Crisp Area YMCA v. NATIONSBANK, NA , 272 Ga. 182 ( 2000 )

Carley, Justice.

The late A. B. Branan was a resident of Cordele, and a director of the Cordele YMCA from the time of its incorporation in 1982. He maintained a membership in the Cordele YMCA while it operated as a YMCA facility. That organization experienced financial problems and ceased operation as a YMCA on May 8, 1992. In November of 1993, the National Council of the YMCA terminated the authority of the Cordele YMCA to operate YMCA programs and services, and that authority has never been reinstated. Twice the Georgia Secretary of State administratively dissolved the Cordele YMCA, but reinstated the organization on each occasion. Since 1992, the Cordele YMCA has performed no functions other than liquidating its assets and paying its debts. It appears that the organization may no longer possess tax-exempt status.

Mr. Branan was also a member of the Albany YMCA and he used that organization’s facility several times a week. He made financial contributions to the Albany YMCA, as well as to the Cordele YMCA. When the Cordele organization ceased functioning as a YMCA, its directors invited the Albany YMCA to take control of the YMCA activities in Crisp County and, since 1993, the Albany YMCA has been the only organization authorized by the National YMCA to provide YMCA services and programs in that county. The Albany YMCA has a Crisp County Advisory Board and retains permanent Crisp County employees.

On May 14, 1992, Mr. Branan executed a will which provided for several monetary bequests including that contained in Item XV as follows: “I give, devise and bequeath the sum of one hundred thousand dollars ($100,000) to the Cordele, Georgia Area Y.M.C.A., absolutely and in fee simple.” In 1994, long after that organization ceased its active operations, he twice instructed his attorney to draft a codicil changing the beneficiary of his bequest from the Cordele to the Albany YMCA. Although he had opportunities to execute these codicils, he never did so prior to his death on June 21, 1995.

Thereafter, both the Cordele and the Albany YMCA claimed entitlement to Mr. Branan’s bequest. NationsBank, N.A., in its capacity as the executor of Mr. Branan’s estate, filed an action for declaratory judgment, seeking a determination as to which of the two organizations should receive the bequest. Applying the doctrine of cy pres, the trial court ordered that the money be paid to the Albany YMCA. From that order the Cordele YMCA brings this appeal.

The purpose of the doctrine of cy pres has always been to effectuate, rather than to frustrate, the testator’s general charitable intent. See Trammell v. Elliott, 230 Ga. 841, 847 (5) (199 SE2d 194) (1973). One of the recognized requirements for application of the principle is the legal or practical impossibility of carrying into effect the deceased’s specific intention. Trammell v. Elliott, supra at 846 (5). “If a valid charitable bequest. . . cannot be executed in the exact manner provided by the testator, . . . the superior court will exercise equitable powers in such a way as will as nearly as possible effectuate the intention of the testator. . . .” (Emphasis supplied.) OCGA § 53-12-113. Thus, if Mr. Branan’s charitable bequest to the Cordele YMCA can be accomplished in accordance with the precise terms of his will, cy pres has no application and the courts cannot rely upon that principle so as to make a disposition which is contrary to his intent.

It is undisputed that the Cordele YMCA was in existence at the time when Mr. Branan made his will, that such organization existed at the time of his death, and that it still exists as a legal entity today. Therefore, it is neither factually nor legally impossible for his named beneficiary to take the gift which he bequeathed to it. Where, as here, “there is an existing, qualified beneficiary, . . . the cy pres doctrine is inapplicable. [Cits.]” Gustafson v. Wesley Foundation, 266 Ga. 679, 681 (2) (469 SE2d 160) (1996).

