The record-union., 1891-10-28
SAMUEL ]. TILDEN'S WILL.
THE COURT OF APPEALS DECIDES
IN FAVOR OF THE HEIRS.
The Provision for the Tilden Trust De.
clared to be Void-The Estate
to be Divided.
Special 10 the RECoRp-US1oS.

ALBANY, Oct. 27.-The Court of Ap-
peals rendered decision this morning in
the case Of George II. Tilden VS.. Andrew
ii. Green and others, as executors, etc.,
appellants, and Laura 3. Hazard ct al.
respondents, affirming the judgments
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 inheritance that regulates
the distribution of the property at
issue, Mrs. Henry Pelton and Henry A.
Tilden, sister and brother of Governor
Tilden, come in for equal shares of S.
100000. Mrs. VIM. B. Hazard is the ONLY
heir on the Pelton side and thus is en-
titled to 81, 100000. The other four mill
ions are subject to the claims of the six
children of Henry A. Tilden. They are
George III. Tilden, S. J. Tilden, Jr., Mrs.
VIM. b. Whittlesey, Mrs. Swan, widow
who lives in New Lebanon; Mrs. Willis
$. Payne and Mrs. S. Schwartz of New
York city.
Judge Brown in his opinion says, in
substance: UNLESS within the rules
which control the courts in the construc-
ton OF wills we can separate the proViS-
ion in reference to the Iilden trust from
the general directions as to the DISPOSE
ton of testator's residuary estate con-
tanned in the last clause of the thirty-fifth
article, and find therein that q preferen-
tial right to some or all of such estate is
given to that institution when incor-
porated, and one which the court at the
suit of said institution could enforce
within the two lives which limit the
trust, we must, within the principle of
similar cases, declare such provision of
the will invalid.
"There is no discretion to be exercised
upon the question whether property shall
90 to charitable purposes" adds the
Judge. Discretion there is as to the OBJ
jects of the charity, but none as to the
general disposition of the estate. The
object and the purpose of the testator is
! the devotion of his estate to charity"
The Judge goes on to say that "the
| Tilden trust does not represent any
alternative or primary purpose in the
| disposition of the estate, but is simply
| suggested as an instrument 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 trustees.
and it is solely by their action that it is
| to become vested in the Tilden trnst,
! Every expression used in the will indi-
Gates the bestowal of complete discretion
! ary power to convey or not to convey.
| and the creation and bestowal of such
/ power in executors is wholly opposed to
and fatal TO the existence Of an execu-
| tory devise"
After considering the various other
| features in connection with the devised
trust, the decision says that 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 trust was delegated absolutely to the
trustees, there is no person or corpora
/ ton who could demand any part of the
estate, or maintain action to compel the
trustees to execute power in their favor
| This is a fatal defect in the viii. The will
| of the trustees is made controlling, and
not the will of the testator; such author
! ity is in contravention of the statutes o.
| wills.