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HOW THE HANDWRITTEN
WILL HAD MY FATHER SINGING IN COURT
“Gone, gone, gone, gone, gone,” my father muttered as he sat behind his
large mahogany desk, the copy of the handwritten letter clutched in his
hand. His eyes were on the document in his hands but he wasn’t seeing
it. He was too busy thinking. Then he looked up at me.
“You know what ‘gone’ means…I know it. But will the court know it?
Dead, right?”
I
was clerking in my second year of law school, there for the summer and
it seemed my usual job, aside from following him around, was to be his
sounding board. But this time, before I could answer, he looked down at
the document again, grumbling, “He could have used another word. Like
‘deceased.’ Like ‘passed away.’ But no, he had to use, ‘gone’. Damn.”
I
sat down at the little desk he had put in the corner of his office that
was my work space. “People don’t talk like that, Dad. Not when they’re
dying. No one is going to write their own Will and use the words, ‘If Ed
is deceased.’ Of course they will use the words ‘not here’ or ‘gone.’
That’s colloquial.”
He sighed, dropped the letter on his desk and stood up. “Then find me
some law. Any law.” And went to lunch at Orsis where he broke his diet
yet again with Fettuccini while I went to the law library for the third
time that day. This was long before computer searches for law…we waded
through thick volumes of law digests with key words, sitting behind
stacks of heavy books with yellow foolscap in front of us, the only
sound rustling papers and whispers.
The Mills Tower law library was part of the city library system then,
brown linoleum floors, oak book shelves, an elderly librarian near the
front door and suited clerks and young lawyers hidden away behind the
piles of books on the numerous pitted and scarred oak tables. I loved
it. It reminded me of the monastery cloisters I had seen in my
inevitable tour of Europe when I was in college and occasionally, very
occasionally, a pretty law clerk might appear, to be surreptitiously
eyed by the rest of us.
One was there that day and had sat down quite close to me glancing at me
so it was a bit hard to concentrate on whether the courts had thoughts
on the following sentences.
“Ed Blake has been like a brother to me all these years. I want him to
know I appreciate all he has done. He is like a brother only better. He
is taking care of me now and we live together like a family, which is
more than I can say for my own family. I leave all my things to Ed but
if he is gone then I suppose it should go to my brother since blood does
matter. I ask Ed to make sure my pets are well cared for.”
Everyone knew what he meant, of course. But lawyers are paid to make
sure things that are obvious are not, and Bill Oswald was a legal war
horse as experienced as my father and a master at argument. At our
Motion to Dismiss his attack on our proposed distribution, he had
actually been able to cobble together a coherent argument. “Mr. Blake
was the care provider of Jeremy, your Honor, the man who was there day
by day, each night caring for him. Jeremy knew it and depended on it.”
The Judge was watching Oswald strut his stuff, not impressed. He chin
rested on his fist as he watched Oswald dramatically gesture, a finger
in the air. “So, counsel?”
“Your Honor, Mr. Blake had to make sure of the necessities of life for
Jeremy Butler, each day every day and Jeremy knew it. Of course he would
insist in his Will that if Ed Blake was abandoning his post, he would
not inherit. Of course…if he was ‘gone,’ he would be disinherited. That
is the point of the Will. And Mr. Blake was not even in the same city
when Jeremy Butler went to his Maker. He was not even in the same state.
He was ‘gone,’ your Honor, and thus inherits nothing.”
My father had leaped up. “Nonsense. His own sister was ill, that was why
he was out of the state and Jeremy Butler knew it and even paid the
tickets for him to see her. ‘Gone’ means ‘dead’ obviously, not out of
the state or out of the house. This is nonsense.”
The judge leaned back and studied the wall behind us for a few moments.
“I don’t suppose either of counsel has briefed this as to definitions of
‘gone?’”
