Pittsburg dispatch. [volume] (Pittsburg [Pa.]) 1880-1923, 1890-06-10
THE POWER TO MAKE WILLS.

The recent decision by the higher New
York courts setting aside Mr.. Tilden's will
creating trust for the establishment and
maintenance of public libraries in New
York City renews attention to the difficulty
of fulfilling the testamentary dispositions of
millionaires. The members of the legal pro-
fession are wont to descant on the folly of
people who draw up their own wills; but
certain signal cases brought out more plain
ly the futility of trusting to the most skill
full lawyers to draw up a will that can defy
the criticism of the courts.
Mr.. Tilden was one of the first lawyers Of
the land, and his will is now found to be
worthless. The legal adviser who drew up
Mrs, Fiske's will was one OF the foremost of
his profession; and Cornell University
mourns the loss of S3,0O0,000 which
1t was to get by that document Com
modore Vanderbilt employed the best
legal talent in making a will that
would stand; and William H. Vanderbilt,
his heir, had to make o compromise. The
list might be continued Indefinitely if it was
worth while; but these cases sufficiently
illustrate the fact that no perfection of legal
talent is sufficient to insure the will of
great millionaire against the assaults of the
will-smashers.
Another point is worthy of notice in this
respect The theory of the law is that
man is entitled to dispose of the wealth he
has created; and unless that right of dis
position is extended beyond his life, his con-
troll of his own property is abridged. But
that is an abstract theory only, and while
protesting it, the practical operation of the
law In the line of Withdrawing begins to
create doubt whether any man of great
wealth can make binding direction as to
the use of his wealth after his death. The
Tilden and Fiske cases are enough to create
decided doubt whether people can create
libraries or endow universities by will;
while score of less prominent cases create
the doubt whether a man can select his own
heir even among the members of his family.
With this hiatus between the theory and
the actual results of the law, the question
becomes pertinent why the profession
should not be amended to conform with the
practice. In other countries the right of
absolute testamentary control has been lim-
tied with results good or bad according as
the limitation was intended to prevent or
preserve the maintenance of q privileged
class. Such limitations have not been
found to weaken the sacred rights of prop
erty, nor has that result visibly followed
the Withdrawing record of our own courts.
With the theory of absolute testamentary
control reduced to mincemeat by the practi-
cal results of the law, why should not a
statutory Limitation be substituted for the
expensive and haphazard method of break
ing wills now in vogue?
In the practice of the courts we have a
very valid argument for the usefulness of
laws directing the division of great estates,
with limitations of the amounts that can be
bequeathed, either to direct or collateral
heirs. Such legislation would remove the
phenomenon, now becoming quite frequent,
of vast wealth kept In a single bulk from
generation to generation, and would be the
most effective correction of the tendency
toward permanent wealthy class. 1t would
also provide definite and well-known lim-
itation, in place of the indefinite lottery
which is now digni6ed by the term of con-
testing will.
While such legislation is maturing, it is
pertinent to offer the advice to rich people,
who wish to endow charities or found public
institutions, that they had better take warn
ing by the cases of Tilden and Mrs. Fiske,
and follow the example of Mr.. Carnegie and
Mr.. Pratt, by doing it during their lifetime.