SUPREME COURT OF THE STATE OF NEW YORK

FRANKLIN COUNTY
In the Matter of the Application of
PAUL SMITHS COLLEGE OF
ARTS AND SCIENCES, Beneficiary
under the Last Wills and Testaments of
PHELPS SMITH,
Deceased,
SCOTT VAN LAER, on behalf of
Alumni and Friends Against Changing
Paul Smiths Colleges Name,
Proposed Intervenors and/or
Amicus Curaie.

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INDEX NO. 2015-597

BRIEF OF PROPOSED INTERVENORS/

AMICUS CURAIE

PROCEDURAL HISTORY
On July 17, 2015, the Petitioners, Paul Smiths College of Arts and Science (Paul
Smiths College) filed its Petition under EPTL 8-1.1(c) for permission to change the name of
the College to Joan Weill-Paul Smiths College of Arts and Science. The Petition was verified
by Cathy Dove, the President of Paul Smiths College.
On or about August 14, 2015, the Attorney General filed and served its Affirmation of
No Objection to the Petition for Cy Pres Relief. On August 18, 2015, this Court conducted oral
argument on the Petition.
Now, proposed intervenors, Scott van Laer, on behalf of the Alumni and Friends
Against Changing Paul Smiths Colleges Name ask this Court to issue an order to show cause
why they should not be allowed to intervene as interested parties. In the alternative, the request
permission to file an amicus curaie brief to assist the Court in correctly determining the Petition.

FACTS
The relevant facts for this request for an order to show cause as set forth in the attached
Affidavit of Scott van Laer. He represents himself and the ad hoc group Alumni and Friends
Against Changing Paul Smiths Colleges Name. Over three thousand alumni and friends have
signed the on-line Petition against the name change. https://www.change.org/p/paul-smith-scollege-refuse-to-rename-the-college. As set forth in Mr. van Laers Affidavit, he and the other
members of Alumni and Friends Against Changing Paul Smiths Colleges Name have an
emotional, professional, and financial stake in the outcome of this action.
The proposed intervenors also have important facts and legal argument that will assist
this Court. For instance, Mr. van Laers Affidavit contains a recent quote from President Cathy
Dove, from the Summer 2015 edition of the alumni magazine, The Sequel where she explicitly
stated the Paul Smiths College was in good financial condition:
The college has faced some significant financial hurdles. How are things going?
Higher education is going through significant changes and disruptions. Most
people agree that the cost of education is prohibitive for many students; the
residential model is being challenged with the advent of technology,
demographics in our geographical region are declining, and many students are
looking for more flexible ways to earn a degree. So Paul Smith's isn't alone - we
face challenges primarily around providing a great education to students who
often cannot afford to pay what it costs us to teach them. We need higher
enrollment, a lower discount rate (off the sticker price), and more diversified
revenues.
All that being said, we are doing extremely well! We have highly relevant degree
programs as well as excellent faculty and staff. In addition, our alumni are
incredibly supportive and so important to our future. We just hired our first chief
marketing officer as well as a new vice president for enrollment, and we're
working on a branding process. We need to tell our story really well, we need to
expand the diversity of our student base, create flexibility in our programs and
make sure our programs and pedagogy stay highly relevant.
While we are building for the future, we arc managing our expenses very tightly,
while benefiting from the invaluable support of a number of wonderful donors.
Bottom line is that our financials look very good this year. We're optimistic that
future years will continue to be strong.

Van Laer Affidavit, 18.

DISCUSSION
I.

This Court should allow Alumni and Friends Against Changing Paul Smiths
Colleges Name to intervene in this Petition for Cy Pres because they have a
cognizable interest in the outcome of it. In the alternative, they should be allowed to
submit an Amicus Curaie Brief.
A. Motion to Intervene
CPLR 1012 provides for Intervention as of right:
Intervention as of right; notice to attorney-general, city, county, town or village
where constitutionality in issue. (a) Intervention as of right. Upon timely motion,
any person shall be permitted to intervene in any action: 1. when a statute of the
state confers an absolute right to intervene; or 2. when the representation of the
person's interest by the parties is or may be inadequate and the person is or may
be bound by the judgment;
CPLR 1013 provides for permissive intervention:
Upon timely motion, any person may be permitted to intervene in any action
when a statute of the state confers a right to intervene in the discretion of the
court, or when the person's claim or defense and the main action have a common
question of law or fact. In exercising its discretion, the court shall consider
whether the intervention will unduly delay the determination of the action or
prejudice the substantial rights of any party.

