New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1891-10-28
THE TRUST CLA USE INVALID.
DECISION OF THE COURT OF APPEALS.
DISSENTING OPINION BY THREE OF THE
SECOND DIVISION JUDGES.


SECOND DIVISION JUDGES.
Albany oct 27-The Second Division OF the Court
Of Appeals this morning affirmed the judgment Of
the lower Court in the of George H. Tiden against
Andrew H. Green and Others, executors, ETC., ap-
pellants and Laura b. Hazard and others, re-
spondcnts, with costs payable to all parties QUE OF
the estate This renders the Tlden Trust invalid ana Is
In favor of the heirs. The opinion IS written py
Judge Brown, and Is cOncurred in by Chief Judge
Follett and Judges Eaght and Parker Judge Bradley
writes dissenting opinion, which is coDcured In by
Judges Potter and Vann.
Samuel J. Tfldon, ir., present when the de-
cislon handed down, and was warmly con-
graduated by many of those present.
Judge Browns opinion begins with history VI 'he
case In the lower courts quotes the language Oh tne
srty ninth and thrty-ffth articles Of the WILL anu
continues in substance
The remarks of Judge Wright in Levy agt Levy,
New-lork 1O7, that ii there Is single Postuiate
Of the common law established by an unoToken line
Of decisions, it is that trust without certain pere-
fciary who can claim its enforcement IS void" nave
repeated and reiterated by recent decisions OF tiS
court, and the objection IS not oDvated py tne eAsC
cncc of power in the trustees to select the bene-
Clay unless the class Of persons In whose favor the
power may be exercised has been designated by tne
tesaor with such certainty that the court can ascer
tain who were the objects OF the power. .-.,
courts in the construction OF Wills can separate the
provision in reference to he den II st & Sm the
thirty fifth article and find therein that prefeTenuai
right TO some or all Of such estate Is given to that IN
st7tutLon when incorporated and one Of which the
court, at the suit of said institution, could enforce
wlthIn e two Ayes which limit the trust Sy we must ..
proSlso o s Of the Vii invsid ana affirm the Judgment
dSss Y s,.s ssaa;: sE Ss ss Death Pssd 3; s
tcstat9r provided II is called into being wthia the
time allowed for yctIpg Of Euturc estates Is not
~ r as eSes sT sybned
in cir place, and such estates when the CONTINGENCY
OF The insimmeit creating them, and this right in
the expectant cannot be defeated b. person. But
4s the dtn r sc @ g By Of the viii
The reduary estate Is vested In the trustees, or IN
IL Is to become vested in the Ti!den Trust II Is only
in that the executors deem IL eXpeoienC 80 -, -
the residue 10 the Tilden Trust Whether that cor,
poron should take anything rested WOV or IN iDcY ce
discretion Of the executors as the n nUre Ur dis
cretiOl Every expression used in the VIII Indicates
vey or not to convey, and the creation ana besowa
Of such power In the executors Is Wnony oPpo''u
to and fatal to the existence OF ap cxecutofy deSISe
Here Judge Brown refers to similar cases "hch
have heretofore been decided by the and referred
to in the briefs submitted, and says
In tlSs case Mr. Tflden gave nothing TO the I1lden
Trust but simply authorized his executors 70 ehu0w IL
IT, in their Judgment and discretion, they should deem
il expedient. Moreover, after creating numerous
special and setting apart portions Of MS es'de M
for such special trust funds, the estator 3y
the thirty ninth article on the will gives the wh3e @
Of the residuary estate TO his executors III us' ioi
the purposes mentioned In the thry-n aruoie' nc
slowing upOn them so far language could DO So te
title TO ali the property 10 be held ana posse'seu uuInS
the lives OF his niece, Ruby s. Iilden ana MS grand
niece Snsie Whitesey and which he denominated the
general trust OF his estate. lie clearly ihtehueu
by this provision TO create active trust In his whole
rssduary estate and to give TO his executors dis,
creonary power to give such part OF II as tey deemed @
expcdent 10 the Tllden Trust or TO wi hh0ld all IRON
n Having Intended to convey, so far as he was
able to do the title to his whole estate 70 trustees,
nothing was left that could be the subject of gf'
10 Tho FTilden rruSt
!" We come therefore. to the consideration OF the
question whether the thirty fifth article can Oe uineu Gu
As constituting separate trust power In trust foI
the benefit OF the Tilden Trust. The affirmative OF
this question be mainained only by considering tne
separate by itself and distinct AMI independent iTon
the power to convey TO such charitable purposes a. In
the Judgment of the trustees would be most widely
and Substantially beneficial to mankind The latter
provision is eliminated from the Will altogether by the
appellants and then the instrument IS construed as
the eliminated provision had never existed
In applying the rule invoked by the appellants,
which permits unlawful trusts TO be eliminated from
le will and those that are lawful to be enforced, we
must not Violate the intention of the testator or de-
lion of his property. We may enforce and efectuate
his will and give full effect his intent provided ii
not not ma make a new will or build up a scheme
for the purpose Of carrying out what might be th31g
The fact that the executors OF the Will applied 70 the
Legislature and procured the incorporation Of the Iden
Trust in form and satisfactory TO themselves
and have deemed it expedent TO convey to II the whole
reslduary estate and have executed a conveyance
Every trust necessarily includes a power.
The purpose OF the trust Is lawful and personal prop
ety which constitutes the greater part OF the testaors
estate. was proper subject OF the trust that The
testatOr intended and II Il Is invalid II Is because tho
mower conferred the trustees for the disposal OF the
estate is so uncertain and indefinite that IFS execution
cannot be controlled enforced by the courts
The opinion here describes the various kinds Of
powors and quotes from the will at considerable length
in suppor OF the proposition that the prominent fact
I'm the testators will Is that lie intended 10 give his
nroperty 10 charity II continues
Rut IL Is said that the Tiden Trust represents
intention different from and alternative to the gift to
the charitable, educational and scientific purposes
mentioned In the last clause OF the article that the
authority to endOw Ii that is vested In the trustees Is
urinary power, and the power TO devote the estate
o the other underlined purposes Is Interior that while
the latter Is imperative In It's character tile former
is Discretionary wholly and depends Dor Its execution
upOn the will of the trustees, and that each power
stands alone separate and distinct from the other aud
the power to cndow the Tilden Trust Is hkened 70
mower Of appointment Powers OF appointment are
- Common In testamentaTy dispositions Of property
that no citation OF authority Is necessary 10 sho" ther
validity. Their execution may depend solely upon the
will q the dOnee OF the power and they arc recoshlLed
valid.
no ALTERNATIVE PURPOSE IN THE WILL.
In the will before there is alternative purpose
Their, Is single scheme gift TO charitable uses and
,,e suggestion o. the Tden Trust indicates no Intent
In the testntOrs mind contrary the Intention TO de-
vote the estate TO ciality. But In the thrS ar-
ce of the will under consideration there Is no antthess
"a FAR as the purpose 10 which the property Is 10 Dc
only viz To devote the estate u charitabe uses ana
while OF course, In such scheme the testaor might
Continued on Second Page.