Lusitania Litigation, Probate Law, and “Lapse” Avoidance: the Dealing with the “Who Died First?” Question–
Part VIII.B

Michael Sean Quinn (See below)

By way of summary, Charles left a lot of money to Frances, a fair amount of money to each of his two daughters by a previous marriage, a significant power of appointment to Frances, so to some degree dependent on her will, i.e., decision and last will and testament.  The daughters, Gertrude Frances Brown (“Daughter Browne” or just “Browne” and Gladys Mary Baylies (“Daughter Baylies” or just “Baylies”), plus at least some of their children, contested his will on the grounds that it could not be determined who died first and that Charles’attempt to stipulate that he was to be conceived, by eveyone including courts,  as having died first, under some circumstances, was illegal and, therefore, invalid.  (I imagine this was said in a sisterly conversation: “Granted, Dad clearly seemed to want most of his money to go to ‘What’s her name,’ but we should have it, and we really need it. She is not really kin. So what if she ends up broke.  She knows about art, so she’ll be able to find a job.”)




Further Background
Frances and Charles, of 1 West 64th Street, had been together for a relatively long time.  Charles  was  a wealthy[1]  British art dealer and retailer in New York City, although his business is often listed as an interior decoration business, but he and his wife Frances, who may have also been British trundled back and forth to England and Europe relatively frequently on business.  (On that fateful attempted crossing[2], their companion was Sir Hughes Lane, a well-known British art dealer of the times.[3]) In any case, Charles[4] was the treasurer of a commercial art gallery named Scott & Fowles, the life of which ran from 1904, or so, until approximately 1943-46.[5]  Charles and Frances appeared to have had no children.
The “Scott” was Stevenson Scott, who, along with his wife, was active in the New York art world for many, many years. He was identified in the New York Times as the President of Scott and Fowles Company, a corporation for dealing in art.
Charles’s  Last Will and Testament
Charles and Frances went to the office of the attorney that represented both of them on April 29th or 30th, and the wills were drafted, signed, and sworn on either the 29th or the 30th.  They apparently discussed the dangers of sailing on the Lusitania with their lawyer.[6] Here is what Charles’ will looked like, at least in part.
·        $5,000.00 to Frances
·        the contents of an estate in England, the real property also being devised to her,
·        45% of the residuary to Francis (sort of),
·        27.5% of the residuary to to Daughter Browne (sort of), and 
·        27.5% of the residuary to Daughter Baylies (sort of).
The 45% actually went to a trust that the income of which would be for Frances for her lifetime.  She was to have the power to dispose of 50% of the corpus of the trust at the point of her death.[7]  This power was to be found in her Last Will and Testament.  The provision of this power  was a very important portion of the will. 

 (Historically the distinction I draw between “will” and “testament”–testament is a stating, will is a doing–is not quite right. centuries ago a testament was a will. That  was true for centuries, and is still true today, to some extent. Nevertheless, the phrase “will and testament” must involve two different, though related, meaningful words, or there is simple repetition.)

             The other half of the trust was to go to his daughters as income-for-life and then to their respective children.  If Frances did not exercise her power of appointment, i.e.,  picking  out who would get 50% of the corpus of the trust, it too would go in the same way to the daughters and then their children.  The mechanism by means of which all this is done is through executors and trustees, but that is not important at this point.
            For the purposes of the three cases under discussion, the key part of the will is the ninth paragraph, and here it is:

In the event that my said wife and myself should die simultaneously or under such circumstances as to render it impossible or difficult to determine who predeceased the other, I hereby declare it to be my will that it shall be deemed that I shall have predeceased my said wife, and that this my will and all its provisions shall be construed on the assumption and basis that I have predeceased by said wife.

Thus Charles tried to answer the “Who died first?” question by commanding  how everyone should conceive and think about the matter of his death and then deal with it accordingly.

Now let’s turn to the court proceedings.






Michael Sean Quinn, Ph.D., J.D., c.p.c.u. . . .
The Law Firm of Michael Sean Quinn et
Quinn and Quinn
 1300 West Lynn Street, Suite 208
                                        Austin, Texas 78703
                                                 (512) 296-2594
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                                E-mail:  mquinn@msquinnlaw.com




[1] An appraisal of his estate was filed with the Surrogate’s Court in New York on or about June 16, 1915. The value of the estate estimated in that filing is reportedly #1,179,854. In 2015 dollars that sum appears to be $2.764B
[2] Both Charles and Frances have entries in “The Lusitania Resource.”
[3] Id. Sir Hugh also has an independent Wikipedia entry. He was a wealthy Irish art dealer, museum director, and collector. He was a well know aficionado or Impressionism and Irish itself. T here was a famous and 50 year probate controversy regarding the “Lane Bequest” between England and Ireland. 
[4] A 1915 portrait of Charles by Harrington Mann (1864-1937), no relation to Sally,  hangs in the Taft Museum in Cincinnati, Ohio. He was a handsome devil, even at 49, and had an exemplary beard.  This painting is easily findable on the Internet.  It is not one of Mann’s best though it is certainly better than the one of Frederick Smith, Earl of Birkenhead Lord Chancellor, a lawyer.  No portraits of Frances located.
[5] There are a number of entries regarding this firm and art transaction to be found on the Internet.
[6] One would be surprised if they did not discuss the ad run by the German Embassy in the New York papers, as well as others, designed to discourage folks from making that trip. Interestingly, the ad was physically placed right under Cunard’s announcement of the schedule for the Lusitania.  The ad itself is reprinted in variety of places easily findable on the Net.
[7] Frances did this, or attempted to do this, by leaving the money to trustees, who were required to supply her sister with the income from the trust during her life, but when she died they were to divide the trust into one third to Dorothy’s son Kenneth or to his issue, and one third each to Charles’ daughters or to their issue, respectively.