Bernard and Jeanne Adler v. Save, N/K/A Save, a Friend to Homeless Animals ( 2013 )


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  •                 NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION
    
                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-0643-10T3
    
    
    BERNARD and JEANNE ADLER,
                                           APPROVED FOR PUBLICATION
         Plaintiffs-Respondents,
                                                August 5, 2013
    v.
                                             APPELLATE DIVISION
    
    SAVE, n/k/a SAVE, A FRIEND
    TO HOMELESS ANIMALS,
    
         Defendant-Appellant.
    ____________________________________
    
             Argued November 16, 2011 - Decided August 5, 2013
    
             Before Judges Fuentes, Harris, and Koblitz.
    
             On appeal from Superior Court of New Jersey,
             Law Division, Mercer County, Docket No.
             L-2611-07.
    
             Sara F. Merin argued the cause for appellant
             (McCarter & English, LLP, attorneys; Gerard G.
             Brew, of counsel and on the briefs; Ms. Merin
             and Carissa L. Rodrigue, on the briefs).
    
             Stuart J. Polkowitz argued the cause for
             respondents (Brach Eichler L.L.C., attorneys;
             Mr. Polkowitz, of counsel and on the brief).
    
             The opinion of the court was delivered by
    
    FUENTES, P.J.A.D.
    
         This appeal requires us to address the enforceability of a
    
    conditional inter vivos gift.    Guided by the facts presented
    
    here, we hold that a charity that solicits and accepts a gift
    from a donor, knowing that the donor's expressed purpose for
    
    making the gift was to fund a particular aspect of the charity's
    
    eleemosynary     mission,     is     bound      to     return     the    gift       when    the
    
    charity unilaterally decides not to honor the donor's originally
    
    expressed purpose.
    
        Absent the donor's consent, the recipient of the gift is
    
    not at liberty to ignore or materially modify the expressed
    
    purpose underlying the donor's decision to give, even if the
    
    conditions     that    existed     at   the       time      of   the     gift       may    have
    
    materially     changed,      making     the       fulfillment           of    the    donor's
    
    condition either impossible or highly impractical.                                  When, as
    
    here,    the   donor   is    alive    and       able   to      prove    the    conditional
    
    nature    of   the    gift   through    his       or     her     testimony      and       other
    
    corroborative evidence, a reviewing court's duty is to enforce
    
    the donor's original intent, by directing the charity to either
    
    fulfill the condition or return the gift.
    
        Here, Judge Thomas W. Sumners, Jr., sitting also as the
    
    trier of fact, came to the same legal conclusion after hearing
    
    the evidence presented by the parties over a two-day period.
    
    The following facts, derived from the evidence presented in this
    
    bench trial, will inform our legal analysis.
    
    
    
    
                                                2                                        A-0643-10T3
                                            I
    
        Defendant SAVE, n/k/a SAVE, A Friend to Homeless Animals
    
    (SAVE),   was   founded   in    1941    as   a    non-profit     animal       shelter
    
    located   in    the   greater    Princeton        area.        Recognized        as     a
    
    charitable      organization     under       26    U.S.C.A.       §      501(c)(3),
    
    defendant's     self-proclaimed        mission     is     to   provide    for         the
    
    rescue,   shelter,      veterinary      care,      and     adoption      of      stray
    
    companion animals in the region.1            Plaintiffs Bernard and Jeanne
    
    Adler shared defendant's concern for the welfare of animals,
    
    especially for larger dogs and older cats.
    
        Bernard Adler is a civil engineer and real estate developer
    
    by profession.        His interest in caring for dogs and cats has
    
    spanned for at least thirty-eight years, the same amount of time
    
    he has been married to his wife, co-plaintiff Jeanne Adler.
    
    Over this timeframe, plaintiffs had three sons and cared for
    
    "numerous dogs and cats."2           Plaintiffs lived in the Princeton
    
    Township area throughout this entire time.
    
        According to Mr. Adler, he and his wife became interested
    
    in SAVE because it was "a no-kill shelter."                     This policy was
    
    1
      The term "region" includes the Borough of Princeton, which was
    established on January 1, 2013, through the consolidation of the
    Borough of Princeton and Princeton Township.
    2
      When asked to estimate the number of animals he and his wife
    had adopted over their thirty-eight years of marriage, Mr. Adler
    responded: "about 30 animals."
    
    
    
                                            3                                     A-0643-10T3
    extremely important to plaintiffs because "a lot of animals are
    
    put into . . . shelters and if they don't get adopted quickly,
    
    then they get euthanized."
    
        At     the    time    of     trial    in       2010,    plaintiffs      had     recently
    
    "rescued"    a    "120-pound       Bernese         Mountain    Dog    and    a     105-pound
    
    Newfoundland, both that wouldn't have been adopted from shelters
    
    because they were too wild."                  The total number of animals they
    
    have had living with them at any one time include three dogs and
    
    four cats; one of their sons also had a Bernese Mountain Dog
    
    that stayed with them "close to half a year."                         The smallest dog
    
    weighed 82 pounds; the heaviest was the then recently rescued
    
    120-pound Bernese Mountain Dog.
    
        Plaintiffs' first involvement with SAVE began in the early
    
    1990s,     when    a     trainer       they        knew    introduced       them     to    the
    
    organization.      At first, their involvement with SAVE was limited
    
    to bringing extra animal food and toys to SAVE's facility and
    
    spending    time       with     wayward    and       feral    cats.      Mr.       Adler    in
    
    particular spent time attempting to humanize feral cats because,
    
    otherwise, there is "little hope" of adoption.                          In addition to
    
    these    personal        acts     of     kindness,         commencing       around        1992,
    
    plaintiffs began making financial donations to SAVE.
    
        Mr. Adler testified that the financial contributions were
    
    relatively small at first.                "It would be anywhere from a couple
    
    
    
    
                                                   4                                    A-0643-10T3
    of   hundred    dollars   to    a    thousand,   fifteen   hundred    dollars."
    
    They also began attending fundraisers, "getting as many things
    
    as [they] could to get involved with, and give [SAVE] extra
    
    donations that way."        Plaintiffs made these financial donations
    
    without specific conditions, expecting only that the funds would
    
    be used "for the general maintenance of the animals.                        To buy
    
    them food, shelter."           Occasionally, plaintiffs would receive a
    
    letter from SAVE informing them that "X number of dollars would
    
    serve to handle X number of operations for dogs that needed it
    
    or required it.       Nothing specific, no."
    
                                             II
    
          Sara Nicolls served as SAVE's Executive Director from May
    
    1999 to 2005.        At the time the SAVE board of trustees hired her,
    
    its main concern was how to address the problems associated with
    
    renovating an antiquated facility that was constructed in the
    
    1940s.         Ms.    Nicolls       testified    that,   despite     the      minor
    
    improvements that had been made over time, the building did not
    
    meet modern housing standards and its internal physical layout
    
    was inconsistent with basic notions of sound animal husbandry.3
    
    
    3
      By way of example, cats and dogs were housed in the same area,
    which tended to increase the stress caused by being placed in a
    shelter.   Animals that were brought to the shelter from the
    street by animal control officials were not properly isolated
    from the general population; this facilitated the spread of
    communicable diseases and made the "street animals'" adjustment
                                                         (continued)
    
    
                                              5                                A-0643-10T3
        Early in Ms. Nicolls's tenure, the board of trustees spent
    
    a great of deal of time discussing the best way to resolve these
    
    problems and remain consistent with the charity's core mission,
    
    because "[t]he property was left in trust with lifetime income
    
    based on the fact that the physical plant would continue to
    
    operate in Princeton and also service the Animal Control of
    
    Princeton Township."
    
