Washington and Lee Law Review Volume 56 | Issue 1 Article 3 Winter 1-1-1999 Bequests for Purposes: A Unified Theory Adam J. Hirsch Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Estates and Trusts Commons Recommended Citation Adam J. Hirsch, Bequests for Purposes: A Unified Theory, 56 Wash. & Lee L. Rev. 33 (1999), https://scholarlycommons.law.wlu.edu/wlulr/vol56/iss1/3 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. Bequests for Purposes: A Unified Theory Adam J. Hirsch7 Table of Contents I. Introduction ......................................... 33 II. Doctrine: Categorical Proliferation ...................... 35 A. The History ..................................... 35 B. The (Re)statement ................................ 44 I. Policy: Categorical Reassessment ....................... 49 A. Substantive Validity ............................... 50 1. Mise-en-Scne ................................ 50 2. Purposes and Testation ......................... 52 3. Exceptional Cases ............................. 69 B. Subsidiary Issues ................................. 84 1. Duration ..................................... 84 2. Process ...................................... 91 IV. Conclusion ........................................ 109 [T]he legal mind has always preferred multiplication to division. - Grant Gilmore' I. Introduction In the ordinary run of situations, testators leave their property to other persons. Most estates flow from hand to hand, typically enriching members * © 1999 by Adam J. Hirsch. All rights reserved. Professor of Law, Florida State University. M.A. 1979, J.D. 1982, Ph.D. 1987 Yale University. A substantial portion of this Article was composed underthe auspices oftheRogerTraynor Summer Research Professorship, endowed at the University of California, Hastings College of the Law. I wish to express my heartfelt gratitude to the Traynor family, whose gift for a purpose allowed me precious free time to contemplate the problem ofbequests for purposes. I am also grateful to Rob Atldnson, Steve Bank, Jesse Dukeminier, William McGovern, Jr., and auditors at a faculty colloquium at the University of California, Hastings College of the Law, for helpful comments. 1. GRANT GiMoRE, THE DEATH OF CoNTRACT 89(1974). 56 WASH. & LEE L. REV 33 (1999) of a decedent's immediate family. Every so often, however, a testator seeks to follow a different course: She may assign funds within her will for the accomplishment ofpurposesor causes, as opposed to the financial betterment of individuals. When she chooses to do so, how does - and how should - the law respond? Historically, lawmakers have differentiated the rules applicable to bequests for purposes depending upon the sort of purpose the testator had in mind. Bequests for "charitable" purposes - being objects deemed to subserve the public interest - have occupied one sub-category. These are "favored creatures of the law,"2 and courts see to it that they are given effect. At the opposite extreme lie bequests for objects found to disserve the public interest, originally known as "superstitious" purposes; courts take a dim view of these, refusing to allow them to be carried out. And these two sets of purposes are not complementary: A third set is sandwiched in between. Found here are bequests for an amalgam of purposes perceived neither to help nor to harm the public - a variety oftransaction sufficiently rare at first that it was not blessed with a name, but which one early English advocate felicitously dubbed an "indifferent" purpose.' Courts in Great Britain have generally rejected be- quests falling into this sub-category. In the United States, as we shall see, bequests for indifferent purposes have met with greater tolerance, if not open arms; courts have ratified them but have dictated a number of provisos that fail to apply to charitable bequests. This trio of doctrinal sub-categories we have lived with for a long time - so long that we have come pretty much to take them for granted. Commenta- tors invariably address purpose bequest doctrine, when they address it at all, from the confines of a given one of its legal compartments - usually the charitable one, which has long garnered the lion's share of attention. The time has come to take a fresh look at the law of purpose bequests from a broader perspective - to step back from its isolated segments in order to reflect upon the subject as a theoretical whole and, more broadly still, to juxtapose the structural features of purpose bequests with those of their more common counterpart, the bequest for a person. This exercise may help us to reevaluate not only the substance of purpose bequest doctrine, but also, and no less importantly, its taxonomy. My overall thesis is that the law of purpose bequests has become unnecessarily and unhelpfully balkanized; and that 2. Shenandoah Valley Nat'l Bank v. Taylor, 63 S.E.2d 786,790 (Va. 1951). For earlier similar statements, see EDITH L. FisCH, THE CY PRES DoCTRNE INTHE UNITED STATES 118 & n.10 (1950). These were formerly, in medieval times, known as "pious" bequests, a synonym that lingered in the legal vocabulary. See, e.g., Beatty v. Kurtz, 27 U.S. (2 Pet.) 566,583 (1829) (Story, J.). 