GREEN v. PARKER, 92 N.H. 419 (1943)

32 A.2d 316

SAMUEL GREEN, Adm’r v. ARTEMISE H. PARKER, a.

No. 3425.Supreme Court of New Hampshire Grafton.
Decided May 4, 1943.

The doctrine of cy pres avoids failure of a charity only when minor features of it become impossible or impractical of performance. Where because of the total insufficiency of the funds left by a testatrix to create a charitable trust, the fulfillment of her design was so remote as to be impossible, the doctrine of cy pres was inapplicable.

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PETITION, for instructions. The will of the plaintiff’s testatrix gave her residuary estate to trustees to establish a home for indigent and aged persons of a certain class. The residue was to be held and invested until a sufficient sum should be accumulated to buy a farm for the home. The residuary fund amounts to $320.40, and the plaintiff now states that it will be reduced by further charges in the settlement of the estate to less than $200. The trustees, so far as they have authority, have waived all interest in the fund. The Superior Court (Young, C. J.) has found that “it is impossible” for the trust to be executed as the will provides, and has transferred without ruling the question how the residue should be disposed of.

Green Green, for the plaintiff, filed no brief.

Stephen M. Wheeler, Attorney-General, for the State, filed no brief.

Hazen K. Sturtevant, County Solicitor, for the trustees, filed no brief.

Artemise H. Parker, sole heir-at-law, entered no appearance.

Per Curiam.

The finding that the trust is impossible of execution as the will provides implies that there is no reasonable prospect of the accumulation of the fund becoming sufficient to establish the charity or of maintaining it if it should be established. The contingencies are thus so remote in possibility of fulfillment that the trust fails for impracticality. Restatement, Trusts, s. 399g. The doctrine of cy pres may not be applied, since the scheme of the testatrix in its general purpose fails. The doctrine avoids failure of a charity only when minor features of it become impossible or impractical of performance.

There is, therefore, an intestacy of the residue which belongs to the testatrix’ mother who is the sole heir-at-law.

Case discharged.

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