Pittsburg dispatch. [volume] (Pittsburg [Pa.]) 1880-1923, 1891-10-28
TILDEN'S LAST ERROR.
His Will Finally Annulled by the
Court Of Appeals at Albany.
DECIDED IN FAVOR OF THE HEIRS.
Too Much Authority Delegated to IncOrpOr-
ated Trustees.
NOT REALLY THE TESTAT0R'S WILL

ALBANY, Oct. 27-The Tilden will has
been broken. The Court of Appeals to-day
rendered decision in favor of the heirs in
the case of George H. Tilden VS. Andrew H.
Green and others as executors. etc., appel
lants, and Laura B. Hazard ct al, respond
ents, affirming the judgment, with costs
payable to all parties out of the estate.
Samuel j. Tilden, Jr., was present when
the, decision was handed down, and was
warmly congratulated by many present on
the outcome of his fight.
Under the statute of distribution that
regulates the inheritance Of property, the
issue of Mrs. Pelton and Henry A. Tilden,
sister and brother of Ex-Governor Tilden,
come in for equal shares of the S8,000,00O.
Mrs. W. NJ. B. Hazard is the onlv heir on
Pelton's side, and thus is entitled to S4 ,00O,-
000 The other 81, 900, 900 are subject to the
claims of the six children of Henry A. Til
den, namely, George Fl. Tilden, S. J. Til
den, Jr., Mrs William B. Whittlesey, Mrs.
Swan Ga widow who lives in New Lebanon),
Mrs Willis s. Payne and Mrs. Schwartz, of
New York City.
JUDGE BROWNS DECISION.
Judge Brown, in his opinion, says in sub
stance: "Unless within the rules which con-
troll courts in the construction of wills we
can separate the provision in reference to
the Tilden trust from the general direction
as to the disposition of the testator's resid-
uary estate, contained in the last clause of
the thirty-fift article, and find therein that
pre- erential right to some or all of such
estate is given to that institution when in
corporated, and one Which the Court, at the
suit of said institu tion, could enforce within
the two lives which limit the trust, we must,
within the principle of similar cases, de-
clare such provision of the will invalid"
According to the decision the corporation
may be created in form and manner satis-
factory to the Trustees, but takes nothing
unless the executors considering every
cause and reason, deem it inexpedient to
convey it to some or all of the residuary
estate.
In substance Mr.. Tilden said to his execu-
tors: 81 have determined to devote my es-
state to charitable, educational and scien-
tif1c purposes. have formed no detailed
plan. Now, that purpose can be executed,
but under the law of New York it must be
done through and by means of a corpora
tion.
THE TILDEN TRUST Incorporation.
81 request you to be caused to be incor-
porated the Tilden Trust, and if you deem it
expedient-that is, if you think it advisable
and fit, the proper thing to do is, to convey
to the institution all or such part of my
residuary estate as you choose, and if you
do not think that course advisable, then ap-
ply it to such charitable, educational and
scientific purposes as in your judgment will
most substantially benefit mankind"
Thus was left to the trustees the power to
dispose OF the estate within the limits de-
fined and to select the objects that should
be benefited, and it is impossible to read
the thirty-fifth article and find therein any
preference in the way of seperate gift in
power to the Tilden Trust, or to seperate
that institution from testator's plan to de-
vote his estate to charity. The trustees are
free to select the Tilden Trust and cause it
to be incorporated, or to choose any existing
corporation as the instrument to carry out
the testator's scheme.
THE WILLS FATAL DEFECT.
Again, no event is named upon the hap
pening of which any estateis limited to the
Tilden Trust. The authority to endow the
Tilden Trust, if that should be deemed ex-
pedient by the trustees, was not a separate
power distinct from the purpose to devote
the estate to charitable uses, but was Incl
dental to the testator's scheme and involved
therein. While we may admit the testator
expressed a preference for q corporation
that should bear his name, he conferred no
right upon that institution. The person who
should be benefited by the WILL and the par
ticular institution that should administer
the fund, w&s left to the selection of the
trustees.
We are of opinion, therefore, that the 35th
article of the will does not confer separate
power upon the trustees, and that an utter
ior provision cannot be eliminated from the
will without destroying the scheme that the
testator designed for the disposal of his es-
tate. As the selection of the trust was dele
gated absolutely to the trustees there is no
person corporation who could demand
any part of the estate or maintain an action
to compel the trustees to execute the power
in their favor. This is the fatal defect in
the will. The will of the trustees is made
and not the will of the testator
Such an authority is in contravention of the
statutes of wills.