        After discussing the expansion of services required and the
    
    limitations     associated    with        operating   within      an      urban
    
    environment, the board retained an architectural firm to design
    
    a new shelter facility.       The architect the board selected had
    
    designed   a   similar   facility    in   Richmond,   Virginia.        As    Ms.
    
    Nicolls explained:
    
                    The reason why that one was chosen was
               because   it   was   essentially  the   same
               situation.   It was an urban setting where
               they had a physical limitation. All of the
               animals -- all of the animal process was
               held indoors and we knew there was a
               possibility, because of the close proximity
               to neighbors and noise from that, that we
               would need to design a building where all of
               the functions for animal welfare would be
               housed inside . . . And [that architect] was
               chosen specifically because they were in a
               similar situation.
    
    
    
    (continued)
    period more difficult.     There were also problems with the
    building's air exchange system, which caused "a huge outbreak"
    of upper respiratory problems in kittens.
    
    
    
                                         6                                 A-0643-10T3
           As approved by the board, the original plans the architect
    
    prepared depicted a large facility, encompassing approximately
    
    35,000 square feet.           The facility would provide separate living
    
    areas    for    cats    and    dogs,    areas   designed   for    isolation      and
    
    rehabilitation, and areas for spaying and neutering, including
    
    an on-site veterinary clinic with x-ray equipment for treatment
    
    and triage of sick and injured animals.                Ms. Nicolls expected
    
    this    would     greatly      reduce     SAVE's   $40,000       annual   medical
    
    expenses, incurred mostly for transporting animals to off-site
    
    facilities for treatment and day-to-day services.                    There were
    
    also accommodations for larger dogs, designed as "dog living
    
    rooms."    These rooms provided "a more natural environment" for
    
    dogs accustomed to a domestic setting.              However, Ms. Nicolls did
    
    not    mention   that    any    special    arrangements    had    been    made    to
    
    provide similar care for older cats.
    
           Another major problem with the old facility, located at
    
    Herrontown Road in Princeton Township, was a lack of space for
    
    administrative staff and community educational services.                         The
    
    proposed facility provided for a second floor designed to hold
    
    classes for school children, conferences, and office space for
    
    administrative staff.            In response to a direct question from
    
    plaintiffs' counsel, Ms. Nicolls confirmed that this was the
    
    
    
    
                                              7                               A-0643-10T3
    "basic plan that was approved by the board before [she] went
    
    into the fundraising campaign."
    
         According to Ms. Nicolls, the capital campaign began by
    
    first asking the board members to "put their money where their
    
    mouth was" by way of matching grants.                       As the president of the
    
    board of trustees, Carol Hildebrandt accepted the challenge with
    
    gusto, by pledging one million dollars, "that she would match
    
    dollar for dollar, [for] every dollar raised."                         The fundraising
    
    campaign next focused on a select group of historically loyal
    
    and generous supporters.           This elite class of donors was invited
    
    to   a   spring     benefit     event,         where      Ms.      Nicolls     personally
    
    solicited    their    support      for     the        proposed       new     facility   at
    
    Herrontown Road.
    
         Plaintiffs      were     among   the          guests    at    this    event.       Ms.
    
    Nicolls testified that plaintiffs approached her and "said that
    
    they were very interested in the project."                         After she explained
    
    all of the various features of the project, she showed them the
    
    proposed    plans    and    gave    them       a    DVD     that    talked     about    the
    
    challenge grants.          Ms. Nicolls testified that plaintiffs, whom
    
    she described as long time "very generous donors," told her that
    
                they had adopted several animals and have a
                couple of large dogs so they were very
                specifically interested in the dog living
                rooms and helping for the large dogs and
                then they have elderly cats and they were
                interested in a cat living room as well.
    
    
    
                                               8                                     A-0643-10T3
    Ms. Nicolls testified as follows in response to questions posed
    
    by plaintiffs' counsel:
    
             Q. Did you show them when you met with them
             where on the proposed plans you had special
             accommodations for large dogs?
    
             A. Correct. We went over the plans in great
             detail, and those are the areas they were
             looking to be interested in.
    
             Q. Okay.      And [Mr. Adler]     asked       you
             questions about the plans?
    
             A. Yes.
    
             Q. And did [Mrs. Adler] ask you questions
             about the plan?
    
             A. Correct.
    
             Q. And you pointed out to them where there
             was a special accommodation made for large
             dogs?
    
             A. Correct.
    
             Q. And how about for cats?       Did    you   go
             through the same process with them?
    
             A. Yes.   As I said, they had adopted their
             cats and they were very interested in that
             particular (indiscernible).
    
             Q. Now, at some point, did the Adlers commit
             to a pledge with regard to the proposal that
             you were showing for the new design at
             Herrontown Road?
    
             A. Yes.   We had the kennels campaign, the
             naming opportunity and those, in particular,
             were the ones that they were interested in.
    
             Q. Which one were they interested in?
    
    
    
                                   9                             A-0643-10T3
                A. The    dog   living    room     and    a   cat      living
                room.
    
                Q. And they were specific about                   why    they
                were making these donations?
    
                A. Yes.
    
                Q. And besides yourself, are you aware of
                anyone at SAVE that the Adlers met with in
                connection with these contributions?
    
                A. I'm sure that they met with Carol
                Hildebrandt that they would begin matching
                dollar for dollar.
    
        As the last witness to testify,4 Ms. Nicolls's testimony
    
    corroborated     plaintiffs'       account    of     events     in    all   material
    
    respects.    According to Mr. Adler, Ms. Nicolls emphasized to him
    
    that the new facility would have "different rooms in it, . . .
    
    for keeping animals that would have more time in the shelter,
    
    larger   dogs,    older     cats    that     don't    get     an     adoption   that
    
    readily."    As soon as Mr. Adler told Ms. Nicolls that he and his
    
    wife were interested in contributing to support the project, she
    
    told him that "there were naming rights to certain things in the
    
    facility."     Although some of the naming rights to certain areas
    
    had already been taken, Ms. Nicolls told him that "she felt that
    
    
    
    
    4
      The trial court permitted plaintiffs to call Ms. Nicolls out of
    order. Therefore, she testified after defendant's one and only
    witness had completed his testimony.
    
    
    
                                           10                                   A-0643-10T3
    [plaintiffs] could still get nam[ing] rights for a large dog and
    
    older cat facility."      (Emphasis added).
    
           Marked   in   evidence   as   a     joint    exhibit   at    trial,   and
    
    included as part of the appellate record, is a document denoted:
    
    "SAVE Expanding the Mission: Capital Campaign Case Statement."
    