My father was taken aback. “Judge, the argument is so far fetched I am
sure there will be no law on this particular verbiage. It is the way
people speak. It is not Latin or based on Corpus Juris Secundom…”
Oswald was not to be outdone. “I put it to your Honor that how else was
he supposed to indicate, in lay terms, that his care giver must remain
at his side to assist him or face disinheritance. Any layperson would
have to use the words ‘not here’ or ‘not at my side’…or ‘gone!’ That is
obvious. And a jury will know that. We deserve to see how a jury will
react…not how Mr. Stimmel interprets it for his client…a client who is a
complete blood stranger to the deceased.”
My father was outraged. “This is sophistry. Does he contend that if Ed
Blake was a hundred feet away he would not inherit? A thousand feet
away? In Oakland? In Sacramento? Five feet? Does he require our client
to be sitting at the deceased’s feet at his death to inherit?!”
Oswald was enjoying himself. He always liked annoying my father. “That is
up to the jury, your Honor. I suggest what the community would consider
‘gone’ would be the test. Certainly not close enough to care for him
would make sense as a definition of ‘gone’ and it should go to the jury
to decide…”
Judges normally only get overturned on appeal by dismissing cases
without letting them go to a jury and getting overturned on appeal is
what judges do not like…thus five months later we were going to go to
trial on this issue and my task was to find some law and ignore the lady
on my right.
And find law I did. Lots of it. None of it used the key word, all of it
said use common sense and colloquial language and the closest thing I
did find was a case from Illinois in which the Court upheld a verdict in
which a jury found that the words ”..is no longer with us..” meant dead.
And the case was fifty years old. That was it.
My father was not particularly pleased with that paltry result and since
by then I was dating the young law student who had been sitting next to
me, and he knew it, he wondered aloud if I had been distracted during my
research. I was insulted. “She even helped me research. For free. You
ended up ahead.” He grunted. There was a bit of a silence. I tried
again. “Look, you, yourself said that the argument was so absurd that
there was unlikely to be any law on it. I think it is surprising we even
found that.”
He tapped his pencil on his desk. “I hate
holographic wills.
How can people be so foolish as to put their family at such risk? To use
professionals to fix their cars but not to create the vital documents
that explain what happens to their wealth when they are no longer here
to direct it? Sad stuff, indeed.” I had heard that speech from him
while sitting in a dozen meetings with clients by then and was not
really listening. “It is like trying to paint a master piece using your
own meager skills and refusing to hire Michelangelo. It speaks of pride
and arrogance.” Even then I did not think our
Wills and Trusts
were works of such great art, but given the small results of my
research, I didn’t argue with him.
But he wasn’t done. “Are you aware that studies indicate that the
average period of time between when a person retains an attorney to
write a Will and its execution is three years? And not three years
because the attorney delays…three years most of which is spent with the
documents sitting on the client’s desk. Ignored and feared.”
He had also told this to a dozen clients while I sat there so, yes, I
was quite aware of it. “People fear death, Dad. They confuse signing a
Will with dying, I guess.”
“And wait until it is too late to have professional help on crafting the
documents. And thereby they end up enriching you and I and causing chaos
to their family. Sad stuff.”
But he was not really on that topic at all. He was simply frustrated
because he could not figure out a way to stop Oswald, the opposing
counsel, before the matter went to a jury. Without a precedent precisely
on point, there was no way the judge could dismiss the matter and juries
are known to do odd things. So that was what he told our client, Ed
Blake, who was a very nice guy who could not figure out why he had to
spend so much money to have Jeremy’s Will enforced.
“He’d be so upset to know this is happening. He always disliked his
brother. And now this public display of it. All of his personal life
coming out. And costing so much. Money that could go to the family, to
my family, instead. Such a waste.”
Dad just harrumphed. He had already told Ed what he thought about
holographic Wills.
I
shifted in my chair and waited for Dad to continue the witness
preparation but he seemed to hesitate. He leaned back in his chair,
hands crossed across his ample girth, and pondered for a bit. Finally he
looked at Ed.
“Was Mr. Butler a fan of Country and Western music? If such noise can be
termed music, of course.”
