Gallaudet University v. National Society of the Daughters of the American Revolution

HARRELL, Judge. Gallaudet University (Gallaudet) appeals from a judgment of the Circuit Court for Baltimore County in which the court, employing the equitable doctrine of cy pres as conferred upon it by the legislature in Md.Code (1974, 1991 Repl.Vol., 1996 Supp.) Est. & Trusts § 14-302, saved an ineffective bequest to charity and awarded The National Society of the Daughters of the American Revolution (the DAR) a portion of the residuary estate of Mrs. Olive Swindells. Appellant contends that (1) the circuit court should have applied Md.Code, Est. & Trusts § 4-404, rather than cy pres, to determine the proper devolution of the ineffective charitable bequest, and alternatively, (2) the testator did not manifest a general charitable intent, thereby eliminating a pre-requisite for the application of the cy pres doctrine. Because we conclude that the trial court applied an incorrect analytical framework in determining whether the testator manifested a general charitable intent, we shall reverse the judgment of the circuit court and remand ¹⁷⁷ this case for further proceedings not inconsistent with this opinion.

ISSUES This case presents the following issues, condensed and rephrased by us as: I. Whether an ineffective charitable bequest can be saved by Maryland’s Gy Pres Statute rather than being devolved according to other rules regarding lapsed or void legacies.

II

Whether the trial court erred in concluding that Mrs. Swindells manifested a general charitable intent.

III

Whether the trial court, in framing an alternate scheme of distribution for the ineffective bequest, abused its discretion by distributing the proceeds of that bequest to the DAR. FACTS 1 This case involves a dispute over the proper devolution of an ineffective charitable bequest contained in the Last Will and Testament executed by Olive Swindells. Mrs. Swindells suffered from a severe hearing impairment and was legally deaf in her later years. Bertram Swindells, her husband, had been profoundly deaf since early childhood.

The Swindells had no family. On or about 25 October 1994, Mrs. Swindells engaged the services of Bruce E. Goodman, Esquire, of Baltimore to assist her in the preparation of a will. Mrs. Swindells instructed Mr. Goodman to prepare a will that would establish a trust to provide for the care of her husband, if she predeceased him, and contain a residuary clause leaving 80% of her estate to Gallaudet and 20% to the DAR Nursing Home for the benefit of destitute members of the DAR who could not afford nursing ¹⁷⁸ home care. • Mrs. Swindells, however, was unable to furnish Mr. Goodman with the DAR Nursing Home’s location. Despite her advanced age — she was 94 years old at the time— Mr. Goodman concluded that Mrs. Swindells was competent and able to understand the importance and significance of a will executed with the requisite formalities.

Sometime in late October 1994, Mr. Goodman drafted the Last Will and Testament of Olive Swindells that devised the residuary estate as follows: 1. 80% to Gallaudet College. 2. 20% to the (DAR) Daughters of the American Revolution Nursing Home for the use of destitute members of the (DAR) Daughters of the American Revolution. On 2 November 1994, Mrs. Swindells executed this will. 2 The American Society of the Daughters of the American Revolution (the DAR) is a service organization founded in 1890 whose objective is to “perpetuate the memory and spirit of the men and women who achieved American Independence; to develop and enlighten public opinion; and, to foster true patriotism and love of country.” The DAR has engaged in a variety of historical, educational, and charitable functions since its inception. DAR members perform volunteer service in several medical centers and nursing homes certified by the Veterans Administration. Although some of the DAR’s philanthropic activities may indirectly benefit elderly, deaf, or hard-of-hearing persons, the DAR does not operate any programs specifically for that constituency.

As of the date Mrs. Swindells executed her will, the DAR had never administered a specific program for the study or care of solely the elderly. Mrs. Swindells had had a lengthy on-again, off-again relationship with the DAR. On 11 December 1925, she was admitted to the DAR as a member-at-large. Approximately three years later she was dropped from the DAR’s membership rolls on account of non-payment of dues.

During the 1950’s she ¹⁷⁹ rekindled her affiliation -with the DAR and became a member of their Baltimore Chapter. In 1958 she resigned. Ten years later, she became an organizing member of the DAR’s Big Cypress Chapter in Naples, Florida, and served as that chapter’s recording secretary. In 1984, she specifically requested to be designated an honorary member of the DAR.

