The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1878-06-28
CONTESTED WILLS
Less than One Out OF TWO
Hundred OVerLhrcWn.
UNSUCCESSFUL COUNSELS FEES.
Surrogate Calvin on the Law OF Descent
and Distribution.

Tho notorietv recently gwen to the Vanderbilt,
Stewart Dancer, Rolwagen and other well known
will has given rise to frequent statements
the press that IL longer OF any Tor rich
men to make Wills In order 10 ascertain precisely TO
what TINS Is true aud how many wills really
successfully assaed in the Surrogate's Court OF this
city the writer yesterday called upon Surrogate
Gavin.
SIS 1t true, Judge, the Surrogate was asked, that
II is SO easy nowadays to overthrow will that II IS
scarcely worth while 70 MAKE one Z"
..Such statements" the Surrogate replied, "arise
from misunderstanding OF the facts, you will
when give you the precise figures as TO the proper
ton OF wills successfully contested while have held
the ONCE Of Surrogate -
The Surrogate referred TO some OF his official
and. after a brief consultation, sald:-"I entered the
Surrogates Office on April IL 1876 about years
and two ana a halt months ago In TINS period OF
time, 1900 wills have been admitted to probate bv
OF these 500 only lis have been contested ana only
ten rejected, showing that less than Will OF
twenty had been contested, AMI less than of
200 oycrthrown."
FIGURES
"That Is certainly small proportion OF the numper
OF wills, but how as TO the proportion Of the wealth IN
volved in Wills that not contested and those
that were ovcrthrown?o
without having the precise figures at my hands
would say thar the ten Wills rejected would involve
over $3.50, 600 IN all, while the wills admitted would
$780, 00O or this latter class OF wills those
contested but admitted by mo would probably dispose
oil $75, 000, 600 uuclucng tho Stewart wiinn
ssThen there Is why the law SHOULD render
It still more difficult than II already is TO overthrow
WHIP
mo, IT is In practice by means easy to over
throw will, as has bean sufficiently demonstrated by
the experience embodied IN the figures which have
given you"
COUNSEL FEES
"Do not the allowances OF costs and counsel fees
swallow up large share Of the estates in contested
cases 20
.They cannot exceed over i've per cen, according
TO law Except by voluntary compromise between the
partesl II you ask tor my opinion, unsuccesst ul
contestant should be permitted allowance OF
the estate. AS the law has been adjudged, however
by The Court OF Appeals an unsuccessful contestant
eutitled counsel fees Of the
long Inc conIest has been made in good ilth-
thai is to say statutory Costs IN ali counties but New
York, ana allowances TO counsel In lieu of COSTS not
10 exceed Ave per cent IN This county"
"rhen. IN The Vanderbilt will case, IN which tho
estate supposed 10 amount 10 800, 600, 000 you
could, Il you saw ~, make allowances 10 counsel
amounting TO s., 000 G00f"
..rnere nolning ia tho statute prevent It, was
tho Surroxate's smIn. repy. I'm this connection
viii say IN reference TO allowances that If Tue statute
would prescribe the costs to be allowed paruc-
ular II would render the adm tralion OF this
Office much less embarrassing and would relieve tho
incumbent Of q very unpleasant but necessary dis
elimination betwesn equiIy meritorlous counsel. At
present the whole mater Of allowances is lett TO tho
discretion the Surrogate within the limit oil Ave
per cant already referred 10. I"
INDIVIDUAL FREEDOM MAKING WILL
"Undcr the Jaw as It stands at present person Of
sound m'nd ana Tree from undue Influence may leave
| mis- property TO whom he pisases, may lie no, -
4 Precisely SO, 70 Tho surrogate replied "inere ~
sometimes an outcry that VIII makes al I'M nAtur al
discr,,n NATION between children Other relatives,
but our Law invites il Whenever u person oil al
MIND and lree from undue'nhacnce makes Will he
llAriy In m ~ ms hA nj and
no court has the rgnt TO set asoe wii made be-
cause IL makes unjust Determinations or because II
dis nherlts children relatives He may aisinherit
his VIE and any all Of HIS chidren VI he chooses
and g,ve assay his enrs estate 10 strangers; tho VIII
IS noue the less valid Il tho deccdent was o. sound
mind and Tree from undue influence"
'ls tho ADVICE 10 ricn men that II 10 no longer
worth their whiio 70 make wills likely to have n
detrimental erectf"
Yes. sucn advice, II deferred to ana accepted,
can only have detrimental eject; Tor, in = grea,
majority oil cases, the statue VI dcscent and d,strou
ton would fai 10 do justice TO those having claims
the fortune OF the deceased"
| 'sWIii you kiualy explain whyr
4 WAY PEOPLE SHOULD MAKE WILLS
| "Because the statute makes NC discrimination in
favor Of heirs or next OF KIN who vo received dur
ing the life Of tue decedent large benefits anu i,
account OF the comparative Of
Stance would generally vii TO a cr'ppied child
or one Otherwise iucapacttated from earning his
living more than 20 Others whL are not so an ctcd-
wbie tue statute OF descent aud distribution would
recognize such distinction. iher. other case.
in wncn tho statute would operate unjusuy. A nus
band may die aud leave nothing out real estate hs
leaves n willow aud one child, ana while the widow
gets only lille interest in onethrd tue child taxes
the fee two-thrds ana COTS the balance aier tns
mothers death. Moreover, the execution OF wi Ii
Important because the decedcnt name those in
whom mas sufficient conhdcnco 10 desire them /,
al his esialc.p
pKyAuLriSG TRUSTEES
..Do you snnk there sliii mucn abuse In tho nd
ministration oil estatesrp
In she Iast niteen years there secms
KIND Of epidemlc In the deiacai,ons and emb ~ 9
mests by .rustces OF estates but think
OF 1877, making emb zzling trustee guilty o. n
criminal one nee, Will aoru very material projection
You will PROBABLY remember that this law imposes
upon convection, hn' not less than tBo anuunt EN-
bezzicd, with Interest. and twenty per III
tIou default OF ~hich tne cooviced trustee may
imprisonca ior i've years At mar. Labor
..H,s there YET been conviction under this n IA
law2o
mot that am aware Of" Surrogate CALVIN replied
being called TO the benc1 ny important bustncs
tho interview here Terminated.