Main Body

Supervision/Enforcement of Charitable Trusts

Chapter 8—Supervision/Enforcement of Charitable Trusts

 

 

The charitable trust is considered to be a public trust. Instead of the beneficiary of the trust being a specific ascertainable person, the trust must be meant to benefit a particular organization or class of persons. Since a charitable trust is a public trust, unlike the case involving a private trust, the beneficiary of the charitable trust does not have standing to force the trustee to live up to his fiduciary duties. The state attorney general or another government official has the authority to enforce the provisions of a charitable trust. Unless the trust provides otherwise, the donor does not have authority to enforce the charitable trust.

 

8.1 Donor Standing

 

 

Russell v. Yale University, 737 A.2d 941

 

LAVERY, J.

 

The plaintiffs, an heir of the settlor of a charitable trust, alumni donors and students of the named defendant, Yale University (Yale), appeal from the judgment of dismissal rendered by the trial court in granting the Yale’s motion to dismiss, which asserted that the trial court lacked subject matter jurisdiction on the ground that the plaintiffs lacked standing. On appeal, the plaintiffs claim that the trial court improperly granted Yale’s motion to dismiss because, where the attorney general elects not to participate in a proceeding involving a charitable trust, a person with a “special interest” may appear on behalf of the trust to protect the interests of the beneficiaries and that the plaintiff heir, alumni donors and students have the special interest necessary to confer standing on them. We affirm the judgment of the trial court.

 

The following facts are necessary for our resolution of this appeal. Yale is a nonprofit corporation organized pursuant to a 1745 charter, which was reconfirmed in article eighth, § 3, of the constitution of Connecticut in 1965. The settlor, John W. Sterling, died in 1918. At that time, he left, in trust, money for the erection of a building or buildings that would constitute a fitting memorial reflecting his gratitude and affection for his alma mater, Yale. The trustees were given broad discretion in the disposition of these funds and directed, if their discretion made it advisable, to consult with Sterling’s sisters with regard to the use of the funds. The will directed that the money not be used for the purchase of land or as part of Yale’s general fund. In 1930, the Sterling trustees voted to contribute money for the erection and maintenance of the divinity school quadrangle that bears Sterling’s name. No other restrictions existed in the will and no property rights were reserved for Sterling’s heirs by the will.

 

The divinity school is one of Yale’s graduate professional schools, which educates men and women for the Christian ministry and provides theological education for persons engaged in other professions. Prior to the commencement of this action, the president of Yale appointed a committee to undertake a comprehensive study of the divinity school and its future. In late 1996, the Fellows of the Yale Corporation approved certain recommendations, as made to them by the president and dean of the divinity school, calling for the reorganization of the divinity school, including the demolition of large portions of the Sterling Divinity Quadrangle.

 

The plaintiffs took exception to the reorganization and instituted this action seeking a temporary and permanent injunction enjoining Yale from carrying out the reorganization, a declaratory judgment that Yale’s reorganization plan constitutes an abuse of discretion as a trustee of a public charitable trust, and an accounting of all gifts and donations Yale received for the benefit of the divinity school and of charges against the divinity school’s endowment. Yale moved to dismiss the complaint on the ground that the plaintiffs lack standing to bring suit. The trial court granted the motion to dismiss and the plaintiffs appealed. Additional facts will be addressed as necessary.

 

“It is a basic principle of our law … that the plaintiffs must have standing in order for a court to have jurisdiction to render a declaratory judgment…. A party pursuing declaratory relief must … demonstrate, as in ordinary actions, a justiciable right in the controversy sought to be resolved, that is, contract, property or personal rights … as such will be affected by the [court’s] decision…. When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue and not whether the controversy is otherwise justiciable, or whether, on the merits, the plaintiff has a legally protected interest that the defendant’s action has invaded….

 

“Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved…. The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action]…. The determination of aggrievement presents a question of fact for the trial court and a plaintiff has the burden of proving that fact…. The conclusions reached by the trial court cannot be disturbed on appeal unless the subordinate facts do not support them…. Where a plaintiff lacks standing to sue, the court is without subject matter jurisdiction.” (Citations omitted; internal quotation marks omitted.) Steeneck v. Univeristy of Bridgeport, 235 Conn. 572, 578-80, 668 A.2d 688 (1995).

