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February 2018 · ORIGINAL INSTRUCTIONAL EXAMPLE

Performance Test: Meaney v. University Trustees
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February 2018 California Bar Examination · An original objective memorandum classifying a restricted garden transfer using the supplied file and library.

By Bar Exam Doctor · Published November 4, 2026

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This is an original, ungraded instructional response. It is not an official State Bar selected answer, a scored student submission, or a claim of attorney review. Use it to compare reasoning and organization after attempting the question. Alternative reasoned analyses may be possible.

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Official source text with our added highlights and numbered notes. The PDF preserves the source layout. For the PT, the task, file, and substantive library pages appear below; the complete packet includes the instructions and dividers.

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Official source page 11

FOGEL & DAVIS, LLP One Walton Avenue Belleville, Columbia MEMORANDUM TO: Applicant FROM: Melissa Saphir DATE: February 27, 2018 RE: Meaney v. Trustees of the University of Columbia We have been retained by the Trustees of the University of Columbia to defend them in a breach of contract action. The late Edward Kemper (Edward) was a wealthy businessman and a generous donor to the University. Pursuant to an agreement, Edward transferred a garden to the Trustees, which the Trustees agreed to retain in perpetuity as the “Kemper Scottish Garden.” Sometime later, Edward married Sarah Meaney (Sarah). Before her death two years ago, Sarah had grown quite fond of the Kemper Scottish Garden -- so much so that it came to be known as ”Sarah’s Scottish Garden.” Notwithstanding the agreement, the Trustees recently made the difficult decision to sell the garden so as to use the proceeds for pressing educational purposes. The plaintiff in the breach of contract action I referred to is Brendan Meaney. Meaney is the only child of Sarah by a prior marriage. By his action, Meaney is seeking to prevent the Trustees from selling the garden. I believe that we may be able to persuade the court to dismiss Meaney’s breach of contract action on the ground that Meaney lacks standing. To confirm my

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belief, I need to determine whether Edward transferred the garden to the Trustees by way of contract or gift and, if by way of gift, by way of what kind of gift. To that end, please prepare an objective memorandum1 assessing whether Edward did indeed transfer the garden to the Trustees by way of contract or gift and, if by way of gift, by way of what kind of gift. Do not include a statement of facts, but use the facts in your analysis.

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AGREEMENT The Trustees of the University of Columbia (hereinafter “the Trustees”) desire to obtain a garden parcel of real property now owned and occupied by Emily Gordon, located in Belleville, Columbia, commonly known as 625 Sierra Way. Edward Kemper (hereinafter “Kemper”) desires to facilitate such acquisition by acquiring the garden parcel and by transferring it to the Trustees, subject to certain restrictions as provided for herein. Therefore, in consideration1 of the foregoing, the Trustees and Kemper do hereby agree as follows: 1. Kemper will acquire the garden parcel and transfer it to the Trustees. 2. The Trustees will cause the garden parcel to bear the name “Kemper Scottish Garden,” use it for educational purposes, and retain it in perpetuity. Kemper retains the right2 to modify the terms of this Agreement as necessary and appropriate to its purpose. Dated: December 18, 1964. ______Edward Kemper ___________ Edward Kemper ______Harold Williamson__________ Harold Williamson Chairman of the Board of Trustees