3. Attorney-General v. Whorwood, 27 Eng. Rep. 1188, 1189 (Ch. 1750) (reporter's summary of counsel's argument). BEQUESTS FOR PURPOSES virtually all of these bequests ought instead to be subsumed within a single doctrinal entity, preferably the one now regulating charitable bequests. We shall develop this thesis, along with a few corollaries, in three stages. In Part II we begin by exploring the history of purpose bequest doctrine as it assumed its present configuration. In Part m we leap to the plane of public policy. Here we assay the core question of whether bequests for purposes should be allowed at all and, if so, what subsidiary doctrines ought to govern them. Finally, in Part IV, we soar briefly on into more rarefied air, to grasp (or gasp) at the larger implications of it all. II Doctrine: CategoricalProliferation A. The History The beginnings of the purpose bequest in Great Britain lay in the Chris- tian pursuit of piety. Throughout the middle ages, clergymen entreated their parishioners to bequeath portions of their worldly goods for the greater good of their fellow sinners. Prior to the Reformation, most responded by leaving property to the Church itself, as social entrep~t for the dissemination of charity. With the arrival ofAnglicanism, the Church lost this role, and by the sixteenth century it was common for Englishmen to formulate bequests directly for the relief of the poor, for public education, and for other merciful endeavors of their own devising.' Bequests of this sort, though welcome, nonetheless posed a practical difficulty: How could the law go about carrying them out? When a testator left property to a person - or, as earlier, to a religious corporation - the bene- ficiary (or Bishop) could hold out his palm and accept the funds directly. But when "the only beneficiaries are purposes,"' who did a testator leave the funds to? Perforce, a human intermediary had to be recruited to secure the resources provided by the testator and then to spend them for the desired end. As it happened, the trust (or use) had by the fifteenth century developed into an institution that could perform this function.6 4. See MIcHAEL CHESTERmAN, CHARIIs, TRUSTS AND SOCIAL WELFARE 11-19 (1979); 3 WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 545-46 (5th ed. 1942); 7 id at 370-71; GARETH JONES, HISTORY OF THE LAW OF CHARIrY, 1532-1827, at 3-4 (1969); W.K. JORDAN, PHILANTHROPY IN ENGLAND, 1480-1660, at 147, 155-215, 245-322 (1959); 4A AUSTIN W. ScoT,THELAw oFTRUSTS § 348.2, at 27-30 (William F. Fratcher ed., 4th ed. 1987 & Supp., Mark L. Ascher ed., 1998). An act of 1532 restricting bequests to chantries also contributed to this secularizing trend. See JONES, supra,at 11; JORDAN, supra,at 115. 5. In re Astor's Settlement Trusts, [1952] 1 All E. R. 1067, 1071 (Ch.). 6. See CHESTERMAN, supranote 4, at 20-22; 4 HOLDSWORTHt, supra note 4, at 438-39; 5 iad at 304-05; JONES, supra note 4, at 6-7; 1 SCOTT, supra note 4, §§ 1.2-1.6; 4A id. § 348.2, at 28. Professor Maitland asserted that the earliest documented example of a trust in Great Britain served to endow a charity. See F.W. MAITLAND, EQUITY 25 (John Brunyate ed., rev. ed. 56 WASH. & LEE L. REV 33 (1999) There still remained the difficulty of verifying that trustees faithfully discharged the responsibilities they assumed. When a settlor created a trust for an individual beneficiary, that same beneficiary could watch over the trustee's activities, bringing suit as necessary to ensure fidelity. In the case of a purpose trust, no equivalent monitor emerged naturally from the structure of the process. Exercising jurisdiction over all trusts, the fledgling Court of Chancery surmounted this difficulty as best it could, entertaining suits by private parties to enforce charitable trusts. Even though they prayed for relief on behalf of a broader constituency of parishioners or society, these petition- ers received standing so long as they could claim somre indirect interest in the trust's enforcement.7 This ad hoc