Lusitania Litigation, Charles Fowles’s Will, and the Surrogate’s Court’s Dealing with the “Who Died First?” Question–Part VIII.C


Michael Sean Quinn (See below)

                        It will be difficult to follow this post without having read Part VIII.B, where I loosely set forth some of the terms of Charles’s will.[1] As indicated in Part VIII.B, the most significant portion of the will, for all three of the courts which took the matter of interpreting the will up, one clause, number 9, is the central focus. In re Fowles’s Will, 15 N.Y.S. 456 (Surrogate’s Court April 11, 1916), reversed, 163 N.Y.S. 873 (Appellate Division, 1917), reversed, 118 N.E. 611 (N.Y. January 8, 1918). Other contents of the will may also be important to some readers, of course.

                    Here is Clause 9:

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.


               The Surrogate Judge made five essential points.


            First, there is an ancient presumption that there is no automatic right to inherit—no automatic right of survivorship. The main problem with Clause 9 is that it attempted to give judges directions as to how to interpret wills. The law was (and is), however, that the interpretation of documents is a matter of law and hence up to the judge.  A member of the citizenry cannot give a judge instructions as to his responsibilities under the law.


            Second, Surrogate Fowler insisted that a testator, i.e., one who created or authored a given will, cannot insert things in his will that would be unlawful or immoral.  For this reason,  Charles’s Clause 9 was a usurpation of judicial authority and invalid.   Why?


            The court rejected the ninth paragraph.  It held that no testator had the power to order a court to do something like this, or virtually anything else, when it came to construing documents. In effect, the court held that the construction of the meaning of a documents, i.e., the interpretation of a document, was a matter of law, and therefore up to the court, though—granted—the courts are subject to relatively stringent legal rules when it comes to meaning determination.
Here is a key passage:

The principle of common law, that in the absence of all proof of actual survivorship there is no presumption of survivorship among those who perish in a common disaster, and no presumption of simultaneous death [is well established[3]]. The common law of England and this state, unlike the civil law, raises no presumption of survivorship, in the absence of all proof of the fact, is familiar to us all [citations omitted].



But the court continues, Charles can evaporate this ancient principle:

It will be regarded first as a direction to a court of construction to reverse the accepted rule of the common law and thus reverse a rule of construction based on that rule. . . . In my judgment, the direction [of Charles] can have no effect, regarded as a direction to a court of construction. Presumptions prescribed by the common law and rules of construction based thereon are fixed and immutable and cannot thus be directed to be altered by the court to meet particular cases. . . . Directions in wills in order to be upheld must contravene neither the law nor good morals.[4]

This is standard, an iron-clad legal doctrine.  The reader should wonder whether exactly the same strong, inflexible, black-and-white rule would apply today. A hint of an answer is to be found in section VIII.D of this blog—the decision of the New York Court of Appeals in this case.


            Fourth,  the judge pointed out that if the terms of a will are not clear, then the 

meaning to be adopted is the one most likely to reflect or express the testator’s intent.  The Surrogate, however, rejects that the ninth paragraph /article of the will must be understood in this way.  Instead, he reads the will as a perfectly legal and practical way for Charles to avoid there being a “lapse” in the transfer of wealth.  He reasons that the language of the will supports that idea so that even if it can be interpreted to support the interpretation to be  rejected, ambiguities are to be resolved in favor of what will support the will—i.e., the intent–of the author of the will, i.e., the testator. Fowler, S. asserts that “[t]his is a fundamental [canon] in all systems of law[,]“ including both civil and common law.

(I confess that as a general rule testimony from the lawyer drafting the will is inadmissible when trying to interpret it.  No doubt that is sound doctrine today as yesterday.  Still, one wonders if it should apply in a case like this one where Charles and Frances were apparently present in one another’s company when the wills were specified and when they were signed. Nevertheless, although Surrogate Fowler the testimony he announced that he was ignoring it since it would be illegal to do otherwise.)

            Fifth, he set forth and then relied on the idea of lapse, an ancient idea in the law of wills, to deal with the problems created by Clause 9—or rather, as Judge Fowler would put it, “to deal with the problems the wording of Clause 9 caused.  Clause 9 was, after all, he implied, there in the will to solve or dismiss a whole range of uncertainties.

The judge thought it obvious that

Mr. Fowles’ real intention by the ninth clause of his will was to prevent a lapse in the event of Mrs. Fowlers’ incapacity in any way to take under his will. In that event, Mr. Fowles intended that there should be a substitute of someone else in her place. There is nothing contrary to any rule of law in this intention. Shifting uses and executor limitations freely allowed at common law largely were largely matters of substitution. . . . Substitution is the common remedy for lapse. . . . In testaments, the wishes of the testator are to be very liberally expounded in all courts of construction.