"Once let in, the intervenor becomes a party for all purposes." (Siegel, NY Prac 178, at 295 [3d
ed]; see Incorporated Vil. of Is. Park v Island Park-Long Beach, 81 N.Y.S.2d 407 [1948], affd
274 A.D. 930 (2nd Dept 1948)) A party who intervenes, if the motion is granted, obtains the
rights of a party, including the right to counterclaim, cross-claim, implead, appeal, etc. (Siegel,
NY Prac 183, at 300 [3d ed]; see Brown v Waryas, 45 Misc. 2d 77, 78 (Sup. Ct. Dutchess Co.
1965)). In the instant case, the proposed intervenors Alumni and Friends Against Changing
Paul Smiths Colleges Name move to intervene under either CPLR 1012 or 1013.
In Jermain v. Ruling Elders and Congregation of the Jermain Memorial Ecumenical
Presbyterian Church, 122 A.D.3d 1175, 1177 (3d Dept. 2014), the decedent left $100,000 in his

will to be held in trust for and used for the Jermain Memorial Church (which at the time of his
death was a Presbyterian Church). In a cy pres proceeding, the Trustees of the Presbyterian
Church of Albany requested permission to use the money for all of their churches in the Albany
area because the Jermain Memorial Second Presbyterian Church of West Troy (JMSP Church)
was no longer within its denominational hierarchy. The members of the congregation of JMSP
Church moved to intervene. The Surrogates Court denied that motion. The Third Department
reversed and held:
"Intervention is liberally allowed by courts, permitting persons to intervene in
actions where they have a bona fide interest in an issue involved in that action"
(Yuppie Puppy Pet Prods., Inc. v. Street Smart Realty, LLC, 77 A.D.3d 197, 201
[2010] [citation omitted]). "Whether intervention is sought as a matter of right
under CPLR 1012 (a), or as a matter of discretion under CPLR 1013, is of little
practical significance since a timely motion for leave to intervene should be
granted, in either event, where the intervenor has a real and substantial interest in
the outcome of the proceedings" (Wells Fargo Bank, N.A. v. McLean, 70 A.D.3d
676, 677 [2010] [citations omitted]).
Here, decedent was a wealthy philanthropist who funded the construction of
a church building, and he provided trust funds that have benefited that church for
over 100 years. The congregation provided some proof reflecting that decedent
may have intended assistance to the church bearing his name to have precedence
over any particular denominational affiliation. Although it is premature to
determine whether the congregation will prevail, nonetheless the congregation
will be impacted by this proceeding and should be afforded the opportunity to
present its position. Moreover, as noted by respondent in supporting the
congregation's application to intervene, issues are implicated in which the
congregation may be a necessary party, including interpretation of the settlement
agreement made during decedent's estate proceedings in 1897 as well as potential
application of the Religious Corporations Law regarding the recent removal of the
JMSP Church from the Presbyterian Church. Since the record demonstrates that
the congregation has an interest in the proceeding, and there is no indication that
intervention would cause undue delay or prejudice, the motion to intervene should
have been granted (see Town of N. Elba v. Grimditch, 96 A.D.3d 1305, 13061307 [2012]).
In the Matter of Trustco Bank, 929 N.Y.S.2d 707, 714 (Surr.Ct. Schenectady Co. 2011),
same case, 959 N.Y.S.2d 411 (Surr.Ct. Schenectady Co. 2012), affirmed, 112 A.D.2d 1099 (3d
Dept. 2013), the petitioner brought a cy pres proceeding regarding the distribution of a charitable

