Given
the byzantine complications of most estate law, the concept of simultaneous
death was relatively simple and straightforward. The underlying premise was
that neither a dead person nor his estate should be permitted to inherit a
bequest by one living. Consequently, if a woman left her estate to her daughter
but her daughter predeceased her, the gift was void. Upon the mother’s death
the gift reverted to her estate rather than passing to the daughter’s heirs.
But
what happened if mother and daughter died in such a manner that it was
impossible to tell who died first? Did the gift revert to the mother’s estate
or pass to the daughter’s? It was for such a contingency that the rule of
simultaneous death arose. Using this rule, the law presumed that where the
testator and beneficiary died simultaneously, the beneficiary died first. Consequently,
the gift reverted to the estate of the giver and was distributed according to
the rest of her testamentary scheme.
So
it made no difference whether the will was properly written or not. For
instance, a father might make a will leaving everything he owned to his son,
but if the son died before the father, the will became just a scrap of paper
and the father’s estate was divided as if the will had never existed. I was
beginning to think that something very similar to that had occurred in the
case of Christina Paris.
There
was one other point about the rule of simultaneous death that had special
meaning for me. The presumption, that the testator survived the beneficiary,
was rebuttable. This meant that it could be disputed in court by competent
evidence. The testimony, say, of the paramedics at the scene of the accident.
But if all the probate court had before it was the coroner’s report, it was not
likely to look further; a court may believe or disbelieve the evidence
submitted to it, but it has no means by which to conduct its own
investigations.
I
turned to the hypothetical. At first glance the facts seemed simple enough, but
I read the hypo more carefully the second time looking for land mines. Halfway
through it occurred to me that the facts were suspiciously familiar: a wealthy
woman left her entire estate to one of her two sons who, subsequently, was
killed in the same car accident that killed her. Was it possible that Professor
Howard had based this hypo on the facts of Christina Paris’s death? Beneath
the hypo, Professor Howard provided six additional facts, each of which changed
the disposition of the woman’s estate. Number six asked whether it would make
any difference to the distribution of her wealth if one of her intestate heirs
— her husband, perhaps — had arranged the deaths precisely to invalidate the
will.
Her husband
,
perhaps!
*
* * * *
Two
hours later I was walking alongside a dusty hedge on a dead-end street in an
obscure wooded pocket of the campus where retired professors lived in
university-subsidized houses. While it was generally acknowledged at the law
school that John Howard, who’d retired eight years earlier, was still alive, he
was seldom seen and even more rarely contacted. Finally, some antiquarian in
the alumni office had found an address for me.
I
came to a white picket gate. Across a weedy, dying lawn and in the shade of an
immense oak tree stood a stucco house. It was remarkably still and
peaceful-looking, like a ship harbored in calm waters. I pushed the gate open
and went up the flagstones to a green door. There was a brass knocker in the
shape of a gavel. I knocked, twice.
The
door was opened by a middle-aged Asian woman wearing a green frock. She wiped
her hands on her apron and eyed me suspiciously. “Yes?”
“I’ve
come to see Professor Howard. Are you Mrs. Howard?”
“Housekeeper,”
she replied. “You want professor?”
“Yes,
does he live here?”
“Sure,”
she said, “but long time no one comes.”
“Well,
I’m here,” I pointed out.
“I’ll
get,” she said, hurrying away. She’d left the door open so I stepped inside.
There
was an odd smell in the house, musty and faintly sweet, a mixture of cigar
smoke and furniture polish. I was standing at the end of a long dark hall. An
arched entrance led off to a little living room. The furniture, old and very
ugly, was too big for the room, as if purchased for some other house of grander
proportions. A vacuum cleaner had been parked between two brick-red sofas.
There were ashes of a fire in the fireplace. A pot of yellow chrysanthemums
blazed on a coffee-table near a tidy stack of legal periodicals. The walls
exuded an elderly loneliness. He probably never married, I thought.
The
housekeeper appeared, touched my arm and told me to come with her. I followed
down the hall and into a bright little kitchen. She opened the door to the back
yard and I stepped outside. I saw an empty ruined swimming pool, the bottom
filled with yellow leaves. Facing the pool were two white lawn chairs
—
the old-fashioned wooden ones — and between
them a matching table. There was a fifth of vodka, a pint of orange juice and
two glasses on the table. One of the chairs was occupied by an old man wearing
a sagging red cardigan frayed through at the elbow.
He
turned his face to me. His thick gray hair was greasy and disheveled. He now
sported a wispy goatee. He held a cigar in one hand as he reached for a glass
with his other. Professor John Henry Howard, latest edition.
“You
wanted to see me?” he asked in a voice thickened with the sediment of alcohol
and old age.
I
nodded.
“Well,
boy, introduce yourself.”
“Henry
Rios, sir. Class of ‘72
.
I took trusts and estates from you.”
He
peered at me intently as I approached, hand outstretched. He put down the
cigar, shook my hand and motioned me to sit beside him. “ ‘72? A good class,
that. Not that many of you cared for probate. No, you belonged more to the
quick than the dead. Where did you sit, Mr. — “
“Rios.
In the back row.”
