
    In the Matter of the Estate of Charles H. Hastings, Deceased.
    Surrogate’s Court, New York County,
    June 20, 1961.
    
      Mullane >& Moukad for Hastings Foundation, petitioner. Vaughan & Lyons for Irving Trust Company, as trustee, respondent. Louis J. Lefkowits, Attorney-General (P. Hodges Combier of counsel), for charitable beneficiaries, respondent.
   Joseph A. Cox, S.

The petitioner in this proceeding is the Hastings Foundation, a California charitable corporation organized by the trustees pursuant to the provisions of the decedent’s will for the following purposes: (a) For the study, prevention, treatment and cure of tuberculosis and other diseases; (b) For the erection, equipment, maintenance and operation of a sanatorium to be known as The Charles Cook Hastings Home * * * to be conducted, maintained and operated on a strictly charitable basis.”

Following the testator’s specific directions, the Foundation acquired and equipped land and buildings in Altadena, California where, since 1945, it has been carrying on the stated charitable purposes for which it was created.

During the last decade the treatment and cure of tuberculosis has been revolutionized by the discovery and use of antibiotic drugs. The need for hospitalization in sanatoria for long periods of time has been virtually eliminated and this once dread disease which claimed so many lives is, to a great degree, under medical control. However, despite the dramatic decline both in the incidence of, and the death rate from tuberculosis, the continued need for research and study for the prevention and cure of tuberculosis and other allied pulmonary diseases is evident.

The purpose of this proceeding is to determine whether under the terms of the will the corporation may carry out the charitable purposes for which it was formed by entering into a proposed contract with the University of Southern California or, in the alternative, that this court exercise its cy pres powers to permit it to enter into the said contract.

In passing, it is interesting to note that the testator directed that the sanatorium ‘ be conducted generally along the lines of the Trudeau Sanatorium at Essex County, New York.” Trudeau Sanatorium closed its doors in 1954 due to the great decline in patients suffering from tuberculosis. Since that time our courts have exercised their cy pres powers on several occasions to save charitable gifts to the Trudeau Sanatorium to enable continued research by the Trudeau Laboratory in its never ending search for new methods and new drugs to effect the cure of tuberculosis and allied diseases. (Matter of Kittinger, 6 Misc 2d 125 ; Matter of Lee, 3 Misc 2d 1072 ; see, also, Matter of Bowne, 11 Misc 2d 597 ; Matter of Scott, 1 Misc 2d 206 ; Matter of Scott, 5 Misc 2d 690.)

The lengthy hearing held before this court has established beyond doubt that the proposed contract with the University of Southern California will effectively carry out the charitable purposes for which the trust was created. Sufficient provisions have been made for the continued identity of the charitable donor and it is the opinion of this court that the facilities available for research in that great University will enhance and enlarge the value of the charitable gift made by the testator. Although the provisions of the will give wide latitude to the directors of the charitable Foundation, no authority for the proposed contract can be found therein. The court, therefore, in the exercise of its cy pres powers grants authority to the Board of Directors of the Hastings Foundation to enter into the proposed contract with the University of Southern California.

The Hastings Foundation is a California charitable corporation formed pursuant to the laws of California and under the supervision and control of the Attorney-General of California. The decedent in his will made a specific gift to the Hastings Foundation of so much of the capital required to acquire and equip the lands and buildings necessary to carry on the work of the Charles Cook Hastings Home. Under these circumstances, this court is of the opinion that the proceeds of the sale of the present Charles Cook Hastings Home should be received by the Hastings Foundation and invested and administered by it under the appropriate laws of California. There is ample evidence in the will to indicate that this was the intent of the testator.

Submit decree on notice or consent construing the will accordingly.  