trust for the defunct St. Clares Hospital. The Attorney General appeared to support the motion.
Ellis Hospital had assumed responsibility to providing hospital services formerly provided by the
defunct hospital. Over the objection of the Attorney General, the Surrogates Court allowed Ellis
to intervene pursuant to CPLR 1013 as an interested party. The court stated:
The Court, in exercising its discretion, further finds that since this proceeding is
still in its infancy, allowing Ellis to appear and participate will not "unduly delay
the determination of the action or prejudice the substantial rights of any party."
See, CPLR 1013. See also, Norstar Apartments, Inc. v. Town of Clay, 112 AD2d
750.
In his Brief, the Attorney cites Alco Gravure, Inc. v. Knapp Foundation, 64 N.Y.2d 458,
465-66 (1985) for the general rule that Only the Attorney General has standing to represent the
interests of the unnamed beneficiaries of the charitable gift before the Court. In that case, the
Court of Appeals allowed the class of beneficiaries to intervene on their own behalf. The Court
of Appeals held:
There is an exception to the general rule, however, when a particular group of
people has a special interest in funds held for a charitable purpose, as when they
are entitled to a preference in the distribution of such funds and the class of
potential beneficiaries is sharply defined and limited in number (see, Restatement
[Second] of Trusts 391 comment c; 4 Scott, The Law of Trusts 391, at 300809 [3d ed.]; Bogert, The Law of Trusts and Trustees 414 [2d rev. ed.] ).
In any event Alco Gravure concerns the distribution of money in a charitable trust, not a
proposed name change of a college.
In the instant case, Alumni and Friends Against Changing Paul Smiths Colleges
Name, an ad hoc group of Paul Smiths College Alumni, have an interest in the outcome of this
proceedings. It has approximately 3000 members (and about 500 active members). They
attended and graduated from Paul Smiths College, not Joan Wiell-Paul Smiths College. The
good name and reputation of Paul Smiths College will be diminished by the name change. They
have an implied contract that Paul Smiths College will remain the name of the College. This

will affect the value of their diplomas from Paul Smith. Also, the Alumni and Friends Against
Changing Paul Smiths Colleges Name have a real and strong historical, traditional, and
emotional attachment to Paul Smiths College. Colleges normally encourage this type of
relationship with their alumni. Paul Smiths College failed to consult with their active alunmi
before proposing the name change. Now, the alumni need to resort to this Motion to Intervene to
be heard.
The Attorney General also cites Matter of Rosenthal, 99 A.D.3d 573, 573-574 (1st Dept.
2012) for his assertion that only he can represent the interests of unnamed beneficiaries of a
charitable gift. Actually, the Rosenthal court, relying upon Alco Gravure, held: [O]nly the
Attorney General may enforce the trust provisions insofar as the beneficiaries are concerned.
The Rosenthal court also notes that the proposed intervenors in that case did not have an interest
in the judgment that may adversely affect their interest.
The proposed intervenors do not believe that the Attorney General is fully representing
their interests (by not opposing the name change). His opposition does not contain a citation to
several relevant cases. He did not argue that the Petitioner is requesting unprecedented relief
under cy pres. The Petitioner has argued that the approval of the Attorney General compels
this Court to pro forma approve the Petition. In their Brief and other submissions, the proposed
intervenors will assist the Court in fully reviewing the facts, issues, and the law.
The Alumni and Friends Against Changing Paul Smiths Colleges Name are not
claiming to be beneficiaries of money. Rather, they oppose the cy pres Petition because the name
change affects their interest. They are a very well defined group and are limited to the defined
number of their members.
B. Amicus Curaie

