Lusitania Litigation and Charles Fowles’s Will: The Cardozo Decision of the New York Court of Appeals– Part VIII.E

Michael Sean Quinn, Ph.D., J.D.
(See below)

                        As the reader with a sense of premonition you may already be aware, one would expect this to be the last judicial decision directly addressing issues in the series of cases known as In re Fowles’s Will, 118 N.E. 611 (N.Y.1918)—it  is after all being decided by New York’s highest appellate court.  Well, it won’t be quite the very last one. See §VIII.G (Section VIII.F) where there will be a few remarks about two of the judges in the cases being discussed.

As the indefatigable reader already knows, it is a series of cases that arose out of the deaths of a prominent New York (though British) world-of-art couple resulting from the sinking of the Lusitania on May 7, 1915.

  Charles was extremely wealthy, a large amount of money was at stake, even by today’s standards–and the string of cases illustrates the changes to American law, broadly speaking, was undergoing at that time.  There was a move from traditionalistic dogmatic formalism to a more modern progressivism mixed with social pragmatism.  The decision of Justice Cardozo, then sitting on the New York Court of Appeals is emblematic of law’s moving forward. 

The principal issue in the case fits into the general “Who died first?” problem that has plagued the legal theory of probate law for a very, very long time.  Charles had tried to avoid the problem by including in his will some special directions—in particular, those found in Clause Nine:

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. (Emphasis added.)

The problem before the Court of Appeals, as in the lower courts was what to do with this clause.

Background

The lowest level court, the Surrogate’s Court, had declared it unlawful since it tried to command a judge with respect to how to interpret a legal document, a matter of law solely up the judge, and commanded that the judge interpret this particular document in a way contrary to established law.

In effect, Charles was saying that the universal and ancient legal rule no-automatic-right-of-survivorship where beneficiary and testator perish simultaneously or close to it but the indeterminable sequence was not to apply to his will.  In other words, an individual testator can direct courts to disobey or suspend the applicability of the well-established law to his own purposes and interests. Thus, a testator was saying, “At my desire and command, my will trumps that of the polity, the commonwealth.” “No way,” said the judicial representatives of the polity, “it’s too slippery a slope. Social stability can be undermined by judges doing this sort of thing.”

At the same time, the Surrogate found a way around the problem by interpreting the will as simply trying to avoid a lapse, as that term is understood in probate law. The majority in the Supreme Court – Appellate Division accepted the Surrogate’s adoption of the ancient rule, but rejected his “lapse avoidance interpretation” of Charles’s will on the grounds that he was simply by imagination creating a new will, something judges were forbidden to do. Judges are not writers of fiction, said the court by implication.  This too contributes to undoing the stability of the republic.

The dissenting justice rejected the views of both the Surrogate and his appellate brothers. Instead, he simply envisioned the will as the testator, not the Surrogate, creating a fiction, something—he said—that was done all the time.  (Keep in mind, to understand what I have just said that one must distinguish between (1) a court’s so-called interpretation/construction of a document as being fictional—like the court’s creating a new will, virtual fiction in comparison to the one the testator prepared–and (2) the creation and/or use of an entity which is called a legal “fiction.”)

Additionally, the majority of the lower appellate court was—to put it most charitably—stymied as to how to deal with what others might regard as a simple problem.  Charles directed in his will that Frances would have the power to decide and direct what would be done with part of the assets she was to inherit; she was to do this by means of a will; and if she did not exercise the power, then the assets were to go to his daughters by his previous marriage.

To be sure, the majority said, Frances had prepared and executed a will, but to accomplish what Charles wanted, her will would have to be included in his, and no extraneous document can be included in a will in this way, even if the testator clearly wants exactly that.

New York Court of Appeals

So, at last we get to the highest New York court, the New York Court of Appeals, and we have the famous Justice Cardozo writing the majority opinion for a very mixed court. (The court was “very mixed” because there were three separate opinions: the majority opinion, an opinion that dissents in part and concurs in part, and an opinion that totally dissents.  The majority barely squeaked by. When this happens, it often indicates that there is an underlying jurisprudential disagreement—a disagreement about the nature of sound approaches to the law itself.)

Justice Cardozo’s vision of how to deal with this situation is transformative and perhaps profound.  It will, therefore, be necessary to quote some of it, beginning with his characterization of case:

The wife [Frances] left a will made at the same time as the husband. She recites the power of appointment and undertakes to execute it. She gives her residuary estate (including the property affected by the power) to trustees for the use of a sister [Dorothy] during life with remainder over. Whether this gift in its application to the husband’s estate is made valid and effective by the ninth articles of his will is the chief question to be determined.  [¶] Of his intention, there can be no doubt. In that we all agree.

But, writes Cardozo, this is not the question:

We are now asked to  hold that under the law of the state of New York, a testator may not lawfully declare that a power executed by one who dies under such conditions [as the sinking of the Lusitania] shall be valid to the same extent as if there were evidence of survivorship.

There are two rules Cardozo notes that stand in the way of simply going to the testator’s intent and making sure it is effectuated. The first one is a rule “that a power created by will lapses if the donee dies before the will takes effect.” The second rule is “that wills must be executed in compliance with statutory formalities, and are not to be enlarged or diminished by reference to extrinsic documents that may not be authentic.“

Notice the phrase “may not be authentic.” It would not be used in traditional formalistic statements of this rule. Empirical “maybe’s” and “maybe not’s” have no place in setting forth universal formal legal rules, in the philosophy of law Cardozo is about to overthrow. Under a formalistic approach, “[a] testator is not permitted at his pleasure to violate these rules. He does violate them, it is said, by indirection, if he may dispense with evidence of survivorship and still sustain the gift that purports to execute the power.”

