The Saint Paul globe., 1903-02-17
If Supreme Court Follow
Rule Laid Down in Shana-
han Will Case, Counsel
Argues 1t May Have to De-
eide That Will of Mrs.
Appleby Is Void.


great charity arranged for under the
VIII Of the late Cordelia Day Wilder
Appleby, cannot become available
Philip Shanahan was a Catholic
priest, who died at Caledonia, Mimi,
In March, 1900. He left will setting
forth In four paragraphs the disposi-
ton Of his property The first para
graph provided for his funeral ex-
penses. The second directed the pay
ment of $500 for masses to be distrib-
uted by the executor The third gave
to Rt. Rev. Edward Fitzgerald, bishop
of Little Rock, Ark, or his successor,
$1,000 for the education of Catholic
priests. The fourth gave to Rt. Rev.
Joseph B. Cotter, Of Winona, or his
successor. for the education of priests
in the diocese Of Winona, the residue
Of the estate. some $12,5O0.
The probate court of Houston coun-
ty appointed James C. Kelly as ad-
ministrator. and after admitting the
will to probate, ordered the estate dis
trfbuted. Judge Buckham declared the
will void and made an order dividing
the estate among the heirs Of the dead
priest.
The executors and those mentioned
in the viii appealed to the supreme
court and Chief Justice Start upheld
the ruling Of the lower court. In his
decision Chief Justice Start held that
the legatees under the will did not oc-
cupy any civil official position, and not
being a corporation they must be re-
garded as private individuals. That
all trusts including charitable trusts
in real estate, except as authorized in
chapter 43 Of the General Laws, were
abolished, and that the beneficiary OF
any authorized trust must be certain
or capable OF being made certain or
the trust. is void. That the trusts at
tempted to be created by the will, were
unlimited as to time and under sub
division of Section of chapter 43 of
the General Law, trusts authorized
must be definite and certain or capa-
bic of being rendered certain.
: 'i21n "Rehearing Was Denied.
: Those who were to share under the
Will of Father Shanahan appealed to
the supreme court for a rehearfng, and
after being heard the supreme court de-
MED a rehearing.
Yesterday another petition was filed
In the supreme court for another re-
hearing of the case. The petition pre-
IL
in the case, draws the attention of
the supreme court to the effect of it's
decision in the case at bar in the
Amherst Fl. Wilder Charity in the
following language:
There Is single further considera.
ton Which | am moved to urge very re-
Spectfully upon the consideration of
the court, as another and possibly
somewhat extra judicial reason of the
very highest consideration, which may
move the court to sustain this will,
II In any way possible, consistent with
a due regard to the fair administration
of justice and the right Interpretation
of the law. The particular matter
to which / wish, in conclusion, as del
tcately and 'decently as possible to al
lude, is this:
1t cannot be unknown to the court
1T Is a matter of common knowledge
that the decision in this case has at
tracted very considerable interest
throughout the sstate, and has been
regarded by many good citizens with
apprehension. alarm and regret as af-
fecting, or likely to affect seriously and
injuriously, the rights of a large class
Of the people of the state in the dispo-
Sition of their estates by will; and
particularly it has been suggested
that the decision in this case, If 1t shall
be finally adhered. to by the court and
1CGOIlG III consequence OF Sucn- aQner-
ence law of the land, may imperiI
and possibly invaiidate by far the larg-
est and by much the most notable pro-
vision for charity which has ever been
made in the state of Minnesota, and,
indeed, one among the more notable
provisions for charity which has been
made thus, far in the United States.
Refers to Wilder Charity.
'I need not say that / refer to the
will of the late Mrs. Cordelia Day Will
der Appleby, creating the Amherst
H. Wilder Charity" details of which
have been made public since the de-
cision herein rendered.
1t has been suggested, with what
degree Of soundness is for the court
to determine, that the decision in this
case may invalidate that great bene-
faction: and I am therefore moved to
suggest that the court. If it seems at
all to be a possible contingency, will
listen with the greater attention to
this further attempt upon my part to
sustain this will If possible, not only
that the provisions of this particular
beQuest may be carried out, but that
the greater charity to which I have re-
ferred may not be imperiled and there
by possibly lost to the people of this
city. I should regard, and this court
Will regard, such result of this decis-
to be avoided if, by any means, it is
possible.
Nothing more unsettles the think
ing of the common people-nothing
serves more to create distrust in the
court and dissatisfaction with the ad-
mfnistration of justice among simple
folks-than the facility with which
wills, particularly Wills making cS1ari-
table bequests, are set aside and in
validated by the courts.
Common Sense Affronted.
Il think may, not improperly say to
the court at this point that, during
the fifteen years in which I was In
active practice in New York, no de-
cision Of the court of appears SO shock
ed the moral sense, so affronted. the
common sense OF, the plain people of
that state, as the decision inYalidating
the Tilden trust, and setting aside the
Tilden will.
"'The people, do not stop to think. in
such cases cannot stop to think, wheth-
er technically or by some abstract rule
of construction the decision be right
or wrong; but IN that case they felt
injured and aggrfeved that a charity
so large and sd beneficent was. by the
decision Of a court, taken away from
them, and vast fund thereby divert
ed, contrary to the intentions of the
testator, from channels of charity and
paid over to unworthy collateral rela-
tives of the testator. Courts NAV well
hesitate to render such decisions in
face and In defiance of the popular
judgment, unless absolutely compelled
and imperiously constrained SO to do
which it is hoped may not seem to be
the case here and now"
The hearing of the petition for a re-
nearing in the case can be taken up at
any time when three justices of the
court meet. but, as the court has ad-
iournnd-nntil the AnriI tar.r,a nra +ho