 

“A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts Barde v. Board of Trustees, 207 Conn. 59, 63, 539 a.2d (1988). A motion to dismiss raises the question of whether a jurisdictional flaw is apparent on the record or by way of supporting affidavits. Bradley’s Appeal from Probate, 19 Conn. App. 456, 461-62, 563 A.2d 1358 (1989).” Carl J. Herzog Foundation Inc. v. University of Bridgeport, 41 Conn. App. 790, 793, 677 A.2d 1378 (1996), rev’d on other grounds, 243 Conn. L. 699 A.2d 995 (1997).

 

Although Carl J. Herzog Foundation, Inc. v. University of Bridgeport, 243 Conn. 1, 699 A.2d 995 (1997) concerns the interpretation of a statute, in that case, our Supreme Court set out, at length, the common-law rule with regard to standing to bring suit against a charitable entity, which controls the issues here. “At common law, a donor who has made a completed charitable contribution, whether as an absolute gift or in trust, had no standing to bring an action to enforce the terms of his or her gift or trust unless he or she had expressly reserved the right to do so. Where property is given to a charitable corporation and it is directed by the terms of the gift to devote the property to a particular one of its purposes, it is under a duty, enforceable at the suit of the [a]ttorney [g]eneral, to devote the property to that purpose…. At common law, it was established that [e]quity will afford protection to a donor to a charitable corporation in that the [a]ttorney [g]eneral may maintain a suit to compel the property to be held for the charitable purpose for which it was given to the corporation…. The general rule is that charitable trusts or gifts to charitable corporations for stated purposes are [enforceable] at the instance of the [a]ttorney [g]eneral…. It matters not whether the gift is absolute or in trust or whether a technical condition is attached to the gift.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., at 5-7, 699 A.2d 995; see also 4A A. Scott, Trusts (4th Ed. Fratcher 1989) § 3481.

 

“[T]he donor himself has no standing to enforce the terms of his gift when he has not retained a specific right to control the property, such as a right of reverter, after relinquishing physical possession of it…. As a matter of common law, when a settlor of a trust or a donor of property to a charity fails specifically to provide for a reservation of rights in the trust or gift instrument, neither the donor nor his heirs have any standing in court in a proceeding to compel the proper execution of the trust, except as relators…. There is no such thing as a resulting trust with respect to a charity…. Where the donor has effectually passed out of himself all interest in the fund devoted to a charity, neither he nor those claiming under him have any standing in a court of equity as to its disposition and control.” (Citations omitted; internal quotation marks omitted.) Car J. Herzog Foundation, Inc. v. University of Bridgeport, 243 Conn. at 7-8, 699 A.2d 995.

 

The trial court found the facts noted previously in this opinion and concluded that if Sterling were alive today, he would have no right to enforce conditions of his gift, and that, therefore, his heir and successor lacks standing to bring this suit, as well. We agree. See id. at 5-6, 699 A.2d 995.

 

For the same reasons, the trial court also concluded that the plaintiff alumni donors also lack standing as contributors of unrestricted charitable gifts to their alma mater and nothing about the fact that they are graduates of the divinity school gives them standing. We agree with that conclusion as well. See id.

 

With regard to the third group of plaintiffs, the students, the trial court determined that they also lack standing. We agree with the trial court and hold that, absent special injury to a student or his or her fundamental rights, students do not have standing to challenge the manner in which the administration manages an institution of higher education. See Trustees of Dartmouth College v. Woodward, 17 U.S. 518, 641, 4 L.Ed. 629 (1919), Miller v. Alderhold, 228 Ga. 65, 184 S.E.2d 172 (1971). The plaintiff students lack standing because they alleged no injuries to themselves or to any of their fundamental rights, collectively or individually.

