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three daughters, he provided that the widow | making a foolish will. Thellusen's purpose should have $500,000 and that the residue was to become known as the founder of the should be invested as "an accumulating largest fortune of his time; it was a species fund to be held by trustees during all the of vanity, for the attainment of which he lives of the testator's sons and grandsons; was willing to deprive his own children of and the oldest lineal male descendant" was their just inheritance. Nearly all litigation to have the entire accumulation. The will was about wills arises because of an attempt on contested because of unreasonable restraint the part of the testator to vent his spleen of alienation, being for three lives, but was or malice against some relative or to imsustained on appeal by the House of Lords pose his whim and crochets upon succeedin Thellusen v. Woodford, 4 Vesey 227. To ing generations. In a contest the courts place a limitation on property rights the and juries are inclined to sympathize with statute 40 Geo. III, chap. 98, was enacted, the heirs and find a way to break the will, which limits an accumulation by will or thereby permitting the estate to be distribdeed to two lives in being and 21 years. uted according to law, despite Judge Similar statutes to prevent perpetuities are Lamm's epigram: “Where there is a will now in force in some States, but not in the there is not always a way-to break it." State of Washington. 'That the common To provide evidence to sustain the will law applies seems to have been conceded. some testators have experts to certify to In re Galland's Estate, 103 Washington their competency and mental soundness by 106. The interminable litigation of the attaching such certificate. As a precaution Thellusen case gave Dickens an opportunity to prove that a testator is of sound and disto satirize the Court of Chancery under the posing mind and free from delusions, this renowned title of Jarndyce v. Jarndyce in proceeding is not only of doubtful value but "Bleakhouse," one of his masterpieces. risky, as was said in Greenwood v. Cline, ? Chancellor Kent, writing about 1830 in his Ore. 29, thus: “Procuring certificates of commentaries, refers to Thellusen's will, two physicians attached to the will that they saying: "If the limitation should extend have examined testatrix and find her of to upwards of one hundred years, as it may, sound mind and perfectly competent to the property will have amounted to upwards make her will, is an unusual circumstance, of one hundred million sterling!” 4 Kent's which leads to a suspicion against the integCom. 287. Towards the end of the last rity of the instrument.” century this estate was still in chancery, be- | Jeremy Bentham was a great law recause of litigation to determine whether former and philosopher. One would not "the eldest male descendant or the male

suspect any foibles in his will. Yet the fact descendant of the eldest son should is that he bequeathed his body to Dr. Southinherit the property.” The court de

worth Smith, "that his preserved figure cided that the male descendant of the

might be placed in a chair at the banquet oldest son should have it, following the

table of his friends and disciples when they doctrine of primogeniture. It should be met on any great occasions of philosophy remarked, however, that the expenses of and philanthropy.” This curious request administration, state taxes and costs of liti- was actually carried out, the body having gation were so large that the estate was been provided with a wax mask to resempractically swamped, for there was scarcely | ble him in life and placed in a mahogany more on final distribution than when the glass case. It is now at University Coltestator died; thus Kent's apprehensions of lege, Oxford.* an enormous accumulation were entirely | The acquisition of phenomenal fortunes unfounded. No doubt a layman would say

on the Pacific Coast, resulting in extrava“the lawyers made away with this large for

(3) Wit, Wisdom and Philosophy, 17, tune;" but the testator was to blame for li

it the testator was to blame for 1 (4) White's Legal Antiquities, 324.

gant living and views, produced some pe- shall within one year after the probate conculiar wills. Perhaps the most noted was test the same, or the validity of the will, the the will of James G. Fair, at one time Sen-probate of the will shall be conclusive;" ator from Nevada, which involved an therefore, the Supreme Court held the estate of more than $15,000,000. He died judgment final and conclusive after one in San Francisco December 28, 1894; the year, and not subject to attack directly or next day a will was filed leaving his estate collaterally. In 1869 relatives of Brodin trust for his three children, giving them erick brought suit in the U. S. Circuit the income for life, and upon their decease Court to vacate the decree, upon the ground to be disposed of in various ways. On that the will was a fraud; but without sucMarch 18, 1895, a pencil will was filed by | cess. This ruling was affirmed in the U. S. Nettie R. Craven, then a principal in a pub Supreme Court by a divided opinion. The lic school. This second will devised the decision of the California court holding estate to the three Fair children direct, and that a court of equity could not grant relief was supported by them as the will of their from a forged will, unless a contest was father. After lengthy litigation it was de- commenced for that purpose within one termined that the Craven will was a forg year after the entry of an ex parte judgery, together with deeds from Fair to her of ment admitting such will to probate, has valuable San Francisco property. The been much criticised and severely concourts sustained the trust feature of the demned. One writer said: “In the history first will by a four to three vote."