In the alternative, if this Court denies the Motion to Intervene, it should allow Alumni
and Friends Against Changing Paul Smiths Colleges Name, to submit their papers as Amicus
Curaie.
Amicus curaie has been defined as "one who, as a standerby, when a judge is
in doubt or mistaken in a matter of law, may inform the court." Kemp v Rubin,
187 Misc. 707, 708, 64 N.Y.S.2d 510 [Sup Ct, Queens County 1946].) "[T]he
function of an 'amicus curiae' is to call the court's attention to law or facts or
circumstances in a matter . . . that might otherwise escape its consideration; it is a
privilege and not a right; he is not a party, and cannot assume the functions of a
party; he must accept the case before the court with issues made by the parties,
and may not control the litigation." Id. at 709.)
Kruger v. Bloomberg, 768 N.Y.S.2d 76, 81 (Sup.Ct.N.Y.Co. 2003). The standards for allowing a
friend of the court appearance are the essentially the same, except that the interest of the
Amicus curaie may be more attenuated than that of an intervenor. Id.
In Matter of Steglich, 32 Misc.3d 1023(A), 930 N.Y.S.2d 177 (Sup.Ct.N.Y.Co. 2011), the
court summarized the factors (fully enunciated in Kruger) to be considered by a trial court in
determining whether to allow an amicus curiae appear: 1) whether the movant proceeds by order
to show cause (to expedite the process); 2) whether the affidavit in support indicates the
movants interest in the issues to briefed, and sets forth the issues, with a proposed brief
attached; 3) whether the affidavit shows that the parties are not making a full and adequate
presentation of the issues, facts, and law, or the movant would invite the courts attention to the
law or arguments that might otherwise escape its attention, or that its amicus curaie brief would
otherwise be of special assistance to the court, 4) whether the amicus curaie application or status
would substantially prejudice the rights of the parties, including delaying the original action; and
5) whether the case concerns questions of important public interest.
In the instant case, Alumni and Friends Against Changing Paul Smiths Colleges
Name are proceeding by order to show cause. It shows by Affidavit that they have an interest in

the outcome of this cy pres action. It shows by Affidavit and this Brief that the parties are not
making a full and adequate presentation to the Court, and that it will invite the courts attention
to law and/or arguments that might otherwise escape its attention. There is no substantial legal
prejudice to the rights of the parties. This is a matter of an important public interest. Wherefore,
if this Court denies the Motion to Intervene, it should grant the request to submit an amicus
curaie brief.
II.

The Petitioners do not meet the legal requirements for cy pres relief.
The Restatement of Law, 2d, of Trusts 399 succinctly explains the doctrine of cy pres:
a. The doctrine of cy pres. The principle stated in this Section is called the
doctrine of cy pres. The expression indicates the idea that where the exact
intention of the settlor is not carried out, his intention is carried out "as nearly as"
1
may be. The doctrine . . . permit[s] a deviation from the terms of the trust in
matters relating to the administration of the trust where compliance is impossible
or illegal or where owing to circumstances not known to the settlor and not
anticipated by him compliance would defeat or substantially impair the
accomplishment of the purposes of the trust.
The equitable doctrine of cy pres has been codified in New York law by EPTL 8-1.1(c).

Sec. 8-1.1(c) provides (in relevant part, emphasis added):

(c) (1) The supreme court . . . ha[s] jurisdiction over [charitable] dispositions . . .
and whenever it appears to such court that circumstances have so changed since
the execution of an instrument making a disposition for religious, charitable,
educational or benevolent purposes as to render impracticable or impossible a
literal compliance with the terms of such disposition, the court may, on
application of the trustee or of the person having custody of the property subject
to the disposition and on such notice as the court may direct, make an order or
decree directing that such disposition be administered and applied in such manner
as in the judgment of the court will most effectively accomplish its general
purposes, free from any specific restriction, limitation or direction contained
therein; . . .
In a cy pres action, it is the responsibility of the court to determine as closely to the
donors intention as possible to reform the gift so that it does not fail. In the construction of

