•    Cy Pres
•    “As near as may be”
•    Reform failed trust cy pres
•    Evans:
•    Apartheid park
•    Park became public during years and can’t be private now – end apartheid
•    Create resulting trust and park disappeared
•    Cy pres could have reformed trust – should it have been applied?
•    No – couldn’t have integrated park be the same as an apartheid park
•    Only happens to charitable trusts
•    If no charitable intent by donor cy pres is not available and have equitable reversion
•    Trammel v. Elliot:
•    Scholarship fund for white girls and boys only
–    Lots of schools, including public = state action
•    Court applies cy pres to remove unconstitutional racial distinction (wouldn’t do in Evans)
–    Difference is Evans was really racist, and less clear about racism of settlor here
•    Court says general intent was kids who needed education is “what instrument cared about most”
–    No mention of race distinction
–    Main intent was to benefit children for education
–    Since the general intent was education they reform
•    Restatement 3rd
•    Pushing for Trammel – presumption for cy pres
•    No more burden of proof on court to find general intent – now opponent must rebut
•    Wilson – sex discrimination
•    Court permitting trust to continue is not state action; court refusing to apply cy pres is not unconstitutional (Evans)
•    Court allowing discriminatory trusts does not implicate 14th Amendment
•    Avoid state action – private control
–    Court may “tinker” on the margins to keep state action from being implicated
•    Shelley – unconstitutional for the court to enforce discriminatory covenant – BUT had to use state to enforce
•    Here private discrimination needs to be allowed
•    Permit gifts to church run by certain religion, etc.
•    Not unconstitutional for court to eliminate state action to allow continuance of discriminatory trusts – trend
•    State action – state can’t do X if discriminates but private organizations sometimes can
•    Simmons
•    Scholarship to X and Y with Y going under
•    X wants cy pres to reform to get Y’s portion
•    Both in Iowa and hand picked by testator
•    Reversion – draft reversion clause in case becomes impossible
–    If fails, comes back to heirs
–    Can’t have general intent if have language telling what to do in failure
•    Most cases will apply cy pres – presumption for general charitable intent
•    Sometimes big trust to reform so can be used for charity (Jackson v. Phillips)
•    Will at times strain to find general intent
•    Typical Cy Pres Cases:
•    Not discrimination cases as norm
•    Insufficient funds, surplus funds, prior accomplishment of charitable purpose, impossibility, or refusal of trustee or 3rd party to cooperate, nonexistence of named charitable corporation or association, unsuitability of premises devised for charitable purposes
•    Refusal of trustee to perform is more typical
•    Life happens – may be impossible to accomplish purpose
•    Draft with forever in mind (what happens when disease is cured?!)
•    Draft generally as client will permit
•    Longer trusts exists the less likely testator cares who gets (he will be long gone) and more likely to have general trust or intent
•    Reallocate to another objective OR create reversion in client