OF THE ESTATE OF NELIA ZIMMERMAN,
Plaintiff Below, Appellee
COUNCIL ON WORLD SERVICE AND FINANCE OF
THE METHODIST CHURCH, aka GENERAL COMMISSION
ON WORLD SERVICE AND FINANCE, NOW KNOWN AS
GENERAL COUNCIL ON FINANCE AND ADMINISTRATION;
FIRST UNITED METHODIST CHURCH OF BUCKHANNON;
ELIZABETH COPLIN LEONARD MEMORIAL HOSPITAL, INC.,
Defendants Below, Appellees
ST. JOSEPH'S HOSPITAL OF BUCKHANNON, INC.,
Defendant Below, Appellant
ROSE SECRIST, ET AL.,
Roy D. Law, Esquire
Robert M. Morris, Esquire
Buckhannon, West Virginia Weston, West Virginia
Attorney for the Estate of Attorney for Elizabeth Coplin
Neila Zimmerman, deceased Leonard Memorial Hospital, Inc.
Ellen Maxwell-Hoffman, Esquire
Terry D. Reed, Esquire
Bowles Rice McDavid Graff & Love Hymes and Coonts
Charleston, West Virginia Buckhannon, West Virginia
Attorney for Council on World Attorney for St. Joseph's
Service and Finance of the Hospital of Buckhannon, Inc.
JUSTICE NEELY delivered the Opinion of the Court.
When a charitable institution to which a bequest has been made for charitable purposes loses its character or otherwise ceases to exist after the death of the testator, and when the testator has manifested a general charitable intent in her will, a court of equity, under the doctrine of cy pres, will direct the application of the bequeathed property in question to another charity of the same general character so that the charitable purpose of the testator will not fail.
Neila Zimmerman wrote her will in 1971 and bequeathed
one-third of the residue of her estate to the three following
charities in equal shares: (1) the Council on World Service and
Finance of the Methodist Church; (2) the Elizabeth Coplin Leonard
Memorial Hospital of Buckhannon; and, (3) the St. Joseph's Hospital
of Buckhannon. Mrs. Zimmerman died in 1983 and her 1971 will was
duly admitted to probate.
At the time Neila Zimmerman executed her will, hospital
services were provided in Upshur County by two non-profit,
charitable institutions, Leonard Memorial Hospital and St. Joseph's
Hospital. However, Leonard Memorial ceased operating as a hospital
on 31 December 1988 and exists now only as a shell to receive
accounts payable, conserve assets and pay debts. All employees,
except for a skeleton staff, have been discharged. Leonard
Memorial will never again provide hospital services to patients.
The executor of Mrs. Zimmerman's estate, Thomas L.
Stockert, Jr., sought direction from the circuit court concerning
whether to pay the non-operating shell of the former Leonard
Memorial Hospital the money bequeathed to Leonard Memorial in Mrs.
Zimmerman's will, or to pay Leonard Memorial's share to the only
operating hospital in Upshur County, St. Joseph's. The circuit
court ruled that notwithstanding Leonard Memorial's closure as a
functioning hospital, the bequest should nevertheless be paid to
it. We reverse.
If ever there were a case that cries out for application
of the doctrine of cy pres, it is the case before us. The doctrine
of cy pres is an equitable device employed when the terms of a
charitable trust become illegal, impossible or impractical to
fulfill and, under the cy pres doctrine, a court may direct trust
funds be expended in a charitable manner as near (cy pres) to the
donor's intent as possible. Union National Bank of Clarksburg v.
Nuzum, 167 W.Va. 340, 280 S.E.2d 87 (1981); W.Va. Code 35-2-2
. There are thousands of cases throughout the United States
applying cy pres; however, the doctrine is amazingly straight-forward and precisely summarized in 15 Am. Jur.2d Charities §§ 157
If a testator bequeathed $100,000 to his nephew, but the
nephew died after the testator expired but before the testator's
executor had distributed the proceeds of the estate, no one would
argue that the nephew's $100,000 should be buried in a shoe box
next to the nephew's remains. Obviously, the bequest to the nephew
would pass to the nephew's living heirs either by will or
intestacy, subject to any of the nephew's outstanding debts that
were still unpaid. In the case before us, the existing assets in
the shell of Leonard Memorial, including the real estate, are
adequate to satisfy the hospital's debts. Therefore, instructing
the executor to give money to Leonard Memorial Hospital would be
like burying the nephew's bequest in a shoe box next to the
The weight of judicial opinion in the United States is
that when a charitable institution to which a bequest has been made
loses its character or otherwise ceases to exist after the death of
the testator, and when the testator has manifested a general
charitable intent in her will, a court of equity will direct the
application of the bequeathed property in question to another
charity of the same general character so that the charitable
purpose of the testator will not fail. In re Stouffer's Trust, 188
Or. 218, 215 P.2d 374 (1950). See also, Wesley Home v. Mercantile
Safe Deposit and P. Company, 265 Md. 185, 289 A.2d 337 (1972).
It is apparent to us that the testatrix sought to benefit
the residents of Upshur County by supporting the two institutions
that provided hospital services to that county. The cardinal rule
in construction of testamentary instruments is that a court should
give effect to the intent of the testator. Syllabus point 1, Reedy
v. Propst, 169 W.Va. 473, 288 S.E.2d 526 (1982). Now that Leonard
Memorial Hospital has closed its doors, it is only appropriate,
lest the testatrix's charitable intent be frustrated, that St.
Joseph's hospital receive both the share bequeathed to it in Mrs.
Zimmerman's will and the share bequeathed to Leonard Memorial.
Accordingly, the judgment of the Circuit Court of Upshur County is
reversed, and this case is remanded with directions to enter a
judgment consistent with this opinion.
Reversed and remanded