of enlightened jurisprudence, this is a soli

tary instance where a forged will has been Senator Broderick, who was killed by upheld because courts exercising equity Judge David S. Terry in a duel September jurisdiction were unable to give relief.” 16, 1859, left property of more than Schenk's Bench and Bar of California 212. $250,000. An alleged will was admitted to The Broderick case was decided correctly probate in San Francisco October 20, it judgments are to have any permanency 1860, whereby Broderick devised his whole

and conclusive effect. Whether the will estate to John A. McGlynn and George was forged could have been determined in Wilkes. On November 29, 1861-more the probate proceedings, within one year than one year after the entry of the judg after admission to probate as provided by ment admitting the will to probate—the statute; therefore, after one year the time State of California filed a petition to escheat for contest was barred. This case was cited the estate because the deceased left no l in Hoscheid's Estate, 78 Wash. 309, upon known heirs and that the will probated was the theory that the statute is one of limitanot executed by Broderick. The lower court tion ; otherwise, there would be no certainty set aside the judgment declaring the will to to titles acquired through wills and probate be a forgery. This decision was reversed

proceedings. on appeal in California v. McGlynn, 20 Cal. 231. The court remarked: “If it shall be For many years an eccentric character · found that the decree of the probate court, lived in Seattle, who called himself Melody not reversed by the appellate court, is final Choir, his real name being Joseph H. and conclusive, and that so long as the pro Melchoir. Like many people, not insane, bate stands the will must be recognized and however, he tried to get something for admitted in all courts to be valid, then it nothing, which he sought to accomplish by will be immaterial and useless to inquire i acquiring tax titles to Seattle property. whether the will in question was in fact | Some of the lots he purchased for less than genuine or forged." This was based upon $5 each, through the rapid growth of the a statute which provided, "if no person I city, in the course of thirty years, had in

(5)

In re Fair's Estate, 60 Pac. 442.

(6) Broderick's Will, 21 Wall. 503.

creased to $5,000. At the time of his death, married. Nor ever gave to any female, old than $120,000. The writer appeared as

or young, married or single, maid or widow, in 1907, his estate was appraised at more counsel for him in Baer v. Choir, 7 Wash.

white or any color, directly or indirectly, 631, which involved a tax deed. The lower |

verbal or written, open or implied, any court upheld his title, but the Supreme pledge, vow or promise of marriage whatCourt directed a reversal, declaring the soever.” deed void, which Choir, through his delusions, attributed to a conspiracy against

His will was contested by his brothers him. For years he lived in a dug-out, his

and declared void because of insane de-, only friend being a dog, as queer as his mas

lusions. ter. Of course, he left a will. “For the

Alfred Nobel, a Swedish inventor, died benefit of posterity" he listed mankind ac

in Stockholm in 1896, leaving an estate of cording to a scale of merits; some were

$9,000,000, the income of which, according designated as trustworthy, others as sus

to his will, is to be divided annually among picious, and the remainder as "unhung

five persons most distinguished and deservscoundrels;" his counsel and the appellate court attained to the “bad eminence” of the

ing in physics, chemistry, medicine, literalast class.

ture, and in the cause of universal peace.

