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SMITHSONIAN INSTITUTION 1605

Seidell by operation of law at the time of his death by his failure to recite a waiver in his will, which had been drawn many years before, or to execute a waiver or to complete the acceptance of personal property under the will of Mrs. Seidell, any one of which would have eliminated his right to the distributive share.

"I have stated this in the foregoing fashion because it is also the opinion of this office that from a legal standpoint Smithsonian Institution is entitled to claim whatever the distributive share which has flowed to Dr. Seidell would be. Yet it should be remembered that this is a factor which is [[in]] no way influenced the Institution's acceptance of the Atherton Seidell bequest because this fact was unknown to the Institution or its attorneys at the time. 

"It would appear to us that the sole question for the Institution to weigh is whether or not it should weigh certain stated equities against the clear legal position in order to enable the intent of Mrs. Seidell's will to not be defeated by a series of circumstances which apparently were not foreseen by her husband who died a short time after her. It is clear that it was her intent that the Smithsonian not participate in her estate. It is also clear that the estate left to the Smithsonian by Dr. Seidell far exceeds the estate left by Mrs. Seidell.

"Stated another way, the distributive share which flows to Dr. Seidell's estate by operation of law from Mrs. Seidell's represents about 15% additional over the value of the bequest which the Smithsonian Institution had accepted. Even though it appears clear that the stated equities would appear to favor a waiver by the Institution, it must be reiterated that from a legal standpoint this does not obtain and the Smithsonian is legally entitled to the amount of money involved in this distributive share to Dr. Seidell's estate from his deceased wife's estate.

"In conclusion, there is no legal bar to the Board of Regents of the Smithsonian Institution executing the requested waiver but there is no duty to do so. Based on this statement of fact and the other facts which make a rather voluminous file, we would state that the Board of Regents has sufficient before it to decide which course it chooses to follow."

In view of the considerations set forth in Mr. Hanson's letter it may be appropriate at this time for the Board of Regents to take whatever action it considers as indicated concerning the issuance or nonissuance of the waiver referred to in Mr. Hanson's letter.

Respectfully submitted,

/s/ Robert V. Fleming
Chairman

At the conclusion of the reading of this report there was a discussion of the legal and