Lusitania Litigation and Charles Fowles’s Will: The
Cardozo Decision of the New York Court of Appeals– Part VIII.E
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
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.
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
The problem before
the Court of Appeals, as in the lower courts was what to do with this clause.
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.
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.
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
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
. 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.
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
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
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’
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. . . .
The Law Firm of Michael Sean Quinn et
Quinn and Quinn
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