December 2011 - Jarndyce Heirs Finally Inherit

by Justice William W. Bedsworth

One of the character flaws that suited me to a life in the criminal law was my abysmal lack of patience. Criminal law is the last refuge of the impatient attorney, and I have the patience of a gnat.

You want to know how little patience I have? During the three long years I was a trial attorney1, I repeatedly urged judges to act upon the plain language of Code of Civil Procedure Section 613.

Take a look at Code of Civil Procedure Section 613. It says, “When the case is finally submitted to the jury, they may decide in Court or retire for deliberation . . . .” They may decide in court!

They don’t have to file off to some jury room. We don’t have to swear a bailiff and make lunch plans. They can just do a show of hands in the jury box. Why waste time on a slam dunk?!

I was a prosecutor. I had some pretty strong cases. There were times when I desperately wanted to stand up and say, “Your Honor, the People’s case consists of 14 eyewitnesses (including five priests and a rabbi), a signed confession and a DNA match. Could you please inquire of the jury whether they feel a need to retire or can just decide the matter from the jury box?”

Yet every time I tried to persuade a judge to inquire of the jury whether they needed to deliberate or could decide the case right there in the jury box, I got a look that said, rather clearly, “Have you always been crazy and I just didn’t notice, or are you having a breakdown right here in my court?”

I was never more than half-serious about enforcement of the literal rule of Section 613, but I did mutter under my breath about the plain language of the statute every time we sent a jury out. Patience is not my long suit.2

Had my career path forced me to nurse cases for 4–6 years the way civil lawyers do, I not only would have left that path, I would have dynamited it behind me. In the District Attorney’s Office, you opposed any continuance that wasn’t occasioned by a plague outbreak. And if any of the cases in your inventory had a trial date beyond the “best by” date of the beer in your fridge, your supervisor had lab tests run to see if you were suffering from a testosterone deficiency.

That was the place for me; you never had time to get tired of a case. By the time you got finished reading the file, the jury venire had arrived. By the time you’d learned the elements of the offense, you were cross-examining the defendant.

So when I started hearing civil trials3, I was amazed. They had cases older than good scotch. Attorneys came into my court with files that included a complaint that had been written with a quill pen.

Or at least it seemed that way to me. Over time, I realized civil cases aged better than criminal ones. I began to understand that civil attorneys, after sloshing their case around in the glass and sniffing it for five years, were in a position to truly appreciate it.4

But I still lacked patience: They were probably horrified that while they were still busy smelling the cork, I wanted to twist the cap off and throw back a few swallows.

In the fullness of time, I came to appreciate a good, oak-aged construction defect or insurance bad-faith case, even if my own taste still ran to the spring Bordeaux of robberies and meth labs. But there’s a limit. Even the best wines eventually go bad.

And the case of Wellington Burt’s estate must long-since have gone to vinegar.

Wellington R. Burt was one of the eight richest men in America when he died. So of course the probating of his estate this year was a pretty big deal. And it was made an even bigger deal by the fact Wellington Burt died in 1919.

That’s right. 1919.

Burt was a self-made timber and iron magnate from Saginaw, Michigan. He was active in and generous toward Saginaw community affairs. He built them a hospital, an auditorium, a YWCA, and a Salvation Army building. There is a street named after him there. And an opera house. There’s even a town called Burt, Michigan. The consensus is that Wellington had his moments.

But he was no pushover. They don’t call you “The Lone Pine of Saginaw” because you’re easy. When Saginaw raised the assessment on his mansion from $400,000 to $1,000,000, he cut them out of his will. Cost them millions.

In fact, it may have cost them a hundred millions.

Because Wellington Burt was not happy with his family. He looked around and decided none of his children, grandchildren, cousins, nieces, nephews, dogs or hamsters deserved to inherit his hundred million dollar estate. And he sure wasn’t going to leave his millions to the grasping Saginaw tax authority.

So he wrote one of the most famous wills in the history of probate law.