In recognition of her long relationship with the DAR, the Big Cypress chapter, in 1986, conferred a “unique honor” upon Mrs. Swindells by paying her membership dues for life. Mrs. Swindells attended meetings of the Big Cypress Chapter though 1984, and remained a member of the society until her death in 1995. Gallaudet University (Gallaudet) has been in continuous operation since 1857. Prior to 1954, Gallaudet was known as the Columbia Institution for the Deaf, Dumb, and Blind.

It was renamed Gallaudet College in 1954 and obtained university status in 1986. Gallaudet is a private, non-profit corporation dedicated to furnishing educational and related services to hearing-impaired individuals of all ages, and to their families and care-givers. Gallaudet also provides a wide array of services specifically for the benefit of hearing impaired senior citizens. Neither Mr. or Mrs. Swindells ever attended or had any formal affiliation with Gallaudet.

By letter dated 28 October 1994, Mr. Goodman notified the Maryland Chapter of the DAR (MD-DAR) that Mrs. Swindells wished to “leave a bequest to the DAR Nursing Home facility that cares for indigent members of the DAR.” Mr. Goodman received a written reply from the MD-DAR on or about 15 December 1994, which stated in relevant part: The Maryland State Society regrets that as far as we have ascertained, there is not a DAR Nursing Home facility. We would appreciate any knowledge your client has on this facility. Suggestions have been made: 1. Client could create a trust fund in her name, the interest from which would be paid for preservation of the Maryland State Chapter House. ¹⁸⁰ 2.

Client could create a fund for a scholarship of her choice such as medical [sic.]. 3. The National Society, DAR owns a complex of Historic Buildings ... in Washington, DC. The renovations and preservation of this complex is a constant project and is of great importance to all DAR members. Only this week have had [sic.] another request for a DAR Nursing home.

It would certainly be a goal for the future. Soon thereafter, Mr. Goodman telephoned Mrs. Swindells and read verbatim the MD-DAR letter to her. Mrs. Swindells responded to the news that the nursing home did not exist by informing Mr. Goodman that she wished to leave her entire residuary estate to Gallaudet, and directed him to prepare a new will accordingly. Mr. Goodman prepared a revised will that provided for a trust for Mr. Swindells and named Gallaudet as the sole residuary legatee.

This revised will omitted any reference to the DAR. By 27 December 1994, Mrs. Swindells had not yet executed the revised will. Bertram Swindells died on 27 December 1994. Thereafter, Mrs. Swindells instructed Mr. Goodman to revise her will once again to delete the trust for Mr. Swindells.

She also requested that a limiting clause be inserted into the will so as require that her bequest to Gallaudet be utilized only for scholarships. She also said that she did not want the money from the gift used for constructing a budding. Consequently, Mr. Goodman prepared a further revised will, which stated in relevant part: ITEM II: I hereby give, devise and bequeath, all of the rest residue and remainder of my Estate to Gallaudet College, an educational institution now located in Washington, D.C. This gift may, in the discretion of the Board of Trustee maybe [sic.] merged and mingled with and become a part of the general investment assets of said College, and shall be known as the BERTRAM L. SWINDELLS AND OLIVE R. SWINDELLS Scholarship Fund, and the income, but not the principal, thereof shall be used to establish a Scholarship or Scholarships and the selection of the beneficiaries thereof shall be determined by the President or such other ¹⁸¹ authority as may be designated by the said Board of Trustees for said purpose. After drafting the revised residuary clause, Mr. Goodman telephoned Mrs. Swindells to inform her that she needed to execute the new will and attempted to schedule an appointment with her.

Mrs. Swindells told him she would not be able to schedule that appointment for some time because she was busy preparing to take her driver’s license renewal test and was also attending to matters arising out of the death of her husband. She told Mr. Goodman that once things settled down, she would schedule the appointment. That was the last time Mr. Goodman communicated with Mrs. Swindells. Olive Swindells died on 16 March 1995, at the age of 94, without executing any will other than the will of 2 November 1994.