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BEHRENS RESEARCH FOUNDATION v. FAIRVIEW MEMORIAL HOSPITAL Columbia Court of Appeals (2008) Behrens Research Foundation (Behrens), a non-profit public benefit corporation, gave Fairview Memorial Hospital (Fairview), a healthcare institution, a gift of $1 million. Fairview had a well-recognized Department of Cardiothoracic Surgery. Behrens had had a longstanding interest in advancing cardiothoracic surgery. Not long thereafter, as a result of various unforeseen changes, including departures of key staff, Fairview closed the department. Behrens brought the underlying action in the District Court seeking an injunction directing Fairview either to reopen its Department of Cardiothoracic Surgery or to return Behrens’ $1 million gift. Fairview moved to dismiss the action under Columbia Rule of Civil Procedure 12(b)(6), claiming that Behrens did not have standing to sue. The District Court granted the motion and entered a judgment of dismissal. On appeal, Behrens contends that it did indeed have standing to sue. We disagree. It is well settled in Columbia that a donor is the master of his or her gift. Because that is so, a donor can make a gift that is absolute. The donor can give property unconditionally, without (1) restricting use or disposition of the property, (2) retaining power to modify the gift, or (3) reserving a right to sue to enforce a restriction or to undo the gift in case of a restriction’s breach by causing the property to revert to the donor him- or herself or to a third person. When a gift is absolute, the donor has relinquished, and the donee has assumed, full dominion over the property -- i.e., the ability to use or dispose of the property at any time, in any manner, and for any purpose.

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But a donor can also make a gift that is not absolute. The donor can give property conditionally, (1) restricting use or disposition, (2) retaining power of modification, and/or (3) reserving a right of enforcement or reversion. When a gift is not absolute, the donor has not relinquished, and the donee has not assumed, full dominion over the property; rather, both donor and donee share power over the property’s use or disposition. Although a donor is indeed master of his or her gift, the law presumes that a gift is absolute unless it clearly appears otherwise. In line with this presumption, the law further presumes that a donor has not restricted use or disposition, has not retained power of modification, and has not reserved a right of enforcement or reversion, unless it clearly appears otherwise. These presumptions prove fatal to Behrens’ position. The record on appeal contains the instrument by which Behrens made its $1 million gift to Fairview. In pertinent part, the instrument recites only that Behrens “hereby delivers” and Fairview “hereby accepts” the gift. Neither expressly, nor by implication, does the instrument evidence any reservation on Behrens’ part of a right of enforcement. Behrens did not reserve any such right for itself. We cannot make up for its omission. Affirmed.

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COLLINS v. LINCOLN Columbia Court of Appeals (2009) Anita Collins brought an action for declaratory relief in the District Court against Stephen Lincoln, her adult son. In order to resolve various tax questions now pending before the State of Columbia Tax Board, Collins seeks a determination that the instrument by which she transferred certain property to Lincoln reflected a gift rather than a transfer by contract. Following a bench trial, the District Court entered judgment in Collins’ favor, issuing the determination that she had sought. Lincoln appeals. We affirm. The facts are undisputed: By deed dated June 26, 2002, Collins transferred to Lincoln a 260-acre vineyard in Parker County including a 20,000-square-foot Victorian main residence, guest house, pool, tennis courts, sports field, exercise studio, lake, olive orchard, and a stone winery with a tasting room and a permit to produce 5,500 cases of wine a year. The deed recited that Collins transferred the property to Lincoln “in consideration for his promise to use his best efforts to maintain the property in an ecologically sustainable manner.” As of the date in question, the assessed value of the property was more than $35 million. Collins was then 65 years old, a widow, and the Chair of the Board of Directors of the Parker County Rural Conservancy, a locally- prominent environmental organization; Lincoln was 30 years old, unmarried, and the Rural Conservancy’s Volunteer Coordinator; each was the other’s sole living relative. Property may be passed by gift. The elements of a gift consist of: (1) intent on the part of the donor to make a gift; (2) delivery, either actual or constructive, of property by the donor; (3) acceptance of the property by the donee; and (4) lack of consideration for the gift. Property may also be passed by transfer by contract. The elements of a transfer by contract consist of: (1) an offer to buy or sell; (2) acceptance of the offer; and (3) consideration passing between the buyer and seller.

