Pittsburg dispatch. [volume] (Pittsburg [Pa.]) 1880-1923, 1891-11-02
A BLUNDER OF GENIUS.
Matthew Marshall's Explanation of
the Flaws in Tilden's Will.
HOW THEY ALL CAME TO CREEP In.
His Philanthropic Schemes Now lrre-
vOcably Frustrated.
A GENEROUS MAN NOT A THRIFTY ONE
ESPECIAL TELEGRAM TO THE DIspArcH.l

The decision of the Court of Appeals in
the Tilden will case, declaring invalid the
carefully drawn section of the will provid.
ing for the disposal of the bulk of the tesla
tors great fortune for charita BILE purposes
adds one more to the already long list OF
failures of testamentary benevolence
through legal mistakes. Had Mr.. Tilden,
following the example OF Mr.. Peter Cooper
and his children. of Mr.. Henry W. Sage, and
Senator Stanford carried out his purposes
himself, instead of leaving their fulfllment
to his executors, he would have encountered
no obstacle in doing it, and he would have
had the satisfaction, besides, which is now
denied even to his surviving friends OF
witnessing the full accomplishment Of his
wishes. As it turns out, his fellow citizens
Will be indebted quite as much to his public
spirited niece, Mrs. Hazard, as to him, for
their new library, sine, il is only by her
generous remuneration OF her legal rights
that the funds will be provided for its forma-
tion and maintenance. Whatever other
schemes of philanthrophy he may have had
i'm view are irrevocably frustrated, and, in
decd, they were abandoned by his executors
at the outset. The conclusion is not lame
and impotent, but it fall; So far short of
what it might have been, that it is compara-
lively a failure.
Much surprise and unfavorabia comment
has been excited by the fact that an expert
enced and able jurist like Mr. Tiden did
not succeed in drafting in valid and effec-
tual manner an instrument involving inter-
ests so important 10 himself and to the pub
lie. He had been renowned as one OF the
most sagacious and well-informed chancery
lawyers, not only in New York, but in the
whole country: railroad leases and mort
cages in which hundreds of millions of dol
lars were dealt with had to be prepared by
him or executed only after his examination
and approval, not one of which has been
found defective; and his Judgment in ac-
Ms see a IN his %Snsg aSenmuasin% Is sola,
fortune, large even in this day of
ten and hundredfoId millionaires How
came he, then, to fail. in making his own
will? To my mind the explanation is simple
enough, and reflects in nowise upon Mr..
Tilden's character, either as a lawyer or as
a man of common sense. The French have
n saying that every one has the defects of
his qualities: that is his good traits are ac-
compar led by faults inseparably growing
out ofthem and connected with them. Thus,
a brave man cannot be so cautious and pru-
dent as coward, from the very fact that
lie Is brave. generous man cannot be
thrifty, like miser because his generosity
1nterferes with his thrift; and a far-seeing
take risks that an impetuous, short sighted
enthusiast will encounter without hesita-
tiOn.
Some of the sage's Peculiarities.
Mr. Tilden was pre-eminentl; wise in dis
corning all the possibilities of disaster that
were involved in any proposed course of
action. 1t might be said of him, as it was
said of Mr.. Charles 0Connor, that he could
devise much more complete argument
against his own side of case than his ad-
versaly could. When Mr.. O'Connor rose to
X htA ct Natn flla
which he intended to overthrow so strongly
that his clients were ready to despair
of victory, and it was only when he
came to demolisE the seemingly impreg-
nable castle which be had erected that they
breathed free. SO Mr.. Tilden, in advising
his clients, III drawing his railroad leases
and mortgages and other important con-
tracts, and in the management of his affairs.
provided against contingencies that would
not have occurred to ordinary men, and
fortified himself against dangers that they
would never have seen. 1t was this ha bit OF |
mind which governed him in framing his |
will, and which, through excessive pru-
dcnce, rendered its chief provision nuga-
tory.
Anyone who has had any practice in liter
AIRY composition, and who reads carefully
the section of Mr.. Tilden's will which has
just been set aside, sees at once how the tes-
tator was seduced into overstepping the linn
its of the law in drawing it up. Evidently
his first purpose was as the minority of the
Court of Appeals judges declare, to found
Tree llDloTN anu reading room IN TINS CITY,
and following the decision which had then
been recently made in the Roosevelt will
case, he directed his executors to procure an
act of incorporation for the desired insti-
tuition, and to convey to it the residue OF his
property.
some of the Possibilities Considered.
Having got thus far be began to consil or
what might be done by the Legislature in
granting the act OF incorporation to thwart
his intentions. They mig t insist upon the
of dishonest or incompetent
trustees: they might attach to the corporate
privileges conditions which would destroy
their value: or they might ingeniously divert
his bounty to purposes foreign to that he
had in mind. He, therefore, added a clause
giving to his executors, who were men in
whom he had as much confidence as he had
little IN the Legislature. discretion to with |
hold his bequest If the act OF Incorporation |
was unsatisfactory to them. This danger
being provided against, he further reflected |
that some other men might. by will or other
wise, also give money for a free library and |
reading room. ana IN that case his benefac-
tion would be superfuous. To guard against |
this duplication and conflict of purposes he |
added the final clause, giving general dis |
cretion to his executor to devote his money |
to any other object they might deem useful |
to mankind |
BY these successive emendations the |
Illegal clause was transformed from one |
legal into its present sha pe and |
he trans sformation, being gradual diverted |
Mr.. Tilden's attention from the true charac- |
ter of the result. ] have no doubt that if !
this section. as it finally stood had been pre- |
sented to his mind as a whole at first, he |
would Immediately have recognized its OBJ |
iects, but having once diverged from his |
starting point he kept on until he landed in |
q morass.
The Fundamental Scheme Approved.
What rendered his self-deception more
easy was the fact that the published deci- |
sions of the Court of Appeals. up to the time |
he executed his will, had not prom ounced so |
decidedly as they have since the validity of /
he provisions he attempted to make. Even
now his fundamental schems has been
approved both by eminent counsel and |
lv out OF the IL judges to whom the
defective section had been submitted i'm the
course of the litigation over il. His error
was not the error of an incompetent or
-tupid blunderer, but that of a legal genius.
other lawyers of equal and greater emil
nence have made similar mistakes without /
their justly earned fame. and
Mr.. Tilden has plenty of company. Had his
mind been less active and less fruitful in
suggestions he would have been content to
follow the precedent OF the Roosevelt will /
Ease. and his intention would have been
Effected. He failed to accomplish feasible
scheme through an apprehension of mis-
,hiefs which few other men would have
hought OF.
great deal has been said, unjustifiably,
Is it seems to me, disapproving the course
lf Mr. Tilden's nephews ana nieces in bring
ng about judicial condemnation of this |
Invalid provision of his will. One newspaper |
las even gone so far as to pronounce them
omething like infamous their conduct in
lecent and the money which the judgment |
II the Court of Appeals hasawarded to them 4
'plunder," which they should be ashamed
o retain. Other newspapers have deplored
he result Of the litigation as triumph of
echnicality over justice. In this the news
Dapers. according to my experience, are far /
rom expressing Unanimous public opin-
on.
The ResDect for Natural Ri1hts.