Mrs. Swindells’s estate included a portfolio of stocks and bonds with a fair market value in excess of $4 million as of the date of her death. By letter dated 19 June 1995, Mr. Goodman informed the DAR that if there was no DAR Nursing Home, he would petition for distribution of the entire estate to Gallaudet. Counsel for the DAR ultimately responded and advised Mr. Goodman that the DAR would assert a claim of 20% of the residuary estate under the doctrine of cy pres. Because Gallaudet and the DAR could not reach an agreement, on 14 December 1995 Mr. Goodman filed a petition for a meeting of distributees with the Orphans Court of Baltimore County. 3 The Orphans Court conducted a meeting of the claimants on 27 February 1996 and issued a ruling on 29 February 1996 that stated in pertinent part: [T]he Court is satisfied that her intention to bequeath twenty percent (20%) of her residuary estate to the Daughters of the American Revolution Nursing Home for the use of the destitute members of the Daughters of the American Revolution is Upheld. ¹⁸² Therefore, pursuant to the provisions of the Estates and Trusts Article, Section 9-112(e), Bruce E. Goodman, personal Representative of the Estate of Olive Swindells is directed to make distribution of the aforesaid twenty percent (20%) of the residuary estate to the Daughters of the American Revolution for use in a manner as close as possible to the original intent of the testatrix....

Gallaudet appealed this decision to the Circuit Court for Baltimore County and a bench trial was conducted on 3 September 1996. At that time, the DAR stipulated to Gallaudet’s “Statement of Material Facts as to Which there is No Genuine Issue,” with only minor modifications. The amended statement of facts, supporting documents, and additional stipulations proposed by the DAR were admitted into evidence. Mr. Goodman testified.

At the trial’s conclusion, the circuit court held that the Void Legacy Statute, Md.Code, Est. & Trusts § 4-404(b) 4 was inapplicable to void charitable bequests, and that the void legacy should be distributed under the cy pres statute, ET 14-302. The court then concluded that the “general charitable intent” necessary to invoke the doctrine of cy pres was present. Finally, the chancellor applied his equitable power to “excise the words ‘nursing home’ from the bequest” and construe the will as if it “read 20 percent to the Daughters of the American Revolution for the use of destitute members.....” Gallaudet filed a timely Notice of Appeal, and the circuit court stayed enforcement of its judgment pending appeal. ANALYSIS I. Appellant’s first contention is that Maryland’s Void Legacy Statute, rather than the Cy Pres Statute, governed the devolution of the ineffective bequest to the DAR Nursing Home.

If so, the ineffective bequest would have accrued to the residuary ¹⁸³ legatee, Gallaudet. Appellant takes issue with the circuit court’s conclusion that the Void Legacy Statute should apply only to non-charitable bequests. In issuing its oral ruling at the close of the 3 September 1996 hearing, the circuit court stated: [I]t would appear to the Court that [the Void Legacy Statute] should apply in cases of noncharitable bequests.... This matter involves a charitable bequest, and therefore the Court finds that it should be interpreted under [the Cy Pres statute].

It would seem to me that the general assembly wished to have charitable bequests interpreted under this statute and for good reason. When a person -wishes to in some way enrich a charity, oftentimes the charity itself is not to be the direct recipient of the testator’s largess; and I believe that’s the case in this case. In this situation, the charity is merely the mechanism by which the testator’s estate is bestowed upon the class of persons whom the testator wishes to enrich. The Void Legacy Statute, ET 4-404, reads: § 4-404.

Void or inoperative legacies. (a) Nonresiduary legatee. — Unless a contrary intent is expressly indicated in the will, property failing to pass under a void or inoperative legacy, and which is not provided for in § 4-403, shall be distributed as part of the estate of the testator to those persons, including legatees, who would have taken the property if the void or inoperative legacy had not existed. (b) Residuary legatee. — Where a legacy to one of two or more residuary legatees is void or inoperative, the other residuary legacies shall be augmented proportionately by the property which is the subject of the legacy. Gallaudet claims that, based on the plain wording of the statute, there is no indication that its applicability was limited to non-charitable bequests only.

Rather, Gallaudet maintains ¹⁸⁴ that ET 4-404 should apply to all void or inoperative legacies that fall within its terms. Gallaudet also posits that the Cy Pres Statute does not amend or limit the Void Legacy Statute. The Cy Pres Statute reads, in pertinent part: § 14-302. Uniform Charitable Trusts Administration Act.