 

We hold, therefore, that the trial court properly concluded that, although the plaintiffs are sincere in their efforts to maintain the divinity school as a leader in theological education and preparation for the Christian ministry and they acted in good faith based on motives that are beyond question, the plaintiffs, as a matter of law, lack standing to adjudicate the equitable remedies they seek.

 

The judgment is affirmed.

 

Hatdt v. Vitae Foundation, 302 S.W.3d 133

 

KAREN KING MITCHELL, Judge.

 

Edwin Hardt and Karl Hardt (“the Hardts”) appeal from the circuit court’s judgment dismissing for lack of standing their petition to enforce their charitable gift and the conditions thereon to the Vitae Foundation, Inc. (“Vitae”). We affirm.

 

Factual and Procedural Background

 

Appellants Edwin Hardt and Karl Hardt are executors of the estate of Selma J. Hartke. Pursuant to Ms. Hartke’s will, they were given discretion to distribute the remainder of her estate to charitable organizations of their choosing. The Hardts determined to use a large portion of the estate to support the pro-life cause. In January 2001, the Hardts requested a meeting with Vitae, a non-profit charitable corporation describing itself as an “advertising campaign for life … [that] research[es], produce[s] and purchase [s] airtime in an effort to encourage a greater respect for human life, restore traditional values in our American culture, and reduce the number of abortions by using mass media education.” The Hardts requested that Vitae submit a proposal for a possible grant.

 

In March 2001, the Hardts met with Sandra Faucher, Vitae’s then-National Project Director, and Vitae’s President Carl Landwehr. Vitae presented a grant proposal to the Hardts at that meeting, which focused on ten of the top twenty-five media markets in the United States. The proposal stated that Vitae planned to air media campaigns in all twenty-five media markets by 2003 but that Vitae lacked the funding to effectuate this goal in the ten markets contained in the proposal. Vitae stated that airing media campaigns in all of the top twenty-five markets was vitally important because television advertising was the most effective way of reaching women most vulnerable to abortions. The proposal set out a dollar figure for funds needed in each of the ten markets in order to fulfill Vitae’s goals of airing media campaigns there. To illustrate why the Hardts’ gift was needed, the proposal also contained a brief description of each market’s importance, the type of broadcast to be used, the relative cost of broadcasting there, and the current status of local financial support.

 

Ms. Faucher suggested at the March 2001 meeting that any gift from the Hardts be used as a “matching gift,” to be spent in equal proportions to funds raised by Vitae in each of the ten markets. By utilizing this 50/50 matching concept, the grant would entice other donations in the various markets to ensure a lasting donor base for future media campaigns.

 

On March 9, 2001, following the meeting and proposal, the Hardts granted to Vitae $4,242,000 (“2001 gift”), the total amount identified in the proposal as needed to air media campaigns to the ten specified markets. A letter of intent accompanied the grant to Vitae, which stated the grant was given:

 

to permit the development of Florida, Oregon, Ohio, Maryland, Texas, Arizona, and Washington and Generation Y in San Francisco and Los Angeles as set forth in the proposal prepared for Ed Hardt dated March 2001. It is their understanding that the Foundation will use these funds as a challenge gift so that the funds will not be fully consumed in the initial media campaign but will be the basis for establishing an ongoing presence in these markets.

 

On March 12, 2001, receipt of the gift was acknowledged and the letter of intent was signed by Landwehr as “agree[ing] to the terms and conditions of the gift.”

 

In November of 2002, the Hardts granted an additional $4,000,000 from the estate to Vitae (“2002 gift”). Of this gift, $3,000,000 was to be used as matching funds for media campaigns in markets of Vitae’s choosing. The additional $1,000,000 was to be used by Vitae for the continued development of a website aimed at teens without mention of matching funds. This additional $1,000,000 is not at issue in this suit.

 

In August of 2003, Ms. Faucher contacted the Hardts’ counsel and informed him that some portions of the Hardts’ grant to Vitae were not being used in accordance with the conditions placed on the gifts but, instead, were being expended for administrative expenses, including the hiring of significant new staff members, and were being spent without the receipt of matching funds. She also told the Hardts’ counsel that Vitae’s promised expansion of media campaigns in new markets was not occurring.

