The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1891-03-26
4 FAMOUS WILL CONTEST
Judge Tonsy Upholds the Last Test
ament, ofsthe BARONESS Of
Fahnenberg.
Ger Proposed Charities Valid and
Must be Endowed by the
Executor.
An Asylum for Protestant Children OF
Three states and worthy Poor
Who are Aged.

LOUISVILLE, March 25.-Judge Toney rem
dered a long decision in the Baroness
FaHnenberg case recently, in the law n
ennitv court. The decision filed ninety
FIVE large typewriter pages and thirty
~ manuscript. The decision upholds the
will and settles the historic controversy.
THE baroness. a native of st. Louis, died IN
Paris in 1885. She left a will, de-
yisinp a large landed estate IN America Tor
Aha establishment of a charitable lnstltu-
tion at Lexington, KY, for poor Protestane
people of all ages, including children, Tor
the people of Kentucky. Missouri ana New
Jersey. The relatives OF thesbaroness IN
Virginia and elsewhere attacked the WILL
the contest resulting as above.
The court stated that the case was a suit
between the devisees under the will of Mrs.
Theodosia Strother, deceased, and Edmund
r. Halsey, as trustee, ETC., executor of the
will OF the baroness of Fahnenberg,ov over the
fifth item of the will of the baroness. IN
which she bequeaths to Edmund L, Halsey.
in trust, 100000, to be expended by him In
the construction of a chapel at Spa, IN BEL
GUM. for her own remains and those OF ner
mother and brother; and also $1,000, to DO
nv the said trustee invested in United States
bonds. to keep the chapel in repair; the bal
nnce oil the estate. consisting of several
hundIe ed thousand dollars, to DO devoted
and spent b. said trustee In erectlng, en-
dowing and establishing an asylum Tor the
Good. welfare and benefit of young. poor
white Protestant children, or poor old FRO
testant white men or white women, THIS
asylum to be established IN the city OF Lex
ineton, state of Kentucky, and to pc called
~ w. C~.,l cvr1t, r1 tho nhllGFRn HnU
old men and women to belong exclusively
to the state of Kentucky, New Jersey and
Missouri"
The court then proceeded to state the
facts of the case. the death In France OF
Mrs. Ihendosia Strother, ana OF tle Dafon-
ess. her daughter; the probate of their Wills
in ST. Louis, and afterward in Kentucky:
recited the wills in full and qualification Of
Halsey Hereunder. The court then re-
viewed the pleadings in the case, and point
ed out the issues raised by the pleadlngs.
These various pleas the court overIulsd, ana
held that as to the real estate in Missouri
the lex loci rel sitae-the law of Missouri
would govern; that as to the personality de-
yised. the lex domicilli, or law of the domi-
cile, would govern. and that in seeking the
trust in Kentucky it was necessary to de-
termine whether the charity sought to be
established by the will of the baroness
would contravene any statute or public
policy or common law of Kentucky.
The court then proceeded to consider
whether the charity in the fifth item OF the
will of the baroness is such an one as a
court of chancery in this state could up
hold and enforce in the exercise of it's in
herent original Jurisdiction, independent
of any statute, and whether or not 1t IS
maintainable under the statute of 43 Eliza
beth, ana, also, under the statute of charl-
~tablaauses and religious societies OF Ken
lucky. The court reviewed at great length
e,decisions of the most eminent chancel-
Z of England, and the adjudications of
ne highest courts in the United States
show that prior to the English statute of 43
Elizabeth there was original. equity jurls-
diction in the English court of chancery to
uphold and enforce sucn charities, and that
the English statute of 43 Elizabeth was
merely a dec,aratory statute, creating no
newaslaw on the subject, but only a new
machinery and auxiliary Jurisdiction for
enforcing such charities:
After reviewing the decisions of every
state in the union where the subject had
been adjudicated, he proceeded to show by
the authorities themselves that the diver
sity of doctrine among the courts upon the
subject of charitable uses and public chart
ties arose alone from a misconceptlon on
the Part of very many. eminent American
Judges as to the origin of charities and
chancery jurisdiction over them. This re-
view of the American decisions in the vari-
GUS states of the union, and the analysis
and comparison by the judge of the opln-
ions of the various Judges was attentlvely
listened to by a great number of the local
bar assembled in the court room. AS the
law Of Missouri was to govern with refer,
ence to the real estate of the baroness il
st. Louis. the judge reviewed all the deci-
sions of that state upon the subject. which
clearly show that the charity under the Law
of Missouri was q valid one. He then re
viewed the decisions in Kentucky tt
show that the charity under those de
cisions of the Kentucky court of ap
peals would have to lie upheld. The judge
held that vagueness and uncertainty in thu
beneiciaries of the charity constituted no
objection to it's validity, but was an essen
tial element in every public charity. H
held shat the trustee, Halsey, was armet
with sufficient authority under the will o
the baroness to carry out the trust. TIL
Judge further held that the charity did no
violate the statute against the introduction
of paurers into this state, nor was it agains
any policy or statute of this state, and tina
in making her will as she had made it, tn
baroness had executed the power whic
had been conferred upon her in her moth
er's will.
In conclusion, Judge Tonsy said: 81 an
therefore, driven, without hesitation
doubt as to it's validity, though not witho'
reluctance, to decide the charity valid, al
to sustain the plaintiffs demurrers to Il
answers and counter-claims or cross-bil
of tho defendants"