New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1889-11-08
PRICE THREE CENTS.
AGAINST THE TILDEN WILL.
THE FORMER DECISION UNFOLDING IT RR
VERSED.

VERSED.
THE GENERAL TERM OF TIE SUPREME coUR&
WITH JUDGE DANIELS DISSENTING. DE-
CIDES THAT THE CLAUSES CREATING
THE FAMOUS TRUST FOR THE BEN.
Eft OF THE CITY ARE NOT
LEGAL-THE CASE WILL
NO DOUBT GO TO THE
COURT OF APPEALS.
decision of the General Term of the Supreme
Court was handed down yesterday reversing the
decision of the lower court in the rlden will case.
The decision is that the Tilden Trust cannot be
maintained, and that the estate must he divided
among the heirs. The opinion is written BIZ Ju,-
tice Van Brunt, and Judge Brady concurs. but
Judge Daniels has written a dissenting opinion
The case is argued at great length and the opinion
printed in full would occupy eight columns Of
The Tribune. The opinion declares that the tes-
tator did not intend that under any circumstances
his heirs or next of kin should get from his estate
any more than the provisions which he had made
for them in his will; and therefore he did NOS
intend that such heirs should receive any portion
OF the residue. Neither did he intend that under
any circumstances, even if incorporated the Tlden
Trust should receive as a matter Of right the
whole or any part Of this residue. but he did in
tend that IL should be devoted to some charitable
use-tO the Iilden Trust if Incorporated and il
his executors deemed it expedent. The
power or authority thus conferred could not be
executed by judicial DEGREES because. unfort-
unately there is no fund or estate which by
the will must be given 10 any person or class
of persons. There is an estate which may be given
in whole or in part TO one possible institution or
NAV ba ind 6pft .
The closing words of the opinion are as follows:
II is undoubtedly great misfortune thai the IN
tenton OF the estator 10 found trust Of the char
acer mapped out by his will should be frustrated and
that the city Of NewYOrk should not receive the al
yantaces Of the munifcence by which IL Intended
that its people should be benefied. but this cOnsidera.
ton ought To the court 10 violate rules and
statutes which have been adopted best subserving
the interests OF the people and thus unsele principles
which have obtained through a long course Of de-
cision controlling the rights and interests of properly
We are therefore of opinion that the judgment appealed
from should be reversed and a new trial ordered with
costs of all parties to be paid of the fund
Judge Daniels dissents from the opinion of his
associates. He says that the trustees were re-
quired to obtain the act of incorporation within
the lifetime of Ruby S. Tilden and Susie Whittlesy
of the survivor of them and that did not trans
cend the limits which the law permitted to be
prescribed for the creation of this corporation.
1t has, however, been suggested that the time for
the organization of the trust and the conveyance
become the recipient of exceeded or might ex-
coed, the bounds of the lives of these two per-
sons. But il is quite evident from the provisions
contained in the will that such disability was nos
within the contemplation Of the testator. For
by all its provisions he appears to have been aware
of the restraints Of the law by which the title TO
property has not been permitted TO be SUSPENDED
for any object for greater period than that of
two lives in being at the time when the direction
for that object should take effect For through
out his will he has limited all the special trusts
created by him in subordination TO these restraints
of the law. 1t evident, therefore, that its
provisions were familiar to him as lawyer, and
that they present in his mind at the time
when this will was drawn, and that he did mob
intend that his executors to any portion OF the
will should transcend the restraint in this respect
imposed upon his power Of disposition by the
statutes.
tended the possibility that his executors and
trustees should transcend these restraints by
their action in creating the Iilden Trust and en-
downing it with much Of his estate as they
deemed it proper to appropriate to that end.
And in view Of these several provisions the
objection which has in this manner been
taken may be characterized as being extremely
technical, and not entitled to the approval of the
court. No infrTnity arises in the case by reason
of the circumstance that this corporation WAS
to be created after the death of the testator.
In the directions which the tetator gave concern
ing the disposition of the residue OF his estate, he
carefully observed the rule that definite person
or class of persons must be either mentioned or
referred 10 as the person or persons TO be oene-
fcally aided in the execution of power of
trust. For there but one person. and that
this corporation, that light in the first In.
stance become entitled 10 this portion of it, and
it only in case the institution mentioned by
him should not be incorporated during the two
lives, the executors and trustees should deem
il nexpedicnt to convey this part Of the estate
any part Of it TO the institution that he then
authorized his executors and trustees TO apply
the residue TO such charitable educational, and
scientific purposes as in their Judgment would
render il most widely and substantially beneficial
TO the interests of mankind. This alternative
power the Judge holds to be void. But, he says,
as this was clearly expressed by the testator 10
WIS no more than distinct and alternative dls-
position of the property, not to be brought up for
any practical object, unless there should be
previous failure in the conveyance under the pre-
ceding power of this part OF the estate, or unless
the corporation should not be brought into exist
ence. The conveyance OF the estate TO the cor
pOratiOn was in no manner made in the slightest
degree dependent upon these alternative directions,
and they could become important only in case the
trustees and executors did not convey the property
10 the corporation or in case of failure IL create
the corporation itself.
The legal directions contained in tin cestators
will may be ObScured, although there may be
conflict with the law and cannot be maintained.
Judge Daniels says in closing:
As the app from the Will and the other
proof which has been produced. the power itself
comforting this trust upon the trustees and executors
has the sanction Of the law and they have conform.d
10 its requirements. as well TO those of the will,
in carrying the power cOnded 10 them by the tssator
into execution. The judgment should be affirmed.
Nlessrs. Carter X Ledyard, who are .he at
tOrneys for the trustees said yesterday that rs
they had not seen the decision they were unable
TO say definitely what steps would be taken next
in the case. Undoubtedly, however, the case
would be carried To tine Court of Appeals.