by John Barth
Of the other fifteen documents, ten were composed in 1933 and 1934, years when the testator’s sanity was open to debate. The last five, all written in the first three months of 1935, could be established without much difficulty, in court, as being the whims of a lunatic: one left everything to Johns Hopkins University on condition that the University’s name be changed to Hoover College (the University politely declined); others bequeathed the whole shebang to the Atlantic Ocean or the A.F.L.
Luckily for the majesty of Maryland’s law, there were only two primary and four secondary contestants for the estate. Elizabeth Sweetman Mack, the testator’s widow, was interested in having Will #6, a product of late 1933, adjudged the last testament: it bequeathed her virtually the entire estate, on the sparkling-burgundy condition described above. Harrison Junior preferred #8, the fruit of early 1934; it bequeathed him virtually the whole works, on the clean-skirts condition also described above. Misses Janice Kosko, Shirley Mae Greene, and Berenice Silverman, registered nurses all, who had attended old Mack during the first, second, and third stages, respectively, of his physical invalidity, liked Wills #3, 9, and 12, in that order: therein, apparently, their late employer provided them remuneration for services beyond the line of duty. The final contestant was the pastor of the Macks’ neighborhood church: in Will #13 the bulk of the estate was to pass to that church, with the express hope that the richer and more influential organized religion became, the sooner it would be cast off by the people.
It was an edifying spectacle. Mrs. Mack retained Messrs. Dugan, Froebel & Kemp, of Baltimore, to defend her legal rights; her son retained Andrews, Bishop, & Andrews, of Cambridge; the nurses and the minister retained separate attorneys. Everyone was a little afraid to carry the thing to court immediately, and for several months there was a welter of legal nonsense, threats, and counterthreats, among the six firms involved. Five of us joined forces to oust the clergyman from the sweepstakes—it was enough for the three nurses to agree that Mack was definitely insane by the time Will #13 was composed. A month later, by pretty much the same technique, Misses Kosko and Greene induced Miss Silverman to withdraw, on the solemnly contracted condition that should either of them win, she would get 20 per cent of the loot. Then, in a surprise maneuver, Bill Froebel, of Dugan, Froebel & Kemp, produced sworn affidavits from two Negro maids of the Mack household, to the effect that they had seen Miss Greene indulging in “unnatural and beastly” practices with the deceased—the practices were described in toothsome detail—and suggested to that young lady that, should she not decide the contest wasn’t worth the trouble, he would release the affidavits to the newspapers. I never learned for certain whether the affidavits were true or false, but in either case they were effective: the additional attraction of several thousand dollars, payable when Mrs. Mack won the case, induced Miss Greene to seek her happiness outside the courts.
The field was cleared, then, in 1936, of half the entries, before the race even began. Only Miss Kosko, Harrison Junior, and Mrs. Mack remained. Each of them, of necessity, must attempt to prove two things: that Father Mack was still legally sane when the will of their choice was written, and that by the time the subsequent wills were written, he no longer could comprehend what he was about. On this basis, Miss Kosko, I should say, had the strongest case, since her will (dated February 1933) was the earliest of the three. But love was her undoing: she retained as her attorney her boy friend, a lad fresh out of law school, none too bright. After our initial out-of-court sparring I was fairly confident that he was no match for either Froebel or myself, and when, late in 1936, he refused on ethical grounds a really magnanimous bribe from Froebel, I was certain.
And sure enough, when the first swords clashed in Baltimore Probate Court, in May of 1936, Froebel was able, with little trouble, to insinuate that the young lawyer was an ass; that the nurse Miss Kosko was a hussy out to defraud poor widows of their honest legacies by seducing old men in their dotage; that Mrs. Mack, out of the kindness of her bereaved heart, had already offered the trollop a gratuity more munificent than she deserved (this news was ruled out as incompetent evidence, of course); and that even to listen tolerantly to such ill-concealed avariciousness was a tribute to the patience and indulgence of long-suffering judges. In addition, Froebel must have offered some cogent arguments, for surrogate courts, even in Baltimore, are notoriously competent, and the judge ruled in his favor. When Froebel then offered Miss Kosko another settlement, considerably smaller than the first, the young barrister accepted it humbly, coming as it did on the heels of his defeat, and didn’t even think of appealing the judgment until it was too late.
