Dead Hands: A Social History of Wills, Trusts, and Inheritance Law
by Lawrence M. Friedman
Stanford Law Books, 2009
240 pp., $22.95
Wills are remarkable documents. Like other estate-planning documents, they bear witness to the profound human capacity for trust. Their authors believe that these instruments—these little scraps of paper—will lead to the orderly disposition of their property. Of course, that trust can be (and often is) violated. But it is still remarkable how much confidence we have in this paperwork, how much we are taking on faith when we believe that what we scribble today will safeguard our wishes when we are gone tomorrow.
Lawrence Friedman has written an authoritative book about these remarkable documents. Friedman, a professor at Stanford Law School and one of the preeminent historians of American law, is the author of Dead Hands, an always engaging, if occasionally problematic, social history of wills. On the whole, Dead Hands is deeply researched and well-written. It also offers a number of salutary reminders for anyone preparing documents that express a donor’s wishes.
Lesson One: Always make ex-plicit provision for your spouse and children. If you don’t, the courts will. Friedman romps through all kinds of bizarre cases to make the point. If a groom drops dead at the altar but has lived through the priest’s pronouncement of the marriage vows, is the bride a widow who inherits? (Yes.) But what if an 85-year-old man marries a transsexual and dies without leaving a will? Can his “widow” claim a share of the estate even though “she” was not born biologically female? (Not in Kansas.)
Lesson Two: Postmortem philanthropy is actually getting easier. Until the end of the 20th century, mortmain laws—laws that limited the ability of donors to leave their estates to charity—remained on the books in a few states. Friedman explains that these mortmain (French for “dead hand”) laws dated from 13th-century England, and were originally intended to prevent the Catholic Church from acquiring large amounts of land—land that would otherwise revert to the monarchy.
Mortmain laws evolved, but even as late as the 19th century, they proceeded from an anti-Catholic bias. “Underlying the laws,” writes Friedman, “was the image—or fantasy—of the wicked priest preying on the dying man or woman, manipulating their fears of eternal damnation to squeeze out gifts for the church, and costing the family their inheritance.” Such laws usually required testators with spouses or descendants to leave no more than one-third of their estates to charity, and further required that testators live for at least 90 days after the execution of their wills in order for the charitable gift to be valid.
But as charity became more secular, the courts increasingly frowned on mortmain laws—and on children who tried to use them against charities. In a 1986 Florida case, for example, Lorraine Romans died, leaving her daughter, Lorraine Zrillic, “several sealed boxes of family antique dishes and figurines.” The bulk of her estate was to go to the Shriners Hospital for Crippled Children. Zrillic sued under the state’s mortmain statute. The Florida court struck down the law, noting that it was originally devised “to restrict the church’s ability to acquire property,” and that today, “charitable gifts, devises, and trusts . . . are favored.” By the early 21st century, all mortmain statutes in the United States had been struck down or repealed.
Lesson Three: Be careful. Friedman offers many instances where gifts to charity were held up in probate because of easily fixable errors. Cora Black, for example, hand-wrote a will that left her “Entire estate for Educational purposes” to the “University of Southern California known as the U.C.L.A.” A judge declared that Black had meant to leave her money to a university in southern California, and directed the funds to UCLA. A few years later, the decision was overruled, and further investigation was ordered to see which school would receive Black’s estate. (Curiously, Friedman never reveals how the estate was settled.)
Or take the case of Larry Hillblom, co-founder of the DHL air courier service. Hillblom died in 1995 when his seaplane disappeared over the Pacific. He left his fortune, which amounted to over $500 million, to fund medical research, principally at the University of California. His will said nothing about children.
But Hillblom, it turned out, had been something of a cad in his travels around eastern Asia. Soon enough, several women came forward, claiming they had borne a child by Hillblom and demanding a share of the estate. Soon enough, American attorneys were prowling the bars of Southeast Asia, flashing photos of Hillblom and looking for women who could make a plausible paternity claim.