    Ms. Nicolls gave a copy of this brochure to Mr. Adler.                       The
    
    document provides a narrative overview of SAVE's history, core
    
    mission, expansion goals that incorporate the latest methods for
    
    the humane treatment of wayward dogs and cats, with the ultimate
    
    goal    being   adoption,   and      the    spatial      arrangement   of    the
    
    facility, including areas designated as a "Dog Rehabilitation/
    
    Holding Area."5
    
           Of   particular   relevance       here,     the   brochure   includes    a
    
    paragraph denoted "SAVE's Request," which reads as follows:
    
                      Support as our public campaign gets
                 underway is vital. In gratitude for a major
                 gift we would be pleased to name the
                 building or a portion of it for the you
                 [sic] or anyone you would choose to honor.
                 A successful campaign will mean life itself
                 to the many strays we have to turn away.
                 Once in our care, they could bring much joy
                 to the new families who would meet them at
                 SAVE. Together we can build a shelter that
    
    5
      The brochure indicates that the facility would include: "A
    quiet, stress-free environment where specially trained staff can
    address individualized animals' needs becomes key to successful
    recovery and future adoption. Plans for this area include prep
    space, large dog and small dog kennels, and areas to accommodate
    litters of puppies, mother dogs and their offspring."
    
    
    
                                          11                               A-0643-10T3
                  truly reflects our mission to protect the
                  health and welfare of homeless animals and
                  strengthen the bonds between humans and
                  companion animals.
    
                  [(Emphasis added).]
    
           This statement is immediately followed by a page listing
    
    the     donation    amount       required    to     receive       naming    rights      to
    
    particular areas or rooms in the new facility.                         For a donation
    
    of one million dollars, the donor would get the honor of having
    
    the building named after himself or herself, or anyone else the
    
    donor chooses.        The amount of the donation decreased relative to
    
    the character of the naming area selected.6
    
           Mr. Adler testified that Ms. Nicolls told him that, for a
    
    gift of $25,000, he and his wife would receive the naming rights
    
    of a particular facility.            Mr. Adler agreed to donate a total of
    
    $50,000.      As he explained, "[t]he purpose was to have rooms for
    
    large    dogs   and      older   cats     that    are    not    easily     adopted    and
    
    specifically       for    the    naming    rights       for    those   rooms   at     that
    
    facility on Herrontown Road."
    
           Mr. Adler conceded that he did not specifically discuss
    
    with    Ms.   Nicolls     what    would     occur   if    the    facility      were   not
    
    
    6
      As the record shows, the president of the SAVE board of
    trustees pledged a one million dollars matching gift, thus
    acquiring the honor of naming the building after herself or
    anyone else she designated. In the interest of clarity, we have
    attached a copy of this document as Appellate Court Appendix I.
    
    
    
                                                12                                  A-0643-10T3
    constructed.   However, Mr. Adler testified that, based on his
    
    business background, he expected the recipient of the donation
    
    to honor, in good faith, the express purpose of his gift.             He
    
    testified as follows:
    
             There was no specific discussion, but I'm in
             business and when you make a donation for a
             specific purpose, specific naming rights in
             this instance for a facility to be built, if
             the facility doesn't get built, you return
             the money.     It's the same thing as in
             buildings that we own.    If a tenant wants
             something done in a building and we agree to
             an amount that it would cost them, they put
             up the money and we do the facility for
             them.   If they don't put up the money, we
             don't do it.    And if they do put up the
             money, we have to produce.     Otherwise, we
             give them their money back.
    
        On December 23, 2002, plaintiffs issued a personal check to
    
    SAVE in the amount of $5000.          The memo of the check simply
    
    stated: "Donation."     A SAVE staff member issued a receipt to
    
    plaintiffs with the caption: "General Donation."         However, under
    
    her signature, the staff person who acknowledged receipt of the
    
    check wrote: "restricted for expansion."
    
        Plaintiffs   issued     another   personal   check    to   SAVE   on
    
    December 30, 2003, in the amount of $10,000; the memo of the
    
    check again merely stated: "Donation."       On December 31, 2003,
    
    plaintiffs issued a third personal check to SAVE in the amount
    
    of $10,000; unlike the other two checks, however, this check did
    
    not have a memo notation.
    
    
    
                                     13                            A-0643-10T3
        Plaintiffs          made    their    final    donation     installment        in    the
    
    form of a gift of shares of stock.                     A receipt from SAVE dated
    
    July 2, 2004, shows that plaintiffs donated "455 shares [of] CBH
    
    stock"; the SAVE representative who attested (but did not sign)
    
    the receipt of the donation noted that the "average" price per
    
    share    of    this     stock   was     $53.13,    resulting    in   a    donation       by
    
    plaintiffs totaling $24,174.15 (where $53.13 per share at 455
    
    shares equals $24,174.15).
    
        On January 20, 2003, Ms. Nicolls wrote to plaintiffs in her
    
    capacity as SAVE Executive Director, acknowledging their "very
    
    generous gift of $5,000 on December 24, 2002 for SAVE's capital
    
    campaign."
    
        By        letter    dated    December        31,   2003,   written      on     SAVE's
    
    stationary,       Ms.    Nicolls      acknowledged       receipt     of   plaintiffs'
    
    $20,0000       donation.         After      thanking      plaintiffs        for      their
    
    generosity and continued commitment to the welfare of animals,
    
    Ms. Nicolls stated that plaintiffs' donation would assist SAVE
    
    "to accomplish a long-held vision for urgently needed capital
    
    expansion      with     enhanced      programs     and   services     for    cats       and
    
    dogs."     Addressing plaintiffs' specific purpose underlying their
    
    donation, Ms. Nicolls wrote:
    
                        I especially appreciate your commitment
                   to the project as we begin the public phase
    
    
    
    
                                                14                                    A-0643-10T3
                  of the campaign.      Enclosed is a naming
                                    [7]
                  opportunity form.     Please return it to us
                  at your convenience.      We are pleased to
                  honor the many pets you share your lives
                  with.    We are especially touched that you
                  want to fund a space for large dogs that may
                  spend more time with us before they are
                  adopted.
    
                  [(Emphasis added).]
    
          On July 22, 2004, again in her capacity as SAVE Executive
    
    Director, Ms. Nicolls thanked the Adlers for their donation of
    
    stock.        Although     she   mentioned      that   "a     new   residence   for
    
    homeless      animals     will   allow   SAVE    to    take    significant   steps
    
    forward to fulfill its mission of serving animals and humans in
    
    the Greater Princeton Area," she did not mention plaintiffs'
    
    specific interest in larger dogs and older cats.
    
          Mrs. Adler's testimony corroborated her husband's account
    
    of   events    in   all    material   respects.        She    described   how   her
    
    upbringing influenced her life-long commitment to philanthropic
    
    activities; in her own words: "My family volunteers, we learned
    
    it from my dad."           Her activities safeguarding the welfare of
    
    animals began early on in her life.                    She described rescuing
    
    injured and malnourished stray dogs and nursing them back to
    
    health.    She also worked in an animal shelter when she lived in
    
    7
      Mr. Adler testified that he and his wife did not discuss in
    great detail the naming form at the time, explaining as follows:
    "Naming wasn't our big thing. It wasn't important yet and they
    told us that we had plenty of time to do that."
    
    
    
                                             15                               A-0643-10T3
    Whitehouse,      an    unincorporated          community       within     Readington
    
    Township.      Mrs. Adler summarized her and Mr. Adler's commitment
    
    to the welfare of animals as an integral part of their lives:
    
    "That's what we do.       That's who we are."
    