(a) General Rule. — If a trust for charity is or becomes illegal, or impossible or impracticable of enforcement or if a devise or bequest for charity, at the time it was intended to become effective, is illegal, or impossible or impracticable of enforcement, and if the settlor or testator manifested a general intention to devote the property to charity, a court of equity, on application of ... any interested person, ... may order an administration of the trust, devise or bequest as nearly as possible to fulfill the general charitable intention of the settlor or testator. Gallaudet also argues that the mandatory provisions of the Void Legacy Statute should control over the discretionary provision contained in the Cy Pres Statute. Finally, appellant contends that because the Void Legacy Statute is the more specific of the two, and because it was the more recently enacted provision, it should control. While we agree with the trial court’s ultimate conclusion that the proper devolution of the ineffective bequest to the DAR Nursing Home should have been analyzed under the Cy Pres Statute, the circuit court’s reasoning requires some refinement which we shall furnish below.

In our view, the trial judge erred in declaring that the Void Legacy Statute should apply in cases of noncharitable bequests. One reasonable — and erroneous — inference that can be drawn from this statement is that the Void Legacy Statute never applies to charitable bequests. We conclude that the applicability of ET 4-404, the Void Legacy Statute, and its partner in the war against intestacy, ET 4-403, the Anti-Lapse Statute, are limited to those situations when there is not another rule addressing the proper devolution of a particular bequest. ¹⁸⁵ Stated differently, the function of the Anti-Lapse Statute and the Void Legacy Statute is similar to that of a grease trap— together they serve to prevent ineffective bequests or devises that have not already been filtered out by another rule of property disposition from seeping into the pit of intestacy. In short, ET 4-403 and ET 4-^04 serve as a last line of defense, rather than as a preemptive strike, against intestacy.

We explain. Our analysis begins by noting that our prime directive when construing a statute is to ascertain and effectuate the intention or purpose of the legislature. Polomski v. Mayor & City Council of Baltimore, 344 Md. 70 , 684 A.2d 1338 (1996). See State v. Bricker, 321 Md. 86 , 581 A.2d 9 (1990); Cox v. Prince George’s County, 86 Md.App. 179 , 586 A.2d 43 (1991).

The primary source for determining such intent is the statute itself. Klingenberg v. Klingenberg, 342 Md. 315 , 675 A.2d 551 (1996); McNeil v. State, 112 Md.App. 434 , 685 A.2d 839 (1996). If the language of a statute is plain and unambiguous, no further analysis of legislative intent is ordinarily required. Board of Trustees of Md. State Retirement & Pension Sys. v. Hughes, 340 Md. 1, 7 , 664 A.2d 1250 (1995); Rose v. Fox Pool Corp., 335 Md. 351 , 643 A.2d 906 (1994).

It is only in cases that the will of the legislature is not readily apparent from the language of a statute that a court may resort to the cannons of statutory construction. Polomski, supra. Although appellant is correct in asserting that the court determines legislative intent primarily by reference to the plain language of the statute, appellant fails to acknowledge a parallel principle of statutory construction — a court cannot view the statute in isolation. Rather, in construing a statute, we must examine the entire statutory scheme, Morris v. Osmose Wood Preserving, 340 Md. 519 , 667 A.2d 624 (1995), by considering the interrelationship or connection among all of the statute’s provisions, Coburn v. Coburn, 342 Md. 244 , 674 A.2d 951 (1996); Jones v. State, 311 Md. 398 , 535 A.2d 471 ¹⁸⁶ (1988), even when the precise statute under scrutiny is not ambiguously worded.

Turning our attention to the substantive law regarding wills, we note that there are few limitations placed upon a testator’s right to dispose of his or her own property as he or she pleases. Instead, most of the disputes that arise out of the submission of a will to probate are due to the testator’s inadequate expression of his ór her wishes. Contained within the Rules Relating to Legacies, ET 4-401, et seq., are a series of rules designed to assist a court in construing a will when a testator fails to provide for a contingency that occurs prior to his or her death. Just as nature is said to abhor a vacuum, Maryland courts in addressing these disputes have long abhorred intestacy when an individual sits down to dispose of the rest and residue of his or her estate under a will.