 

On September 8, 2003, the Hardts requested an accounting from Vitae with respect to both gifts. On September 26, 2003, Landwehr sent a letter to the Hardts indicating that subsequent to their gifts, Vitae had adopted a new development strategy. The Hardts later learned that little money was being used for media campaigns at all.

 

On January 13, 2004, Landwehr sent a letter to the Hardts describing a “radically different” development strategy that he had implemented subsequent to the Hardts’ gifts. The new strategy “scaled back” Vitae’s plans to enter additional media markets and, instead, focused on building relationships with “high level influential leaders” in the various markets and building an “operational support team” to assist with new fundraising.

 

The Hardts claim that the last accounting provided to them by Vitae, dated June 30, 2005, evidences extensive misuse of the 2001 gift as:

 

(a) nearly half of the funds expended have been spent on administrative expenses, in fact, in multiple markets no media expenditures have been made whatsoever,

 

(b) the gift has been spent in the absence of the receipt of matching funds, and (c) funds have been spent in markets not part of the terms of the 2001 gift.

 

The Hardts also claim that they have not received sufficient information from Vitae to ascertain whether Vitae has fully complied with its restrictions in regard to the 2002 gift.

 

On August 6, 2008, the Hardts filed a petition in the Cole County Circuit Court seeking: (a) a detailed accounting of both the 2001 and 2002 gifts, (b) the restoration of any part of either gift spent in contravention of conditions placed on the gifts, (c) an injunction preventing any future expenditure of funds from either gift in any manner inconsistent with the applicable conditions, or (d) in the alternative, the transfer of the 2001 gift to another charitable organization of the Hardts’ choosing.

 

On September 22, 2008, Vitae filed a motion to dismiss the Hardts’ petition. The motion was heard by the trial court on November 25, 2008. On December 5, 2008, the trial court granted the motion to dismiss and held that the Hardts lacked standing to bring their claims.

 

Standard of Review

 

When reviewing the trial court’s granting of a motion to dismiss, “we engage in an essentially de novo review of an issue of law.” In re Swearingen, 42 S.W.3d 741, 745 (Mo. App. W.D. 2001) (internal quotation marks omitted). We assume all of the facts alleged in the plaintiffs’ petition are true. Id. However, “it is not enough that the plaintiff alleges a cause of action existing in favor of someone; he must show that it exists in favor of himself, and that it accrued to him in the capacity in which he sues.” Voelker v. Saint Louis Mercantile Library Ass’n, 359 S.W.2d 689, 693 (Mo. 1962) (internal quotation marks omitted).

 

Legal Analysis

 

At common law, only the Attorney General had standing to enforce the terms of a charitable gift. Id. at 695. This rule applied to gifts both to charitable trusts and charitable corporations and was made primarily to prevent potential beneficiaries without a “special interest” in the gift from “vex [ing]” public charities with “frequent suits, possibly based on an inadequate investigation.” Id. Since the Attorney General represents the public at large, he can enforce the terms of the charitable donation on behalf of all of the beneficiaries, which for public charities means the general public.

 

Donors were also prevented from enforcing their gifts in court, because non-trustee donors retained no interest in the gift, “except the sentimental one that every person who contributed” to the charity would be presumed to have. Id. at 694. Accordingly, the donor was left with no ability to make sure the charitable organization used the gift according to the gift’s terms and conditions.

 

An exception to this rule existed, however, when the donor specifically made the charitable gift subject to a condition subsequent to the donation. In these cases, if the charitable trust or charitable corporation failed to perform the specified act, the gift would revert back to the donor or to a designated third party. L.B. Research & Educ. Found v. UCLA Found, 130 Cal.App. 4th 171, 29 Cal.Rptr.3d 710, 713 (2005). The donor of such a gift had standing to enforce the conditions placed on the gift because it retained an interest in the property. Id. at 714. The parties agree that this exception does not apply in this case.

