Lusitania Litigation and Charles Fowles’s Will: The Intermediate Court of Appeals Review of Surrogate’s Court’s Decision—A Throwback?
Part VIII.D

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


Charles Fowles (“Charles”) and his wife Frances perished together in the sinking of the Lusitania. Charles’ wealth was large, so there was a will contest, involving especially his two daughters from his long deceased wife, their mother and a grandmother of their own children.  Facts were not at issue; nor were the concrete terms of the will. What was at issue was one clause and its applications to other parts of the policy—Will Clause Number Nine.[1]

The Surrogates’ Court had ruled that Clause 9 might be seen as invalidating the rest of 

the will, if it were understood outside the context of the whole will, but that if it were

 understood in terms of the testators—Charles’s—intent, something to be gleaned from the whole will, it was demonstrative evidence that Charles was trying to avoid a lapse. The Supreme Court – Appellate Division of the State of New York reversed the Surrogate’s decision. 

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.

This court reverses the Surrogates’ Court by a 3-1 majority, based on a 

dogmatic and formalistic opinion, The dissenting opinion, that of Justice Page 

is the clearest, simplest, most straight-forward but only the second best opinion 

of all those involved.

Majority Opinion



Since most of the arguments are outlined in Section VIII.C, the majority opinion can be summarized quickly.  As the New York Court of Appeals will also observe, the main focus of the decision must be lapse avoidance.  The majority on this court does not think that this can be done.

                        Charles’s will created a power of appointment for Frances. In other words, it gifted her a power.  If she exercised it, something would happen;  a trust for her sister would be created and would pay her proceeds during her lifetime, and then something would happen. If she did not exercise it, the sum controlled by the power would be put into the residuary and go to Charles two daughters and then to their children.

                        But said the majority, Frances could not exercise the power given her because she might already be dead and the point in time when the gift was made. She could not exercise a power unless she was living, and she would have to be shown to be living. Moreover, the choices she could make about where the money within her power of appointment would go could only be made by a living person.
                        It will not suffice, the majority said, to say that Frances had already made the necessary choice because that would require incorporating Frances’s will into that of Charles, and that is contrary to long established law.  Doing this would require that Charles know that he knew when he executed the will that the relevant property would be distributed in accordance with Frances’s will.  (It was not an issue in this case, but it seems to me that the lawyer that represented them both and counseled with them together should have been asked about this, and his testimony, other things being equal, should probably have been followed.)
                        The majority opinion, which several times—in turns out ironically and scornfully—referred to the Surrogate as the “learned” judge, includes a blistering criticism of him. Here is part of it. The opinion of the court below

Strains ‘construction’ [i.e., document interpretation] beyond permissible limits, where there are not words in the will expressing any such intent, and where the only purpose of such a construction and the effect of it is to dispose of the testator’s property in accordance with the provisions of some other will, a result that is not sanctioned by the law. This is not will construction but is tantamount to making for the testator a new will. If it is asked, what then, was the purpose of the testator in adding paragraph ninth to his will? [T]he answer is that it was an attempt to incorporate in his will the provisions of any will that his wife might leave. . . . Seeking the objects of the testator’s bounty from the will itself, as we must, and without resort to extraneous writings, there is not a line in it pointing either to the sister of the testator’s second wife or the wife’s executors.  
  
A careful reading of this passage indicates that the majority is relying on an ancient rule of common law that was never designed for this sort of situation.  Charles true intent cannot be established by reading the whole will as a network of ideas and propositions.  If Charles had the intent postulated by the Surrogate, he could have established it with a few words.  Since neither those words nor their equivalents actually appear there, it is fallacious to draw inferences for what is else where to be found in the will. If the usual words traditionally used to  trigger X are not found in the will, the testator’s intent to trigger X may not be inferred from other portions of the will, where those word, similarly, are not to be found.

            This outlook depends on the jurisprudence of traditionalistic “legal formalism” aka “legal classicism.”  It is an “eternality” conception of the law. Other pieces of the world might change, but the world of the law does not, at all, ever.  Innovation in the law is correctly excluded from the world of the law.  Essential truth based on reason and nature do not change. If these ideas sound alien to the reader, it is because American law has rejected them for a century or more.  World War I and hence the Lusitania incident are right at the final swing of the door; right around then is when flexible, realist, modernistic thinking made enormous innovative changes replacing centuries of dogmatism.  (Of course, formalist themes can never be driven out completely, nor should they be.)

Dissenting Opinion

                        Only one judge dissented, and he is identified as “Page, J.”[1] As I’ve already said, his opinion is outstanding. He disagreed with and rejected the reasoning of both the majority and with the Surrogate, although he would have affirmed the decision below.
                        He saw Clause Nine as merely “a clearly expressed declaration of the testator’s intention with respect to the disposal of his property in the event named, which even has come to pass.” In other words:

The testator said, if my wife and I should die in a common disaster, and it cannot be determined which of us died first, I direct that my property be disposed of in the same manner in which the law would have disposed of it, had I died first.  He does not enjoin the courts to indulge in a presumption as to who died first. On the contrary, he recognizes that the courts could not legally adopt such a presumption, and requests them to indulge in a fiction for the purpose of effectuating his intention with respect to his property. The creation of a fiction is not an uncommon method of testamentary expression.

One may view this position as innovative (and it is), practical (as it is), modern (as it also surely is). In addition, it moves through the channel of innovation in a not atypical way. I act like it is thoroughly consistent with the accepted, established, and tradition way of doing a thing, but junks them.  It even observes that the use of “fictions” is not uncommon in probate matters pertaining to wills, but—in effect—opinions that the court can do it for the testator when it’s clear what he wanted.  Justice Page’s piece is a marvel of planting the seed of sweeping reform in an ever so narrow area of the life of the law.
                        Justice Page on this court and Justice Cardozo on the New York Court of Appeals come out in more or less the same place, but their reasonings are very different. Justice Cardozo is, to be sure, more elegant, but he is also more explicitly confrontational. Such was the “war” between modernism and formalistic classicism in American law and jurispurdence in the early part of the Twentieth Century. 




[1] In re Fowles’ Will, 163 N.Y.Supp. 873 (Appellate Division, 1917) reversing 163 N.Y.Supp. 873 (Surrogate’s Court 1916), and reversed by 1118 N.E. 611 (N.Y. 1918)

[2] His full name is Alfred R. Page (1859-1931). He was Associate Judge from 1916 to 1923. He was active in New York legislative politics and private practice. His political attitudes were clearly on the progressive side. (What was then called (progressive) in those days was at least some of what is called “liberal” these days.)