See Payne v. Payne, 136 Md. 551, 555 , 111 A. 81 (1920); Davis v. Hilliard, 129 Md. 348, 357-58 , 99 A. 420 (1916); Gilman v. Porter, 126 Md. 636, 641 , 95 A. 660 (1915); Holmes v. Mackenzie, 118 Md. 210, 215 , 84 A. 340 (1912); Lewis v. Payne, 113 Md. 127, 137 , 77 A. 321 (1910); Lavender v. Rosenheim, 110 Md. 150, 153 , 72 A. 669 (1909); Fisher v. Wagner, 109 Md. 243, 258 , 71 A. 999 (1909); Reid v. Walbach, 75 Md. 205, 217 , 23 A. 472 (1892); Dulany v. Middleton, 72 Md. 67, 76 , 19 A. 146 (1890); Murray v. Willett, 36 Md.App. 551, 554 , 373 A.2d 1303 (1977). “A fundamental ingrained principle of the testamentary law of Maryland is that when a will contains a residuary clause, the courts will employ every intendment against general or partial intestacy.” Murray v. Willett, 36 Md.App. at 552 , 373 A.2d 1303 (Gilbert, C.J.). 5 Accord Wesley Home, Inc. v. Mercantile-Safe Deposit & Trust Co., 265 Md. 185 , 289 A.2d 337 ; Gosnell v. Leibman, 162 Md. 542, 544 , 160 A. 277 (1932) Albert v. Safe Deposit & ¹⁸⁷ Trust Co., 132 Md. 104, 109 , 103 A. 130 (1918); Lyon v. Safe Deposit & Trust Co., 120 Md. 514, 525 , 87 A. 1089 (1913); Welsh v. Gist, 101 Md. 606, 608 , 61 A. 665 (1905); Johnson v. Safe Deposit & Trust Co., 79 Md. 18, 21 , 28 A. 890 (1894); Tayloe v. Mosher, 29 Md. 443, 451 (1868); Lowenthal v. Rome, 57 Md.App. 728 , 471 A.2d 1102 (1984). ET 4-402 assists in preventing intestacy by creating a statutory presumption that a will, if properly executed, passes all property the testator owns at the time of his or her death. At common law, if a devisee or legatee predeceased the testator, absent a clause in the will providing for an alternate disposition of the gift, the devise lapsed. See Bartlett v. Ligon, 135 Md. 620, 623-24 , 109 A. 473, 475 (1920).

Maryland’s first anti-lapse statute, contained in the Acts of 1810, ch. 14, § 4, reversed the common law, and provided that a bequest to a legatee who predeceased the testator would not lapse or fail. 6 Rather, such devises would transfer to the heirs of the deceased legatee as if the legatee had died intestate. Since then, the statute has undergone several amendments but has essentially retained its original effect. 7 In its current iteration, the Anti-Lapse Statute provides: Unless a will states otherwise, if a legatee does not survive the testator, the legacy is saved from lapsing and, at the testator’s death, passes to those persons then living who would have been entitled to take as distributees of the legatee, had he survived ¹⁸⁸ the testator and dies, testate or intestate, owning the property. It did not take long for the Court of Appeals to recognize that the sole object of the Anti-Lapse Statute was to prevent the lapsing of devises and bequests. Glenn v. Belt, 7 G. & J. 362, 366 (Md.1835).

Consistent with this purpose, the Court also recognized that, when the devise or bequest would not have lapsed, the statute was inapplicable. In Craycroft v. Craycroft, 6 H. & J. 54 (Md.1823), a testator devised real property to his three sons as joint tenants, one of whom predeceased the testator. In holding that the Anti-Lapse Statute was inapplicable to those facts, the Court reasoned: The Legislature only intended to make provision for a case, which before was not provided for by law, by giving life and effect to a devise or bequest which otherwise would be inoperative, and not to give to an operative devise or bequest an effect different from that which the law before gave, and thus to change the legal course of the property, and to give it a new direction---- [T]hat would be to strain the Act rather too far, in order to apply it to a case not within the mischief intended to be remedied, not to preserve, and give life and effect to a devise or bequest, that would otherwise be extinguished, but to divest a subsisting and operative devise or bequest of its legal character and effect which was not the object of the law. It is only-intended to prevent the extinguishment of a devise or bequest, by reasons of the death of the devisee or legatee in the lifetime of the testator, when, in the event of such death, the devise or bequest would, without the aid of the Legislature, have lapsed, or failed to take effect, and the deceased have died intestate in relation to the property therein mentioned....

Therefore, where the devise or bequest would not have lapsed or failed to take effect by reason of the death of a devisee or legatee in the lifetime of the testator, as in this case, it is not within the mischief intended, or required to be remedied, and the Act of Assembly does not apply, but such devise or bequest is left to its own operation in law. ¹⁸⁹ Id., at 56-57 . As subsequently recognized by the Court, the Anti-Lapse Statute was inapplicable because Craycroft did not involve a lapsed devise. Vogel v. Turnt, 110 Md. 192, 198 , 72 A. 661, 663 (1909). Subsequent decisions have reaffirmed the finite limits of the Anti-Lapse Statute’s reach.