Again something about how Cardozo says what he says should be noticed. The phrase “not permitted at his pleasure” is being used basically to indicate the inconsistency between dogmatic legal formalism and the flexibility that must be built into the law if the American idea of individual liberty is to be taken seriously.

To be sure, Cardozo observes, ordinarily a power created by a will lapses if the  donee—the person upon whom the power is conferred—dies before the maker of the will.  The reason is simple. A will has no effect until the testator dies, so “[w]hatever power it creates, comes into existence at that time.” But the question is not lapse, but lapse avoidance. More concretely, according to Cardozo, is whether the law permits

[a testator] to provide that if the donee’s survivorship is incapable of proof, he will give his estate none the less to whomever she has named. This is what the testator said, not in words, but in effect. . . . So here, there is by implication a gift to the legatees named by the wife, and a ratification of any execution of the power, however, premature. The intent to avert the consequences of a lapse is clear.

Notice Cardozo’s actual phraseology: “This is what the testator said, not in words, but in effect.” In taking this simple position, Cardozo took a giant step forward in transforming the law of wills, and the law of lots of other things too.  Absolutely literalistic, exactitudinarian dogma is undercut, not in words but effect.  Modernity and progressivism replace classical formalism one step at a time, and sometimes those steps are taken in obscure places.

So does anything bar effectuating Charles’s intent?

One obstacle and only one can be thought of. That is the rule against the incorporation of extrinsic documents, testamentary in character, but not themselves authenticated in accordance with the statute. It is said that this rule is violated when a testator, to keep a power alive, ratifies its execution, adopts the will that executes it as his own, and thus in effect averts a lapse.  We do not share that view.

How does this work? There is a rule against incorporation, so either it must be rejected or it must be embraces, so say the black-and-white jurists of formalistic tradition. “No,” says Cardozo. As part of a background, consider the immense number of actions that can be accomplished in and by means of directions found in wills, e.g., “ratify assumptions of power, extinguish debts, wipe out wrongs, confirm rights.” Then one must look at the purpose of the rule against incorporation. One must consider what the rule prohibiting the incorporation of an outside  document into a will is  really for, and restrict that rule, more or less, to that realm and not all realms.

The rule [against incorporation] is sometimes spoken of as if its content had been defined by statute as if the prohibition were direct and express and not inferential and implied. But the truth is that it is the product of judicial construction. Its form and limits are malleable and uncertain. We must shape them in the light of its origin and purpose.  All that the statute says is that a will must be signed, published, and attested in a certain way. . . . From this, the consequence is deduced that the testator’s purpose must be gathered from the will, and not from other documents that lacks the prescribed marks of authenticity. It is a rule designed as a safeguard against fraud and mistake.  In the nature of things, there must be exceptions to its apparent generality. Some reference to matters extrinsic is inevitable. . . . Words are symbols and we must compare them with things and persons and events. . . .  It is a question of degree. . . . It is plain, therefore, that we are not to press the rule against incorporation to ‘a dryly logical extreme.’ Noble State Bank v. Haskell, 219 U.S. 104, 110 (1911). We must look in each case at substance. We must consider the reason of the rule, and the evils which it aims to remedy. But [, in this case,] as soon as we apply that test, the problems solves itself. There is here no opportunity for fraud or mistake.

Justice Cardozo’s language here expresses the essence of legal reasoning as it was to be transformed by a new culture of pragmatism and progressivism that abandoned the strict and exclusive formalisms of yesteryear.  I have taken the liberty of underlying some of the most illustrative language; all of the underlining is my own, and none is his. 

He goes on:

To hold that the purpose of this testator has been adequately or inadequately declared according to the accident of time at which death came to him or his wife in the depths of the ocean, is to follow the rule against incorporation with blind and literal adherence, forgetful of its origin, its purposes, and its true and deep significance.

Interestingly, characteristic of many transformative decisions, part of Cardozo’s argument is focused upon a particular previous case.  Indeed, it is a usual case to which there is common allegiance among lawyers and as there was among all of the other judges in all three courts having a role in the Fowles’ Will matter. In re Piffard, 111 N.E. 718 (N.Y. 1888)

Piffard was a very brief decision—a couple of pages. Its stated reasoning is unclear and not clearly supported, and the judges in the three Fowles’s Will cases agreed on the significance of the case for the topic, but not on the point of for what it may be precedent. In addition, though Piffard has been cited 40± times, mostly before the Second World War, though a few times later, including one contested will case in Texas, involving oil and gas royalty interests, it is not an influential, highly regarded case—not even, except perhaps in one minor publication, regarded as a significance opinion of Justice Cardozo.  

The two dissenting opinions need not be discussed here now. One of them agreed with Cardozo regarding general jurisprudence but refused to apply it to two other sections.  The other dissenting opinion was nothing but a restatement of the formalistic ideas hundreds of years old and found in the majority opinion of the Supreme Court – Appellate Division.


Michael Sean Quinn, Ph.D., J.D., c.p.c.u. . . .
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