of instruments in equity, by which the intention of the party is carried out as near as may be, when it would be impossible or illegal to give it literal effect. Thus, where a testator attempts to create a perpetuity, the court will endeavor, instead of making the devise entirely void, to explain the will in such a way as to carry out the testator's general intention as far as the rule against perpetuities will allow. So in the case of bequests to charitable uses; and particularly where the language used is so vague or uncertain that the testator's design must be sought by construction. See 6 Cruise, Dig. 165; 1 Spence, Eq. Jur. 532; 3 Hare, 12.

3 As near; as near as; as near as can be. The rule of construction that the intention of a testator, who seeks to create a charity, is to be given effect as far as is consistent with the rules of law * is known as the cypris doctrine. Refers to the judicial power of substituting a charity which approaches another, the original, charity, in nature and character. ^ Where the particular intention cannot be given.effect, the words will be construed so as to give effect to the general intention evinced, and that as near to the particular intention as the law permits. The doctrine modifies the strictness of the common law, as to a condition precedent to the enjoyment of a personal legacy. When a literal compliance with the condition becomes impossible from unavoidable circumstances, and without default in the legatee, it is sufficient that the condition is complied with as near as it practically can be.^ Borrowed from the Roman law, by which donations 4or public pui"poses were applied, when illegal cypres,, to other and legal piu-poses.^ Or, originated in the indulgence shown to the ignorance of testators who devised to the unborn son of an unborn son.^ A leading and illustrative case is that of Jackson v. Phillips,^ decided in Massaciiusetts in 1867. The will created a trust " for the preparation and circulation of books and newspapers, the delivery of speeches, lectures, and such other means as in their [the trustees'] judgment will create a. public sentiment that will put an end to negro slavery in this country," and " for the benefit of fugitive slaves escaping from the slave-holding States." While litigation upon the will ' Sinimons Hardware Co. v. Lancaster, 31 F. E. 445 <1881> = Koch V. Seeberger, 30 F. E. 424 (1887). 3 Cy prds; pronounced, ci-pra'. Law Fr, cy^ con.tracted from icy, now ici, here. < See Coster' v. Lorillard, 14 Wend. 308 (1835), Savage, C. J. 0 [4 Kent, 508 (5) 1; 2 id. S88 (a). « [1 Story, Eq. § 891. See Be Brown's Will, 18 Ch. Div. 65 (1881). ' See 1 Story, Eq. § 1169. was in progress, the Thirteenth Amendment, abolishing slavery, was adopted (1865); and the fund in question was ultimately applied to the New England Branch of the American Freedman's Union Commission. The general doctrine has been approved in all of the New England States except Connecticut, in Illinois, and in Mississippi. In some States the doctrine has not been decided; in Pennsylvania it obtains where a designated class of beneficiaries become extinct; ' in Alabama, Indiana, Iowa, Maryland, New York, North Carolina, South Carolina, and Virginia, it seems to be repudiated. '^i ^ The Supreme Court of the United States, in its latest decisions, favors the doctrine.' See Chabity, 2. D. D. 1. As an abbreviation may signify, in addition to the words noted below, dictionary, dictum, digest, division. 2. In the old action of ejectment stood for demissione, by demise, q. v. 3. In the apportionment of jurisdiction to the United States courts is used for "District:" as, E. D., M. D., N. D., S. D., and W. D.,— -eastern, middle, northern, southern, and western district.

DOCTRINE OF. The doctrine of construing written instruments as near to the intention of the parties as possible. Shep. Touch, (by Preston,) 83, 84. It is most commonly applied to the construction of wills, and is only another name for the general principle, (sometimes called the rule of approximation^ of carrying into effect the testator's intention as nearly as may be according to the rules of law. Leans on Perpetuity, 427. 2 Story's Eq, Jur, § 1169. This doctrine has been made a part of the statute law of the State of New- York. 1 i2«;. /Sf^ [748,] 740, § 2. Savage, C. J., 14 Wendel Vs K 308. The doctrine of cy pres may be more particularly stated thus; that where there IS a general and also a particular intention apparent on a will, and the particular intention cannot take effect, the words shall be so construed as to give effect to the • general intention. Broom's Maxims, 244. lievns on Perpetuity, 426. 2 Smith's Lead. Cos. 294. Thus, in case of a donation for charitable purposes, if it be incapable of being literdly acted upon, or if its literal performance would be unreasonable, a decree will be made for its execution cy pres, that is, in some method conformable to the general object, as closely as possible to the specific design of the donor. 3 Steph. Com. 230. 2 Story's Eq. Jur. § 1169, et seq. 2 Kent's Com. 288. So where Ihnitations are made by way of remainder to the children of imbom persons, which are generally void for remoteness, there are cases in which the courts in England have so moulded, or put such construction upon the limitations, as that the unborn parent may take an estate tail, and the property vest in his issue by descent, by which all objection of remoteness is obviated. Lewis on Perpetuity, 426. It is this last description of cases which most commonly calls forth the application of the doctrine of cy pres, Feame on Contingent Memc Unders, 204. Butler's note, ibid. Levns on Perpetuity, 426 — 454. 4 Kent's Com. 506, notes. Coster V. Loni Uard, 14 Wendell'^ it. 266.

construction. These are old French words which signify asnear as. In cases where a perpetuity is attempted in a will, the courts do not, if they can avoid it, construe the devise to be utterly void, but expound the will in such a manner as to carry the testator’s intentions into effect, as far as the rules respecting perpetuities will allow; this is called a construction cy pres. When the perpetuity is attempted in a deed all the limitations are totally void. Cruise Dig. t. 38, c. 9, s. 34; and vide 1 Vern. 250; 2 Ves. jr. 380, 386, 357,364; 3 Ves. jr. 141,220; 4 Ves. 13; Com. Dig. Condition, (L. 1); 1 Rop. Leg. 514; Swinb. pt. 4,s.7,a.4; Dane’s Ab. Index, h. t.; Toull. Dr. Civ. Fr. liv. 3, t. 3, n. 586, 595, 611; Domat, Loix Ciy. liv. 6,.t. 2,3. 1; 1 Supp. to Ves. jr. 134, 259, 317; 2 Ib. 316, 473; Boyle on Charities, D.