wills where the intent of the testator is to be ascertained from his language alone, or from his
language and surrounding circumstances about which there is no dispute, the intention of the
testator is a question of law and not one of fact. In re Scotts Will, 8 N.Y.2d 419, 425 (1960).
The proposed intervenors find no published cases from any jurisdiction directly on point
to the instant Petition. As far as the proposed intervenor can ascertain, no court in the United
States has ever allowed an institution enter a new naming agreement to obtain funds when the
institution continues to operate under the name of the original grantor.
Perhaps the most relevant precedent is In re Scotts Will, 8 N.Y.2d 419, 427-428
(1960). 2 In 1912, George Scott gave a gift to St. Thomas Church in New York City to build a
tuberculosis sanitarium there and to name it after him and his family. By 1960, sanitariums were
not longer being used to treat tubercular patients. The Court of Appeals denied the cy pres
petition by St. Thomas Church to use the $1,600,000 in the fund to complete the Churchs
facade, even though part of Mr. Scotts intention had become impracticable to carry out. 3 The
Court of Appeals held:
There was an accompanying intent to promote the objectives of St. Thomas
Church by assisting it to engage in good works without which faith alone is dead.
Nor was it a 'selfish' purpose, inconsistent with cy pres, to desire to perpetuate
conspicuously the name and memory of the donor as a benefactor of the church
and humankind. Naming a charitable fund after the Scott family on the records of
whatever institution might administer this fund is of a different order of
magnitude from causing a building to bear his name, as the will directs. It is not
always possible to carry into effect all of the motivating factors of a program such
as this testator put forward, but in the circumstances here presented we think that
it was an unlawful dilution of his purpose to eliminate any benefit to St. Thomas
1

The legal French term literally means "so near/close" and can be translated as "as near as
possible" or "as near as may be". Black's Law Dictionary, p. 349 (5th ed. 1979).
2
The Attorney General did not cite this precedential decision by the Court of Appeals in his
Brief.
3
It is of local interest that the Court noted: Even Trudeau Sanitorium at Saranac Lake. . . ha[s]
been discontinued, [so] it would be impracticable in any event to give effect to the testators
purpose of supporting a tuberculosis sanitarium. Scott at 427.

Church and any tangible memorial to himself. A building erected and maintained
by St. Thomas Church was plainly important in his calculations, in order that its
light (like his own) would, in Biblical words, so shine before men so that they
might see their good works. These desires are deeply ingrained in human nature
and are effective motivating forces in donations of this character. Cy pres is not
designed to nullify them, where, as here, it is practicable to encompass them in
the decree.
(emphasis added).
In Lupton v. Leander Clark College, 187 N.W. 496 (Iowa 1922), the court did invoke cy
pres to allow the transfer of a trust fund from Leander Clark College to Coe College. In 1906,
Leander Clark had given a $50,000 gift to Western College with the provision to changing the
name to Leander Clark College. In 1919, Leander Clark College became unable to support and
maintain itself as an independent educational institution. It agreed to merge with Coe College
and transfer the endowment fund (of $150,000). The heirs of Mr. Clark asked that the $50,000 be
returned to them because it required Leander Clark College to comply with the agreement
forever. Under those circumstances, the Iowa Supreme Court granted cy pres because it became
impossible to continue to operate the college for financial reasons and the transfer of the fund to
Coe College effected the charitable intentional of the benefactor.
In Trustees of the Endowment Fund of the Hoffman Memorial Hospital Association, 592
P.2d 438 (Kans. 1979), George Hoffman was the beneficiary of a trust established in 1931 for
the benefit and maintenance of the George Hoffman Memorial Hospital. In the 1972, the hospital
ceased to exist. The court determined that Mr. Hoffman had the intent to benefit a specific
charity the hospital bearing his name. It denied the cy pres petition because the trust document
did not express a general intent to support a substitute charity.
In Matter of Edward John Noble Hospital of Gouverneur, 39 Misc.3d 279, 280-281
(Sup.Ct. St. Lawrence Co. 2013), Judge Demarest summarized the law and explained:

