## Facts

- A testator created a charitable testamentary trust naming a bank as trustee.
- The will designated a charitable organization as the primary beneficiary to use the trust corpus (about $102,000) to purchase or construct a separate building in New York City, dedicated to the testator’s wife and providing educational and recreational facilities for blind children.
- The will required the primary beneficiary to accept the bequest within 90 days of death and to complete the specified purchase or construction and use of the trust estate within five years.
- The will contained an express alternative charitable gift-over: if the primary beneficiary failed to comply with the building-use condition within the stated time, the trust would terminate and the corpus would pass to a hospital to establish a pediatric orthopedic ward in memory of the testator’s wife.
- The primary beneficiary accepted the bequest but alleged the corpus was insufficient to accomplish a separate building in New York City.
- The primary beneficiary petitioned to apply cy pres to allow use of the funds for alternative facilities within an existing building (a designated floor) to serve blind children.
- The hospital named in the gift-over did not object and indicated consent to the proposed alternative.
- The trial court dismissed the petition, concluding cy pres could not be used to alter the trust in light of the will’s explicit alternative charitable disposition; the primary beneficiary appealed.

## Issues

1. Whether cy pres may modify a charitable testamentary trust’s specific use restriction when the will provides a specific, workable charitable gift-over if the primary project cannot be accomplished.
2. Whether the alternate beneficiary’s consent to the proposed modification permits cy pres despite the existence of the gift-over.

## Decision

- The appellate court affirmed dismissal of the petition.
- Cy pres was held inapplicable because the will expressly supplied an alternative charitable disposition that could be carried out if the primary scheme failed.
- The alternate beneficiary’s consent did not constitute a rejection or renunciation that would cause the gift-over to fail and thereby open the door to cy pres.

## Legal Principles

- Cy pres permits equitable modification of charitable trusts only when the designated charitable purpose cannot be carried out and the settlor’s general charitable intent would otherwise be frustrated.
- Courts will not use cy pres to override an express, workable charitable gift-over; the donor’s specified alternative controls.
- An alternate beneficiary’s informal consent to a different plan does not negate a gift-over absent a rejection or effective renunciation causing the alternate disposition to fail.

## Conclusion

The court refused to reroute the trust assets to a modified project under cy pres because the will anticipated nonperformance and directed a specific, feasible alternative charitable use, leaving no basis for judicial substitution of a different charitable scheme.


Jewish Guild for the Blind v. First Nat'l Bank of St. Petersburg, 226 So. 2d 414 (Fla. Dist. Ct. App. 2d Dist. 1969)