Evening journal., 1891-06-06
THE TILDEk WILL CASE.
Close of the Argument Before
the General Term.
WILL THE TRUST BE sUsTAIEEDq

Lawyer Carter's Plea for the city Of New
York-He Says That the Eminent Tes-
tator's Intentions should Alone BE
Considered by the Court.
SARATOGA. N. Y, June 6--At noon the
argument in the Tilden will contest came
TO an end 1t has occupied seventeen hours
OF discussion since it was begun on Mon
day. The points submitted cover 700 pages,
and the oral arguments will cover 400
more Promptly at 10 o'clock the Hon.
James c. Carter resumed his argument.
He referred to the two difficulties in our
law regarding the creation of charity
one inherent and necessary, namely, that
the benedciaries cannot be so ascertained
that they may appear in court to enforce
an execution Of the trust; and the other
statutory and springing from public policy,
namely, that such trusts are forbidden,
both as trusts and because they create per
petuities, and then said;
IL Exists Forever.
There has always been mode Of
creating a charity in which neither OF
these difficulties has any place. This is
through the instrumentality Of corpor-
ate body Such letter is in itself cosn-
pletely equipped scheme created by the
legislature, whose powers for that purpose
cannot be questioned. The corporate
body exists forever, and has power for
ever 90 carry out its purposes, and to
ascertain and designate the individuals
who are to receive the benefits of the char
ity II takes whatever property II receives,
not in legal contemplation as trustee,
although the duties Of a trustee are really
imposed upon it, but absolutely, and for
it's own use, holding the equitable as we'll
the legal title, and no question OF in
definiteness or uncertainty in the bene-
iicialy can ever arise upon a conveyance 70
such body.
Is IL vailds
''The question, then, Is whether the
primary gift Of the Tilden trust is, when
taken apart and by itself, valid one
Mr. Carter quoted an observation made by
Chief Justice Church, in the opinion in
Burren against Boardmen, to the effect
that it was the intent of the testator IN
that case that his gift should vest in the
corporation Immediately upon the charter
being granted, and that the absence of ex-
press words of gift was wholly unimpor-
tant, and continues
No Such Action Required.
"lf, therefore, action was required by
the executors Of Governor Tilden after the
obtaining of the charter, in order to com.
plets his gift TO the Tilden trust, It would
be wholly unimportant; but it so happens
that no such action is required He makes
hot -. az
condition precedent. Their power is not
ready completed.
'The testator does not give TO the Til
den trust so much Of his residuary estate
AS they may think expedient, aud il they
think p expedient, but he gives his whole
residuary estate to the corporation unless
they think that amount inexpedient, ant
only in that case, and confers a subsequent
powv upon them TO withhold any endow
ment inexpedient. The gift, therefore
vests At once in the the corporation, sub
ject to d power TO take it away in whole Oh
in part.
The Intention Of the restatoF.
Mr. Carter then argued that the inten
tion Of the testator settled the whole mat
ter, that the Tilden trust was the primar,
0hfrtt NA ms nVhnNls anu tnhtii MS eNecu
tors had died after abe charter and with
out action the Tilden trust could have as
serted title to the whole residue Nothing
less than this is consistent with his inten
tions
In closing Mr.. Carter argued that tn
precise legal description Of the disposition
made in favor of the Tilden trust is that /
was an executory devise and bequest, an,
that the objection that the bequest is vol,
as transcending our statutes against per
petuities is too fanciful for serious notice
This objection at once disappears, h
said, III, as we have shown, the exercis
Of the discretionary power OF the trustee
IN not condition precedent, but con
dition subsequent p