The morning news. [volume] (Savannah, Ga.) 1887-1900, 1889-11-08
TILDEN's WILL VOID.
The Decision VIII Cut New York Out
of Big Library.

NEW YORK, Nov. 7.--Justice Lawrence's
decision, in which he upheld the Tildsn
trust clause in the will OF the late Samuel
J. Tildsn, was to-day reversed by the
general term of the supreme court. Mr..
Tilden's will in its thirty-fifth clause pro-
vided for the establishment of libraries in
this city and other places, but according to
the ruling of the court, this beQuest, by
reason of legal technicaiities, is void. Pre-
siding Justice Van Brunt agrees with JUS
tice Brady in this view, while Justice DAN
iels writes a dissenting. opinion. Mr.. Tilden
In the disputed clause directed the forma-
tion of a corporation to be known as the
Tilden trust, and gave his residuary estate
for that purpose. Should the trust not be
Incorporated during the lifetime Of two of
his nieces, whom he named, the residue was
by the executors to be applied to such addi-
tional and charitable purposes as in their
judgment would render the widest and most
substantial benefit to the interests Of man
kind.
ATTACKED BY A NEPHEW.
George H. Tilden, nephew, attacked the
validity of this section, and the general
term looks with favor upon this contest.
Presiding Justice Van Brunt, after stating
the general principles relating to wills,
says he thinks that the court was in error
In holding the provision to be an executory
devise. 1t was clear that the testator's in
tention was not to create an estate in
expectancy. The judge reviews
much legal argument produced
on the hearing before the
court and says that the court is unable to
discover in what part of the devise, discre-
tion to judge of the character OF the gift
was lodged with the person named as
trustee. Without action on the part of the
executors, the Tilden trust could not claim
anything.
VOID IN ANY CASE.
If the provisions of the will relating to
this residue and remainder are TO be deemed
trust, therefore they are void, and If they
are to be deemed to confer simply power in
trust upon executors and trustees they are
equally invalid for inflniteness, unless
the execution or non-execution of
power was made expressly to
depend upon the will of the grantee of
the power. 1t is plain that the discretion
which is vested in these trustees cannot be
| controlled and cannot be exercised by any
other person or court, and thus no duty has
been imposed upon them, the performance
OF which can be upheld by the court of
equity, and this is the test of the validity of
such power in the trust.
CAUSE OF ALL THE TROUBLE.
1ne radical vice OF tne entire provision
seems to have arisen from the testator's un-
Willingness to confer any enforceable rights
upon any qualified person or body. He
| seems to have absolute confidence in his
executors, and therefore the execution OF
that necessary definiteness for which ex-
| ecutrial or trust discretion cannot be sub
stantiated under our system Of law"
NEW YoRK's MISFORTUNE.
In conclusion the judge says: "It is un
doubtedly a great misfort-s,e that the in
tention OF the testator to found trus
of the character mapped out by his will
| should be frustrated, and that the city o.
New York should not receive the ad
vantages of the munificence by which il
was intended that its people should b,
benefited, but that should not cause thu
court to violate rules and statutes which
have been adopted as best subserving tht
interests of the people of this state"