Opinion
November 1, 1957
Joseph F. Poey for Unity Centre.
Francis X. Rohn for Dorothy MacWhinney, as executrix of John G. Ray, deceased executor, petitioner.
The petitioner seeks advice and direction as to the payment of two charitable legacies. Under paragraph "Fifth", subdivision "R" of the will 2 1/2% of the residue is left to Seeing Eye Guide, Whippany, New Jersey, for the purpose of purchasing seeing eye dogs "for needy Blind War Veterans of World War II." Although there is no such organization as Seeing Eye Guide, testatrix was apparently referring to Seeing Eye, Inc., which is located at the same address and dedicated to the same charitable purposes as the organization named in the will. Therefore, the court holds that the charitable bequest given by the will should be paid to Seeing Eye, Inc.
Paragraph "Fifth", subdivision "B" of the will gives 9% of the residue to Drew Seminary for Young Women, Carmel, New York, which has not been functioning since 1952 following an assignment for the benefit of creditors. The declared purpose of the bequest is to set up a charitable trust, "the income only to be used for the purpose of providing tuition fees for a deserving student or students". Since the specific intention of the testatrix cannot be carried out, in order for her dominant charitable purpose to be fulfilled, the cy pres power should be invoked to preserve the gift. ( Matter of Neher, 279 N.Y. 370, Matter of Merritt, 254 App. Div. 292.) Affidavits submitted by Bishop Newell, a trustee of Drew Seminary for Young Women, indicate that payment of the bequest to the Centenary College for Women, located at Hackettstown, New Jersey, would best effectuate the desire of the testatrix to provide an endowment fund for needy students at a school for girls related to the Methodist Church in New York area. The court holds that the cy pres doctrine is applicable and the Centenary College for Women is substituted for Drew Seminary for Young Women as the beneficiary of the charitable trust, which is to be administered as directed under the will and upon notice to the Attorney General of New Jersey. Account settled.
Submit decree accordingly, on notice.