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Gifts and transfers by contracts have two similar elements. First, a gift requires delivery by the donor and a transfer by contract requires offer by the buyer or seller. Second, a gift requires acceptance by the donee and a transfer by contract requires acceptance by the seller or buyer. But one element is different. While a transfer by contract requires the presence of consideration, a gift requires the absence of consideration. In other words, without consideration, the passing of property is by gift, whereas with consideration, it is by transfer by contract. Consideration has two requirements. The promisee must bargain with the promisor and must confer, or agree to confer, a benefit or must suffer, or agree to suffer, a burden. The absence of consideration is clear when a gift is absolute. See, Behrens Research Foundation v. Fairview Memorial Hospital (Colum. Ct. App. 2008). In that instance, the donee does not bargain with the donor or confer, or agree to confer, any benefit. Neither does the donee bargain with the donor or suffer, or agree to suffer, any burden. Instead, the donor simply delivers the property and the donee simply accepts it. But the absence of consideration is not clear when a gift is not absolute. See, Behrens Research Foundation. In that instance, the donee could be said to bargain with the donor, and could be said to confer, or agree to confer, a “benefit” on the donor or to suffer, or agree to suffer, a “burden.” Consider the situation in which a university agrees to name a campus building in a donor’s honor or to use the building for a specified purpose. The university could be said to “bargain” with the donor -- negotiating the terms for the naming of the building or its use for the specified purpose -- and to confer, or agree to confer, a benefit or to suffer, or agree to suffer, a burden -- the naming of the building or its use for the specified purpose. Such a “bargain” and “benefit” and “burden” do not preclude a gift. The presence or absence of consideration does not turn on the presence or absence of

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the term “consideration” in the instrument. For example, in Salmon v. Wilson (Colum. Supreme Ct. 1971), the Supreme Court held that a deed by which a father transferred 10 acres of land valued at $500,000 to his adult daughter effected a gift, even though the deed recited that he transferred the property to her “in consideration for $500.” The Supreme Court reasoned that, in light of all of the circumstances, the $500 paid by the daughter to her father was “nominal and immaterial,” and it was “clearly” the father’s intent to “donate the land to his daughter and not to sell it to her.” Ultimately, what controls are the motives manifested by the parties. If the parties are motivated by a desire to buy and sell the property through a commercial transaction, there is a transfer by contract. But if the parties are motivated by a desire to deliver and accept the property through a non-commercial transaction, there is a gift. Attacking the District Court’s determination that the deed by which Collins transferred the property in question reflected a gift rather than a transfer by contract, Lincoln claims that the deed impliedly recited Collins’ “offer” to transfer the property and his “acceptance” of the offer, and expressly recited the “consideration” -- his “promise to use his best efforts to maintain the property in an ecologically sustainable manner.” The “burden” of a promise to “use best efforts” is hard to quantify. But we have little doubt that it is adequate. Because that is so, such a promise could surely support a transfer by contract. But the fundamental question is whether there was in fact a transfer by contract rather than a gift. The answer is no. From all that appears, Collins and Lincoln were not motivated by a desire to buy and sell the property through a commercial transaction, but instead by a desire to deliver and accept the property through a non- commercial transaction. Collins was Lincoln’s mother, and he was her son. Each was the other’s only living relative, and each was an environmentalist. As the Supreme Court concluded in Salmon, so do we conclude here: In light of all of the circumstances, Lincoln’s “promise” to Collins “to use his best efforts to maintain the property in an ecologically sustainable manner” was nominal and immaterial, and it was clearly Collins’ intent to donate the property to him and not to sell it. Affirmed.

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HOLT v. JONES Columbia Supreme Court (1994) Almost one hundred years ago, Ralph Polk created the Polk Trust by giving the Trustees of the University of Columbia a parcel of 10 acres in Silveyville, as a campus for the then newly-founded College of Physicians and Surgeons, and a sum of $5 million for the upkeep of the grounds. The Trustees of the University of Columbia are ex officio trustees of the Polk Trust. Plaintiffs are three trustees of the University of Columbia and the Polk Trust. Defendants are the seven remaining trustees and the Attorney General of the State of Columbia. Plaintiffs filed a complaint in the District Court. They alleged that defendant trustees had wrongfully diverted assets of the Polk Trust and sought an injunction to prohibit further wrongful diversion. The Attorney General filed an answer to the complaint, denying plaintiffs’ allegation for want of information and belief. In her answer, the Attorney General stated: “The Attorney General has reviewed the management of the Polk Trust and has determined that suit is not warranted.” Defendant trustees moved to dismiss the action on the ground that plaintiffs did not have standing to sue. The District Court granted the motion and entered judgment accordingly. The Court of Appeals affirmed. We granted certiorari. The sole issue -- which is a question of first impression in Columbia -- is whether plaintiffs, as minority trustees of the Polk Trust, have standing to sue. In accordance with the common law, all jurisdictions recognize that the Attorney General has standing to sue to enforce provisions of non-private trusts. At the same

