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

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.

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.

there is an ancient presumption that there is no automatic right to inherit—no
automatic right of survivorship.
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.

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

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.

 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

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.

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
  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]


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. 

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.

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

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.
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

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

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

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Originally posted on 06/05/2015 @ 4:36 pm

Michael Sean Quinn, PhD, JD, CPCU, Etc

Michael Sean Quinn, PhD, JD, CPCU, Etc. (530)

One of Texas's leading insurance scholars, Michael Sean Quinn is a past chair of the Insurance Section of the State Bar of Texas and has a broad legal practice.

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