Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1886-11-20
THE TILDEN WILL CASE.

Governor Tilden was man Of broad
ability, lawyer of great acumen. One
would have felt perfectly safe, in disposing
of his property, to have had the advice of
Mr.. Tilden, or his attorneyship in the
preparation Of ones last Will and testa-
ment. Yet Governor Tilden could not, or
did not, construct his own will so as to pre-
vent its possible destruction by contestants.
And this is all the more remarkable from
the fact that the best lawyers of New York
declare the law point upon which it may
go to ruin to be well-settled principle of
the law
Mr.. Tilden gave, by viii, the great bulk
of his property to trustees who are di-
rected to build and endow library and
an educational institution in the city of
New York. This is specific direction,
and the details are clearly provided, so
that the trustees cannot go wrong in the
matter. But in his extreme caution Mr..
Tilden provided also that If the trustees
shall deem ii inexpedient to apply the
property, or any part of it, to the said
institution" they may use it for such char
table, educational and scientific purposes
as in their Judgment will render the fund
"most widely and substantially beneficial
to the interests Of mankind"
The lay mind may at first see no defect
in such a provision. Surely man may
devise property to another, to be used with
certain general ends in view, but in detail
according to the best judgment ofthe agent.
1t is, however, true that dead man can
not have an agent with discretionary pow
ers-an attorney in fact. The principal
being dead, no decree of his can, in the
hands of an executing agent, go beyond
the specific direction. 1t is very differ
ent case where one gives his property alb
solutely to trustee, who may, if he
chooses, use the property for purposes con-
sonant with the wishes of the testator.
A great deal may be left to the discre-
ton of the agent by will, but not every
thing. The New York Herald cites very
recent case where the Court of Appeals
said This Court is not likely TO agree
that devise may become the mere equiv
alent of a general power of attorney" In
another case, the same Court confirmed a
will directing the trustees to distribute the
estate among Roman Catholic schools,
charities or churches, because, as the Court
said, {" the class of benefciaries was spe-
cially designated and confined to the linn
its of single city and to a single religious
denomination"
But where a will directed S150,000 to be
distributed among such charitable institu-
lions as the trustees might select, the
Court of Appeals said at is well-set-
tied rule that where gift to a charitable
use is so indefinite as to be incapable Of
being executed by Judicial decree the
trust must fall"
And this, because in such a case no Court
can enforce the trust, and heirs are pro-
tected by the law against the disposal OF
property in which they have possible in
terest, in a manner that takes it without
the power of the Courts of law to correct
or enforce, the trust.
Now, under Mr.. Tilden's will, it would
seem that there can be no review OF the
Judgment of the trustees, should they
deem it inexpedient to apply the fund
as at first directed. So, it would seem, &C.
cording to present lights, that Mr.. Tilden's
will, so far as any trusteeship created by
it is concerned, is that impossible thing,
dead mans power of attorney, for, as the
Court of Appeals of New York said as
lately as in 1884: "a testator clearly
would not be authorized to make 4 be-
quest empowering his trustees to select in
stitutions embracing the wholes.ciyilized
world, or even within the limits of the
United States"