It provided that his estate was to be distributed based upon basic laws of inheritance, but not until 21 years after the death of his youngest grandchild. That’s right; he delayed the passage of his estate as long as the Rule Against Perpetuities would allow: He delayed it until 21 years after the death of the youngest “life in existence” in his family.

That grandchild, Marion Stone Burt “Tootsie” Landsill, held on until she was 87 herself, but she finally gave up the ghost on my birthday in 1989. That started the clock ticking on the Burt tontine, and this year, after a respectable amount of time to do the math and find a corkscrew, the estate was opened and millions poured out to the surviving heirs.

Three great-grandchildren, seven great-great grandchildren, and two great-great-great grandchildren split $110 million dollars, give or take a Renoir and a Rodin. And a probate judge in Michigan retired the judicial patience trophy.5

Near as I can determine, the older you were, the bigger your chunk of the inheritance. As I get closer and closer to retirement age, this makes perfect sense to me, but I’m told by people who can actually say “degrees of consanguinity” without laughing out loud, that it really wasn’t just a matter of age so much as generational position that mattered here.

And I’m told this didn’t actually qualify as a tontine. Or disqualify, depending upon how you look at it.

“Tontine” is a word we don’t see much anymore, but there’s a surprising amount of debate about its vitality on line. A tontine, in its simplest form, is an agreement in which a number of people put money into a pot and the last one alive picks up the pot. If you remember the wonderful Peter Cook/Dudley Moore/Michael Caine movie The Wrong Box (1966), you’re familiar with tontines.6

This kind of “last man standing” tontine has been outlawed in most jurisdictions for a rather obvious reason: It promotes immorality. Specifically, it promotes murder.

But other arrangements that resemble a tontine are still legal, and Burt’s will is one of them. It survived two challenges and 92 years.

Consider some of the more phenomenal aspects of this case:

1) A guy with $100 million dollars couldn’t find a single person or organization—not one—that he wanted to leave it to. Being “The Lone Pine of Saginaw” was apparently a pretty lonely existence.

2) He was able to find a lawyer who actually understood the Rule Against Perpetuities. Forget needle in a haystack, this is like finding a needle in Australia.

3) Poor Tootsie Landsill spent the last years of her life with all her family members rooting against her. Until she stopped fogging up the mirror they stuck under her nose every morning, the countdown couldn’t begin on the world’s longest running episode of Who Wants to Be a Millionaire.

“We love ya, Aunt Tootsie; we think you should take up skydiving . . . or rock climbing . . . or chain-saw juggling; you’d have so much more fun.” Poor woman probably needed a food-taster for the annual Thanksgiving dinner.

4) After Tootsie packed it in, this had to be the most dysfunctional family in America. Every time one of them died, the others got richer. If I’d been one of the great-grandchildren, I would have gotten a restraining order prohibiting any of the great-great-great grandchildren from getting within hand-grenade-throwing range of me. I’d have slept in Kevlar pajamas. 

5) As near as can be determined, not a single heir resorted to felonious conduct against another. It’s a shame none of these people needs a job anymore; they clearly have the necessary patience for a career in civil law.

I, on the other hand, don’t even have the patience to finish this column.

Beds Notes
1. It didn’t take long for me to figure out that the key word in the phrase “trial work” was “work.” Seventy-two trials in my first three-plus years as a prosecutor made an appellate lawyer out of me. I have tremendous respect for trial attorneys, but I also think they’re crazy.

2. Neither is diamonds. Much to my wife’s chagrin.

3. The first medical negligence case I ever saw, I was the judge in. Is this a great country or what?

4. Even if I wasn’t.

5. This, of course, would be the William Guppy Memorial Trophy, named after the long-suffering law clerk in Bleak House, whose well-intentioned investigation on behalf of an heir complicates the interminable Jarndyce v. Jarndyce litigation so as to require Dickens, who was being paid by the word, to devote an extra three hundred pages to the book. Doubtless one of the author’s favorite characters.

6. And if you’ve never seen it, go rent it. Good Lord, if you’ve got time enough for me, you’ve certainly got time enough for Peter Cook, Dudley Moore, and Michael Caine!

William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at william.bedsworth@jud.ca.gov.