 

Recently, there has been a trend in the law to give donors more control over the enforcement of the terms of their charitable gifts. In 2005, Missouri adopted the Uniform Trust Code (“MUTC”). This law specifically granted settlors of charitable trusts the ability to “maintain a proceeding to enforce the trust.” § 456.4-403.3 RSMo. The law was also made retroactive to apply to trusts created before its enactment. 456.11-1106 RSMo The law, on its face, clearly applies only to trusts.

 

The Hardts do not claim that their gift was made in trust, constructive or otherwise. They simply contend that the MUTC also applies to gifts made, absent a trust, to charitable corporations. To support this contention, they cite Voelker, a case from 1962. In Voelker, the court specifically held that only the Attorney General had standing to sue but did remark that “many of the principles applicable to charitable trusts are applicable to charitable corporations.” 359 S.W.2d at 694. (internal quotation marks omitted).

 

The Hardts argue that because common law charitable trust principles have often applied to charitable corporations, newly enacted statutes addressing only charitable trusts must also apply to charitable corporations. The extension of common law charitable trust principles to gifts to charitable corporations is not enough to authorize this court’s extension of the MUTC, a statutory provision that on its face applies only to charitable trusts, to gifts made outright to charitable corporations.

 

Where the language of a statute is clear and unambiguous, there is no room for construction. In re Brams Trust #2 v. Haydon, 266 S.W.3d 307, 312 (Mo. App. W.D. 2008). If a term is defined within a statute, a court must give effect to the legislature’s definition. Jones v. Dir. of Revenue, 832 S.W.2d 516, 517 (Mo. Banc. 1992). Not only does the MUTC grant only the settlor of a charitable trust the right to maintain an action to enforce conditions of a trust, it also defines “charitable trust” and “settlor.” A “charitable trust” is “a trust, or portion of a trust, created for a charitable purpose,” and a “settlor” is “a person, including a testator, who creates, or contributes property to, a trust.” See § 456.1-103 RSMo. As such, the MUTC is limited by its unambiguous terms to charitable trusts, and this court lacks the authority to apply common law precedent to construe the legislation in a manner that is inconsistent with the express language of the MUTC.

 

Moreover, just this year, Missouri adopted the Uniform Prudent Management of Institutional Funds Act (“UPMIFA”), which expressly applies to both charitable trusts and nonprofit corporations. This law grants charitable organizations more discretion than they may have had under the common law to make prudent investment decisions regarding charitable funds and endowments. While the UPMIFA stresses that charitable fund managers give primary consideration to the donor’s intent as expressed in the gift instrument, it does not expressly grant the donor standing to enforce this intent as the MUTC does in the case of charitable trusts. On the contrary, the prefatory note explicitly acknowledges that “the [A]ttorney [G]eneral continues to be the protector both of the donor’s intent and of the public’s interest in charitable funds.” National Conference of Commissioners on Uniform State Laws, Preferatory Note, Uniform Prudent Management of Institutional Funds Act, at 4 (2006) (emphasis added). The UPMIFA is retroactive and does, therefore, apply to the Hardts’ gifts. Thus, the two statutory schemes are inconsistent with respect to the enforcement of donor intent. A comment to the UPMIFA specifically acknowledges this possibility, stating, “[t]rust precedents have routinely been found to be helpful but not binding authority in corporate cases.” In fact, the drafters of the UPMIFA reportedly considered an amendment granting standing to donors, and yet the amendment is absent from the final version adopted by the drafting committee. See Marion R. Freemont–Smith, The Search for Greater Accountability of Nonprofit Organizations: Recent Legal Development and Proposals for Change, 76 Fordham L.Rev. 609, 621-22 (2007). For these reasons we find no statutory authority granting standing to the Hardts to enforce the restrictions of their gift.

 

The Hardts’ second argument is that even if there is no statutory authority giving them standing to sue, Missouri should follow New York, which recently expanded the common law to allow donors to sue to enforce the terms of charitable gifts. In Smithers v. St. Luke’s-Roosevelt Hospital Center, 281 A.D.2d 127, 123 N.Y.S2d 426, 427 (N.Y. App. Div. 2001), a man made a charitable gift to a hospital over the span of many years. His gift was subject to many restrictions on how the money could be spent, and the hospital expressly agreed to his restrictions. Id. at 428. The donor kept a close watch on the hospital’s actions, withholding future installments of the gift until he was satisfied that the hospital was complying with his wishes. Id. at 427-28.