Each prize is about $38,000. The first was Choir's will is closely written in a bound

given to Roentgen in 1901 for the X-ray. book of 148 pages, ten inches by eighteen

Mme. Curie obtained a joint prize with inches. At the top and bottom of each page

Bequerel in physics in 1903; she was fahe wrote in red ink, "Witness my hand and

vored with a full prize for chemistry in seal—Melody Choir,” followed by an elab- |

1911, in relation to radium. In 1906 a peace orate seal, and dated October 20, 1900. The

prize was awarded to President Roosevelt. will was admitted to probate March 1, 1907. It is rather paradoxical that a promoter of He writes of himself thus: “The incontro world peace should be recognized, for Novertible facts in my case are these—there bel made his fortune out of explosives. never was a better, all round individual ever

The bequests of Cecil Rhodes are likely set foot upon the regions of this broad State, than myself !” He declares that in

to have a more momentous effect upon na

tions than any other will. When a young 1875 he read Blackstone, but detested attorneys, for he says: “I never liked law

man he went to South Africa. Through yers as a class, and to keep away from them

great industry and keen perception of goldand steer clear of their inveigling schemes

en opportunities, he amassed a fortune of and grasping machinations—ever an active many millions out of the Kimberley mines ingredient in their diabolical profession- As with Warren Hastings and Lord Clive, has been my constant, lifelong effort." the extension and grandeur of the British

Empire became an obsession with him. He His egotism stood out ad nauseam; his

was the greatest of all imperialists. He, egregious vanity caused him to provide that

therefore, determined to devote his vast all his property should be spent for a mau

fortune to continue his imperialistic influsoleum for himself and dog "Hoboe,” plans

ence to remote generations. Few men by and specifications for which are completely

their energy and intelligence have suc shown in the will—it even shows a dia

ceeded in writing their names across a great gram of his teeth; his great virtues were to be engraven on the monument in ten lan

continent as Rhodes did in Rhodesia. On guages. That no one might contest because

September 19, 1877, at the age of 22 years of any marital relations, he declares: “I

he wrote his first will which evidences his never was married or even engaged to be world-dominating ambition for his native (8) Life of Cecil Rhodes, by Philip Jourdan,

land. The part applicable directs that his the other's will, which, of course, was void. estate be used “to and for the establish- | The Legislature passed an act to validate ment, promotion and development of a se- hese wills, which the court declared illegal, cret society, the true aim and object where- as title had vested in the heirs and they of shall be the extension of British rule could not be deprived of it by statute.' throughout the world, the perfecting of a system of emigration from the United King A most interesting case of mystery is the dom and of colonization by British subjects lost will of Lord St. Leonards. As Edward of all lands where the means of livelihood Sugden he attained a reputation as a great are attainable by energy, labor and enter lawyer. When 22 years old he had written prise, and especially the occupation by Brit

a treatise on Vendors and Purchasers, for ish settlers of the entire continent of Africa,

which he was paid $20,000. His father was the Holy Land, the Valley of the Euphrates,

a barber, so it cannot be said that he was the Islands of Cyprus and Candia, the

boosted into high office through family inwhole of South America, the islands of the

fluence. As Lord Chancellor he had occaPacific and heretofore possessed by Great Britain, the whole of the Malay Archipel

sion to declare the law of wills and often ago, the seaboard of China and Japan, and

advised that “to put off making your will the ultimate recovery of the United States

until the hand of death is upon you evinces of America, as an integral part of the Brit

either cowardice or shameful neglect of ish Empire.? Later he revised this will, but | your temporal affairs. It is sinning in your the underlying principle is world power and

grave.” Note the irony of fate that his own dominion. On July 1, 1899, he executed

will was missing, but six codicils were there. the will admitted to probate, by which his It was shown in explanation that there was fortune was devised in trust to Earl Rose- a duplicate key to the will box, but there berry, Earl Grey, Viscount Milner, Alfred were four keys that allowed access to the Beit, Dr. Jameson and Sir Lewis Mitchell, duplicate, which reminds one of “Seven to be used for the establishment of scholar- | Keys to Baldpate.” Oral testimony was ships at Oxford University, of which one offered to prove the contents of the lost hundred were allotted to the United States will and admitted, which was sustained on upon the same conditions as those awarded to the colonies. Rhodes declared that “it was foolish to leave large fortunes to rela The conclusion one may draw from the tives; it was so much wasted money." books is that testators should be satisfied

with a simple, business-like will, which The books are full of strange will cases and unusual circumstances under which

should be clear and specific, and should wills were missing, and of the neglect of

avoid numerous details, and above all that testators to follow some local requirement

its provisions should be reasonable and just of statute law, through which great estates to anyone who has a legal right to be conbecame the properties of persons never | sidered a beneficiary. favored by the possessors. Novelists have !