Then, in June of the same year, Froebel filed suit for Mrs. Mack, charging flatly that Mr. Mack had been of unsound mind when he wrote Will #8, Harrison’s will, and never again regained his sanity. If the court so ruled, then Mrs. Mack’s will, #6, would become the authentic testamentary instrument, since Miss Kosko was out of the running. If the court ruled against him, then our document, #8, would automatically revoke his.
There was not much difference between Mack’s mental state in late 1933 and his mental state in early 1934. I introduced statements from Misses Kosko and Greene that in both years he required them to save the contents of his bedpan in dill-pickle jars, which were then stored in the wine cellar, and I got the impression that the judge—a staid fellow—believed Mack had been insane from the beginning. The newspapers, too, expressed the opinion that there was no particular evidence on either side, and that, besides, it was a disgraceful thing for a mother and her son to squabble so selfishly. All the pressure was for out-of-court settlement on a fifty-fifty basis, but both Harrison and his mother—who had never especially liked each other—refused, on the advice of their attorneys. Froebel thought he could win, and wanted the money; I thought I could win, and wanted to see.
Will #6, remember, gave all the estate to Mrs. Mack, provided she hadn’t tasted sparkling burgundy since 1920. Our will left the money and property to Harrison, if he had steered clear of Moscow since 1932, and in addition, bequeathed to Mrs. Mack the several hundred pickle jars just mentioned. Both documents included the extraordinary provision that, should the separate conditions not be fulfilled, the terms were to be reversed.
Froebel’s arguments, essentially, were two: (1) That a man has not necessarily lost his business sense if he provides once for a complete reversal of bequests, of the sort seen in Will #6, assuming he is really dead set against sparkling burgundy; but then to reverse himself completely in the space of a few months indicates that something has snapped in his head, since there were no dramatic eternal changes to account for the new will. (2) That the bequest of the pickle jars appeared in no wills before #8, and in all the wills from #8 through #16, and that such a bequest is evidence tending to show that Mack no longer understood the nature of his estate.
“Not necessarily,” I suggested. “Suppose he didn’t love his wife?”
“Ah,” Froebel replied quickly, “but he left the pickle jars to a different person each time, not to Mrs. Mack every time.”
“But remember,” I said, “he saved the mess because he liked it; the bequest of it, then, is an act of love. Would you call love insane?”
“Indeed not,” Froebel answered. “But if he’d loved her, he’d have given her the property as well as the—excrement.”
“No indeed,” I countered. “Remember that in one will he bequeathed all his money to the church because he disliked the church. Couldn’t the bequest to my client be such an act, and the bequest to yours the real gift?”
“It could indeed,” Froebel grinned. “Will you say that that’s the case?”
“No, I shan’t,” I said. “I merely suggested the possibility.”
“And in doing so,” Froebel declared, “you suggest the possibility that Will Number Eight is as insane as Will Number Thirteen, the church will you mentioned. Anyone who bequeaths three millions of dollars as a punishment, I suggest, is out of perspective.”
&n
bsp; Oh, Bill Froebel was a lawyer. When it came to impromptu legal sophistry, he and I had no equals at the Maryland Bar.
My arguments were (1) that the inclusion of the pickle jars was hardly sufficient evidence of a sudden loss of understanding, when Mack had been collecting them since Will #3 or 4; (2) that therefore the testator was either sane when he composed both instruments to insane when he composed them; (3) that if he was sane both times, Will #8 was official; (4) that if insane both times, some earlier will was official and must be brought forward, or otherwise Mack could be deemed to have died intestate (in which case Harrison would get all the money, Mrs. Mack retaining only dower).