We both stared at him. Ed shook his head. “I guess so. Some at least. At
times.”
“Do you still have those records?”
“I don’t like the music. I gave them away, maybe two weeks after he
died. I mean is that important?”
“Do you know the songs he liked?”
“I don’t really think so. They sound pretty much alike to me.”
“That is a shame. But not essential, I suppose.”
We continued to stare at him but he was not expanding on his thought.
He did seem much happier.
And, as we kept preparing for trial, spending the hundred hours
necessary to get the exhibits together, prepare the voir dire and jury
instructions, practice with the witnesses and prepare cross examination,
I noted he began to hum an odd song now and then, smiling to himself. It
was getting annoying.
“Dad, what’s going on? You going to let me in on what that Country
Western stuff is all about?”
“Should I? Did you let me in on your relationship with that young lady?”
he smiled, thinking that was a clever retort. He knew she and I were not
getting along so well. She disliked having to walk a mile to where I
parked my car…since in downtown San Francisco I had to park that far
away to afford it. And I disliked the fact that her hero in music was
John Denver who she considered a musical genius. But he saw my
expression and continued. “It is necessary at times to go beyond the
case books to prove a case. I intend to do so. Colloquial they
want…colloquial they will get.”
And that was all he would say.
But on the third day of trial, with the expert called by the opposing
party on the stand, it all came out. And then some.
The expert was a philologist from UC Berkeley who Oswald put on the
stand to testify that “gone” meant “away” not “dead” and who had already
spent half a day explaining the Germanic origins of the word and how the
usual terms for death in our day and age did not infer a leave taking
but end of life. “We no longer think of going to heaven or going to
another world. We have moved beyond that as religion has been supplanted
by rationalism and secularism. Nowadays, an educated man would not use
the terms ‘gone to a better world’ or ‘gone to his Maker’ or the like.
He would simply indicate ‘deceased or dead.’ A man of Mr. Butler’s
education…four years of college and with an MBA…would certainly not
utilize the term ‘gone’ to indicate ‘dead.’”
Oswald glanced at my father who was glaring at the witness. “And, Sir,”
Oswald said, showing the witness the Will, “ have you had the
opportunity to study the rest of the Will?”
“Yes.”
“And have you concluded anything about the level of education of the
writer of that instrument?”
“Yes. College education is apparent. He is clearly emotionally
distraught when writing this and perhaps upset at his brother and
family. But he also clearly utilized a vocabulary consistent with my
views.”
Oswald paused for effect, then stated no more questions and sat down.
I
was sitting for the first time at the counsel’s table next to my father,
feeling pretty excited, shoving papers towards him with my notes and
comments, trying to whisper to him, but he only glanced at my notes and
nodded absently at my mumblings during the cross examination.
He stood up.
“And did this college education you noted in any manner preclude any
musical genre?”
The expert looked surprised. “I beg your pardon?”
My father moved towards the witness, spacing his words out. “I say, did
the decedent’s education preclude him from enjoying any particular type
of music?”
“I…do not know. I mean, it would not necessarily…”
“Such as Country and Western music, Sir? Would it preclude him from
enjoying that type of music?”
There was silence in the court room. The judge had stopped writing notes
and was looking at my father curiously. We all were.
The witness looked annoyed. “Of course not. Education would not
necessarily preclude any taste in music, I suppose.”
“Thus, even an educated man would be used to hearing songs utilizing the
word, “ain’t?” Or using “I got no…” and the like as he listened to those
songs?”
“I’m not an expert on music.”
“But you are aware that such phrases are utilized in such music are you
not? Or do you wish the jury to believe you do not even know the typical
words utilized in this particularly American mode of entertainment?”
The expert glanced at the jury who was now quite interested. “I suppose
so. Such songs are common and they derive from lower middle class
working environments in a rural setting in which such language…”
“Yes, yes, but now they are commonly on our airwaves and in the mental
arena of those who enjoy such music, are they not?”
