Maryland’s statutory cy pres states as follows:
(a) If a trust for charity is or becomes illegal, or impossible or impracticable of enforcement or if a devise or bequest for charity, at the time it was intended to become effective, is illegal, or impossible or impracticable of enforcement, and if the settler or testator manifested a general intention to devote the property to charity, a court of equity, on application of any trustee, or any interested person, or the Attorney General of the state, may order an administration of the trust, devise or bequest as nearly as possible to fulfill the generally charitable intention of the settler or testator.
(b) This section shall be interpreted and construed to effectuate its general purpose to make uniform the law of those states which enacted it.
(c) This section may be cited as the Maryland Uniform Charitable Trusts Administration Act.
Md. Code Ann., Est. & Trusts § 14-302. This provision generally follows common law cy pres rules. Note that the cy pres doctrine does not trigger under the statute if the instrument includes a gift over clause. If there is a gift over in the instrument, then the impossible charitable bequest yields a secondary devisee. The absence of a gift over indicates a general charitable intent which triggers cy pres. Miller, 224 Md. at 389-90. In Home for Incurables of Balt. City v. Univ. of Md. Med. System Corp., 369 Md. 67, 797 A.2d 746 (2002), the court addressed a will which contained a gift over and an illegal provision in the primary charitable bequest. The will provided for the residue to go to the Keswick Home in order to construct a new building “for white patients who need physical rehabilitation.” Id. at 69. The will provided further that if the bequest was not acceptable to the Keswick Home then the bequest would go to University of Maryland Hospital to be used for physical rehabilitation. The racially discriminatory condition is (obviously) illegal and therefore Keswick Home could not comply with that condition. The University of Maryland Hospital claimed that it was the proper recipient of the bequest under the gift over provision because cy pres was inapplicable to reform the improper direction attached to the gift to Keswick Home. Under the University of Maryland Hospital’s theory, the cy pres statute would only direct reformation of the Keswick bequest in the absence of the gift over. The Court of Appeals refused to accept that interpretation. It instead excised the illegal condition from the bequest (effectively treating the condition as a nullity) and permitted Keswick to receive the gift:
“[N]othing in the language of the cy pres statute mandates a rule that a court cannot excise an illegal condition attached to a charitable bequest whenever the will contains an express gift over or a revisionary clause. Furthermore, where the gift over is also to a charity, it would seem that the testator’s general charitable intent is confirmed…
The Maryland cases dealing with cy pres doctrine have not involved illegal bequests. Rather, they have involved charitable bequests which could not be carried out for other reasons. Even in this situation, however, where the testator’s intent is not contrary to law and public policy, the Maryland cases have not adopted the absolute rule contended for by University Hospital. Instead, the presence or absence of a gift-over is merely one factor among many in determining whether the testator had a general charitable intent and whether the cy pres doctrine should be applied to save the charitable bequest at issue…
We continue to adhere to the holding in Fleishman v. Bregel, supra, 174 Md. 87, 197A 593, that where a condition attached to a bequest is clearly illegal and violates a strong public policy, the illegal portion of the condition should be excised and the bequest enforced without regard for the illegal condition. Moreover, this principle is consistent with the purpose of the cy pres statute, and, therefore, is fully applicable to illegal conditions attached to charitable bequests….
Consequently the provisions of the will should be administered as if the word ‘white’ was not contained in the bequest to the Keswick Home.”
Id. at 83-85.