        Mrs. Adler testified that the decision to donate $50,000 to
    
    SAVE represented, in historical terms, a significant expansion
    
    of their financial support for the care of animals, especially
    
    large   dogs    and    older   cats.      She    made    this    point        clear   in
    
    response to a question posed by her attorney:
    
                      First of all, we had never given money
                 for that amount and so we were very specific
                 with [Ms. Nicolls] and to say that this is
                 what we would do for the shelter; you know,
                 that this was presented as real opportunity
                 to us because [Ms. Nicolls] knew that our
                 heart was with large dogs and older cats.
    
        According to Mrs. Adler, representatives from SAVE told her
    
    that,   in     recognition      and     appreciation       for        their     $50,000
    
    donation, SAVE would designate two rooms in the new facility,
    
    one specifically designated for the care of large dogs and the
    
    other   exclusively       dedicated      for     the    care     of     older     cats.
    
    Finally, in addition to the satisfaction of having performed a
    
    good deed, they would also have nameplates outside each room
    
    recognizing     them    as     the    individuals      responsible        for     their
    
    creation.
    
    
    
    
                                            16                                     A-0643-10T3
         As     was   the   case    with   her   husband,     Mrs.    Adler     never
    
    discussed with any representative from SAVE what would happen if
    
    SAVE decided not to construct "the type of facility" described
    
    to her and her husband.            In her words: "Maybe I'm a little
    
    Pollyanna8 but I really believed it was going to be built."
    
         In     February    2006,    defendant    announced    to     its     donors,
    
    including     plaintiffs,       that   it    was   merging       with     another
    
    charitable foundation.          As a result, SAVE would not construct
    
    its new shelter at its original Herrontown Road location.                     The
    
    newly formed "merged charity" was transferring all operations
    
    formerly housed at Herrontown Road to a location in Montgomery
    
    Township, where it planned to construct a new animal shelter,
    
    significantly smaller than the facility originally proposed to
    
    be built at Herrontown Road.
    
         This announcement came as a total surprise to plaintiffs.
    
    Mr. Adler testified that he made several unsuccessful attempts
    
    to speak to the executive director and played "telephone tag"
    
    with board of trustee member John Sayer.                Mr. Adler did not
    
    
    8
      "Pollyanna" is the main protagonist in a novel of the same
    name.   It was written by noted American fiction writer Eleanor
    Porter and first published in 1913.      The novel's popularity
    transformed the character's name into a word that describes "a
    person characterized by irrepressible optimism and a tendency to
    find good in everything."     Pollyanna, MIRRIAM-WEBSTER DICTIONARY,
    http://www.merriam-webster.com/dictionary/pollyanna           (last
    visited July 29, 2013).
    
    
    
                                           17                               A-0643-10T3
    suggest, however, that Mr. Sayer or anyone else at SAVE was
    
    intentionally evading his efforts to get more information on the
    
    merger and its implications regarding the construction of the
    
    Herrontown Road shelter.      Mr. Adler explained that the situation
    
    with   SAVE   coincided   with    a   number    of    personal      issues   that
    
    prevented him from being as available as he would have been
    
    otherwise.
    
           Unable to reach a satisfactory resolution, Mr. Adler sent a
    
    letter   to   SAVE   requesting   the      return    of   his   donation.      He
    
    finally met with Mr. Sayer and explained that he wanted the
    
    donation returned "[b]ecause the facility on Herrontown Road was
    
    not being built and the specific purpose of the donations w[as]
    
    for the building of a facility on Herrontown Road for -- with
    
    naming rights for large dogs and older cats."                       Although Mr.
    
    Sayer spoke to him "about things that were being done," Mr.
    
    Adler did not "see anything specific, but it didn't make any
    
    difference.      [Plaintiffs]     were     interested     in    a   facility   on
    
    Herrontown Road."9
    
    
    
    
    9
      On cross-examination, Mr. Adler conceded that he and his wife
    listed the donations they made to SAVE as charitable deductions
    on their itemized tax returns for 2002, 2003, and 2004.       We
    presume this line of questioning was intended by SAVE to
    undermine plaintiffs' credibility by showing that they took full
    advantage of the tax benefits of their gift.
    
    
    
                                          18                                A-0643-10T3
          Mr. Adler also characterized the facility proposed to be
    
    built      in    Montgomery         Township       as   a   "substantially"       lesser
    
    facility than the one originally proposed at Herrontown Road.
    
    The   first       phase      of   the     Montgomery      facility     called    for   the
    
    construction of a 3000 square foot shelter, which is one tenth
    
    the size of the 30,000 square foot facility Ms. Nicolls showed
    
    the Adlers at the spring capital fundraising event.
    
                                                 III
    
          On    October       12,     2007,    plaintiffs       filed    suit   in   the   Law
    
    Division in Mercer County, seeking the return of the donation
    
    they had made to SAVE.                  Plaintiffs alleged that SAVE accepted
    
    their donation fully aware that plaintiffs expected the funds to
    
    be specifically earmarked for the stated purpose of constructing
    
    two rooms exclusively designated for the care of large dogs and
    
    older cats.        These rooms were to be part of a larger facility to
    
    be constructed at Herrontown Road, in Princeton.
    
          Plaintiffs          maintained       that    SAVE     violated    this     material
    
    aspect of their gift by deciding, without their knowledge or
    
    approval, to use the funds plaintiffs donated to construct a
    
    facility        that   did    not   meet     plaintiffs'      expressed     animal-care
    
    conditions and would be located in an area outside its original
    
    service region.            According to plaintiffs, despite several good
    
    
    
    
                                                  19                                 A-0643-10T3
    faith attempts to convince defendant to voluntarily return their
    
    funds, SAVE steadfastly and wrongfully refused to do so.
    
        Defendant filed an answer disputing the conditional nature
    
    of plaintiffs' charitable gift.               After joinder of issue, the
    
    parties    conducted    extensive     discovery,       at   the    conclusion       of
    
    which both sides moved for summary judgment.                   The trial court
    
    denied summary judgment to both sides and the matter thereafter
    
    proceeded to a bench trial.
    
        John Sayer was the only witness called by defendant.                              A
    
    member    of   SAVE's   board   of    trustees    since     2004,      Mr.   Sayer's
    
    principal involvement with SAVE as of the time of trial had been
    
    to serve as a member of the financial committee for the new
    
    building.      He testified that SAVE's "overriding mission" was to
    
    operate "an adoption facility."             To clarify his point, Mr. Sayer
    
    contrasted SAVE's adoption mission to a "sanctuary," which he
    
    stated keeps animals "regardless of their adoptability."                           Mr.
    
    Sayer emphasized: "We are not a sanctuary.                  We are an adoption
    
    facility."
    
        Although he was involved in the capital campaign, Mr. Sayer
    
    testified that he "was not part of the Adlers' solicitation."
    
    In fact, he joined the board of trustees "just after" plaintiffs
    
    had made their gift.        Mr. Sayer described plaintiffs as "major
    
    donors."       According   to   Mr.    Sayer,    the    goal      of   the   capital
    
    
    
    
                                           20                                    A-0643-10T3
    campaign was to raise "seven and a half million dollars."            The
    
    campaign actually raised "one point three million dollars."
    