10

"When a court determines that changed circumstances have rendered the

administration of a charitable trust according to its literal terms either
impracticable or impossible', the court may exercise its cy pres power to reform
the trust in a matter that will most effectively accomplish its general purposes'
(EPTL 8-1.1, subd [c]). In reforming trusts pursuant to this power, care must be
taken to evaluate the precise purpose or direction of the testator, so that when the
court directs the trust toward another charitable end, it will give effect insofar as
practicable to the full design of the testator as manifested by his will and codicil'."
Matter of Wilson, 59 NY2d 461 . . . (1983) (citations omitted).
Cy pres has been described as "the scheme of charitable approximation." In re
Mills, 121 Misc. 147, 200 N.Y.S. 701 (Surr. Ct., Westchester Co. 1923).
Three conditions must be met before applying the doctrine of cy pres:
(1) the gift or trust must be charitable in nature;
(2) the donor must have demonstrated a general, rather than a specific,
charitable intent, and;
(3) circumstances have changed subsequent to the gift that render literal
compliance with the restriction impossible or impracticable. Matter of Othmer, 12
Misc. 3d 919, 815 N.Y.S.2d 444 (Surr. Ct., Kings Co. 2006), see Matter of
Hummel, 30 A.D.3d 802, 817 N.Y.S.2d 424 (3d Dep't 2006); Matter of Trustco
Bank, 37 Misc. 3d 1045, 954 N.Y.S.2d 411 (Surr.Ct. Schenectady Co. 2012).
In Matter of Edward John Noble Hospital, Judge Demarest correctly granted the cy pres petition
because hospital was experiencing difficulties in maintaining financial solvency. He allowed the
modification of the three trusts in question so that they could be used as collateral for credit to
provide ongoing operating cash. He held that it was impracticable to carry out the original
charitable intent of the trust beneficiaries according to their terms if the hospital would be unable
to continue to operate unless this modification was made. This case did not involve a proposed
name change by a new donor.
The change in circumstances must be unanticipated by the beneficiary. Matter of Siegel,
665 N.Y.S.2d 813, 814 (Surr.Ct.N.Y.Co. 1997). In addition, the change in circumstances must
defeat or substantially impair the purpose of the trust. In Matter of Talman, 484 N.Y.S.2d 406,
409 (Surr.Ct.N.Y. Co. 1984)(emphasis added), the court held:

11

Where the issue before the court is [whether] the trust fund is inadequate to
effectuate the creator's charitable purpose, the statute authorizes the application of
the doctrine of cy pres (Matter of Nurse, 35 N.Y.2d 381; Matter of Scott, 8
N.Y.2d 419; Matter of MacDowell, 217 N.Y. 454; Matter of Goehringer, 69 Misc.
2d 145). On the other hand, where the charitable beneficiary is certain and the
trust fund adequate but a change of circumstance, not known or anticipated by the
grantor or testator, has made compliance with an administrative provision of the
governing instrument impractical but does not defeat or substantially impair the
purpose of a charitable trust, the doctrine of equitable deviation should be
applied.
The finding necessary to terminate a charitable trust or to apply cy pres must be more
than just encountering some practical obstacles to achieving a still valid purpose, when the
purposes themselves have not ceased or become impracticable. In Board of Trustees of The
Museum of the American Indian v. Board of Trustees of The Huntington Free Library, 197 A.
D. 2d 64 (1st Dept. 1994), appeal denied, 86 N.Y.2d 702 (1995), the First Department
emphasized that the initial cy pres inquiry is not whether some other agency might discharge the
purposes in more exemplary fashion but whether it is impossible or impracticable for the
present charitable agency to do so, and emphasizing that unsettling results and discouragement
of charitable giving might result from promiscuous resort to the cy pres power. Where it is
practicable to carry out the specific purpose of a trust, the courts should refuse to apply cy pres
even though it appeared that it would be desirable to use the property in a different way. See,
e.g., Matter of Thorne, 102 N.Y.S2d 386 (Surr.Ct. Westchester Co. 1951); Matter of Niven, 42
N.Y.S.2d 739 (Surr.Ct.N.Y.Co. 1943).
In Matter of Lucas Charitable Gift, 261 P.3d 800, 807 (Hawaii 2011), the Hawaii
Supreme Court well summarized the meaning of the term impracticable for cy pres:
Courts widely recognize that the charitable purpose need not be impossible to
warrant applying cy pres. It is sufficient that achieving the settlor's stated purpose
would be impracticable or unreasonable to effectuate. Restatement of Trusts, 3d
67, cmt. c ("The doctrine of cy pres may also be applied, even though it is
possible to carry out the particular purpose of the settlor, if to do so would not