Stahl v. Emery, 147 Md. 123, 133 , 127 A. 760 (1925) (statute does not apply to a gift to a class of persons or to survivors); Mercer v. Hopkins, 88 Md. 292, 314 , 41 A. 156 (1898) (statute does not apply when legacy or devise is of life estate); Young v. Robinson, 11 G. & J. 328, 329, 341-43 (Md.1840) (gift to fluctuating class of persons who are to be ascertained at the death of the testator); Helms v. Franciscus, 2 Bland 544 (Md.Ch.1830) (legacy charged upon real estate and legatee dies after death of testator but before time of payment). In sum, the Court has recognized from the outset that, by enacting the Anti-Lapse Statute, it was not the intent of the legislature to change or alter any of the existing rules concerning the devolution of property. See Stahl, 147 Md. at 133 , 127 A. 760 ; Young v. Robinson, 11 G. & J. at 341-42 . The statute merely made a provision for a scenario that before had not been addressed by law, by giving effect to a devise or bequest that otherwise would have fallen into intestacy.

In the case at bar, the statute under scrutiny is the Void Legacy Statute, ET 4-404. By statute, and at common law, a distinction had been drawn between lapsed and void legacies. In Billingsley v. Tongue, 9 Md. 575, 581-82 (1856), the Court noted: “In the former case the devisee dies in the intermediate time between the making of the will and the death of the testator; in the latter case the devise is void at the beginning, as if the devisee be dead when the will was made.” See also Rizer v. Perry, 58 Md. 112, 135 (1882); Tongue’s Lessee v. Nutwell, 13 Md. 415, 427-28 (1859); Trippe v. Frazier, 4 H. & J. 446, 447 (Md.1819). Void legacies were not saved by the Anti-Lapse Statute.

Vogel, 110 Md. at 198-99 , 72 A. 661 (citing Billingsley, 9 Md. at 581-82 ). At common law, when a testamentary gift was void, the devolution of that property was determined by its character as personal or real, and if personal, by the presence of a residu ¹⁹⁰ ary clause. Prior to the enactment of the Void Legacy Statute, void bequests of personal property devolved upon the testator’s next of kin, Gambel v. Trippe, 75 Md. 252, 255 , 23 A. 461, 462 (1892); Henry Watson Children’s Aid Soc’y v. Johnston, 58 Md. 139, 143 (1882), unless the will contained a valid residuary clause, in which case the property passed to the residuary legatee. Vickery v. Maryland Trust Co., 188 Md. 178 , 52 A.2d 100 (1947); Dulany v. Middleton, 72 Md. 67 , 19 A. 146 (1890).

Void devises of real estate, on the other hand, passed to the testator’s heirs, notwithstanding the presence of a residuary clause. See, e.g., Ringgold v. Carvel, 196 Md. 262, 268-71 , 76 A.2d 327, 330-31 (1950); Read v. Maryland Gen. Hosp., 157 Md. 565, 569-70 , 146 A. 742, 743-44 (1929); Orrick v. Boehm, 49 Md. 72, 105-06 (1878); Note, Disposition of Joint and Otherwise Failing Devises in Maryland, 2 Md. L.Rev. 142 (1938). The Void Legacy Statute was enacted in 1969 and simplified the devolution of void or inoperative bequests by providing that all property that would be subject to a void or inoperative legacy passes under the residuary clause of a will.

Despite the different scenarios to which the Anti-Lapse Statute and the Void Legacy Statute are applicable, they essentially serve the same purpose — to provide rules for the devolution of an ineffective bequest of property in cases where the will fails to provide for an alternative disposition of that property. Because they have an identical purpose, in our view their application should be bounded by similar limits. Accordingly, as in the case of the Anti-Lapse Statute, we conclude that the Void Legacy Statute was designed to apply its saving powers to a void or inoperative bequest only when the efficacy and effect of that bequest is not otherwise “left to its own operation in law.” Cy pres is a saving device applied to charitable bequests so that when the precise intention of the testator cannot be carried out, his or her intention can be cárried out as near as possible. Edith L. Fisch, The Cy Pres Doctrine in the United States 1 (1950).