Edward H. Harriman was a business taken advantage of these instances and written many a tale of absorbing interest based

man of rare sagacity. His will is a model

of brevity and good sense. He disposed of on lost, destroyed or defective wills. As an illustration: in Pennsylvania a husband and

a colossal fortune of more than sixty milwife proposed to will their property to each other. Through inadvertence each signed

appeal.10

(9) Alter's Appeal, 67 Pa. St. 341. (7) Life of Cecil Rhodes, by Sir Lewis Mitch

(10) Sugden v. Lord St. Leonards, 34 L. T. ell, pp. 72-3.

Rep. 372.

| 75.

[merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small]

lions in these few words: “I give, devise and bequeath all my property, real and personal, of every kind and nature, to my wife, Mary W. Harriman, to be hers absolutely and forever, and I do hereby nominate and appoint the said Mary W. Harriman as executrix in this will.” Signed by himself and two witnesses. This will would no doubt be valid anywhere, except for some local statutory requirements. In the State of Washington children should be provided for—that is, named in the will otherwise there would be intestacy as to them ; it would also have been advisable to provide that the executrix should not be required to give a bond.

215 S. W. 441.

The purchaser of a past-due note is charged with notice of any defense which the maker has, but is not charged with notice of the secret equities of third persons.

This subject is as interesting and romantic as a tale from the Arabian Nights. There is the Gerard will case, argued by Daniel Webster before the United States Supreme Court; the Tilden trust, held void by a divided court; George Peabody's great benefactions stand out as remarkable achievements of one why began as a poor boy and who served in the 'War of 1812 as a private ; and James Smithson, who endowed this nation with the mithsonian Institute.

Why wills often pass human understand ing was the speculation of Commodore

aderbilt when he commented on the wi? of A. T. Stewart, saying: “I can't understand how the greatest merchant in this country, who began with nothing and made a fortune of millions, who was always clear-headed in business matters—how was it possible for a man of that kind to make such an utter damn fool of himself when he came to write his will." It should be added that the same question was probably asked by the heirs of the Commodore when they contested his will. Perhaps counsel in that case would not have conceded that Vanderbilt was any kind of a fool, for one of them, Henry L. Clinton, drew down a fee of $600,000.

STRONG, J. Defendant in error brought this suit against plaintiffs in error in the ordinary form of trespass to try title to two lots in the city of Dallas. The trial in the lower court was without the intervention of a jury, and resulted in a judgment in favor of defendant in error, which was affirmed by the Court of Civil Anpeals. 179 S. W. 1,144,

Both parties claim under the Dallas Land & Loan Company as a common source. The lots in controversy were on September 22, 1890, con. veyed to Hollingsworth Bros, by said company, the consideration being $150 in cash and four notes executed by the grantees, one for the sum of $100, due in six months, and three for the sum of $250 each, due respectively September 22, 1892, September 22, 1893, and September 22, 1894. The deed contained an express reservation of the vendor's lien, and was duly recorded in 1890. The grantees, as additional security, also executed a deed of trust on the property, which was filed for record on September 23, 1890. Hollingsworth Bros. failed to pay the notes, abandoned their contract, and left the state. The Dallas Land & Loan Company on June 9, 1891, made to C. E. Bird, as assignee, a general assignment for the benefit of creditors. Bird, as assignee, on July 21, 1892, deeded to T. L. Marsalis all the property then held by him under said assignment, except certain lots de scribed in the deed, the exception not including the lots in controversy. Marsalis on July 21, 1910, deeded to David Scott the two lots in controversy, which on August 23, 1910, were conveyed by Scott to plaintiff in error, I. G. Etheridge. On June 2, 1913, Marsalis and Scott, by written transfer, conveyed the notes and lien above described to Etheridge. Snodgrass, the trustee in the deed of trust, resigned; and under the authority conferred therein, Etheridge appointed J. L. Addison as substitute trustee. Addison, under the authority conferred in the deed of trust, sold the lots at public sale on July

FRED H. PETERSEN.

Seattle, Wash.

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