The judge, Frank Lasker of the Baltimore bench, agreed. Froebel appealed the decision through the Court of Appeals to the Maryland Supreme Court, and both appellate courts affirmed the lower court’s judgment. It seemed as if Harrison were a wealthy man: all that remained was to wait until January of 1937—the end of his probationary period—and then to demonstrate that Harrison had kept clear of communist sympathy since 1932. He assured me that nothing could be suggested which could be called fellow-traveling, even remotely. Froebel threatened for a while to institute a new suit, in favor of Will #2, but nothing came of his threat.
The final test was in the form of a hearing. Harrison and I appeared at the Baltimore courthouse early in January; Judge Lasker read the terms of Will #8 and declared that if no one present could offer evidence of such sympathies as were therein interdicted, he was prepared to declare the matter settled and to order the will executed. Froebel then appeared, much to my surprise, and announced that he had such evidence, enough to warrant the reversal of bequests provided for by our will, and was ready to offer it to the court.
“You told me there wasn’t anything,” I reminded Harrison, who had turned white.
“I swear there isn’t!” he whispered back, but nevertheless he began perspiring and trembling a little. I sat back to see what Froebel had cooked up.
“What will you attempt to prove?” the Judge asked him.
“That as recently as last year, your honor, while his poor father was in the grave—perhaps speeded there (who knows?) by his son’s regrettable irresponsibility—that just last year, your honor, this son, who is now so eager to take from his mother what is rightfully hers, was aiding and abetting actively, with large gifts of money, that doctrine against which his father’s entire life was such an eloquent argument; confident, I doubt not, that he could conceal his surreptitious Bolshevism until such time as he was in a position to devote the whole of the Mack estate toward overthrowing the way of life that made its accumulation possible!”
Froebel was a past master of the detached noun clause: judge and spectators were stirred.
“For heaven’s sake!” Harrison whispered. “You don’t think he means my Spanish donations!”
“If you were silly enough to make any, then I daresay he does,” I replied, appalled anew at Harrison’s innocence.
And indeed, the “Spanish donations” were precisely what Froebel had in mind. He offered in evidence photostated checks, four of them, for one thousand dollars each, made out to an American subscription agency representing the Spanish Loyalist government. They were dated March 10, May 19, September 2, and October 7, and all were signed Harrison A. Mack, Jr.
Judge Lasker examined the photostats and frowned. “Did you write these checks?” he asked Harrison, passing the pictures to him.
“Of course!” Harrison yelled. “What the hell’s that—”
“Order!” suggested the Judge. “Aren’t you aware that the Loyalist movement is run by the Communist Party? Directed from the Kremlin?”
“Aw, come on!” Harrison pleaded, until I poked him and he sat down.
“May I point out,” Froebel continued blandly, “that not only is a gift to the Loyalists in essence a gift to Moscow, but this particular subscription agency is a Party organization under FBI surveillance. A man may donate to the Loyalists through honest, if vague, liberalism, I daresay; but one doesn’t send checks to this subscription outfit unless one is sympathetic with the Comintern. Young Mr. Mack, like too many of our idle aristocrats, is, I fear, a blue blood with a Red heart.”
I believe it was this final metaphor that won Froebel the judgment. I saw the newspaper people virtually doff their hats in tribute, and scribble the immortal words for the next editions of their papers. Even the Judge smiled benignly upon the trope: I could see that it struck him square in the prejudices, and found a welcome there.
There was some further discussion, but no one listened closely; everyone was repeating to himself, with a self-satisfied smile, that too many young aristocrats are blue bloods with Red hearts. Blue bloods with Red hearts! How could mere justice cope with poetry? Men, I think, are ever attracted to the bon mot rather than the mot juste, and judges, no less than other men, are often moved by considerations more aesthetic than judicial. Even I was not a little impressed, and regretted only that we had no jury to be overwhelmed by such a purple plum from the groves of advocacy. A blue blood with a Red heart! How brandish reasonableness against music? Should I hope to tip the scales with puny logic, when Froebel had Parnassus in his pan? In vain might I warn Judge Lasker that, through the press, all America was watching, and Europe as well, for his decision.
