## Facts

- Emma Gary died in 1934 leaving a will that, in Article 21, gave specific personal property (china, jewelry, lace and embroideries, and paintings) to the Metropolitan Museum of Art, with two alternate museums in sequence if the Met declined.
- The will directed that the residuary estate create an endowment fund; the income was to pay for the maintenance and display of the bequeathed items, with any excess income usable by the accepting museum.
- At Gary’s death, the estate lacked sufficient liquid assets to create the contemplated endowment fund.
- Because the gift would impose maintenance obligations without the expected financial support, none of the named museums was willing to accept the property under the will’s literal terms.
- The Metropolitan Museum proposed a modified administration plan: sell the jewelry, use the proceeds to create an endowment, and retain and display the remaining items with support from the endowment income.
- The executors supported the proposal, and a trial court approved the modification under the cy pres doctrine.
- Opponents appealed the order approving the cy pres modification.

## Issues

1. Whether cy pres permits modification of a testamentary charitable gift when the specified funding mechanism for an endowment is impracticable due to insufficient estate assets.
2. Whether the court may authorize sale of specifically bequeathed items (jewelry) to create an endowment so the broader charitable purpose can be carried out.

## Decision

- The Appellate Division affirmed the order approving the Metropolitan Museum’s plan.
- The court found the testatrix expressed a general charitable intent to place and preserve the collection in a major museum with ongoing maintenance support.
- Because the residuary-estate endowment contemplated by the will could not be established as written, strict compliance would cause the charitable gift to fail.
- The court approved a cy pres modification authorizing sale of the jewelry and use of the proceeds to fund an endowment dedicated to maintaining and displaying the remaining items.

## Legal Principles

- Cy pres applies when a charitable disposition cannot be executed as written due to impracticability or impossibility, and the instrument shows a general charitable intent.
- When cy pres applies, a court may modify the method of carrying out the charitable gift to achieve the donor’s purpose as nearly as possible, rather than permit failure of the charitable scheme.
- A court may authorize conversion of specifically gifted property into an endowment fund if doing so is necessary to preserve the charitable objective and the proceeds remain devoted to that objective.

## Conclusion

The Appellate Division upheld use of cy pres to preserve a museum-directed charitable bequest by permitting sale of specifically bequeathed jewelry to fund an endowment, allowing the collection’s preservation and public display to proceed despite the estate’s inability to finance the endowment as the will specified.


In re Application of Lewis Nixon, Sr., 288 N.Y.S. 382 (App. Div. 1936)