“Ah,
one of those. What was your final grade?”
“An
A-minus.”
He
lifted his shaggy eyebrows and for a second I thought he was going to demand to
see my transcript.
“Well,
you must’ve learned something. Have a drink.” “No, I—,” but before I could
finish he’d filled the glass with vodka and added, as an afterthought, a splash
of orange juice. I sipped. It was like drinking rubbing alcohol.
“The
smart cocktail,” the professor said touching his glass to mine. “One of my
remaining pleasures. I have a system, you see. I allow myself only as much
vodka as I have orange juice. Through judicious pouring I can make a pint of
orange juice last all day.”
“The
legal mind at work,” I said.
Professor
Howard chuckled. “Indeed. So, Mr. Rios, what are we going to talk about?”
“I
want to ask you about a hypo that appears in your casebook.”
“You
a probate lawyer?”
“No.”
“Good,
because if you were I’d charge you, and I ain’t cheap. Proceed.” He tilted his
head back.
I
withdrew from my pocket a xeroxed copy of the page in his book with the
illustration of simultaneous death. “It’s this,” I said, handing it to him.
“What’s
the question?” he asked as he skimmed the page.
“A
wealthy woman and her oldest son are killed in an auto accident. She’d devised
her entire estate to that son. The court uses the rule of simultaneous death to
invalidate the will and her estate passes, through intestacy, to her husband.
Now here, in number six, you ask what effect it would have on the distribution
of the estate if her husband had actually arranged the accident.”
“Well,
think, Mr. Rios,” he prodded. “If you killed your old mother to obtain the
family jewels, do you think the court would reward your matricide?”
“I
take it from your tone the answer is no.”
“If
the law was otherwise it would be open season on every person of means. That
answer your question?”
“One
of them. These facts are based on the deaths of Christina and Jeremy Paris,
aren’t they?”
He
picked up his cigar from the edge of the table and lit it.
“I’m
investigating the death of her grandson, Hugh Paris, who was a friend of mine.
I believe he knew or suspected that her death and the death of her son, Jeremy,
was arranged by Robert Paris. I think you know something about that.”
“What
kind of law did you say you practice?”
“I
didn’t. Criminal defense.”
He
shook his head. “Criminal is a troublesome area. No rules. Might makes right,
with only the thin paper of the Constitution between the fist and the face.”
“Why
did he have them killed?”
Howard
regarded me through narrowed eyes, as if deciding whether or not to lie.
“She
was on her way to obtain a divorce. That would’ve extinguished his intestate
rights. She’d already cut him out of her will.”
“How
do you know that?”
“I
drafted the will,” he said, tremulously.
“What
else do you know, professor?”
“About
the will or the marriage? They were intertwined. The marriage was hell for her
but she put up with it for the children and because she was Catholic and, not
least of all, because she was Grover Linden’s granddaughter and the Lindens don’t
acknowledge defeat. But she hated Robert. He used her, robbed her. So she came
to me one night and told me to write her a will that would cut him off from the
Linden money in such a way that he would lose if he contested it.”
“How
did you do it?”
“We
gave him all the community property, his and hers. It was not an insignificant
amount. That was the carrot. Everything else went to their sons. Jeremy was
given his share outright and Nicholas’s was put in a trust to be administered
by Jeremy and his uncle, John Smith. That was the stick.”
“I
don’t see it.”
“Robert
could hardly complain he wasn’t provided for since he got everything they’d
accumulated in thirty years of marriage. And should he contest the will that
would put him in the position of challenging the rights of his own sons as
well as his brother-in-law, a man richer even than he. For good measure, we
threw in an in terrorem clause providing that he would lose everything if he
unsuccessfully challenged any clause of the will.”
“You
thought of everything,” I said, admiringly.
“Except
one thing. His intestate rights. As long as they remained married, he was her
principal intestate heir. So, from his perspective it was just a question of
invalidating the will.”
“Did
he know about it, then?”
“Yes.
She made the mistake of taunting him with it. Two weeks later she and Jeremy,
who had dined together at her home, became seriously ill with food poisoning.
It may have been a fluke that Robert, who ate the same things, was unaffected.”
The professor shrugged. “It frightened her. By then I had discovered the hole
in our scheme. I advised her to get a divorce.”
“She
never made it,” I said.
He
breathed noisily and sucked at his now unlit cigar.
“I
have only one other question. Why did she come to you?”
“Mr.
Rios,” he said, “that’s ancient history.”
“Please?”
“Almost
sixty years ago,” he said, “I attended a reception at this university given by
Jeremiah Smith who was then in the thirtieth year of his presidency. His wife
was dead and so his daughter, Christina, functioned as his hostess. I was nine
months out of law school, just hired as a part-time lecturer in property law.
Robert Paris was also at the reception, my colleague at the law school with
about three months more experience than I. Well, Robert and I dared each other
to approach the grand Miss Smith and ask her to dance. I did, finally. I got
the dance, but he got the marriage, four years later. She and I became friends,
though. We were always friends.”
“I’m
sorry.”
He
smiled, crookedly and without humor. “You know, Mr. Rios, there is one aspect
of this case which you have failed to examine adequately.”