cy pres

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Cy Pres

Abbreviated form of cy pres comme possible, French for "as near as possible." The name of a rule employed in the construction of such instruments as trusts and wills, by which the intention of the person who executes the instrument is effectuated as nearly as possible when circumstances make it impossible or illegal to give literal effect to the document.

Cy pres is applied in cases where the court concludes that, under the circumstances, the intent of the settlor who creates a trust or the testator who makes a will will not be contradicted by employing a flexible approach toward the application of the provisions of the document. Without cy pres, the intent of the settlor or testator will never be implemented because the document will be without any legal effect and not subject to enforcement by the court. In one case a settlor directed that his property be used as a home for retired clergymen, but the clergymen's wives were prohibited from residing there with them. This trust provision substantially reduced the number of applicants to the home. A court ordered the trustee, a person either appointed by the settlor or required by law to execute a trust, to ignore this provision under the doctrine of cy pres. However, a court does not have the power to alter a settlor's dis-positive provisions. For example, a trustee who is in charge of two charitable trusts cannot be authorized by a court to transfer funds from one charity to the other.A court also has the power under the cy pres doctrine to order trust funds to be applied to a charitable purpose other than the one specifically named by a settlor when it was the settlor's intention to benefit charity in general and it has become impossible, inexpedient, or impractical to accomplish his or her specific purpose. Since a Charitable Trust can be perpetual, many become obsolete due to changing social, political, economic, or other conditions. A trust established in 1790 to combat yellow fever would, for example, be of little or no practical value now, since that disease has been virtually eradicated as a result of advances in medicine. When cy pres is applied, the court reasons that the settlor would have wanted his or her general charitable purposes implemented despite the changing conditions. In one case a testator provided for two trusts: the first to facilitate the end of Slavery, and the second to assist runaway slaves. Shortly after the testator died, slavery was abolished, so the purposes of both trusts were completely outdated. A court reasoned that the testator intended the broad purpose of aiding African Americans, so the changes in the structure of society justified the court's application of funds of the trusts to purposes similar to those chosen by the testator. The first trust fund was applied to the education of former slaves in the South, and the second was used to assist impoverished blacks in the city where the testator had lived and granted preference to those who had previously escaped from slavery.

The cy pres doctrine can be applied only by a court, never by the trustees of a trust who must execute the terms of the trust. Trustees can, however, apply to the court for cy pres instructions when they believe the trust arrangement warrants it. A cy pres action is instituted by the trustees with the state attorney general as a party to the action, or the attorney general can initiate the suit. Once conditions are deemed suitable for the employment of cy pres, the court has broad discretion in the framing of a scheme for the application of the charitable fund to a purpose "as near as possible" to the one designated by the settlor. Some states authorize the living settlor to Veto the application of cy pres to an irrevocable trust that he or she created.

The doctrine of cy pres is not employed where a settlor was concerned with only one specific charitable objective and it fails, or when the settlor provides that a gift be made to another upon failure of the charitable gift. When cy pres is not applied and the trust fails without any provision for the property to be given to another, there is a Resulting Trust for the settlor or his successors.

Further readings

Menocal, Armando M. 1998. "Proposed Guidelines for Cy Pres Distribution." Judges Journal 37 (winter): 22.

Rudko, Frances Howell. 1998. "The Cy Pres Doctrine in the United States: From Extreme Reluctance to Affirmative Action." Cleveland State Law Review 46 (summer): 471–88.

cy pres

adverb as near as may be, as near as practiiable, as near as possible

cy pres

‘so near’, the term used in relation to trusts when the court applies the trust property to a charitable purpose very like the one originally intended where that original has become impossible to meet.

CY PRES, construction. These are old French words, which signify "as near as."
     2. 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 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, 336, 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 Civ. liv. 6. t. 2, s. 1; 1 Supp. to Ves. Jr. 134, 259, 317; 2 Id. 316,473; Boyle on Charities, Index, h.t.; Shelford on Mortmain, Index, h.t.; 3 Bro. C. C. 166; 2 Bro. C. C. 492; 4 Wheat. R. 1; S. C. 3 Peters, R. App. 481; 3 Peters, R. 99; 15 Ves., 232; 2 Sto. Eq. Jur. Sec. 1169.

References in periodicals archive ?
In effect, the doctrine says "if the original recipient can't use the assets, they should be used for a purpose cy pres, or as close as possible.
Though courts have used the common law cy pres doctrine to distribute residual funds to some very worthy nonprofit organizations, Glaves says, "Litigants and judges often don't give enough thought to keeping the funds in the justice system.
435 (1970) (racially-restrictive bequest of land for public park reverts to heirs, where state courts find cy pres not possible).
While the cy pres approach initially contemplated disbursement for a purpose closely related to the origin of the funds, courts have recognized that the modern doctrine "permit[s] use of funds for other public interest purposes by educational, charitable, and other public service organizations" more tangentially related to the original harm.
lead plaintiff in the lawsuit, selected the NHCA as the recipient for the cy pres award, due to the organization's "unyielding advocacy for the prevention of hearing loss.
This cy pres award will make a real difference in the lives of real people who need help.
Fluid recovery provides a means of disgorging ill-gotten gains by such mechanisms as price rollbacks, cy pres awards, or other devices that put undistributed funds to a next best use for the benefit of the class.
Beisner played an integral role in crafting the landmark Class Action Fairness Act of 2005, and his many policy papers cover important legal reform issues such as class action litigation, discovery, third-party litigation funding, and the cy pres doctrine.
Davila said that cy pres awards in consumer privacy cases should go to consumer privacy organizations.
The Legacy for Justice is a new giving society that recognizes those who have included the Foundation in their estate planning, made a pledge or gift of $10,000 or more, or successfully solicited such a gift from others, and those who have directed a similar cy pres award to the Foundation.
The substantial cy pres award will be distributed among the following 15 organizations, which were selected by counsel and designated by court order: Electronic Privacy Information Center (EPIC); Computers for Youth; Consumer Action; School on Wheels, Inc.