Perhaps the general idea of lapse, as used in probate law, should be further explained. It pertains to situations in which a beneficiary or devise (“B”) dies before the testator (“T”).  Often it is a simple doctrine that the gift intended for B by T would revert to the residuary portion of the estate of T, at which point, new rules would apply.  So, sometimes, avoiding lapse may be one of the goals in the sound preparation of a will, and it certainly was here. The way a lapse is avoided is to designate a person, e.g., a trustee, as a substitute beneficiary. By doing this, T can make sure the gift ends up where s/he wants it, even though B is not “t/here” to receive the gift.  For example, if T wants to make sure that a son of his sister gets an inheritance, he might leave money to Sis, but if not she since she died before T, then to a trustee for the son of Sis.  This might be called “lapse avoidance,” and Fowler, S., thought and ruled that this is exactly what happened and how the will should be construed.

                        Notice that the court’s outlook regarding  the rigorist, lock-step classical common law system and the judicial reasoning long ordained under the common law, was explicitly embraced in one way. It was also avoided, however, by what I have called “lapse avoidance.”   This move introduces an element of pragmatism into literalistic, or “legal formalism,” and, therefore, dogmatic and locked-in judicial reasoning.  The judge avoids letting his maneuver look like mere pragmatism—or pragmatic adjustment–engendered by changing, modern times. Fowler, S.’s move will be rejected by the majority opinion in the intermediate appellate court, the majority opinion of which was “ultra-formalistic.”[5][6]


********************

                        There are several minor, more or less procedural facts, about the case that the reader may find interesting. They are not however really exploitative of the connection between the Lusitania disaster and the Fowles Will. Perhaps they are nothing but amusing. 
            It was reported in the New York Times for November 2, 1915 that he had obtained an order from Surrogate Judge John P. Cohalan directing that all persons interested in the estate of Charles Frederick Fowles appear in court on November 30th to show cause why the surrogate judge should not construe Charles’ will.


            The case was apparently shifted to “Fowler, S.” who, I think, was Robert Ludlow Fowler, a well know Surrogate at the time and generally recognized as a leading scholar of various components of New York law.[7] 

Stevenson Scott, who has already been discussed in the previous section of Part VIII, was one of the trustees and executors of Charles estate, as well as that of Frances. Scott was Charles’s longtime business associate in the firm of Scott and Fowles.  Scott probably had some conflicts of interests, as was recognized, but it looks like he reported them and that they were overlooked.
            Scott was the Petitioner in the case, i.e., the person asking the court to do something.  Daughter Browne and Daughter Baylies were both respondents; the Columbia Trust Company was a respondent, as were Kenneth Charles Smith, the son of wife Frances’s sister and two special guardians, one for Smith (who may have been a person of “special needs”)  and one for other infants, apparently the children of Fowles daughters from his previous marriage.







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


[2] Remember: the phrase “Surrogate Judge” was and is in New York State a trial level judge for probate matters, and their title was abbreviated as “S,” as opposed to the more usual “J.” A photograph of its beautiful building can easily be found on the Internet. The opinion is certainly written by an ostentatious scholar-type.  Some of the books of Fowler can still be purchased today, e.g., from Amazon and Barnes and Noble, among others, and he wrote on the New York Surrogate court system in the Fordham Law Review in 1916.

[3] The court’s lengthy discussion of all this is found in his reference to an opinion he wrote earlier. Matter of Herrmann, 45 Misc. 599, 136  N.Y.Supp.944 (S. Ct. 1912), an opinion that was affirmed by a divided court in Matter of Laffargue, 155 A.D. 923, 140 N.Y.Supp. 743 (1913). (“A.D.” was and is the standard abbreviation for New York Supreme Court – Appellate Division.  It is not so frequently used today. Fowler, S. also relied on In re Piffard’s Estate, 111 N.Y. 310, 18 N.E. 718 (1988). It was also reported at 66 Suckels 410. The first of these cases was that of Fowler; the second one affirmed him; and the third was regarded as the most controlling of the three. It may be typical of Fowler to cite his own affirmed case.   (By the way Hiram E. Sickels was he official “State Reporter” for New York 1872-1895. He published 101 volumes of the New York Reports, more than any other reporter, and he did a variety of other things as well.
[4] These ideas are a good teaching source for what classical jurists took to be  required ways to guarantee valuable need for social stability where the common law is crucial.
[5] See William M. Wiecek, THE LOST WORLD OF CLASSICAL LEGAL THOUGHT: Law and Ideology in America, 1886-1937 (1998).
[6]  Another “Who died first?” case arising out the  Lusitania disaster was decided by the Surrogate’s Court.  It was decided in 1917, so a discussion of it should be put off until after the discussions of In re Fowles is complete. Thus, In re Hammer, 101 Misc. 351, N.Y.S. 588 (Surrogate’s Court, Bronx Countym (1917) will be deferred until blog numbered Section IX.
[7] Robert Ludlow Fowler was prolific wrote at some considerable length on a variety of subjects, e.g, New York property law.  Some of his lengthier writings were comments on statutes, some were not.  Here is one of special interest given the topic of this post: Robert Ludlow Fowler, The Surrogates’ Court and the New Law, 2 FORDHAM LAW REVIEW 43-56 (1916).



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