Lusitania, Probate Law, the Who-Died-First Question-or-Who Shall-We-Say-Died-First-or-Who-Gets-the-Dough
Michael Sean Quinn (See below)
One of the significant
legal controversies created in the very much churning wake of the Lusitania
catastrophe was In re Fowles’[s?] Will
and the probate litigation leading up to it, and one case after it was decided.
 The controversy, or at least the most
significant part of it, had a significant impact on one area of probate law and
was a buzz in the New York art world for a number of years.  The story will have to be told in several
parts, of which this is the first, introductory component.
The facts of the case are
simple, but the whole story is on the complicated side, as a result of the
twists and turns of the law, though there is a comic book version.  Here is a version for kids.
A very wealthy man died
along with his wife in the same disaster—the sinking of the Lusitania.   He wanted to leave a lot of his money to his
then current second wife and let her dispose of some as she of it wished when
she died and that would probably be to her sister.  His two adult daughters, the only children,  from his first marriage, who had children of
their own, as did the sister, wanted as much of the money as possible, and so
challenged his will. The second wife had a will, as well, and it too became an
issue in a separate string of law suit. Remember: All this results from the
Lusitania catastrophe
So now for a longer, more
adult, version of the facts of the story. Mr. and Mrs. Fowles (Charles and
Frances) were on the Lusitania when it went down. Both perished. He was 49
years old, and she was 38.
They had wills  drafted, two days before
the ship left New York for Liverpool, and they executed them in front of each
other at  their attorney’s office before
sailing. (One account says that the will were executed on the day before
departure, not two.) Their tragic deaths, the amounts and character of the
money involved, and those who had an interest at stake triggered lawsuits. His
will was far more important than hers, and it went first.
The disputed issues
arising out of his will were eventually decided in the New York Court of
Appeals in 1918[1]
after there were already  adjudicated in
the Surrogate’s Court (trial-level court for probate matters) in 1916[2]
and in the Supreme Court, Appellate Division (intermediate level court of
appeals) in 1917.[3]  Mr. Fowles’ case was  about his “last will and testament” and
nothing else.  As already said the facts
were not complicated at all, but the legal problems were; the facts are rare
and relatively uninteresting, except to those immediately involved, but the
problems of law, legal history, and 
legal theory were and remain fascinating, if you like that  sort of thing.  
What you have just read can
be explained as follows, roughly.  A
person named Fowles—in this case Charles Frederick Fowles—had a will and died.
There is some controversy about the meaning of the will and/or its validity,
i.e., whether it was a binding will at all. 
In the language of the law, what is called a “will” in ordinary English,
is often called “The Last Will and Testament of [Name of “Testator” [i.e.
person “willing]].” The term “Testament” means something like “statement of,”
“assertion of,” “sworn testimony” or “sworn statement of,” and the word “will”
means what it means in the phrase “act of will” or the phrase “will power”; and
the word “last” means what it says.[4]  
(Historically my
distinction between “will” and “testament” is not quite right. centuries ago a testament
was a will. That
  was true for centuries,
and is still true today, to some extent. Nevertheless, the phrase “will and testament”
must involve two different, though related, meaningful words, or there is
simple repetition.)

A will is not a contract
or anything like a contract.  It is a “unilateral”
commandment to others, to the courts, executors (or administrators or trustees)
and the beneficiaries that “what I’ve said in this document I really, really
want. In fact I will it to happen, so I am commanding other to do as I have
said.” Sometimes the “testator,” the person whose will it is and implies  stuff like this: “Contravene my will at your
peril.” Sometimes wills even contain clauses that if someone contests the will,
he gets nothing if s/he loses. At the same time, a testator cannot validly
command that illegal acts be performed, that illegal transaction be
accomplished, or that courts do anything contrary to law. Courts cannot and
will not enforce such wills or parts of them, anyway.
The contest over Mr.
Fowles’ money did not end with high New York Court of Appeals decision. There
was another one. It involved the sister’s petition for attorney fees
accumulated in litigation with the two daughters of Charles. Money breeds
The story also breeds
lengthy discussions. The four cases involved are themselves legally complex and
involve diverse arguments, inconsistent reasoning, and at least three
interesting judges, one of whom is still famous. Consequently, the story is
divided into several posts.
First, this section
VIII.A is an introduction; it is nearly over. 
Section VIII.B will  say a bit more about the Fowles and substantially
more about the content of Charles’ will.
The third, fourth and
fifth sub-parts  VIII.C-E, poses will describe
and discuss the three court decisions regarding Charles’ will: the decision of
the Surrogate’s Court (i.e., the trial court), the Appellate Division (i.e, the
intermediate appellate court), and the New York Court of Appeals (i.e., the
highest court in the state).
The sixth section, VIII.F,
will describe and discuss the case of Smith
v. Johnson,
200 App. Div. 811, 194, N.Y.S. 67 (1922). Smith was Frances’
sister and the person Frances designated to receive a percentage of inheritance
money from her and left originally by Charles. 
This dispute involve charges for expenses and attorney fees spend in a
dispute over Frances’ will.   
In VIII.C I will say a
bit about the Surrogate Judge. He  is today
a relatively unknown fellow, but more interesting than that. In §VIII.D a
little more will be said about the judge that wrote the decision of the New
York Court of Appeals. That was Benjamin Cardozo, still—and probably forever to
be–regarded as one of the premier jurists, jurisprudentialists, and juridical
prose stylists of the Twentieth Century. (Me? I agree with all this, except
that I think his prose style, while elegant, was a shade too complicated.).  The dissenting judge in the Supreme
Court—Appellate division wrote what may be the best opinion, but almost nothing
is known about him at present.
There may be a seventh
section, VIII.G. If it comes to exist, it will concern a major change in
probate law no doubt arising in part out of the Lusitania disaster and probate
problems and cases it generated.

[1] In re Fowles’s Will,  222 N.Y. 222, 118 N.E. 611 (January 8, 1918)

[2] In re Fowles’s Will, 95 Misc. 48, 158
N.Y.S. 456 (April 11,1916), reversed and then affirmed.
[3] In re Fowles’s Will,  176 A.D. 637, 
163 N.Y.S. 873 (March 9, 1917), reversed.

Some sources equate the idea of “will” and “testament.” I like my conceptualization
better. One can put anything one’s likes in one’s “will,” including statements,
praise, expressions of love, denunciations, or whatever. Here is an example a
friend of mind says he drafted once for a woman and then repeated by reading at
a meeting following the death of the testator, i.e., the person whose will a
given will is. “Elmer. Since you were a philandering mother-fucker, having had
sex with my own mother, though not restricted to her, and a cock-sucker of the
many, being not only a “straight” and energetic male slut but a “gay” whore. I
bequeath unto you $0.87, no less and no more, to pay you in accordance with all
the great sex we had and since I did not want you to walk away from all this as
empty on the exterior as you are in the interior.” The last part of this
discourse was a will, while the first part was a testament.