New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1888-10-23
statute relating to pcrpetuties. On this point

he says:
The testaor has provided that the Institution 70 %
known as the Tlden Trust shall be Incorporated IN form
and satisfactory TO my said and trustees
during the life time Of the survivor OF the TWO lives III
being upon which the trust OF my general essee nere
created is lmitedo-to wit the lives OF Ruby D. ihoeh
and Susie whitesey. 1t is very clear IRON 'ns s""s
the testaor had in mind the provisions OF the Revised
Statutes I'm respect 20 the suspension OF the power OF
alienation and he intended that his executors sho
comply with those provisions IL Is araueo Inn. '
executors and trustees might by possibility omit "
procure the incorporation within the period OF the TWO
ves and that then under the ulteror gift over
thew would hold his estate for indefinite and un'eo
period of time to the use OF mankind To this position
I cannot give my assent
CONSIDERING MINOR QUESTIONS
Having reached the conclusion that the primary
Gift contained in the thrty-ffth paragraph OF the
will is not void either as TO uncertainty Oh oojec'
or subject that it is not in contravention Oh 'ne
statute against perpetuties and that the provisions
of the Revised Statutes in relation to express trusS
as to lands do not apply in any event as 70 tne
personal estate, the Judge CONSIDERS some n,nya =;
Questions He answers the question, What "
the estate or interest which the executors ana
trustees hold in the property devised ana oe-
queathedp' by saying:
7 am strongly inclined tho opinion that under Bur-
r va Boardman it should be held that the tesator in
tended to limit contingent future interest In the nature
Of an executory DEVISE the contingency depending upon
the creation OF corporation by the Legislature capaoe
Of taking within the period allowed for the suspension
OF ownership Of property by the statute against per-
petutes this be not tho true Interpretation OF the
WILL think that even. although the trust sought to be
reposed In the and trustees cannot be supported
express trust to real estate under the Revised
Statutes power conferred by the will In respect to the
residuary estate Is good power in trust, the bene
nciary the Tden Trust being competent to take under
the act creating It, . II there is anything In the
provisions OF the 39h article OF the Will which seems to
be inconsistent with 35th article to conflict with
the view that intended give to his eX
ecutors supportable an executory devise
with the view that the devise and bequest contained
mentioned article be supported as power
In trust after separating the primary from the uncertain
uteror gift the heretofore cited establish. think
intention OF the testator is to be arrived
at by examination Of the whole will.
The Judge holds that as the testator's inten-
ton in regard to his heirs is clear and can be car
ried out without violating the rules Of law, the
harmonized, and the Court should refuse to de-
clare that the testator died intestate as to his
rcsiduary estate. The benefit of every doubt
should be given in support of the will Even II
the Tilden Trust is not the incorporation designed
by the testator, the will should not be declared
void this may be rectified within the two lives
desi gnated in the will In conclusion Justice
Lawrence says:
have examined the authorities cited in the elaborate
counsel with attentive and have derived
examination Of those authorities and briefs. and of the
whole case feel obliged say that the attack upon
the validity OF the provisions Of the will cannot be sue
cessfuy sustained No special argument has been made
against the will relating to the support and
maintenance Of libraries In Yonkers and Lebanon.
and therefore have considered them in this opinion
The judgment entered accordance with the view
expressed In this opinion will be settled notice.
Joseph II. Choate, L. d. Brewster, Delos Nc
Curdy and Vanderpoel, Green & Cunning ap-
peared for the plaintiff, and James G. Carter,
Daniel G.. Rollins George F. Comstock and Smith
NJ Weed for the defendants.
THE END OF THE BATTLE is NOT YET.
James L Cunning, of the firm of Vanderpoel,
Cunning & Goodwin, attorneys for the plaintiffs,
said to Tribune reporter who called upon him at
his home, No. 2o4 West Forty-thrd-st., last
evening:
have only heard Of the decision Of Justice Lawrence
and have read It. and all that say is that Of
course will be appeal. 1t is Of those
in which It certain at the beginning that neither
party would until It disposed Of by the General
Term, least Probably In vast and farreach
ing neither party would stop short Of the Court Of Appeals
1t will probably be long time before we have final
decision on the appeal Probably the might be
reached in the General Term by January, it Will be
preferred but in the Court of Appeals It would have
to 90 on calendar. The consideration Of the
on the present calendar has just been begun 1t took
three years 70 dispose Of the last calendar