In their efforts to prove paternity, lawyers waged a furious legal battle over control of a mole removed from Hillblom’s body. (When finally produced, the mole turned out to belong to someone else.) Eventually, in exchange for $1 million and a share of a French chalet, Hillblom’s mother gave a blood sample. DNA from her sample verified the paternity claims of four of the women, each of whom received $50 million. After the deduction of hefty legal fees, the balance of the estate was left to charity. Had Hillblom explicitly disinherited any potential heirs, the dispute over his will would never have happened.
Of course, even carefully written re-quests by donors can be rewritten. In general, laws defer to a donor’s wishes, unless those wishes are illegal, impossible, or impractical. At that point, courts will frequently invoke the common law principle of cy pres, meaning “as close as possible” in the archaic Norman-French. In 1861, for in-stance, Francis Jackson died, leaving money in trust to fund “books, newspapers . . . speeches, lectures, and such other means as . . . will create a public sentiment that will put an end to negro slavery in this country.” With the passage of the 13th Amendment and the abolition of slavery, the family sued to recover the funds, arguing that the purpose of the trust was now obsolete. The Massachusetts Supreme Court ruled against the family in Jackson v. Phillips (1867), invoking cy pres and directing the funds to the “use of necessitous persons of African descent in the city of Boston and its vicinity.”
More ominously, as a result of a donor intent case from the 1980s, some states have introduced a new consideration into cy pres law. The case centered on Beryl Buck, whose father-in-law founded the Belridge Oil Company in Kern County, California. Her will stated that, upon her death, the Leonard and Beryl Buck Foundation would be created “for exclusively nonprofit, charitable, religious, or educational purposes in providing care for the needy in Marin County, California.” The will called for the Buck Trust to be administered by the San Francisco Foundation.
Belridge Oil was a family-owned company, and when Beryl Buck died in 1975, nobody really knew what her shares were worth. In 1979, Shell bought Belridge for $3.65 billion, or $2,665 per share. Buck owned 7 percent of Belridge common stock, altogether worth some $253 million. The Buck Trust made the San Francisco Foundation the nation’s third-largest community foundation.
The San Francisco Foundation thought the Buck Trust’s limitation to tony Marin County was unnecessarily restrictive. It brought suit in 1983, seeking permission to use Buck money throughout the Bay area. After a three-year legal battle (dubbed by some journalists “the Super Bowl of Probate”), the court rejected the San Francisco Foundation’s claims and the Buck Trust money was used to endow the newly formed Marin Community Foundation.
One argument deployed by allies of the San Francisco Foundation (most notably Yale law professor John Simon) was that third parties should be given standing to sue foundations in order to compel them to abandon their donor’s wishes in favor of a more “efficient” or “socially beneficial” use. That argument was rejected, but, as a result of the Buck Trust case, the draftees of the Uniform Trust Code altered the code to apply cy pres law to foundations considered “wasteful.” “A number of states,” Friedman notes, “have adopted the code.” He does not mention any cases where third parties have successfully forced a “wasteful” foundation to change its ways, but legislation now exists to facilitate broad violations of donor intent.
Why does it matter? It matters because a proper respect for donor intent is essential for philanthropic integrity. Moreover, there is a well-known ideological dimension to many violations of donor intent. Most of those violations involve foundations moving to the left, against the wishes of the donors who created them. Friedman blithely denies the problem. “Would Carnegie, Rockefeller, and Ford really disapprove of what their foundations are doing?” he asks. “Perhaps; perhaps not. Are foundations supporting ‘radical’ causes? That depends on one’s definition of ‘radical.’ . . . [M]ost people (I would guess) would label [these causes] as middle of the road or mildly liberal.”
This will not do. The disparity between the free-market ideas of donors and the foundations that bear their names is frequently so wide and so deep that one can write a book about it. (I have.) Why bother setting up a foundation, after all, if subsequent boards and staffs can do whatever they want with the money? On this point, Friedman’s analysis is decidedly unimpressive.
Nonetheless, on the whole Dead Hands is a thoughtful study of a too often overlooked subject. It deserves a careful read by donors—and their lawyers.
Contributing editor Martin Morse Wooster is the author of The Great Philanthropists and the Problem of “Donor Intent”.