New-York tribune., 1891-10-28
TILDEN'S WILL BROKEN.
Coutinuedfrom First Page.


how does II stand in the testatOr's sohemef
The opinion then sketches the objects and scope Oh
the projected trust, and remarks that uHe 't"' "
simply the suggested instrument to execute the 'es
tator's scheme for the disposition OF the property
Continuing, IL says
question whether the trustees should select the Ide
Trust or some other corporation through WHICH - ~
the trustees, charged with the imperative duty OF
devoung the estate to charitable ana . 17gd
endow the Tlden Trust, without taxing cohPlsscW W. VIZ M
Of the whole field OF charity They were DoC 10 %o
MAN In substance the testator said 10 his executors
have determined 10 devote my estate 20 charta6iei
educational and scientific purposes. nave l0rIicu
M detailed plan how the purpose be executed but
under the law OF New-YOrk II must DO done through
@anso 10 be incorporated institution u be called the
TIden Trust with capacity to maintain Il free
library G cs anu ather cdscaona and scientific objects as
you shall designate; and you deem IL eApeuiehI
to do-convey to that institution all or such part Oh
my rcsiduary estate as you choose ana II you no
not think that advisable. then apply it to such
charitable educational and scientific purposes as in
your judgment will most substantially behent man
Tins was left to tho trustees the power to dispose
Of the estate within the limits defined ana 10 seecO
the objects that S should gu os nTce and S lind therein
any preference in the way Of separate sft or poWer
to the Tden trust . OF r. % S.Se bs ea ' o charitT
Again, event Is named upon the happening 0t wllGm
any estate is limited to the Tilden Trust Inc ony
condition suggested Is the dctonlnatlon BY tle tst
tees of the question whether they deem 1t eApedehI
to endow that institution But II the views already
Of man Institutions through which the testators
charitable purposes may be executed or Is put
Termination of the question Of expedency involves the
doing Of the very thing which the raw conETniG connTuiteG
viz: selection from an underlined ana uhAnlVeu
class Of objects; and the power would be void
IMPORTANCE OF THE "ULTERIoR PROVISION"
Il thus becomes apparent how important is the so
called Interior provision In the plan which the tesuto
had for the disposal Of his estate and erect cannot
be given to that plan II that provision Is &c he % Gs
cretion committed to the trustees. strike out ta1
to aPS qSe ned sseeon of Of Sssss that
benefited by the will, their power would De c04Ieu @
choose not TO act or failed to act the estate would
60 10 the heirs at law But il the provision OF the
1 mes ssnsed es Hns @ to 5 to
purposes and that 1t should in no event go to his erS
power 10 choose between his heirs and the Tlden Trust
We cannot, therefore, Obterate the oOcasu uTr'or %
We are Of he opinion therefore, that the thirty
fifth srtce of the Will Goes not confer separate powers
vfsinn cannot be eliminated from the will without dc
sroying the scheme that the estator designed for the
disposal of his estate that the whole article represents
one entire and nseparabe charitable scheme ana can
not be subdlvded, and the power conferred upon to
trustees IS Of selection. This power was under
the statute special and in trust. m
The power conferred by the will not being made TO
Was therefore imperative but it is moi valid uness
can be enforced by the courts at the St OF some oehe
acary A. the selection Of the objects of the trust
was delegated absolutely to the trustees there IS no
person or corporation who could demand any part Oh
the estate or maintain an action to coRG the Seei fota
defect in the will. The will of re trustees Is mado
controlling. and not the vii OF the testao - ws an
authority Is in cjntravention OF inc st9tue OF Wis;
Under the statute of powers there may be a power on
selection and exclusion with regard to the desgaeeo Gg
jects, and the duty there imposed Is made lmpera9ve
and enforceable by the court. In ths case execution
Of the power could not be decreed by the court III
either OF the cases specified in the statute
BY an enforceable trust is meant one In which some
person class of persons have right to an or pat
Of designated fund and can demand It's conveyance 10
them and. in case such demand is refused. may sue
the trustee in court OF equity and compel compliance
upon his executors the duty OF selecting the beneficiary
and there is no person VINO mas te rg4 10 1,iose m @
lnt duty demand any part OF the ests'c & IN case
The executors refuse neglect to act. The power at
tempted be vested in the trustees cannot be conted
or enforced and whether the provisions OF he WIZ re-
atng to the resduary estate be regarded us ereaung
trust power in trust they are IN eitner case VOID
The Judgment must be affirmed. .
THE MINORITY OPINION
Judge bradley. in his minority opinion says there
were certain contingencies in view which would
have the effect 10 defeat the execution Of the power
to endow such an Institution the Tiden Trust, and
upon which the limitation Of the fund or some portion
Of it to the general charitable educational and scen-
tihc purposes was provided for. lie continues. in
part
The first was tile failure to obtain the incorporation
the tetaSr ntended that the ridden Trust being ncor
determined and that in the event only that It SHOULD
by the trustees be deemed ineXpedlent TO apply 10 IL
any Of the residue Of his estate or expedlent - aPp
b. any seek charitable or other purposes 10
which to appropriate the fund or any portion OF IL,
. The question whether the provisions for the
disposition OF the IeSduary estate are or not alter
native primary and Interior is one Of &C GonstrdG INST
fifth article permits aud the evident intent of tho
testator there manifested requires, the conclusion
that the two alternative provisions, and that they
primary and Interior The former IS definite IN ITS qo
e the Later is C9netTs IhS d Nof Ueeea 81
qualify or modify tho construction to which the pro
Visions OF the thiryhfth article would otherwise be
While the test Of expediency or nexpediency was
left to the discretion cf the executors and trustees
testat0r. as plainly manifested by the WILL have APP
piled any part of the fund TO the purposes Of the gen
they had in good faith determined for some
reason that it lnexpedent to appiv it, or some
fe fRe proon M for the Ten IT Trust must be treated
primary and distinct from that for general charities,
vision efectually made remains to be con-
It Is very likely that, II the tesator had apprc
headed the nvadity OF the ulteror provision OF the
thlryafth article, he would have provided different
cannot be assumed that the primary provision for the
appointment and disposition Of the reSldnary estate e
TO the Tlden Trust would nave been other tlan ihat
which no made. His purpose II mus be assumed In
view Of the power given would be accomplished Dy
the disposition the Incorporated institution desig
mated by him. The creation Of this power, IN nature
and purpose, was lawful: and through rs execution
effected, although In respect to the appointment to
that institution IL made dependent upon the Will
Of the executors and trustees. While II is essential
to trust SUCH that it be imperative, and there
fore enforceable by decree in equity when the time
arrives for It's execution II is not so Of mere power
or necessarily Of trust power. although the latter
is imperative unless its execution nOn-eXecutlon
is made expressly to depend upon the will OF the
grantee The testator intended to make the execution
Of the power Of aTp0mtmen 10 te nden IruSt it & ue
pears by the provision creating it. The contention,
therefore, that this power OF the primary provision
was invalid because It's execution was NOT 1udlcially
enforceable In equity behalf Of that Institution, does
not I'm the view taken, seem to be maintained.
The discretion which the testatOr evidently INTENDED
To give the trustees related not to the execution OF
at,o og fte