Cy Pres - Definition - Law Dictionary Home Dictionary Definition cy-pres

Definition :

Cy-pres (near to it). The principle of this doctrine of construction is, that where a testator hs two objects,one primary or general and the other secondary or particular, which are incompatible, the particular must be sacrificed in order that effect may be given to the general object, as near as may be to the testator' intention, according to law. Thus, where a testator has devised lands in a manner transgressing the rules of perpetuity and the Court can by giving the estates tail to the devisees, or any of them carry the property in the precise course marked out by the testator, supposing the estates left to themselves, it will do so, see Monypenny v. Dering, 16 M & W 418. The doctrine did not apply to personalty nor to a mixed fund. See Re Harwood, Coleman v. Innes, 1936 Ch 285.

It is also applied to charitable bequests, and was formerly pushed to a most extra-vagant length. But this sensible distinction now prevails, that the court will not decree the execution of a charitable trust in a manner different from that intended, except so far as it is seen that the intention cannot be literally executed. In that case another mode will be adopted consistent with the general intention, so as to execute it, though not in mode, yet in substance. If the mode should become by subsequent circumstances impossible, the general rule is not to be defeated, if it can in any other way be obtained. Where there are no objects remaining to take the benefit of a charitable corporation, the court will dispose of its revenues by a new scheme upon the principles of the original charities.

There is also amodification of the strictness of the Common Law as to conditions precedent in regard to personal legacies, which is at once rational and convenient, and tends to carry into effect the intention of the testator. It is, that where a literal compliance with the condition becomes impossible from unavioiable circumstances, and without any fault of the party, it is sufficient that it is complied with as nearly as it practically can be, i.e., cy-pres. This modification is derived from the Civil Law, and stands upon the presumption tht the donor could not have intended to require imposiblities, but only a substantial compliance withhis, directions, as far as they should admit of being fairly carried into execution. It is upon this ground tht Courts of Equity constantly hold, in cases of personal legacies, tht a substantial compliance with the condition satisfies it, although not literally fulfilled. Thus, if a legacy upon a condition precedent require the consent of three persons to a marriage, and one or more of them die, the consent of the survivor or survivors would be deemed a sufficient compliacne with the condition. And a fortiori, this doctrine would be applied to conditions subsequent, Sugd. Powers, 549: 1 Story's Eq. Jur. 235, and vol. ii. 386 (390).

Funds cannot be applied cy-pres unless it is shown to be impossible to carry out the testator's intention [Re Weir Hospital, (1910) 2 Ch 124]. See generally, Theobald on Wills.

When the particular purpose for which a charitable trust is created fails or by reason of certain circumstances the trust cannot be carried into effect either in whole or in part'or where there is a surplus left after exhausting the purposes specified by the settlor the court would not when there is a general charitable intention expressed by the settlor, allow the trust to fail but would execute it 'cy press', that is to say, in some way as nearly as possible to that which the author of the trust intended, Patilal Panachamal Gandhi v. State, AIR 1954 SC 388 (394). [Bombay Public Trusts Act, (29 of 1950)]