        When asked by SAVE's attorney "[h]ow much money was spent
    
    trying to pursue approvals at the Princeton level," Mr. Sayer
    
    responded: "We have insufficient records for all that, but my
    
    best guess would be about a quarter of a million dollars that
    
    was put into plans and the efforts to deal with the township."
    
    (Emphasis added).     Mr. Sayer did not attend any planning board
    
    meetings; his knowledge of the planning board's reaction to the
    
    proposed new facility was based exclusively on the reports given
    
    to the SAVE board of trustees by its paid "facilitator."
    
        Overruling      plaintiffs'   counsel's   objection   on   hearsay
    
    grounds, the trial court permitted Mr. Sayer to testify about
    
    what the facilitator told the SAVE board of trustees:
    
             [MR. SAYER]. He reported that the township
             viewed the new shelter as a new project,
             because we were going to tear down the
             entirety of what was there, and their view
             was, even though the concept of a shelter
             was grandfathered, it was not a "highest
             use" for the property and they discouraged
             us from trying to build such a large
             facility at that location.
    
             Q. Were there any other issues about the
             property itself that w[ere] a concern to
             Princeton, as far you know?
    
             [MR. SAYER]. Well, a lot of that property is
             wetlands and it also, of course, is very
             close to the neighbors who had a long
             history of complaining.   And I think that,
    
    
    
                                      21                           A-0643-10T3
                had we gone forward with that, we would have
                been unsuccessful.
    
                [(Emphasis added).]
    
         In addition to serving on the capital campaign committee,
    
    Mr. Sayer also served on the committee responsible for annual
    
    fundraising efforts.             The monies raised from these activities
    
    were intended to defray SAVE's operating expenses.                              Mr. Sayer
    
    testified    that       two   years      after     he    began        serving    in     this
    
    committee    he       realized    that    there      was       "a    serious    financial
    
    problem as respects operating funds."
    
        According         to   Mr.   Sayer,     during       Ms.    Nicolls's       tenure    as
    
    SAVE's executive director, the charity's base of support had
    
    shrunk "from about 600 people, mostly local, to just over 200
    
    people."      Although the remaining 200 individuals were SAVE's
    
    largest    supporters,        according     to     Mr.    Sayer,       the    charity    was
    
    losing money, requiring it to draw down from its reserve funds
    
    "to meet [its] operating expenses."
    
        At this point in the trial, plaintiffs' counsel objected to
    
    defense counsel's "line of questioning."                            Plaintiffs' counsel
    
    argued that whether the charity was operating at a deficit had
    
    nothing to do with the specific circumstances "under which the
    
    Adlers    made    a    contribution      towards        the    capital       campaign    and
    
    whether     the   contribution        was        conditional."           The    following
    
    colloquy ensued:
    
    
    
                                                22                                    A-0643-10T3
    [DEFENSE COUNSEL]: This is a charity, Your
    Honor.     The issue that's going to be
    ultimately [decided involves] whether it
    would be against public policy to . . .
    require SAVE to return $50,000 in donations.
    I think Your Honor is entitled to hear about
    the history of the struggle that they had
    raising funds.
    
    THE COURT: So are you saying to me my
    decision should be based on the financial
    stability     or  instability  of    this
    organization?
    
    [DEFENSE COUNSEL]: No, but I think all the
    background you have about the Herrontown
    Road facility is useful. . . .
    
        . . . .
    
    [PLAINTIFFS' COUNSEL]: Your Honor, this case
    comes down to the solicitation that was made
    to my clients, the discussions they had with
    Ms. Nicolls, their understanding of what was
    being proposed, what they were getting, as
    was Ms. Nicolls'[s] testimony in the future
    as to the nature of the conversations, what
    she proposed, her understanding of the
    conditions under which the monies were being
    donated.   While I appreciate there may be
    other economic issues involving SAVE, that's
    not part of why we're here today.       We're
    here because my clients are presented a
    particular program and an opportunity to
    fund a portion of that program. [SAVE] [is]
    not following through with that program and
    [plaintiffs] are seeking [the] return of
    their money, because [plaintiffs] believe
    that they donated the money on the basis of
    what was proposed to them, not on the basis
    of the strength or lack thereof of SAVE,
    outside of this particular capital program.
    
    THE   COURT:   Well,  I'll   allow   limited
    testimony on the financial stability of SAVE
    as it relates to the ability or the
    
    
    
                         23                         A-0643-10T3
                 inability to go forward with the particular
                 plans that were solicited, these plans upon
                 which the Adlers were solicited, but only if
                 it relates to the testimony in terms of the
                 operating fund, only if it relates to the
                 decision-making process on going forward
                 with these claims.
    
                 [DEFENSE   COUNSEL]:   That's           all        I     was
                 intending, Your Honor.
    
          From     this    point,      Mr.     Sayer   testified         regarding     the
    
    overcrowding conditions that existed at the old Herrontown Road
    
    facility.      Although uncertain as to the actual number of animals
    
    that were housed at the time of these alleged deteriorating
    
    conditions, Mr. Sayer nonetheless characterized the conditions
    
    as bordering on "animal abuse."                Mr. Sayer claimed that the
    
    Princeton      Township   Health     Department     and       "the   State    of   New
    
    Jersey" were "very concerned about the number of animals and the
    
    small space."         In response, the board "put a freeze on taking
    
    new animals" and set a goal of keeping no more than "15-20 dogs
    
    and 55 cats."
    
          Because several of the dogs were not adoptable, Mr. Sayer
    
    stated that they were "sent out to sanctuaries."                       According to
    
    Mr.   Sayer,    they   had   one    case    involving     a    dog   that    was   "so
    
    violent," that not even a sanctuary would accept it.                         SAVE was
    
    forced to violate its core founding principle, and the dog was
    
    euthanized.      "But, other than that, [SAVE] managed to raise the
    
    funds to take and reduce the population of animals, to only
    
    
    
                                             24                                  A-0643-10T3
    adoptable       animals.      And,        from   that   point     on,   [SAVE]     had
    
    excellent operating results with the animals."
    
           Defense counsel asked Mr. Sayer to explain the decision to
    
    abandon     the      Herrontown    Road    project,     merge    with   "Friends    of
    
    Homeless Animals," and relocate to Montgomery Township.                            The
    
    decision was driven primarily by an alleged community inability
    
    to "discriminate between the two organizations."                    There was also
    
    an implicit -- if not outright                   -- acknowledgement that both
    
    groups were competing for the same limited charitable dollar.
    
    In Mr. Sayer's own words: "Both organizations had parallel goals
    
    and very parallel fundraising mechanisms."
    
           According to Mr. Sayer, Friends of Homeless Animals had
    
    also been "very, very . . . clever and pro-active," by entering
    
    into   an      agreement    with    the    State    Department     of   Corrections
    
    (DOC).      Through this agreement, the DOC made "a little less than
    
    14 acres" available in Montgomery Township to build an animal
    
    shelter.       The property also includes a house known as the Van
    
    Sant Mansion.          Mr. Sayer testified that the first phase of the
    
    project would be to renovate and restore the house, which would
    
    provide approximately 7000 square feet, "not for animals but for
    
    office space and storage."                Mr. Sayer specifically noted that
    
    SAVE     had    "a     specific    million       dollars   set     aside   for     the
    
    restoration of the Van Sant Mansion."                 (Emphasis added).
    