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time, a substantial majority of jurisdictions have adopted the position that the Attorney General’s standing is not exclusive. These jurisdictions accord standing to any person with a special interest. The common law recognizes the problem of providing adequate enforcement of provisions of non-private trusts. The primary type of non-private trust is the so-called charitable trust. A charitable trust is created, as a matter of fact, whenever a settlor manifests an intent to give property, in trust, for a charitable purpose and actually gives the property, in trust, for such purpose. A charitable trust is also created, as a matter of law1, whenever a person gives property to an educational, philanthropic, healthcare, or similar institution for an education, philanthropy, healthcare, or similar purpose. Since there is usually no one who is willing to assume the burdens of suing to enforce the provisions of a non-private trust, the Attorney General has been accorded standing. But, in light of limited resources, the Attorney General cannot reasonably assume the burdens of suing to enforce the provisions of all non-private trusts. The present case is representative. In her answer, the Attorney General stated that she had determined that suit was not warranted. But she also admitted that she had no information or belief as to plaintiffs' allegation that defendant trustees had wrongfully diverted property of the Polk Trust. Although the Attorney General has primary responsibility for the enforcement of provisions of non-private trusts, the need for adequate enforcement is not wholly fulfilled by the authority given to him or her. There is no rule or policy against supplementing the Attorney General's standing by allowing standing to persons with a special interest, i.e., persons who are trustees or beneficiaries or would otherwise have an ownership interest in the property.

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For this reason, we join the substantial majority of jurisdictions that have adopted the position that the Attorney General’s standing is not exclusive. We hold that any person with a special interest1 has standing to sue to enforce provisions of the trust. The trustees of a non-private trust, as trustees, have a special interest in the trust. The trustees are also in the best position to learn about breaches of trust and to bring the relevant facts to a court's attention. Therefore, we conclude that plaintiffs, as trustees of the Polk Trust, have standing to sue to enforce its provisions. Reversed and remanded.

Before you write: issue outline

  1. Write an objective classification memo, without a separate statement of facts.
  2. Apply Collins to manifested donative or commercial motives, rather than treating the word consideration as decisive.
  3. Distinguish a restricted charitable gift, retained modification power, and an unreserved personal enforcement or reversion right.

Memorandum

To: Melissa Saphir
From: Applicant
Date: February 27, 2018
Re: Meaney v. Trustees of the University of Columbia—classification of the garden transfer

Overview

The better classification is a gift rather than a commercial transfer by contract. The agreement's title, consideration recital, and mutual promises support Meaney's contrary argument, but Collins v. Lincoln directs attention to the parties' manifested motives and recognizes that naming and use restrictions can accompany a gift. This gift was not absolute: the instrument expressly limits the garden's use and disposition and retains Edward's power to modify its terms. Because property was given to an educational institution for educational purposes, Holt v. Jones further characterizes it as a charitable trust as a matter of law. Those conclusions do not themselves establish that Brendan Meaney owns an enforcement right; restrictions, modification authority, and standing must be kept distinct.

1. Gift or transfer by contract

A. Collins makes consideration and manifested purpose central

Collins identifies a gift through donative intent, delivery, acceptance, and absence of consideration. A contractual transfer instead requires an offer, acceptance, and consideration. The critical distinction is not whether the document uses formal words or includes a promise, since a donor and donee may negotiate restrictions without converting a noncommercial transfer into a sale.

