## Facts

- Ella Neher’s will was admitted to probate in the Surrogate’s Court of Dutchess County in 1930.
- The will devised her home property in the Village of Red Hook to the village “as a memorial” to her husband, with a direction that the property “be used as a hospital” named the “Herbert Neher Memorial Hospital.”
- The will designated the village president and trustees as the managing board with power to manage and operate the hospital for the benefit of Red Hook’s residents.
- The village accepted the devise but later asserted it lacked resources to establish and operate a hospital.
- A separate hospital already served the area’s needs, making a new local hospital unnecessary.
- The village sought judicial construction and reformation to permit an alternative use: a municipal administration building to be called “Herbert Neher Memorial Hall.”

## Issues

1. Whether the will created a charitable devise with a general charitable intent to benefit the people of Red Hook and memorialize the testatrix’s husband, or instead a narrow intent limited to operating a hospital on the property.
2. If the hospital direction was impracticable, whether the court could apply cy pres to authorize an alternative charitable use rather than allow the charitable plan to fail.

## Decision

- The Court of Appeals reversed the Appellate Division’s affirmance and the Surrogate’s decree denying reformation.
- The court held the devise reflected a general charitable purpose benefiting the village’s residents and serving as a memorial.
- The “hospital” language was treated as a directive regarding the mode of carrying out the charitable gift, not an indispensable condition.
- Because operating a hospital was impracticable, the gift could be administered cy pres.
- The matter was remitted to the Surrogate’s Court to conduct further proceedings and frame an appropriate cy pres scheme consistent with the general charitable purpose.

## Legal Principles

- A devise to a municipality for the benefit of the public may constitute a valid charitable gift.
- Where a testator shows a general charitable intent, a specific direction as to the method of execution may be modified if compliance becomes impracticable.
- Under cy pres, a court may authorize a substitute plan that carries out the charitable purpose as nearly as possible when the specified method cannot reasonably be accomplished.
- The trial-level court may be tasked with formulating the detailed cy pres scheme after an appellate determination of general charitable intent and impracticability.

## Conclusion

The court treated the hospital requirement as a nonessential method for implementing a broader charitable memorial benefiting Red Hook and held that, because a hospital was impracticable, the devise should be administered cy pres under a court-approved substitute plan rather than fail.


In re Neher’s Will, 279 N.Y. 370, 18 N.E.2d 625 (N.Y. 1939)