    
    
    
                                                25                              A-0643-10T3
        The     second    phase   of     this     venture     would   involve      the
    
    construction of an animal shelter in Montgomery Township.                       The
    
    merged   charities    have    approval      from   Montgomery     Township      to
    
    construct a 3000 square foot facility as the first phase of the
    
    animal   care   project.      Mr.     Sayer    acknowledged       that   such     a
    
    structure   would    be   "totally    inadequate        for   [SAVE's]   means."
    
    Defendant has thus secured approval to construct a 15,000 square
    
    foot facility.       However, Mr. Sayer testified that he does not
    
    believe SAVE "will build a 15,000 square foot shelter" because
    
    it is not needed.
    
        With respect to the funds raised by the capital campaign to
    
    construct a 30,000 square foot state-of-the-art animal shelter
    
    at Herrontown Road in Princeton Township, the campaign to which
    
    plaintiffs donated $50,000 to ensure for the long-term care of
    
    large dogs and older cats, Mr. Sayer testified as follows:
    
                     We have approximately $967,000 of the
                original money that was raised for the new
                shelter left to start on the first phase,
                whenever that may be, of the new shelter.
                From the planning prospective [sic], I think
                we will finish the VanSant mansion, have the
                foundation work done on the new shelter, and
                start the new campaign at that point in
                time.
    
        When asked by defense counsel whether the proposed 15,000
    
    square foot facility in Montgomery Township would "have rooms
    
    available of the types of rooms that the Adlers had indicated
    
    
    
    
                                          26                                 A-0643-10T3
    that    they    were   --    that    they     found    important,"          Mr.   Sayer
    
    answered    emphatically:          "Absolutely."           However,   the   extensive
    
    narrative amplification Mr. Sayer gave as a follow up to this
    
    one word answer did not, in any meaningful sense, corroborate or
    
    otherwise      support      his    testimony.         We    therefore    decline     to
    
    belabor this point.               Based on Mr. Sayer's testimony and the
    
    letter     announcing       the    merger     between       SAVE   and   Friends     of
    
    Homeless Animals, we are satisfied that the 15,000 square foot
    
    shelter proposed to be constructed in Montgomery Township does
    
    not include two rooms specifically designated for the long-term
    
    care of large dogs and older cats.
    
                                                IV
    
           After     considering        the     testimony         of   the      witnesses,
    
    documentary exhibits admitted into evidence, and the arguments
    
    of counsel, Judge Sumners held in plaintiffs' favor, finding
    
    that they were entitled to the full return of their charitable
    
    gift.     By order dated August 26, 2010, Judge Sumners entered
    
    final judgment against defendant in the amount of $49,174.15 and
    
    denied plaintiffs' application for pre-judgment interest.
    
           Judge Sumners found plaintiffs' and Ms. Nicolls's testimony
    
    credible       and   noted    "the     lack      of   any      testimony     by    SAVE
    
    contradicting their testimony."              He found
    
                   apparent that the Adler's [sic] donation was
                   motivated by a desire to provide better
    
    
    
                                                27                                A-0643-10T3
                conditions for large dogs and older cats.
                They put their money where their hearts
                were.   Although, all of the Ts were not
                crossed, and all of the Is were not dotted,
                it was clear from the Adlers, and Nichols
                [sic],   and    the   documentary  evidence
                presented at trial, they were only making
                donations for these reasons.
    
        In this appeal, defendant argues that Judge Sumners erred
    
    in finding that plaintiffs' donation was a conditional gift.
    
    Alternatively,       defendant      argues      that,    even       if    the    gift    was
    
    conditional, returning the funds to plaintiffs is not warranted
    
    because    "the    condition     has     been     or   will    be    met."        Finally,
    
    assuming    arguendo    the    absence       of    merit      in    these       arguments,
    
    defendant maintains that the trial court should have reformed
    
    plaintiffs' gifts under the doctrine of equitable deviation.
    
        Stated        differently,      in   lieu     of    returning         the    funds   to
    
    plaintiffs,       defendant    maintains        the    trial       court    should      have
    
    crafted a remedy that would have permitted the charity to spend
    
    the funds in order "to effectuate the original purpose of the
    
    gift as close as possible."                  According to defendant, public
    
    policy demands that we reverse the trial court because, if we
    
    permit    this    decision     to   stand,      it     would    be       detrimental     to
    
    charities throughout this State.
    
        We are not persuaded by any of defendant's arguments.                                 We
    
    begin our analysis by reaffirming our standard of review.                                We
    
    are bound to defer to the trial court's factual findings, as
    
    
    
                                              28                                      A-0643-10T3
    long as they are supported by adequate, substantial and credible
    
    evidence.     Rova Farms Resort, Inc. v. Investors Ins. Co. of Am.,
    
    
    65 N.J. 474
    , 483-84 (1974).           In a case in which the trial judge
    
    also sat as the trier of fact, we are precluded from disturbing
    
    the   trial    judge's     factual    findings        and   legal        conclusions,
    
    "'unless      we   are    convinced     that     they       are     so    manifestly
    
    unsupported by or inconsistent with the competent, relevant and
    
    reasonably     credible    evidence    as   to    offend      the    interests      of
    
    justice[.]'"       Seidman v. Clifton Sav. Bank, 
    205 N.J. 150
    , 169
    
    (2011) (alteration in original) (quoting Ex rel Johnson, 
    194 N.J. 276
    , 284 (2008)).
    
          We are also bound to defer to the trial judge's findings
    
    that are "substantially influenced by his opportunity to hear
    
    and see the witnesses and to have the 'feel' of the case, which
    
    a reviewing court cannot enjoy."               State v. Locurto, 
    157 N.J. 463
    , 471 (1999) (quoting State v. Johnson, 
    42 N.J. 146
    , 161-62
    
    (1964)).      However, we do not owe any deference to the legal
    
    conclusions reached by the trial court, because our review of
    
    the law is de novo.        Borough of Harvey Cedars v. Karan, ___ N.J.
    
    ___, ___ (2013) (slip. op. at 33) (citing Manalapan Realty v.
    
    Manalapan Twp. Comm., 
    140 N.J. 366
    , 378 (1995)).
    
          Here,    the    evidence   presented       at     trial      can    safely    be
    
    characterized        as   overwhelmingly       supporting         Judge     Sumners's
    
    
    
    
                                           29                                    A-0643-10T3
    credibility findings in favor of the Adlers.                                Distilled to its
    
    essence, the record is uncontroverted that commencing in 2002,
    
    SAVE   launched       a   sophisticated             fundraising            capital     campaign,
    
    targeting an elite class of historically generous donors.
    
           SAVE     wooed     these           "major    donors"           with     professionally
    
    designed brochures containing strategically placed photographs
    
    of happy children and their family warmly embracing puppies,
    
    kittens,      and   vulnerable-looking              older       animals.        The     caption,
    
    prominently         appearing        next     to      one       of     these     photographs,
    
    contained the following message: "Young Philanthropists.                                        SAVE
    
    benefits       greatly    from       the     interest       of       children        who    become
    
    donors.       Their highly creative approaches to philanthropy help
    
    SAVE's cats and dogs in a variety of ways."
    