The Cordele YMCA is not active. However, such inactivity does not render the organization defunct. Mr. Branan was aware of the fact that the Cordele YMCA was inactive. Indeed, he executed his will six days after the organization ceased operations. Moreover, Mr. Branan did not change his will in the years during which the YMCA remained in existence, but inactive. In fact, although he twice requested that his attorney draft a codicil which would change the beneficiary to the Albany YMCA, he never executed either of those drafts. Nevertheless, the trial court found that the Albany YMCA, rather than the beneficiary actually designated by the testator, should take under the will. This result is not only unauthorized by the doctrine of cy pres, it is completely inconsistent with that principle, since, under the undisputed circumstances, Mr. Branan’s testamentary intent clearly was to benefit the Cordele YMCA.

The prevailing rule is that the fact that a religious, charitable, or educational organization named as a beneficiary in a will discontinues its active functions after the execution of the will does not impair its right to take the gift so long as its identity, whether corporate or associative, continues without dissolution until the death of the testator.

79 AmJur2d, Wills, § 178, pp. 405-406. Here, the Cordele YMCA had discontinued operations even before execution of the will, so Mr. Branan’s testamentary intent that his bequest be received by that entity is even stronger. Whether the inactivity disqualifies the Cordele YMCA as a charity under the federal tax code is irrelevant, as Mr. Branan did not make his bequest dependent upon the organization so qualifying. Compare Hosp. Auth. of Barrow County v. First Nat. Bank, 250 Ga. 55, 57 (2) (296 SE2d 54) (1982). According to the will, the bequest was made “absolutely and in fee simple.” If the tax status of his beneficiary was not important to Mr. Branan himself, it should not be considered by the courts charged with giving effect to his testamentary intent.

Had Mr. Branan intended that the Albany YMCA be a beneficiary of his estate, he could have made such a provision in his original will or he could have executed a codicil which would so provide. He did not do the former and he twice failed to do the latter. With compíete knowledge that the Cordele YMCA was inactive but extant, he bequeathed a sum to that organization and elected not to revoke or change that bequest before his death. To refuse to give effect to this provision is to rewrite the testator’s will so as to disinherit his designated beneficiary and to substitute an entity which he himself declined to include in his testamentary plan for the distribution of his estate. This is completely at odds with the rule that

[c]ourts are without authority to rewrite by construction an unambiguous will; for to do that would be to substitute the will of the court for that of the testator. It is no proper concern of the court whether the disposition of one’s property by will is wise or unwise, is justified or unjustified, so long as such disposition is legal and the intention of the testator is certain and clearly expressed by the terms of the will. Although the court may regard as frivolous or insufficient the reasons prompting the testator to make a bequest, yet, when the intention to make the bequest is too plain to be challenged, it is the duty of the court to give effect to it and thus allow the expressed wish of the testator to stand.

Hungerford v. Trust Co. of Ga., 190 Ga. 387, 389 (9 SE2d 630) (1940).

Admittedly, there is no Georgia decision dealing with the precise issue of a testamentary gift to an existing, but inactive, charitable organization. However, the lack of such authority results either from the previous absence of such a factual circumstance in this state or from the recognition by potential litigants that such an application of cy pres would be rejected by the Georgia courts in accordance with persuasive authority. The accepted rule in other jurisdictions is that a bequest to a charitable corporation is given effect if the named entity “ ‘is still in existence when the time for vesting arrives, even though the corporation meanwhile has become entirely inactive. It may take the legacy but must devote it to some proper corporate purpose. [Cit.]’ ” Montclair Nat. Bank & Trust Co. v. Seton Hall College of Medicine & Dentistry, 233 A2d 195, 200 (N.J. Super. 1967). The trial court’s holding in this case is contrary to that persuasive authority and to the general principles of the Georgia law of wills. As interpreted below, the doctrine of cy pres becomes a means by which to effectuate a testamentary intent that the decedent himself specifically and clearly rejected. This constitutes a novel and unauthorized application of that principle. The judgment awarding Mr. Branan’s charitable bequest to an organization other than that which he named in his will and which was still in existence at the time of his death is erroneous and must be reversed.

Judgment reversed.

All the Justices concur, except Benham, C. J., and Sears, J., who dissent.