St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1891-10-28

Samuel j. Tilden Jr. was present when
the decision was handed down. and was
warmly congratulated by many present
on the outcome of his fight. Under the
statute of distribution, which regulates
the inheritance of property, the issue of
Mrs. Pelton and Henry A. Tilden, SIS
ter and brother of Gov. TiIdsn, come in
for equal shares of the SS,0O0.0O0. Mrs.
William B. Hazard is the only heir on
Pelton'S side. and thus Is entitled TO
a. eco. 600. The other $4,000, 900 is sub
ject to the claims OF the six children of
Henry A. Tilden. They are George H.
Tilden, S. j. Tilden Jr., Mrs. William
II Whittlesy, Mrs. Swan, widow who
lives in New Lebanon; Mrs. Willis S.
Payne ami Mrs. Schwartz, of New
York city. Judge Brown, i'll his opin-
ion, says in substances:
Unless, within the rules which control
courts in the construction of wills, we can
separate the provision in reference to the
Iilden trust from the general direction as to
the disposition of the testator's residuary es-
tate. and find therein that a prefere ntial
right to some or all such estate is given to
that institution when incorporated, and one
which the court at the suit of said institu-
ton could enforce within the two lives which
limit the trust, we must, within the principle
of similar cases, declare such provisions of
the will invalid.
1t is clear that the testator intended to
create trust of his residuary estate. and he
plainly indicated his purpose to be that the
trustees should be vested with the title to
the property until they should di-
vest themselves of it in carryin g
out the purposes mentioned in the will
There is 10 discretion to be exercised upon
the question as to whether the property shall
go to charitable purposes. Discretion there
is as to the objects of the charity, but none
as to the general disposition of the estate.
The object and purpose OF the testator is de-
yotion of his estate to charity The power to
endow the Tilden trust is lfkened TO power
OF appointment which is so common as to
require no showing of Its validity. In the
VIII there Is no antithesis. so as the purpose
10 which the property is to be devoted is con-
cerned. IL expresses a single intent only,
viz: To:deyote the estate TO charitable uses;
and, OF course, In such scheme a testator
might prefer and designate one corporation
over another as the object of his bounty.
The learned judge then goes on and
shows that in this case he has not done
that, and has not conferred any prefer
entail right to the estate, or any part of
1t, upon the Tilden trust. He SAYS the
1llden trust does not represent any al
tentative or primary purpose in the dis
position of the estate, but is simply the
suggested instrument to execute the
testator's scheme for the disposition of
the property. The Tilden trust takes
nothing by virtue of the will The re-
slduary estate is vested in the trustees,
and 1t is solely by their action that it Is
to become vested i'll the Tilden trust.
Every expression used in the will indi-
Gates the beStowal of complete diScre-
ti01ary power TO convey or not to con-
yey. and the creation and bestowal of
such power i'll the executors is wholly
opposed to and fatal to the existence of
the executory devise.
The court proceeds in these words: The
corporation may be created in n form and
manner satisfactory to the trustees but takes
nothing unless the executors, considering
every cause and reason, deem il expedient to
convey to 1t some or all of the residuary es-
tate. In substance Mr.. T1lden said to his
executors: l have determined to devote my
estate to charitable, educational and scien-
tific purposes. | have formed no detailed
plan how that purpose can be executed. but
under the law of New York it must be done
through and by means of a corporation |
request you to cause 10 be Incorporated
the Tilden trust, and if you deem it expe-
dent, that is. If you think it advisable and
the proper thing TO do, convey to that in
stituuon all or such part of my residuary
estate as you choose. and if you do not think
that course advisable then apply ii to such
charitable, educational and scientific pur-
poses as in Your judgment will most sub
Stantiatly benefit mankind. Thus was left
" .iS 'hu,'SSS tdS PO"el W ispoSo VI tue
estate within the limits defined and
to select the objects that should
be benefited. The trustees are free
to select the TiIden trust and
cause IL to be incorporated or TO choose any
existing corporation as the instrument 10
carry out the testator's scheme. Again, no
event Is named upon the happening of
which any of the estate is limited to the Til
den trust
The authority to endow the Tilden trust
If that should be deemed expedient by the
trustees, was not separate power. While
we may admit the testator expressed pref
erencs for corporate that should bear his
name, he conferred no right upon that insti-
tuition. The persons who should be bene-
fitted by the viii, ana the particular institu-
ton that should administer the fund, was
lett to the selection of the trustees
We are of the opinion, therefore, that the
will does not confer separate powers upon
the trustees. and that the Interior provision
cannot be eliminated from the will without
destroying the scheme that the testator de-
signed for the disposal of his estate. AS The
selection of the objects of the trust was dele
gated absolutely to the trustees. there is no
person or corporation who could demand
any part OF the estate or maintain an action
to compel the trustees to execute the power
Ill their favor. This is the fatal defect in the
will. The will of the trustees is made con
trolling and not the will of the testator Such
an authority is in contrayention of the stat
utes of wills