dissenting.
I agree with Division 1 of the majority opinion. However, I do not agree with the reasoning of Division 2, and respectfully dissent to the reversal of the trial court’s judgment.
The doctrine of cy pres is codified at OCGA § 53-12-113, which provides that “(i)f a valid charitable bequest, trust, or gift cannot be executed in the exact manner provided by the testator, settlor, or donor, the superior court will exercise equitable powers in such a way as will as nearly as possible effectuate the intention of the testator, settlor, or donor.”
Baker v. Merrill Lynch Trust Co., 286 Ga. App. 767, 770 (650 SE2d 296) (2007).
As a general rule, the doctrine of cy pres is applied in cases (1) where there is the presence of an otherwise valid *636charitable grant or trust; that is, one that has charity as its purpose and sufficiently offers benefits to an indefinite public-, (2) where the specific intention of the settlor may not be legally or practicably carried into effect-, and (3) where there is exhibited a general charitable intent on the part of the settlor. [Cits.] (Emphasis supplied.)
Trammell v. Elliott, 230 Ga. 841, 846 (5) (199 SE2d 194) (1973).
In Division 2 of its opinion, the majority concludes that the cy pres doctrine does not apply to this case. That conclusion is based on a misinterpretation of the phrase “valid charitable bequest, trust or gift.” The majority misconstrues this phrase as requiring a legal charitable bequest, stating,
as mentioned in Division 1, the manner in which [the decedent] attempted to make such a donation was invalid as a matter of law. . . . Indeed, the trial court’s use of cy pres in a manner that would effectuate a payment that expressly violates the law turns the doctrine of cy pres on its head. (Maj. Op., p. 634)
However, as explained by Trammell v. Elliott, supra, a valid charitable bequest is not a legal bequest, but is one that has charity as its purpose and benefits the public. Indeed, as expressly recognized by the second Trammell factor, the intended bequest may very well be one that cannot legally be carried into effect. Thus, contrary to the majority’s rationale, the fact that a charitable gift cannot be legally carried out does not render the gift invalid, and instead is a factor to be considered in determining the applicability of the cy pres doctrine.
“In determining at the outset whether there is exhibited a valid charitable purpose, the court is to look to [OCGA § 53-12-110] wherein are listed the legitimate subjects of charity in Georgia.” Trammell v. Elliott, supra. Those charitable subjects include the relief of poverty, the advancement of education, the advancement of of ethics and religion, and the advancement of health. OCGA § 53-12-110 (l)-(4). In this case, the decedent’s clear intent was to donate various financial instruments to United Jewish Appeal, which is now known as United Jewish Communities, Inc. Moreover, evidence presented at trial shows that United Jewish Communities is a national charity which provides humanitarian relief, including food, medicine and education, to the young, elderly, sick, poor, disabled and disadvantaged. In fact, at trial, counsel for the Tuvims expressly stipulated that United Jewish Communities is a charity which offers benefits to an indefinite public.
*637Decided June 15, 2009 — RECONSIDERATION DENIED JUNE 30, 2009. Roger C. Wilson, for appellants. Stites & Harbison, James T. White, Bailey Davis, C. Lee Davis, Gaslowitz Frankel, Adam R. Gaslowitz, Craig M. Frankel, LeAnne M. Gilbert, Millie Baumbusch, Parker, Hudson, Rainer & Dobbs, Nancy H. Baughan, for appellees.Under these circumstances, it is apparent that the decedent made a valid charitable donation. The fact that it cannot legally be carried into effect for the reasons explained by Division 1 of the majority opinion does not turn the cy pres doctrine “on its head,” but is precisely why the doctrine should be applied in this case. “The purpose of the doctrine of cy pres has always been to effectuate, rather than to frustrate, the [donor’s] general charitable intent. [Cit.]” Crisp Area YMCA v. NationsBank, 272 Ga. 182, 183 (526 SE2d 63) (2000). Because the trial court properly exercised its equitable powers in order to effectuate the decedent’s valid charitable intent, its judgment should be affirmed.
I am authorized to state that Justice Benham joins in this dissent.