“My client, a lover of freedom and human dignity,” I declared, “made his contributions to the oppressed Loyalists as a moral obligation, proper to every good American, to fight those Rebels who would crush the independence of the human spirit, and trample liberty under hobnailed boots! How can you charge him with advocating anarchy and violent overthrow, when in a single year he gives four thousand dollars to support the Spanish Government against those who would overthrow it?”
And on I went for some minutes, trying to make capital out of the Spanish confusion, wherein the radicals were the status quo and the reactionaries the rebels. It was an admirable bit of casuistry, but I knew my cause was lost. Only Froebel, I think, had ears for my rhetoric; the rest of the room was filled with blue bloods with Red hearts.
And Judge Lasker, as I think I mentioned, was famously conservative. Though by no means a fascist himself—he was probably uncommitted in the Spanish revolution—he epitomized the unthinking antagonism of his class toward anything pinker than the blue end of the spectrum: a familiar antagonism that used to infuriate me when, prior to 1924, I was interested in such things as social justice. When finally he ruled, he ruled in Froebel’s favor.
“It does not matter whether there is a difference between the Moscow and Madrid varieties of communism,” he declared, “or whether the Court or anyone else approves or disapproves of the defendant’s gifts or the cause for which they were intended. The fact is that the subscription agency involved is a communist organization under government surveillance, and a gift to that agency is a gift to communism. There can be no question of the donor’s sympathy with what the agency represented, and what it represented was communism. The will before me provides that should such sympathy be demonstrated, as it has been here, the terms of the document are to be reversed. The Court here orders such a reversal.”
Well, we were poor again. Harrison went weak, and when I offered him a cigar he came near to vomiting.
“It’s incredible!” he croaked, actually perspiring from the shock of it.
“Do you give up?” I asked him. “Or shall I appeal?”
He clutched at the hope. “Can we appeal?”
“Sure,” I said. “Don’t you see how unlogical Lasker’s reasoning is?”
“Unlogical! It was so logical it overwhelmed me!”
“Not at all. He said the subscription agency was sympathetic to communism. You give money to the agency; therefore you’re sympathetic to communism. It’s like saying that if you give money to a Salvation Army girl who happens to be a vegetarian you’re sympathetic to vegetarians. The communists support the Loyalists; you support the Loyalists; therefore you’re a communist.”
> Harrison was tremendously relieved, but so weak he could scarcely stand. He laughed shortly.
“Well! That puts us back in the race, doesn’t it? Ha, I’d thought there for a while—Christ, Toddy, you’ve saved my ass again! Damned judge! We’ve got it now, boy!”
I shook my head, and he went white again.
“What the hell’s wrong?”
“I’ll appeal,” I said, “but we’ll lose again, I guess.”
“How’s that? Lose again!” He laughed, and sucked in his breath.
“Forget about the logic,” I said. “Nobody really cares about the logic. They make up their minds by their prejudices about Spain. I think you’d have lost here even without Froebel’s metaphor. I’d have to talk Lasker into liberalism to win the case.”
I went on to explain that of the seven judges of the Court of Appeals who would review the decision, three were Republicans with a pronounced anti-liberal bias, two were fairly liberal Democrats, one was a reactionary “Southern Democrat,” more anti-liberal than the Republicans, and the seventh, an unenthusiastic Democrat, was relatively unbiased.
“I know them all,” I said. “Abrams, Moore, and Stevens, the Republicans, will vote against you. Forrester, the Southern Democrat, would vote for you if it were a party issue, but it’s not; he’ll go along with the Republicans. Stedman and Barnes, the liberals, will go along with you, and I think Haddaway will too, because he likes me and because he dislikes Lasker’s bad logic.”
“But hell, that’s four to three!” Harrison cried. “That means I lose!”
“As I said.”
“How about the Maryland Supreme Court?”
“That’s too much to predict,” I said. “I don’t know that they’ve declared themselves on Spain, and I don’t know them personally. But they’ve affirmed almost every important verdict of the Court of Appeals in three years.”