12

accomplish the settlor's charitable objective, or would not do so in a reasonable

way.") (second emphasis added); Bogert on Trusts 438, at 194-96 (recognizing
insufficiency of funds as basis for doctrine); Scott on Trusts 39.5.2, at 2717-20;
39.5.4, at 2740-41; Am. Jur. 2d 151 (doctrine is applicable where donor's
directions "cannot beneficially be carried into effect") (emphasis added;
punctuation altered). "An impractical restriction is one that is not capable of being
carried out in practice." Am. Jur. 2d 157. If literal compliance would "defeat or
substantially impair" the purposes of the trust, cy pres is applicable. Restatement
2d 399, cmt. a. The purpose of the trust becomes impaired if "the application of
[trust] property to such purpose would not accomplish the general charitable
intention of the settlor." 88 Am. Jur. Proof of Facts 3d 469, 10 (2006).
The Hawaii Court also well-summarized the element of general charitable intent:
The third element -- general charitable intent -- has been a source of
uncertainty and reform. Under the traditional rule, cy pres may only be applied if
the settlor possessed a general charitable intent. Am. Jur. 2d 153. His or her
intent must have encompassed "something beyond the specific terms used in
designating the beneficiary or purpose of the gift or how it shall be carried into
effect." Id.; see also Restatement 2d 399; Bogert on Trusts 431, at 119; 436,
at 157-60. The donor must have had a general charitable intent, as opposed to a
narrow intent to benefit only a "particular project, objective, or institution[.]" Am.
Jur. 2d 153. For example, where a settlor's dominant intent is to restrict the
charitable gift to the exact purpose specified, courts may presume that the donor
would not have wanted the property to be applied to any other purpose, however
closely related, even if the original purpose fails. Restatement [of Trusts] 2d
399, cmt. d. In such situations, cy pres is not applicable because the settlor did not
have a general charitable intent. Id.; see also Shoemaker v. Am. Sec. & Trust Co.,
163 F.2d 585, 588, 82 U.S. App. D.C. 270 (D.C. Cir. 1947) (noting that cy pres
does not apply if settlor's "dominant purpose has become altogether impossible of
achievement").
Matter of Lucas Charitable Gift, at 808.
In the instant case, the Petitioners Petition for cy pres fails as a matter of fact and law.
First, they do not show an unanticipated change of circumstances. Phelps Smiths gift read:
I give, devise and bequeath all the rest, residue and remainder of my estate,
of every name, nature and description wheresoever situate to the corporation
hereinafter directed to be formed for the erection and maintenance of a college for
the higher education of boys and girls, to be forever known as "Paul Smiths
College of Arts and Sciences."
I direct my Executors hereinafter named as soon as practicable after my
death and during the lifetime of the said Executors, or the survivor of them, to
form a corporation to be known as "Paul Smiths College of Arts and Sciences,"
whose objects shall be the higher education of boys and girls, to be located upon

13

St. Regis Lake if practicable, and if not, then at some other suitable place in the
town of Brighton, Franklin County, New York. Such college is to be incorporated
by and under the regents of the State of New York if possible, and by its charter
or articles of incorporation is to be perpetual.
This language does not show a general charitable intent. Rather it shows a narrow intent to
benefit only a "particular project, objective, or institution[.]"
There has been no showing of a such a great change of circumstances

that would

warrant a change to the explicit requirement that the college be forever known as Paul Smiths
College of Arts and Sciences. As in Matter of Scott, renaming to Paul Smiths College to
Joan Weill-Paul Smiths College is of a different order of magnitude from causing the College
to bear his name forever, as the will directs.
The charitable intent of Phelps Smith was to maintain the name Paul Smiths College
forever. There is no indication in his will that he wanted to allow a name change at the request of
a future donor. The expressed purpose of Paul Smiths College in requesting cy pres to change
its name is to allow it to change for unanticipated future circumstances. The purpose of his will is
not defeated or substantially impaired if this Court rejects the Petition for Cy Pres.
There is no evidence that it would be impracticable to keep the name Paul Smiths
College. There is no evidence that Paul Smiths College is on the brink of financial disaster.
Prior to the filing of this Petition, Paul Smiths College was not in a financial crisis. It is not
asking to close and transfer its assets to another institution. The fact that Mrs. Weill is willing to
give a naming gift of twenty million dollars is does not make it impracticable to honor the
instructions of Phelp Smith. Every college and non-profit would enjoy receiving twenty million
dollars. But, this is preference not enough to support cy pres. It would be much more practicable

