New-York tribune., 1876-07-13
LAST WILLS AND TESTANEyTS.


List WILLS And TESTiNENTS.
| A will which does not express the VIII OF
the tcstator is no will at all. However differ
| ent NAV be the views entertained OF the dis
position of his property by the late MIR.
! Stewart, no sensible person will question his
right TO dispose according to his own pleas
ure of that fortune which was the magnificent
fruit of his own judicious and untiring labor.
But putting aside the particular consideration
of the Stewart case, we wish to call attention
90 the concluding remarks of Surrogate CALVIN,
who "deplorcd the growing irreverent diSre-
gard by heirs at law and next of kin OF the
d" last wills and tcstaments of those who by
honest industry and prudence may have ac-
"dured moderate competence or an
"abundancen The evils of tins tendency,
as the Surrogate justly remarks, " are
"more felt and deprecated by those OF mode
crate means than by the wealthy" To such
an extent have these contests been multiplied
that men now make their tcstamentary dlspo-
siiions with feelings of anxiety and doubt
which much diminish the satisfaction which
they might receive from the performance Of
an imperative duty. For it can give no
Z
know that he is merely bcqucathing law
suit to those whom he is anxious to make the
recipients of his bounty.
If the law is charged with the distribution
of the estate of an intestate, it proceeds ac-
cording to certain rules to scatter it among
his heirs. These are of two classes. First,
there may be the widow who is entitled to Il
sufficient provision, and the children to whom
belongs as of right the remainder; or there
may be the next Of kin who really have no
clam except purely artificial one; and these
in default of issue take the estate not because
they have any indcfeasiblc right to it, but be-
cause there is nobody else to take it. If Mr..
Stewart had died intestate, these clamorous
persons who are disputing his will might have
inherited some of his wealth /; but inasmuch as
he saw fit To make n will, and did not see fit
to remember these contestants even If he knew
anything about them, what reason is there, for
the purposes of the distribution, why he should
not be regarded MS still living and as dlSpOsng
of his property by deed or by delivery ? 1t
seems to us that the question for tribunals OF
probate to ask is, What would the teStator do
if he were present and of sound and disposng
mind and memory The presumption then is
that he would do 10y deed or parole what he
has done by testament. That instrument is
the best possible evidence of his wishes. To
disregard them without ample evidence of his
incapacity of mind or memory is to insult him
in his grave. To encourage attempts to set
aside wills is TO encourage litigation of a
specially undesirable character.
one of the worst results of this unreasonable
litigation will be to deter men from making
dcviScs for public uses. One of the best Will
be to encourage them to become their own
executors i'll their own lifetime, as several
wealthy men have recently done Anything
which discourages charity and bcneyolencc
should he looked upon with diSfavor by the
courts upon grounds of public policy Deyiscs
of a benevolent nature are among the best
resources of society, and when they are made,
they should be scdulously protected. For
instance, Mr.. Edward Boyle a well-known
citizen of New-York, by codcil to his will
provided that, in the event of his wlc's death,
his entire estate should revert to the House of
the Good Shepherd. Accompanying this and
| in the same paragraph, is the following
cit is my will that if my said wife
"and myself shall perish by the same
| Calamity or accident, the devise to the said
"wifc shall be void, and the above devise to
Z" the House of the Good Shepherd shall be
"vaIid and ellectual." Mrs. Boyle died OH the
| 18th Of April, and the tcstator on the 18th.
A kinSman now claims, as both Mr.. and Mrs.
| Boyle died Il natural death, that the devise to
the charity ls void and the estate goes to the
heir at law. Here, it seems to us, there can
be no doubt of the intention of the testator.
A stronger point is that the House of the
Good Shepherd has already exceeded the stat
utory restrictions upon the accumulated prop
crty of such Institutions. There is also Il claim
of undue influence over the mind of the tes-
tator. SO the House of the Good Shepherd,
to which Mr.. Boyle intended to give an estate,
| has really received a lawsuit with some chance
of getting nothing. How often are we re-
minded of the poor man in Dicbens's novel
who was utterly ruined and finally locked up
in the Kings Bench for life, simply because
! he had inherited IN estate!
While Gov. 1ildcn Is considering the points of his
letter of acceptance let remind him of the follow