Cy pres stems from a Norman- ¹⁹¹ French phrase meaning “so near,” and is derived from the phrase “cy pres comme possible,” meaning “so nearly as may be.” Miller v. Mercantile-Safe Deposit & Trust Co., 224 Md. 380 , 383 n. 1, 168 A.2d 184 (1961). Black’s Law Dictionary defines the doctrine as “a rule for the construction of instruments in equity, by which the intention of the party is carried out as near as may be, when it would be impossible or illegal to give it literal effect.” Id. at 387 (6th ed.1990). See also Restatement, Trusts (Second) § 399. 8 Bogert defines cy pres as the doctrine that equity will, when a charity is originally or later becomes impossible, inexpedient, or impracticable of fulfillment, substitute another charitable object which is believed to approach the original purpose as closely as possible. It is the theory that equity has the power to revise a charitable trust where the settlor had a general charitable intent in order to meet unexpected emergencies or changes in conditions which threaten its existence. 2A Bogert, Trusts and Trustees § 431, quoted with approval in Miller, 224 Md. at 387 , 168 A.2d 184 .

Examples of charitable purposes can be found in section 386 of the Restatement (Second) of Trusts (1959): (a) the relief of poverty; (b) the advancement of education; (c) the advancement of religion; (d) the promotion of health; (e) governmental or municipal purposes; (f) other purposes the accomplishment of which is beneficial to the community, quoted with approval in Rosser v. Prem, 52 Md.App. 367, 374 , 449 A.2d 461 (1982). From the outset, Maryland imposed strict and technical requirements on the judicial enforcement of charitable trusts. ¹⁹² Section 3 in the Bill of Rights of the Maryland Constitution of 1776 provided: The inhabitants of Maryland are entitled to the common law of England ... according to the course of that law, and to the benefit of such of the English statutes as existed at the time of their first emigration, and which by experience have been found applicable to their local and other circumstances, and of such others as have been since made in England or Great Britain, and have been introduced, used and practiced by the courts of law and equity. A report on the English statutes to be rejected under this provision was commissioned. This report classified the Statute of Charitable Uses, 43 Eliz., ch. 4 (1601), among those that were found inapplicable to local needs.

See generally Steiner, The Adoption of English Law in Maryland, 8 Yale L.J. 353 , 354 (1899). Following this report, the Court of Appeals rejected the Statute of Charitable Uses in Dashiell v. Attorney General, 5 H. & J. 392 (1822). See Miller, 224 Md. at 385 , 168 A.2d 184 ; Loats Female Orphan Asylum v. Essom, 220 Md. 11 , 150 A.2d 742 (1959); Fletcher v. Safe Deposit & Trust Co., 193 Md. 400 , 67 A.2d 386 (1949); Book Depository of Baltimore Annual Conference of M.E. Church v. Trustees of Church Rooms Fund, 117 Md. 86, 91 , 83 A. 50 (1912). The Court in Dashiell also perched its holding on the U.S. Supreme Court’s contemporaneous conclusion that interpreted the Statute of Charitable Uses as furnishing the basis of the law of charitable bequests.

Trustees of Phila. Baptist Ass’n v. Hart’s Ex’rs., 17 U.S. (4 Wheat 1), 4 L.Ed. 499 (1819). The Baptist Court held that charitable trusts could only be enforced by virtue of the Statute of Charitable Uses and not by the inherent powers of a court sitting in equity. The Maryland Court of Appeals, following the Baptist decision, concluded that “the peculiar law of charities” originated in the Statute of Charitable Uses, a statute that had not been adopted in Maryland.

Dashiell, 5 H. & J. at 398-403 . Thus, a disposition in trust for charity would fail “which if not a charity, would on general principles be void.” Id. at 402 . ¹⁹³ A quarter-century later, the Supreme Court reversed field by holding that the inherent powers of a court of equity were sufficient in themselves to enforce a charitable trust. Vidal v. Girard’s Ex’rs, 43 U.S. (2 How.) 127 , 11 L.Ed. 205 (1844). In distinguishing its earlier opinion in Baptist, 9 the Court noted: [T]he Court came to the conclusion that, at the common laws, no donation to charity could be enforced in chancery ... where both of these defects occurred (referring to a donation to trustees incapable of taking and beneficiaries uncertain and indefinite).