“Well, they are on the airwaves…”
“And musical phrases often find their way into our common language, do
they not? Such as “From the Halls of Montezuma’…All would know what that
was referring to Marines, though it is only part of a song…?”
“Yes, but…”
“And popular music as well…”Itsy Teeny Weenie Yellow Polka Dot bikini”
is commonly known to our generation is it not?”
The expert looked at the judge who was now enjoying himself. Even Oswald
looked bemused. The expert sighed. “I am aware that common phrases in
music and other forms of entertainment may enter the language pool…”
“And have you perhaps heard this, Sir, “ bellowed my father, who,
triumphant, and standing straight, arms at his side, began to sing in a
loud and ponderous voice:
“When my Mary married me, she never let me know
That our marriage was to be only second in the show
For our marriage was to be only second in its turn
For her husband, now long gone, was sitting in his urn
And the urn on the mantle, and the picture on the wall
Was a constant memory, like a dead horse in its stall
There was a guffaw from the back of the court room. I was blushing by
now, looking down at the table and there was some giggling from the
court room but I did not look up to see who. My father continued.
And the urn on the mantle and the picture on the wall
Was always there before me, and caused my love to stall.
For he may be gone, but his memory stays for her
And soon I may be gone, and good riddance to the cur
And the urn on the mantle and the picture on the wall
May be all she has, and has caused our love to fall…
My father stopped. The judge was looking down at the paper on his desk,
his hand covering his face and shaking slightly. My father ignored him.
“Sir, did that song indicate that the husband was located in Detroit,
where my client was visiting his sister?”
“I don’t understand…”
“Did it indicate the husband was located out of the State? Out of the
city? Did it?”
Oswald was standing to object but was still laughing too hard to get the
words out. My father bellowed, “It meant the husband was dead, did it
not? Dead and dead forever. Like Mr. Blake must be not to inherit,
correct?”
By then most of the jury was laughing, the judge was gasping and Oswald,
without objecting, just sat back down shaking his head and laughing
along with the rest of the court room. But not my father. He still
glared at the witness who had still not answered.
“Did Mr. Butler listen to music of that sort, Sir?”
The witness was angry but not quite sure why. “I have no idea.”
“Let me tell you he did. He did, and if he did that might influence his
verbiage, correct?”
The expert glanced at the judge again who was trying to get sober by
staring at the ceiling. The court room had subsided enough for his
mumbled “Perhaps…” to be heard.
My father, seeming to realize the furor he had caused at last, looked at
the judge, flushing slightly. “I do not claim to be a professional
musician, Your Honor.”
The Judge kept as straight a face as he could. “I think both counsel
will stipulate to that, Mr. Stimmel. Don’t quit your day job”
“But I believe the point has been made and I will not belabor it
further…”
“Thank God,” cried Oswald, but smiling at my father. They were old
friends.
We won, of course. The jury loved it.
And the jury loved the Judge asking our opposing party as he testified,
“So, if Mr. Blake was in Detroit, heard your brother was ill, had raced
back by plane, and was walking up the steps to your brother’s house as
your brother died, would that mean he was ‘gone?’ What if he had
actually entered the room? What if he had entered the room five hours
before your brother died? Then he inherits? Is that your position?” The
silence that followed those questions finished them off.
And two weeks later, as I was working on the distribution of the estate
with our client, he shook his head. “It cost me well over a hundred
thousand dollars to stop this nonsense. A hundred thousand. And probably
cost the brother just as much.”
“Probably.”
“For nonsense. Because he wanted to make trouble.”
“Not quite. He was given the opportunity to make trouble. By Jeremy‘s
poor drafting. And that is what correct drafting of the Will is all
about. Do you have a Will, yet?
He shook his head, chagrined. “OK, you got me. You got me. You’d think
I’d learn…”
“Well, you may be unaware that the average person lets the fully
drafted Will sit on his desk for three years before signing it…” I
began.
And that is still true today, thirty years later. |