 

Years after the gift was complete, the donor passed away. His widow became concerned that the hospital was not using the charitable gift pursuant to the restrictions. She notified the Attorney General, who became involved with the enforcement of the restrictions. Id. at 429. Not satisfied with the vigilance of the Attorney General, the widow sued to enforce the restrictions. Id. at 430-31. The court noted that New York statutes rested standing to enforce restrictions with the Attorney General. This was true for both charitable trusts and absolute gifts. Id. However, the court found that the common law granted the donor standing as well, stating, “[t]he donor of a charitable gift is in a better position than the Attorney General to be vigilant and, if he or she is so inclined, to enforce his or her own intent.” Id. at 434. There was a vigorous dissent, which argued that the majority impermissibly expanded the common law. Id. at 440.

 

Arguing that “public policy” favors granting donors standing to enforce restrictions on charitable gifts, the Hardts urge this court to follow New York’s example. They claim that the donor’s interest is distinct from that of the Attorney General and hint that the Attorney General might not be vigilant or might even have a conflict of interest in enforcing the restrictions of the gift. This argument is not persuasive. In this case, unlike in Smithers, there is no indication in the record that the Attorney General was even notified of Vitae’s failure to comply with the conditions. The Hardts apparently did not attempt to involve the Attorney General in the matter, taking it directly to court based upon their own interests. While it is conceivable that there may be times when the Attorney General does not sufficiently represent a donor’s interest, it has not been shown to be the case here, and we find no reason to expand the common law to give standing to the Hardts. Indeed, in light of the legislature’s passage of the UPMIFA, it would not be appropriate for us to do so.

 

Finally, the Hardts claim that the trial court erred in dismissing their action because the cy pres doctrine could be used to transfer their gift to another charity that will act consistent with the conditions they placed on the gift. The trial court’s order stated that “Missouri law is clear that the cy pres doctrine applies only to trusts.” This is a misstatement of Missouri law. Obermeyer plainly states, “[w]hile acknowledging the historical limitation of the cy pres doctrine to trusts, the doctrine is appropriate in certain cases involving gifts to charitable corporations.” 140 S.W.3d at 23. The Obermeyer court then goes on to apply the doctrine to facilitate the completion of a charitable gift. Id. at 24-27.

 

Despite the trial court’s misreading of Obermeyer we do not find the doctrine of cy pres applicable to this case. Cy pres “is based on the concern of equity to protect and preserve charitable bequests.” Id. at 22. Cy pres means “as near as possible” to the intent of the donor and is used to prevent, if possible, charitable gifts from failing. Id. at 23. The Obermeyer case is typical of those to which cy pres applies. In that case, a donor left a portion of his estate to his nieces and nephews for the duration of their lives, with the residue to go to a particular fund at the dental school of Washington University. Id. at 20. By the time the nieces and nephews were all deceased, neither the fund nor the dental school was in existence. Id. The court found, looking to both the gift instrument and extrinsic evidence, that the donor had the general donative intent to give the money to Washington University to be used for the support of dental education and so allowed the gift to be completed to the University.

 

This case is nothing like Obermeyer or any other case the Hardts cite using or considering the cy pres doctrine. Here, the gift was completed. The donee did not cease to exist. There was not a substantial separation of time between the granting of the gift and its completion. The Hardts simply feel that Vitae is not using the gift pursuant to the restrictions imposed when the gift was given. Accordingly, cy pres is not applicable. Furthermore, if cy pres were appropriate, the Hardts would still face their standing challenge.

 

Assuming the Hardts’ gift to Vitae is subject to legitimate, enforceable restrictions and that Vitae is not using the gift appropriately pursuant to those restrictions, the Hardts’ course of action should be to notify the Attorney General and to ask him to enforce the restrictions. Therefore, and for all of the above reasons, we affirm the judgment of the trial court.