           Another       section         of     the     brochure           labeled       "Community
    
    Partners"      included        a    photograph       of     "a       retired    chemist"         who
    
    "stays    in    shape     by       walking     dogs    at       SAVE."         Next        to    this
    
    gentleman's picture was a close-up photograph of a wide-eyed
    
    kitten.       Of particular relevance to this case, the brochure also
    
    mentioned that the retired chemist's "volunteer services to the
    
    Princeton       community          [also]    include        .    .     .     serving       in    the
    
    reference department of the Princeton Public Library, and doing
    
    chemistry demonstrations at local elementary schools."                                          Thus,
    
    
    
    
                                                   30                                          A-0643-10T3
    SAVE wanted to be perceived as an integral part of Princeton's
    
    philanthropic community.
    
           This presentation inexorably leads to the final and most
    
    important     part     of    the   brochure:       "Where     We   Are   Going    in    the
    
    Future."       Here,    SAVE       depicted       an    artistic   rendition      of    its
    
    "long-awaited new shelter," which would include
    
                  dedicated spaces for SAVE's programs of
                  Rescue,    Shelter,   Health    and    Welfare,
                  Spay/Neuter, Adoption and Humane Education.
                  Highlights    include  improved    spaces   for
                  adoption,     animal    display      and    cat
                  rehabilitation. New features will include a
                  Humane Education wing with an Atrium that
                  will allow bonding spaces for people and
                  pets, ongoing dog training classes, meetings
                  and celebrations.
    
           Armed with these sophisticated weapons of persuasion, SAVE
    
    aggressively solicited the Adlers to contribute to its capital
    
    campaign fundraising drive, with the promise of constructing a
    
    state-of-the-art        animal        shelter,         approximately     30,000    square
    
    feet    in     size,        located     at    SAVE's        historical     birthplace,
    
    Herrontown Road in Princeton Township.
    
           As a means of attracting their most loyal                          and    generous
    
    donors, SAVE conceived "the naming rights" incentive, through
    
    which donors able and willing to give "a major gift" ranging
    
    from    one     million        dollars       to        $15,000,    received       special
    
    recognition by having a portion of the building named for the
    
    donor or anyone the donor chose.
    
    
    
                                                 31                                   A-0643-10T3
          For plaintiffs, their most important preoccupation was to
    
    provide a space for large dogs and older cats.                              Because they
    
    believed    these          types   of    animals       were   highly    unlikely     to    be
    
    adopted, they wanted to provide a humane environment for their
    
    long-term care.             Their moral commitment to these animals was so
    
    strong that they were willing to donate $50,000 to make this a
    
    reality.         In    the    words     of     Mrs.    Adler:   "That's     what   we     do.
    
    That's who we are."
    
          Ms. Nicolls's uncontroverted testimony established, beyond
    
    a   rational     doubt,       that      SAVE    accepted      plaintiffs'    generosity,
    
    fully aware that it was expressly conditioned upon fulfilling
    
    these     material          conditions.              Ms.   Nicolls's     testimony        was
    
    corroborated          by    the    letters      she    wrote,   as     SAVE's   executive
    
    director, acknowledging the conditional nature of plaintiffs'
    
    donations.
    
          Equally clear is SAVE's unilateral decision not to honor
    
    plaintiffs' conditions and rededicate their donations to serve a
    
    purpose unrelated to plaintiffs' expressed wishes.                          To be clear,
    
    the     record    shows        that      SAVE:       (1)   decided     to   construct       a
    
    substantially smaller facility; (2) outside the Princeton area;
    
    (3) without any specifically designated rooms to serve the needs
    
    of large dogs and older cats; and (4) without any mention of
    
    plaintiffs' names.
    
    
    
    
                                                    32                                 A-0643-10T3
        Citing 15 Am. Jur. 2d Charities § 145 (2000), SAVE argues
    
    that "[c]onditions with a right of reverter or right to demand
    
    forfeiture     'will   not     be     implied   unless    the    intendment     is
    
    clear.'"     Accepting, arguendo, this statement to be a correct
    
    articulation of New Jersey law, a notion we do not implicitly
    
    endorse,     the    record     here     makes   it   clear     that    plaintiffs
    
    expressly announced their conditions at the time they made their
    
    gift, and defendant expressly acknowledged those conditions at
    
    the time it accepted plaintiffs' gift.               Indeed, some of the most
    
    salient of plaintiffs' conditions (continued servicing of the
    
    Princeton region and naming rights) were offered by defendant as
    
    promotional incentives to entice donors like plaintiffs to give
    
    generously to its campaign.             Under these circumstances, it can
    
    reasonably be argued that returning the gift is the most lenient
    
    sanction defendant may receive from a menu that includes breach
    
    of fiduciary duty and civil fraud.
    
        Returning to the issue before us, the parties have not
    
    cited,   and   we    have     not     found   through    our    own   independent
    
    research, a published opinion in this State directly addressing
    
    the right of a live donor to demand the return of a conditional
    
    inter vivos gift based on the recipient's failure to honor the
    
    donor's conditions.          We will thus approach this question guided
    
    
    
    
                                             33                              A-0643-10T3
    by our collective jurisprudential experience and general sense
    
    of fairness.
    
           Based on the unquestioned realization that the recipient
    
    accepted the gift fully aware of the donor's conditions and did
    
    not express any reservation to the donor about its ability to
    
    meet    those     conditions,       we      conclude       that    this   created     a
    
    reasonable      expectation       in     the     donor's    mind    that:    (1)    the
    
    recipient would attempt to meet those conditions in good faith;
    
    (2) absent the donor's consent, the recipient did not have the
    
    right to ignore or disregard any of the material conditions of
    
    the    gift;    and   (3)   if    the    recipient     of   the    gift   decides    to
    
    unilaterally disregard the donor's expressed condition, basic
    
    fairness dictates that the gift must be returned to the donor.
    
           This    analytical        paradigm      is   also    consistent      with    the
    
    principles governing a fiduciary relationship.                        As the Court
    
    noted in F.G. v. McDonell, 
    150 N.J. 550
    , 563 (1997), "[t]he
    
    essence of a fiduciary relationship is that one party places
    
    trust and confidence in another who is in a dominant or superior
    
    position."      Here, plaintiffs placed their trust in SAVE to meet
    
    the conditions of their gift.               By virtue of their control of the
    
    funds, SAVE was in a superior position to determine to either
    
    meet plaintiffs' conditions, request their consent to rededicate
    
    
    
    
                                                34                               A-0643-10T3
    the funds to another purpose acceptable to plaintiffs, or return
    
    the gift.
    
        By      opting     to   disregard        plaintiffs'   conditions,        SAVE
    
    breached      its    fiduciary   duty    to     plaintiff.       Under      these
    
    circumstances, requiring SAVE to return the gift appears not
    
    only eminently suitable, but a mild sanction.              After all, it can
    
    be argued that not every donor who may have cause to question
    
    the reasonableness of a charity's actions has the tenacity and
    
    wherewithal to pursue a claim.               Furthermore, depending on the
    
    amount   of    the   gift   involved,    some     donors   may   come    to    the
    
    conclusion that initiating legal action is not a cost-effective
    
    means of obtaining redress.
    
        Here, the trial court denied plaintiffs' application for
    
    prejudgment interest and plaintiffs opted not to seek appellate
    
    review of this decision by way of cross-appeal.                  We therefore
    
    decline to address this issue.
    
