Cy-Pres and the 13th Amendment

I have posted before about the equitable remedies available to courts where  a specific gift within a Will fails; in the instance that no provision exists in the Will for dealing with the residue of the estate, that portion of the Will is treated as if it did not exist and would be distributed as if the deceased died “intestate”.

In most jurisdictions where this occurs, the court can step in and establish a scheme known as a cy près scheme by which a failed gift is constituted a valid charitable trust, and is distributed to an alternate charitable beneficiary that is as closely aligned to the deceased’s intentions as possible.

  • Cy-pres is a doctrine which is applied when the strict terms of a will cannot be carried out and is subject to certain conditions;
  • the testator must exhibit in their will a general charitable intention.
  • there must be impracticability in the fulfilment of the charitable intention of the testator.
  • the condition of the gift that causes the impracticability must not be an essential term of the bequest.


Abolition, was the movement seeking to end slavery in the United States; active both before and during the American Civil War.

Francis Jackson, a Real estate developer and Boston City Councillor was born into an abolitionist family that included siblings Edmund, George, Stephen, Lucretia, and politician William Jackson, who was also against slavery.

Jackson sheltered fugitive slaves in Boston and was involved with the trial of Anthony Burns who had escaped from slavery in 1853 and reached Boston. In 1854 Burns was captured under the Fugitive Slave Act of 1850 and tried in court. Bostonians fiercely resisted the Fugitive Slave Act, and the case attracted national publicity. Federal troops were employed to ensure Burns was transported without interference to a ship headed back to Virginia post-trial.

In his will, Jackson established a Trust to assist among other groups abolitionist’s to

“create a public sentiment that will put an end to negro slavery in this country”.

admonishing the State of  Massachusetts:

“Disregarding the self-evident declaration of 1776, repeated in her own constitution of 1780, that ‘all men are born free and equal,’ Massachusetts has since, in the face of those solemn declarations, deliberately entered into a conspiracy with other states, to aid in enslaving millions of innocent persons”

Four years after Francis Jackson’s death Slavery was abolished in the United States through the 13th Amendment. His brother Edmund Jackson led the call to unwind the anti-slavery trust. However,  in Jackson v. Phillips the Court disagreed and ordered that to best fulfil Jackson’s wishes a cy-pres scheme should be established

“to promote the education, support and interests of the freedmen, lately slaves, in those states in which slavery had been so abolished”.


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