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Adler v. SAVE

Superior Court of New Jersey, Appellate Division

August 5, 2013

BERNARD and JEANNE ADLER, Plaintiffs-Respondents,
SAVE, n/k/a SAVE, A FRIEND TO HOMELESS ANIMALS, Defendant-Appellant.


Argued November 16, 2011

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).

Before Judges Fuentes, Harris, and Koblitz.



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.


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 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 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."


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]

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.

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 "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.

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 ...

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