In this uncontested proceeding in the estate of Henry L. Wood, Wayne Bank, as successor-in-interest to the National Bank of Delaware County, petitions to resign as trustee of a charitable trust known as the “William B. Ogden Free Library Trust” (the “Trust”) established in 1984 pursuant to Article SECOND [C] of decedent’s will, and seeks the appointment of Community Bank, N.A., as successor trustee. The application is granted. Letters of successor trusteeship shall issue to Community Bank, N.A., upon its duly qualifying according to law. Petitioner also asks the court to modify the provisions of the Trust in two respects due to changed circumstances. First, the testator directed that the income of the Trust be used to purchase books and magazines for the William B. Ogden Free Library (the “Library”). However, in the nearly 40 years since the Trust was established, the Library’s collection has expanded to include digital, online and other electronic media which were not in wide use at the time the Trust was created. Petitioner asks the court to modify the Trust so that the trustee can provide funds to purchase electronic media as well as books and magazines. Petitioner also requests that the Trust be further modified to allow limited principal distributions, in addition to income distributions, in order to avoid excise taxes imposed when a trust distributes less than five percent of its value annually pursuant to relevant provisions of the Internal Revenue Code of 1986 (26 USC §4942). This relief is requested in order to insure that the proceeds of the Trust will, to the maximum extent possible, be spent to further its charitable purposes. The equitable doctrine of cy pres, codified in EPTL §8-1.1(c)(1), authorizes the court to modify the terms of a charitable trust where the donor had a general charitable intent which has become impossible or impracticable to achieve due to changed circumstances (Matter of Hummel, 30 AD3d 802 [3d Dept 2006]/Matter of Post, 2 AD3d 1091 [3d Dept 2003]). Here, it is clear that decedent’s intended charitable purpose was to provide resources for the use of Library patrons. Given the change over time in the types of media which are in common use, the requested modifications are necessary to avoid frustrating decedent’s charitable intent (see Matter of Hummel, supra, 30 AD3d 802). The modification regarding the distribution of principal similarly avoids an undue limitation on the benefits which the Trust can provide, thus further carrying out decedent’s charitable intent (Matter of Post, supra, 2 AD3d 1091; Matter of Presley, 76 Misc 2d 462 [Sur Ct, NY County 1973]). Accordingly, the application for cy pres relief is granted. Order signed. Dated: August 9, 2022
