The morning call., 1891-10-28
THE TILDEN TRUST.
Declared Void by a Decision Of
the Court Of Appeals.
Estate Of The Late Governor to Revert to
The Legal Heirs.
Millions for Distribution Under The Statute
Regulating the Inheritance Of
The Property.


ALBANY, Oct. 27.-The Court of Appeals
rendered decision this morning in the
case of George H. Tilden VS.. Andrew Ii.
Cream and others, as executors, ETC., appel
lant', and Laura B. Hazard ct al, re-
spondents, affirming the Judgment with
costs, payable to all parties out of the
estate. This renders the Tilden trust void
and is in favor of the heirs. Under the
statute of distribution that regulates the
inheritance of the property at issue, Mrs.
Henry Peltoa and Henry A. Tilden, sister
and brother OF Governor Tilden, come in for
equal shares of SS,000,00O. Mrs. William
B. Hazard is the only heir on the Peton
side and thus is entitled to S4.000.000. The
other four millions are subject to the claims
of the six children of Henry A. Tilden.
They are George II. Tilden, S. j. Tilden Jr.,
Mrs. William B. Whittlesey, Mrs Swan "a
widow who lives in New Lebanon, Mrs.
Willis S. Payne aud Mrs. S. Schwartz of
New York City.
Judge Brown IN his opinion says, In sub
stance Unless within the rules which
control the courts in the construction of
wills we can separate the provision in refer
ence to the Tilden trust from the general
directions ae to the disposition of testator's
residuary estate contained in the last clause
of the thirty-ffth article, and find therein
that a preferential right to some or all of
such estate is given to that institution when
Incorporated and one which the court at
the suit of said institution could enforce
within the two lives which limit the trust.
we must. within tie principle of similar
cases. declare such provision Of the will
invalid"
There Is no discretion to be exercised
upon the question whether prope rty shall
60 to charitable purposes" adds the judge.
Discretion there is as to the objects Of the
charity, but none as to the general DISPOSE
tion of the estate. The object and the pur-
pose of the testRtor is the devotion of his
est te to charity"
The Judge goes on to say that ''the Til
den trust does not represent any alternative
or primary purpose in the disposition of the
estate, but is simply suggested as an instru-
meut to execute testator's scheme for the
disposition Of the property. The Tilden
trust takes nothing by virtue of the will.
The residuary estate is vested In the trust
eeS, aud ii Is solely by their action that it is
to become vested in the Tilden trust. Every
expression used in the will indicates the
bestowal of complete discretionary power
to convey or not to convey. and the creation
and bestowal of such power In executors is
wholly opposed to aud fatal TO the existence
Of - executory devise"
After considering various other features
in connection with the devised trust, the de-
cision says the ulterior provision cannot be
eliminated from the will without destroying
the scheme that the testatOr designed for the
disposal of his estate. As the selection Of
the objects of the trust was delegated absO-
lutely to the trustees, there is no person or
corporation who could demand any part of
the estate OF maintain an action to compel
the trustees to execute a dover in their
favor. This is a fatal defect in the will.
The will of the trustees is made controlling
and not the will of the testator. Such author
ity Is in cOntravention of the statutes Of
wills