In Collins, a mother conveyed a valuable vineyard to her son in exchange for his promise to use best efforts to maintain it sustainably. The court recognized that such an undertaking could be a sufficient burden in a real bargain. It nevertheless upheld gift treatment because the circumstances manifested an intention to donate rather than buy and sell. The family's shared environmental interest explained the restriction as part of the donative purpose. The Salmon example discussed in Collins likewise demonstrates that a nominal payment labeled consideration does not necessarily make an overwhelmingly donative transfer commercial.

The inquiry here therefore is not whether perpetual retention or educational use could ever be sufficient consideration. They could impose real burdens. It is whether these parties objectively manifested a commercial exchange or delivery and acceptance of a restricted donation.

B. The circumstances favor donative intent

Edward was a wealthy businessman and a generous University donor. The agreement says the Trustees wished to obtain Emily Gordon's garden parcel and Edward wished to facilitate the acquisition by buying and transferring it. Nothing states that the Trustees would pay him a price, convey other property, or provide a commercial service in exchange. Edward's role was to enable an educational institution to obtain an asset it desired, consistent with his established philanthropy.

The Trustees promised to use the parcel for educational purposes, give it the Kemper Scottish Garden name, and keep it in perpetuity. Collins expressly recognizes naming and specified-use arrangements with universities as circumstances that can coexist with a gift. Recognition of Edward's name and preservation of his chosen purpose do not automatically constitute a purchase price. They look like terms defining the donation he wished to make.

The record also states that Edward actually transferred the garden pursuant to the arrangement. Thus delivery is supplied by the completed transfer, not merely an unperformed promise in the 1964 paper. The Trustees' execution, receipt, and use of the parcel support acceptance. There is no need to reopen whether the instrument alone could compel a future acquisition when the identified asset already was conveyed and accepted.

C. The contract argument is substantial but probably not controlling

Meaney can point to a document expressly styled Agreement, signed by both sides, and reciting consideration. Edward promised to acquire and transfer a specific parcel, and the Trustees made affirmative promises rather than simply signing a receipt. Perpetual retention limits their economic freedom and can burden educational planning. These facts look more contractual than an entirely unconditional charitable contribution and must be acknowledged.

Collins nevertheless rejects the proposition that offer-like language, acceptance, and a burdensome promise conclusively establish a contractual sale. If that were enough, many restricted donations would cease to be gifts. The naming and education promises here fit the court's own university example, and there is no monetary return or other fact indicating the parties negotiated the parcel as commercial counterparties. The consideration recital is evidence to consider, not a dispositive legal conclusion.

Edward's retained unilateral power to modify the agreement as necessary and appropriate to its purpose also fits ongoing donor control over a restricted gift more naturally than a completed arm's-length sale. It does not make a contract impossible, but it supports reading the instrument as preserving charitable purpose rather than fixing a commercial exchange between buyer and seller. The absence of a family relationship between donor and University distinguishes Collins factually; Edward's philanthropic history and the institution's educational purpose supply the corresponding noncommercial context.

The stronger conclusion is therefore a completed gift subject to terms. We should preserve the alternative contract analysis because the mutual promises and formal agreement create litigation risk. On the supplied authorities, however, the label and legal detriment alone do not overcome the demonstrated donative character.

2. The gift was conditional or restricted, not absolute

Behrens Research Foundation v. Fairview Memorial Hospital presumes an absolute gift unless a contrary intention clearly appears. An absolute gift gives the donee full dominion over use and disposition. A nonabsolute gift can restrict use or disposal, retain modification power, and reserve enforcement or reversion rights. These features are alternatives that require individual examination; finding one does not automatically establish all the others.

The garden instrument overcomes the absolute-gift presumption in at least two clear ways. First, the Trustees must use the property for educational purposes, maintain the stated name, and retain it in perpetuity. Those are express limitations, not merely Edward's undisclosed hope about how a generally unrestricted contribution would be spent. Second, Edward expressly retained the right to modify terms as necessary and appropriate to the purpose. The Trustees accordingly did not receive unqualified freedom to use or dispose of the parcel in any manner at any time.