For cy pres to apply EPTL 8-1.1(c) requires: whenever it appears to such court that
circumstances have so changed since the execution of an instrument making a disposition for
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for Mr. Wiell to change the terms of her gift to allow Paul Smiths College to continue to
comply with the intent of Phelp Smith in creating the College. The Trustees of Paul Smiths
college cannot show, as a matter of law, that literal compliance with the explicit conditions of
Phelp Smiths will is impossible or impracticable.
If this Court does permit the unprecedented name change it will effect future charitable
giving in the future by donors who anticipate that they will forever be memorialized. This is
against public policy.
In Surnamed Charitable Trusts: Immortality at Taxpayer Expense, William Drennan,
61 Ala. L. R. 225 (2010) the author called using charitable money to have naming rights The
Name Game: Altruism Tainted with Narcissism. He explained that the taxpayers subsidize this
type of charity. See also, Private Motive and Perpetual Conditions in Charitable Naming
Gifts: When Good Names Go Bad, John K. Eason, 38 U.C. Davis L.R. 375 (2005). These
articles explain some of the prospective dangers in accepting naming gifts.
It is still very practicable to carry out the specific purpose of Phelp Smiths will. It is
inconceivable that he would have supported this name change while the College was still
thriving, solvent, and fulfilling its intended purpose. This Court should refuse to apply cy pres
even though it might be desirable for the Trustees of Paul Smiths College to obtain the twenty
million dollars from the naming gift.
III.

The Alumni and Friends Against Changing Paul Smiths Colleges Name support a
compromise that will allow Paul Smiths College to receive the twenty million gift
and still be called Paul Smiths College.
Despite its opposition to the proposed name change of Paul Smith's College, the Alumni

and Friends Against Changing Paul Smiths Colleges Name strongly support the receipt of a
religious, charitable, educational or benevolent purposes as to render impracticable or
impossible a literal compliance with the terms of such disposition. (emphasis added).
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twenty million dollar gift by Mrs. Weill. They agree that she should be honored and
memorialized for such a gift. They also acknowledge her great commitment and contributions, in
time and money, to Paul Smiths College.
The Alumni and Friends Against Changing Paul Smiths Colleges Name feel that the
Trustees, rather than Mrs. Weill, are to blame for this unfortunate brouhaha. The Trustees have
never indicated to the alumni that the school was in dire financial straits or that it might have to
close. The Trustees did not inform the alumni in advance of the proposed name change. They
filed their Petition as a fait accompli. To the Alumni and Friends Against Changing Paul Smiths
Colleges Name, this reasonably appeared to be a sneaky way to avoid their input.
The alumni would have expressed their opposition and come up with reasonable
alternatives if consulted in advance. It is unfortunate that Mrs. Weill now may appear vain and
narcissistic in her proposal. The Alumni and Friends Against Changing Paul Smiths Colleges
Name do not believe that these are her motives. They propose now, as they would have before
the Petition was filed, that Mrs. Weill be honored by naming the Forestry School or the Paul
Smiths College campus after her. The alumni want to appropriately honor Mrs. Weill, not to
disrespect her or her gracious benevolence. It is much more practicable for her to change the
naming requirement of her gift than for Paul Smiths College to change its name, in violation of
the will of founder Phelps Smith.
CONCLUSION
This Court should allow Alumni and Friends Against Changing Paul Smiths Colleges
Name to intervene in this action because of their compelling interest in the outcome of it. The
Trustees of Paul Smiths College do not meet the requirements for cy pres. Phelps Smith would

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not have wanted to change the name of Paul Smiths College to Joan Weill-Paul Smiths College
under these circumstances. This Court should deny the request under EPTL 8-1.1.

Respectfully submitted,

Mark Schneider
Attorney for Proposed Intervenors
57 Court Street
Plattsburgh, NY 12901
(518) 566-6666

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