 

8.2 Beneficiary Standing

 

 

Warren v. Board of Regents of the University System of Georgia, 544 S.E. 2d 190

 

MILLER, Judge.

 

Plaintiff-appellants Carl S. Warren and Earl Davis contributed money to a charitable trust establishing the Herbert E. Miller Chair in Financial Accounting, an endowed chair in the Terry College of Business at the University of Georgia. They subsequently sued the Board of Regents of the University System of Georgia, the University of Georgia Foundation, and Russell Barefield as the Director of the J.M. Tull School of Accounting at the University of Georgia, alleging a breach of fiduciary duty under the terms of the trust. In essence, plaintiffs claimed the Miller Chair was harmed when Barefield, allegedly ignoring both appointment criteria under the trust and university hiring procedures, named an unqualified, non-certified Public Accountant personal friend as the first holder of the Miller Chair in Financial Accounting and caused more than $135,000 to be improperly paid to that holder between **192 1992 until his resignation in 1996. Plaintiffs prayed for an accounting, the return to the trust of all money paid to the chairholder, and the disqualification of Barefield as administrator or trustee.

 

Defendants admitted the chronology while denying the material allegations regarding breach of fiduciary duty and immediately moved to dismiss the complaint. The trial court granted these collective motions, concluding that standing to enforce the terms of the charitable Miller Trust is granted exclusively to the Attorney General under OCGA § 53-12-115. The trial court further determined that there was no just reason for delay and made the dismissal final under OCGA § 9-11-54(b).

 

Plaintiffs appealed directly to the Supreme Court of Georgia, which transferred the case to the Court of Appeals. They contend dismissal was erroneous because they have a special interest that confers standing to enforce the trust and because the Attorney General ought to be disqualified. We affirm the dismissal due to lack of standing.

 

1. Plaintiffs argue that the Attorney General is not the only entity authorized to bring suit to enforce the terms of a charitable trust where the plaintiffs have a special interest.

 

It is undisputed that the Miller Trust is a charitable trust, in that it promotes human civilization through the advancement of education by paying a salary supplement to the holder of the endowed chair. Since 1952, Georgia law has provided,

 

[i]n all cases in which the rights of beneficiaries under a charitable trust are involved, the Attorney General … shall represent the interests of the beneficiaries and the interests of this state as parens patriae in all legal matters pertaining to the administration and disposition of such trust.

 

Scott’s treatise on trusts explains:

 

It is frequently said in the cases that the Attorney General alone has [the] power to maintain suits for the enforcement of charitable trusts. This, however, is not strictly true. It is clear, for example, that where there are several trustees, one of them may maintain an action against the others to enforce the trust or to compel the redress of a breach of trust.

 

In such a case, or where suit is brought by others to invalidate a charitable trust, the Attorney General is a necessary party. The language of OCGA § 53-12-115 does not address “special interests” and does not forbid co-trustees from bringing suit to enforce the charitable trust. Nor does that Code section expressly make the Attorney General (or district attorney) the sole or exclusive representative of the beneficiaries. Its mandatory language clearly makes that officer the primary or presumptive representative and so a necessary party. We note that the Restatement provides:

 

A suit can be maintained for the enforcement of the charitable trust by the Attorney**193 General or other public officer, or by a co-trustee, or by a person who has a special interest in the enforcement of the charitable trust, but not by persons who have no special interest or by the settlor or his heirs, personal representatives or next of kin.

 

The Restatement is consistent with Georgia law allowing certain individuals who have a special interest in a charitable trust to maintain an action to enforce its provisions. Since the General Assembly is presumed to enact legislation with full knowledge of the existing condition of the law, including decisions by the courts, we conclude that the 1952 act as amended does not make the Attorney General (or district attorney) the exclusive entity authorized to initiate a suit to enforce a charitable trust, where individuals can demonstrate a special interest.

 

2. Nevertheless, we conclude that plaintiffs, either as contributors to the trust or as faculty members who might be eligible to be named to the Miller Chair, fail to demonstrate that special interest.

