The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1893-08-01


mine the Disposal of S2e5,OOO Residue
of the Estate-Heirs Try to Break the
Trust.
In the Law Court yesterday was az
gued the case of Frederick Fox, in equi-
ty, vs. Eliza A. Gibbs and others. This
is case growing out of the administra-
ton of the will of the late Joseph Walk
er of this city. 1t will be remembered
that Mr. Walker died on June 9th, 1891,
leaving no widow or children, and as his
only heirs-at-law the several respondents
who are now concerned in this suit. He
left large estate, of some 100000, of
which these respondents are given $110,-
600, about one-sixth. His will is dated
October %, 1885, and two codicils thereto
are dated respectively June 81, 1887, and
September 26, 1890. The will and codi-
ell were duly admitted to probate, and
Frederick Fox and Albert B. Stevens APP
pointed executors on the first Tuesday
of July, 1891. Mr.. Stevens died on Sep
TENDER %, 1891. and Mr.. Fox as surviv-
ing executor, has paid the debts and liza
bilities of the estate and the several leg
acies provided for by the will, and has
now in his hands a large amount of prop
erty as the residue of the estate,
amounting at the appraisal thereof to
about 1925, 200, as he states, which is to
be distributed under the provisions of
the 37th clause of the will That an estate
should yield more than the testator pro-
vides for, is perhaps rather more unusu-
al than that a will should be contested.
Mr.. Walkers estate has apparently over
run more than he expected. But in the
9th clause he provided abundantly for
any such contingency. In that clause
he says:
Inasmuch as there may be charities in Port
land, or the vicinity thereof, and which. If
were living might desire to assist, or benevo-
lent anu charitable objects and associations,
which, if l were alive, l might desire and wish
to promote and strengthen by gifts and pecuni-
airy help; or schoeSs and places OF learning OF
hospitals or libraries, which, If aided financial
ly would increase the benefits and advantages
derived from education and instruction; or
worthy individuals needing pecuniary assistance
to obtain knowledge; or institutions and aSsoci'
dblOQS IOrlUeQ anu OrRdllZ6u lUT tllc N0llotiO
advancement, benefit and good of the public,
and which, if living, l should manifest an inter
est therein, and therefore aid and assist the
same, and with the intention, hope, wish and
desire that the rest, residue and remainder of
my estate may be used to benefit, assist, relieve
pain and Distress assist worthy and deserving
charitable and benevolent associations and OBJ
jectS, giving instruction and education to those
who are seeking for the same, in order, there
fore, to carry out my views and wishes, do
therefore, for the proper execution of these
purposes give, devise and bequeath in trust I'M
to Frederick Fox and Albert b. Stevens, and
the survivor of them, and to their successors as
my trustees, and upon the following conditions
and trusts, all the rest, residue and remainder of
my estate of every description, real, personal
and mixed, ETC.; my said trustees shall within
fifteen years from my decease use, give, expend.
also distribute said residue, etc., for the causes
of education and learning, for the promotion,
assistance and growth of benevolent and charlt-
able associations and objects; said trustees
shall not be restricted in this work. They are
to be the sole judges in what manner said
residue and remainder Of my estate shall be so
used and expended.
The heirs contend that the trust thus
established for the disposal of the resi-
due of the estate is null and void, and
that the sum, about $225,000, should be
divided among themselves. Messrs.
Strout, Gage 6 Strout appear for the
heirs, and Messrs. Symonds, Snow &
Cook for the trustee.
The contention made by the counsel
for the heirs yesterday was that the |
trust is prima facia void, on the ground
that it provides in an indefinite way for |
the carrying out of purposes which are
still more indefinite twill be remem- |
bered that it was on grounds analogous |
to these that the courts of New York set |
aside the trust which Samuel J. Tilden |
attempted to create for the purpose of |
giving to the city of New York a great |
free library. In this case the couten- |
ton raised by the counsel for the heirs
does not in any way menace the public |
of Westbrook, which was pro-
vided for in another portion of the will,
and is already in process of erection.
There are seven of the heirs, five of them
being nephews and neices, and the other |
two grand neices.
The counsel for the trustees commended |
in the arguments yesterday that the |
weight of decisions of the courts of Eng
land and New England were uniformly
in favor of sustaining such trust. 1t was
true that the courts of New York had |
overturned the Tilden trust, in the last
resort by bench divided, three judges
giving dissenting opinion; but the
counsel commended that the Tilden trust
was quite different from this, that it's
provisions were actually indefinite as
compared with this trust which is a
simple gift to charitable uses within the
limits of county, the distribution of
the trust fund to be completed and
closed within period of fifteen years.
The decision of the court will be rem
dered later.