This differs materially from Behrens. That donor's instrument simply delivered and accepted a monetary gift, without an express or implied reservation of enforcement. Its interest in the hospital's department could not add conditions missing from the instrument. Here the restrictions and modification power actually appear in the agreement, so the University cannot persuasively call the donation wholly absolute simply because Edward later died.

At the same time, the instrument does not expressly say that the parcel reverts to Edward, Sarah, their estates, or a named third party upon breach. It does not contain a separate reserved right to sue. Behrens cautions against inventing those omitted rights. An express retention condition and a power of modification do not necessarily create an automatic forfeiture or a transferable personal enforcement right. The garden should therefore be described as a restricted charitable gift with the specified retained power, not confidently as a fee subject to an express reverter that the document never states.

3. The educational gift creates a charitable trust under Holt

Holt v. Jones recognizes a charitable trust when a donor actually gives property in trust for a charitable purpose. It also states that such a trust arises as a matter of law when property is given to an educational, philanthropic, healthcare, or similar institution for a corresponding charitable purpose. Formal use of the word trust is therefore not indispensable under the supplied rule.

The recipient here is the University Trustees, and the agreement expressly requires educational use of the garden. The completed transfer thus meets Holt's institutional and purpose-based rule. Retention and naming provisions define aspects of the particular charitable arrangement. The property is not described as a private fund for Edward's or Sarah's individual enjoyment, even though Sarah later became fond of the garden. Personal appreciation of a charitable asset does not change the named educational use into a private beneficial interest.

Calling the transaction a charitable trust does not mean every later decision by the Trustees is authorized. A sale notwithstanding a perpetual-retention term raises compliance questions, and pressing educational needs do not automatically rewrite that term. Any power to modify the arrangement through an authorized judicial or other procedure would require the applicable law and facts; no separate doctrine authorizing this sale is supplied in the library. This memorandum's classification should not be mistaken for an opinion that the proposed sale is lawful on the merits.

4. Implications for the standing inquiry

Holt rejects exclusive Attorney General enforcement and recognizes standing for persons with a special interest, including trustees, beneficiaries, and those otherwise possessing an ownership interest. It granted standing to actual trustees who were positioned to detect a breach. That holding prevents us from arguing that no private person ever can enforce this charitable arrangement. It does not confer standing on every visitor, family member, or person emotionally attached to a garden.

Brendan is Sarah's only child from an earlier marriage. Sarah married Edward after the transfer. Neither she nor Brendan is a party to the instrument, a named recipient of a reversion, an identified individual beneficiary, or a trustee on the facts given. The informal later name Sarah's Scottish Garden and her affection for it do not amend the signed terms, establish ownership, or show that Edward exercised his retained modification power to give her an enforceable personal interest.

We also should not assume that Edward's retained power necessarily descended to Sarah and then to Brendan. The document gives it to Edward for purposes of the arrangement and says nothing about succession. Whether such a power survives or transfers would require analysis beyond simply identifying Sarah's only child. No will, assignment, or other conveyance of an ownership or enforcement interest is supplied. Even a demonstrated relationship to the original donor would not automatically fill those gaps under Behrens and Holt.

The classification therefore supports investigating a standing-based dismissal while recognizing the trust's continuing restrictions and the possibility of enforcement by an appropriate plaintiff. Our strongest position is not that the University obtained an unrestricted asset or that charitable conditions died with the donor. It is that this was a restricted charitable gift, and the present record does not identify the special ownership, beneficial, trustee, or reserved enforcement interest connecting Brendan to it. That distinction preserves a sound standing argument without overstating the Trustees' substantive freedom to sell.

Sources and further comparison

The official question controls its facts and jurisdiction. These responses address the exam scenario; subsequent legal changes and other fact patterns may require a different analysis. The PT uses the supplied fictional Columbia library, which must not be replaced with outside law.

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