Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1897-01-23
EAYERwEArnsR WILL.
Counsel Bower Says Judges Decision Is RisI
and In Favor Of Executors.

New York, Jan. &C. N. Boyee was
seen by Mail and Express reporter at
his Office. No. IS Wall street, Thursday,
and asked regarding the decision in the
Fayerweather will contest handed
down by the court of appeals, Tuesday.
Mr.. Boyee was in Albany, Thursday,
and went over the opinion. He says
that the decision is clearly in favor of
the executors.
Referring to an article in a morning
PAPER which held that the court had
not ruled on the question of the status
of the executors of the widow and
nieces, Mr.. Boyee said: Il simply call
attention to the following extract from
the opinion of Judge Vann. The lam
guage is explicit, and clearly shows
that that much of the case was con-
clusively disposed Of"
Following is the extract from Judge
Vanns opinion which Mr.. Boyee refers
to:
THE only ground upon which it is
claimed that the alleged fraud was SO
conclusively proved as not to involve
a question of fact is that the residuary
legatees did not state that there was a
secret trust in favor of the colleges
named in the ninth article of the will
and that the effect of that trust was to
vest the bulk of the residuary estate
in the widow and the next of kin.
What are the facts?
''The residuary legatees were en-
gagged in settling a lawsuit with hostile
parties toward whom they sustained
no fiduciary relation, and who were
represented by counsel of the highest
standing and ability. Substantially
all of the material facts had been dis
closed by the evidence taken during
the trial in which both parties to the
releases We're then engaged. The res
iduary legatees had been examined at
length upon the witness stand by coun-
sci for the widow and next of kin, who
had ample opportunity to make a full
discovery.
While they took a position to which
they still adhere that the gift to them
was absolute, that position was not
acquiesced in by the widow and nieces.
for their counsel openly claimed and
argued in Surrogate's court that there
was a secret trust which was invalid,
and that their clients We're entitled to
the residuary estate. While there may
have been concealment of opinions,
upon which those opinions We're based.
The residuary legatees were not bound
TO volunteer their opinions. even if
they then thought there was secret
trust. One who is trying to settle lit
igation has the right to keep his opin
ion on the merits to himself.
THE controversy as to whether there
was a secret trust or not, as we'll as
Of
WILL was fairly covered by the terms
of the releases so far as the parties to
those instruments We're concerned.
They dealt with each other at arms
length as adversary parties knowing
the substantial facts. and they are
presumed to have had them in mind
when the releases We're executed. and
to have covered by the languages used
all questions to which those facts could
give rise.
Even if we hold when we reach the
question that there was secret trust,
that will not convict the residuary leg
atees of fraud in claiming the con-
trary before the surrogate, for one who
neither withholds nor misstates the
facts cannot be adjudged guilty of
fraud simply because the courts finally
decide the law to be other than he
claimed it to be while engaged in lti-
cation over the subject. Such rule
would make nearly every unsuccessful
litigant guilty of fraud. From this
statement it was obvious that there
was no such concealment as would re-
qure the court, if the trial were be-
fore a jury, to direct a verdict on the
basis of fraud proved beyond question.
Our conclusion is that the executors
of the widow and nieces have no
stand upon this appeal So that the
contest is narrowed to the conflicting
claimant. one class resting their claims
upon the deed of gift and the re-
leases. and the other upon the WILL the
secret trust and the releases