        We do note SAVE's alternative arguments under the so-called
    
    cy pres doctrine, (which translates as "as near as may be"),
    
    also referred to as equitable deviation.               As expressed by the
    
    then court of equity in McKenzie v. Trustees of the Presbytery
    
    of Jersey City, 
    67 N.J. Eq. 652
    , 672-73 (N.J. 1905):
    
                  The doctrine of cy pres is therefore the
                  doctrine of nearness or approximation, and
                  it appears in English jurisprudence in three
                  separate  departments,   yet   with  similar
    
    
    
                                            35                               A-0643-10T3
             operation and effect.     Firstly, in the law
             of testaments, where a personal legacy has
             been given upon a condition precedent, and
             the literal performance of this condition
             has   become   impossible    from    unavoidable
             circumstances and without fault of the
             person to be benefited.           Here, it is
             sufficient if the condition be performed as
             nearly as it can be.    Secondly, in the law
             of private trusts, where lands are limited
             to an unborn person for life, with remainder
             to his first and other sons, successively,
             in tail.     Here, in order to secure the
             flowing of the testator's bounty to the
             issue, the limitations may be held to create
             an estate in tail in the first taker.
             Thirdly, in the law of charitable trusts,
             where gifts have been made for charitable
             purposes which, either originally or in the
             course   of   time,   cannot     be    literally
             executed.       Here   the    gift     will   be
             administered, as nearly as may be, according
             to the donor's purpose, under general rules
             of law. In all of these instances it is to
             be observed that the underlying principle is
             this: Where the testator or donor had two
             objects in view -- one primary or general,
             and the other secondary or particular -- and
             these are, literally speaking, incompatible,
             the particular object must be sacrificed in
             order that effect may be given to the
             general object, according to law, and "as
             near as may be" to the testator's or donor's
             intention. Again, the principle may be more
             briefly stated as that of applying property,
             as nearly as possible, according to the
             donor's intentions, when those intentions
             cannot be exactly carried out.
    
             [(Citations in original omitted).]
    
        Relying on these ancient principles of probate law, SAVE
    
    argues that the trial court "should not have allowed plaintiffs'
    
    gift to fail."   According to SAVE, Judge Sumners should have
    
    
    
                                   36                           A-0643-10T3
    applied plaintiffs' donation to a charitable purpose "as nearly
    
    as possible to the particular purpose."               SAVE's argument in this
    
    respect    crumbles    under   the    weight     of    its   own    logic.      As
    
    emphasized repeatedly by the court in McKenzie, in the law of
    
    charitable trusts, where the gift has been made for a charitable
    
    purpose, and either originally or in the course of time cannot
    
    be literally executed, the gift will be administered, as nearly
    
    as   may   be,   "according    to    the     donor's    intentions."         Ibid.
    
    (emphasis added).
    
          Under the facts presented here, it would be a perversion of
    
    these equitable principles to permit a modern charity like SAVE
    
    to   aggressively      solicit       funds      from     plaintiffs,        accept
    
    plaintiffs'      unequivocally       expressed    conditional        gift,    and
    
    thereafter disregard those conditions and rededicate the gift to
    
    a purpose materially unrelated to plaintiffs' original purpose,
    
    without even attempting to ascertain from plaintiffs what, in
    
    their view, would be "a charitable purpose as nearly possible"
    
    to their particular original purpose.
    
          Finally, we categorically reject SAVE'S so-called public
    
    policy     argument.     According      to    SAVE,    if    we    permit    Judge
    
    Sumners's decision to stand, "New Jersey charities will risk
    
    losing contributions committed to them merely because they take
    
    longer than anticipated to raise funds needed to build a new
    
    
    
    
                                           37                               A-0643-10T3
    facility or start a new initiative."                     This "parade of horrible
    
    consequences" argument is based on mere speculation and is not
    
    rooted to the salient facts of this case.
    
        Plaintiffs         did   not    demand       the    return   of   their   $50,000
    
    donation because SAVE's Herrontown Road, state-of-the-art animal
    
    welfare facility designed to serve the Princeton region took
    
    longer to build than anticipated, or because SAVE decided to
    
    start a new initiative.            Plaintiffs demanded the return of their
    
    money because SAVE unilaterally decided to violate the expressed
    
    conditions of their gift.            We believe that responsible charities
    
    will welcome this decision because it will assure prospective
    
    donors    that   the    expressed      conditions        of   their   gift    will    be
    
    legally enforceable.          Thus, the trust relationship necessary to
    
    promote    generous      gift      giving    has       been   strengthened    by     the
    
    tenacious efforts of two people who love large dogs and older
    
    cats.
    
        Affirmed.
    
    
    
    
                                                38                                A-0643-10T3
    Appellate Court Appendix I — SAVE Naming Opportunities Brochure
    
                                                                           SAVE
                                                              Princeton's Animal Shelter
                                                                    established 1941
    
                                                    Naming Opportunities
    _______________________________________________________________________________________________________
    
    The Facility:
     Building ($1,000,000) -- Funded
     Vestibule ($10,000) -- Funded
     Lobby ($20,000)
    _______________________________________________________________________________________________________
    
    Spay/Neuter Clinic:
     Surgery Suite ($250,000)                                      Preparation Room ($55,000)
     Lab/Pharmacy ($100,000)                                       Veterinarian Offices ($30,000)
     X-Ray Room ($65,000)
    _______________________________________________________________________________________________________
    
    Administrative Support:
     Administrative Wing ($100,000)
     Board Room ($20,000) -- Temporarily held
    _______________________________________________________________________________________________________
    
    Education Wing:
     Auditorium ($50,000)                                          Education Offices ($35,000)
     A/V Room/Computer Lab ($25,000)                               Humane Library ($25,000)
     Catering Room ($15,000)
    _______________________________________________________________________________________________________
    
    Recovery/Rehabilitation:
    
    Canine Recovery:                                                Maternity/Puppies ($35,000)
     Canine Rehab Room ($25,000)                                  Feline Recovery:
     Canine Rehab Room ($25,000)                                   General Rehab ($50,000)
     Vet Exam Room ($15,000)                                       Quarantine Cages ($50,000)
     Hospital ($25,000)                                            Quarantine work room ($15,000)
     Isolation ($25,000)                                           Vet Exam Room ($15,000)
     Isolation ($25,000)                                           Long-term, chronic, feral ($25,000)
     Grooming ($15,000)
    _______________________________________________________________________________________________________
    
    Adoption:
     Canine Living Room ($20,000) -- Funded                        Canine get-acquainted room ($15,000)
     Canine Living Room ($20,000) -- Funded                        Feline get-acquainted room ($15,000)
     Canine Living Room ($20,000) -- Funded                        Puppy corrals ($25,000) -- Funded
     Feline Living Room ($20,000) -- Funded                        Puppy night cages ($15,000)
     Kitten Living Room ($25,000) -- Funded                        Large Canine Run ($25,000) -- Funded
     Kitten Living Room ($25,000) -- Funded                        Cage display room for felines ($25,000) -- Funded
     Canine Play Space ($50,000)                                   Adoption support areas ($50,000)
    _______________________________________________________________________________________________________
    
    Other Shelter Support:
     Laundry ($20,000)
    _______________________________________________________________________________________________________
    
                     **Additional Naming Opportunities are available. All gifts of $1,000 or more will be recognized on our donor wall.**