There is some confusion as to the real meaning of the doctrine of cy-pres. In many cases nothing more is meant than that courts are favorable to the establishment of charitable trusts, and will construe instruments creating them liberally in order to carry out the intention of the one creating the trust.155 The true doctrine of cypres, however, is that when, for any reason, the original intention of the settlor cannot be carried out,156 or where, under the provisions of the trust, funds accrue for which no disposition has been provided,157 the court will carry out the intention of the testator as near as possible (cy-pres); that is to say, the trust funds will be administered according to what would probably have been the intention of the settlor under the circumstances then existing. An example of this is where a trust was created, having for its object the creating of a public sentiment that would lead to the abolition of negro slavery. After slavery was abolished, the income from the trust property was applied to the education of the freed slaves, as carrying out the testator's general intention.158
149 Jackson v. Phillips, 14 Allen (Mass.) 539; Bartlet v. King, 12 Mass. 536; Saltonstall v. Sanders, 11 Allen (Mass.) 446; Inglis v. Trustees, 3 Pet 99.
150 Burke v. Roper, 79 Ala. 142; Holland v. Alcock, 108 N. Y. 312, 16 N. E. 805.
151 State v. Gerard, 2 Ired. Eq. (N. O.) 210.
152 Grey, Perp. § 592.
153 Post, p. 322.
154 Post, p. 330.
155 2 Perry, Trusts (4th Ed.) § 727. 156 Jackson v. Phillips, 14 Allen (Mass.) 539.
157 Attorney General v. Rector, etc., 9 Allen (Mass.) 422; Glasgow College v. Attorney General,'1 H. L. Cas. 800. Cf. Marsh v. Renton. 99 Mass. 132.
The doctrine of cy-pres is recognized in the federal courts,159 and in Massachusetts,160 Kentucky,161 and Rhode Island.162 In some states it is recognized in a modified form,163 and in the rest the doctrine does not exist,164 except, as previously mentioned, the term is sometimes applied to the favorable rules of construction which exist in the case of charitable trusts.
158 Jackson v. Phillips, 14 Allen (Mass.) 539.
159 Trustees of Philadelphia Baptist Ass'n v. Hart's Ex'rs, 4 Wheat. 1; Per-rin v. Carey, 24 How. 465. Of. Wheeler v. Smith, 9 How. 55.
160 Marsh v. Renton, 99 Mass. 132; Attorney General v. Rector, etc., 9 Allen (Mass.) 422; Jackson v. Phillips, 14 Allen (Mass.) 539.
161 Moore's Heirs v. Moore's Devisees, 4 Dana (Ky.) 354; Gass v. Wilhite, 2 Dana (Ky.) 170; Curling's Adm'rs v. Curling's Heirs, 8 Dana (Ky.) 38.
162 Derby v. Derby, 4 R. I. 414.
163 See Second Congregational Soc. v. First Congregational Soc, 14 N. H. 315; Tappan v. Deblois, 45 Me. 122; Howard v. Peace Soc, 49 Me. 288; Mc-cord v. Ochiltree, 8 Blackf. (Ind.) 15; Beall v. Fox's Ex'rs, 4 Ga. 404; Chambers v. St. Louis, 29 Mo. 592; Lepage v. Mcnamara, 5 Iowa, 124.
164 Bascom v. Albertson, 84 N. Y. 584; White v. Howard, 46 N. Y. 144; Methodist Episcopal Church v. Clark, 41 Mich. 730, 3 N. W. 207; Little v. Willford, 31 Minn. 178, 17 N. W. 282; Grimes' Ex'rs v. Harmon, 35 Ind. 198.