The Court said: ‘We find no dictum that charities could be established on such an information (by the attorney-general) where the conveyance was defective or the donation was so vaguely expressed that the donee, if not charity, would be incapable of taking.’ There are, however, dicta of eminent judges .... which do certainly support the doctrine that charitable uses might be enforced in chancery upon the general jurisdiction of the Court, independently of the statute of 43 of Elizabeth; and that the jurisdiction has been acted upon not only subsequently but antecedent to that statute. 43 U.S. at 193-94 . Despite this change of tune, the Maryland Court of Appeals, having already accepted the Supreme Court’s decision in Baptist, was uninfluenced by the Supreme Court’s about-face in Girard’s and continued to cling to the notion that equity courts had no inherent power to enforce devises to charity ¹⁹⁴ independent of the Statute of Charitable Uses. 10 It was often the case that charitable bequests were vitiated on the notion that the testator failed to manifest sufficient certainty and definiteness in the object of his bounty. See, e.g., American Colonization Soc’y v. Soulsby, 129 Md. 605 , 99 A. 944 (1917); Missionary Soc’y of M.E. Church v. Humphreys, 91 Md. 131 , 46 A. 320 (1900); Maught v. Getzendanner, 65 Md. 527 , 5 A. 471 (1886); Isaacs v. Emory, 64 Md. 333 , 1 A. 713 (1885); Rizer, supra; Church Extension M.E. Church, v. Smith, 56 Md. 362, 397 (1881); Dumfries v. Abercrombie, 46 Md. 172 (1877); Needles v. Martin, 33 Md. 609 (1871); State v. Warren, 28 Md. 338 (1868); Missionary Soc. v. Reynold’s, Ex’x, 9 Md. 341 (1856); Wilderman v. Baltimore, 8 Md. 551 (1855); see generally Howard, Charitable Trusts In Maryland, 1 Md. L.Rev. 105 (1937). The evolution of Maryland jurisprudence toward its current stance, whereby the enforcement of charitable bequests is vested in courts exercising their equitable powers, began near the end of the nineteenth century.

The rigidity of the common law rule and the inequitable results often produced were ameliorated somewhat by the passage of the Act of 1888, ch. 249, see Gray v. Peter Gray Orphans’ Home & Mechanical Inst., 128 Md. 592, 601 , 98 A. 902 (1916), from which ET 4-409 traces its roots. Under this Act, charitable bequests that would have been void because of an uncertainty as to the donee could be rendered effective if the will provided for the formation of a corporation to receive the bequest. The passage of the Act of 1888 prompted the Court of Appeals to break somewhat with its prior rigid adherence to the Baptist interpretation. Halsey v. Convention of Protestant Episcopal Church, 75 Md. 275 , 23 A. 871 (1892).

The Statute of 43 Elizabeth in regard to charities, is not, it is true, in force here, but it is well settled that a court of chancery, has jurisdiction, independent altogether of the ¹⁹⁵ statute, to enforce a trust for charitable and religious purposes, provided the devise or bequest be made to a person or body corporate capable of taking and holding the property so devised and bequeathed, and provided, further, the object and character of the trust be definite and certain. Id. at 281-82, 23 A. 781 . Nonetheless, the break with Baptist was far from complete. The Court continued to hold charitable trusts void for uncertainty, if such bequests did not strictly comply with the 1888 legislation.

See, e.g., Yingling v. Miller, 77 Md. 104, 107 , 26 A. 491 (1893). It reasoned: Now, remembering the settled law of this State prior to the legislation of 1888, namely, that this bequest would have been void for uncertainty ... can we assume that the Legislature intended, by the language just quoted, to set aside entirely the long established policy of this State in regard to charitable bequests and devises, and practically to enact here the Statute of Elizabeth? We find nothing in [the statute] which, we think, will justify us in concluding the Legislature intended to make such a radical change. Id. at 107 , 26 A. 491 .

See also Chase v. Stockett, 72 Md. 235, 239 , 19 A. 761 (1890). The statute was amended in 1908 to remove the bar of perpetuities from enforcement of charitable trusts, but it was not until the Act of 1931, ch. 453, that the legislature finally superseded the common law of charitable trusts by vesting courts of equity with the jurisdiction to enforce charitable trusts. Baltimore v. Peabody Inst., 175 Md. 186, 192 , 200 A. 375, 378 (1938). 11 This legislation, which is presently codified at ET 14-301, was enacted to remove objections to charitable trusts on the basis of the indefiniteness of beneficiaries. Miller, supra; Rabinowitz v. Wollman, 174