 

The rule is settled that an individual member of the public has no right, as such, to maintain a suit to enforce or administer a benevolent or charitable trust. While a person having a special interest is sometimes permitted to maintain a suit to enforce a charitable trust, the mere possibility that one may be a beneficiary of a charitable trust does not give him standing to maintain a suit to enforce the trust. Thus, those who can enjoy the status of beneficiaries only when selected by the trustees are generally held to have no right to initiate a suit for the enforcement of a charitable trust. The reason is that if any third person were permitted to sue as a matter of right it would … subject the charity to harassing litigation.

 

Similarly, the comments to the Restatement confirm that “[t]he mere fact that a person is a possible beneficiary is not sufficient to entitle him to maintain a suit for the enforcement of a charitable trust.” To authorize an individual to enforce a charitable trust in Georgia, the plaintiff must have some pecuniary interest in it or show that she is a beneficiary or else show in some way she may avail herself of its educational advantages.

 

A charitable trust for the promotion of education may provide that particular persons shall be entitled to a preference to benefits under the trust, in which case any such person can maintain an enforcement suit. But the selection criteria of the trust agreement in this case do not identify either plaintiff, by name, position, or association, as a member of a class of potential beneficiaries entitled to a preference. Indeed, the trust specifies that the “first chairholder will be a new appointee to the University of Georgia faculty,” thus excluding a current or former faculty member. Plaintiffs have no standing to enforce this charitable trust by virtue of their positions as faculty members arguably eligible to be selected by Barefield to hold the Miller Chair.

 

3. A suit for the enforcement of a charitable trust cannot be maintained by the settlor or his heirs or personal representative as such. Thus, the fact that they contributed money to the trust does not confer upon plaintiffs any “special interest” in the enforcement of the trust that the Attorney General cannot adequately represent. The trial court did not err in failing to rule that plaintiffs had standing on these bases.

 

4. The second enumeration contends the Attorney General should be disqualified as the representative of the beneficiaries because he also represents the Board of Regents. In our view, this contention is without merit.

 

Under the Disciplinary Standards of the State Bar of Georgia, the term “client” does not include a public agency when represented by a full-time public official, such as the Attorney General. Nothing in the Code of Professional Responsibility prohibits a full-time public lawyer, representing this State or its agencies, from taking a position adverse to the State, its agencies or officials, when such action is authorized or required by the Constitution or statutes of this State. Moreover, the remedy for a conflict of interest is to involve the district attorney or appoint a Special Assistant Attorney General. Such conflict certainly would not mandate that persons with no “special interest” (such as plaintiffs here) be granted standing to enforce a charitable trust.

 

Judgment affirmed.

 

Note-Beneficiaries With Special Interests

 

A beneficiary who has a special interest has standing to sue to enforce the provisions of a charitable trust. That person is required to demonstrate that he is entitled to receive a benefit under the trust that is not available to the general public or to an average beneficiary.

 

Problems

 

In which of the following situations might a beneficiary be deemed to have a special interest in the trust?

 

a). Garlock left money in trust to build a dental school at a local university. The university took the money and constructed the dental school. Ten years later, when Joe was in his second year at the dental school, the university announced that it was closing the dental school and using the money to open up a nursing school. Does Joe have standing to sue the university on behalf of the trust?

 

b). Thelma left money in trust to build a charitable home for low-income senior citizens. The facility was built and a board of trustee was created to operate it. Twenty-years later, the Board decided to relocate the home to a new neighborhood. Bertha, a resident of the home, was upset about the proposed relocation because it would take her far away from her family, her doctor and her church. Does Bertha have standing to sue the Board on behalf of the trust?

 

c). Warren left money in trust to construct a new building for his church. The church took the money, but instead of erecting a new building the board decided to use the money to renovate the old building. Claire, a member of the church, suspected that the pastor and the board were misappropriating the trust money. Does Claire have standing to sue the Board on behalf of the trust?

 

e). Gilbert left money in trust to provide scholarships for law students. The dean of the law school decided to use the money for faculty writing grants instead of for scholarships. Clifford, a scholarship recipient, cannot afford to attend law school without the scholarship. Does Clifford have standing to sue the Board on behalf of the trust?


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