Trickster Lawyer, Trickster Daughter

Jessie Allen, School of Law, University of Pittsburgh

Book the Second.  Chapter the Seventh.  Of FREEHOLD ESTATES, of INHERITANCE.

This chapter is about the way you need to own something in order to pass it down to your children.  “Estates of freehold then are divisible into estates of inheritance, and estates not of inheritance. “  II., p. 104. ActuaLaw and Philosophy, News, and William Blackstonelly, the chapter is mostly about what you have to do to give something away so that it will not ultimately be passed down to your descendants.  It’s about the idea that owning something entails the power to sell it or give it away, and the contrary idea that owning something means being connected to it in a way that makes it very difficult to separate yourself from your “estate.”   And of course, Blackstone being Blackstone, it’s about how the law creates, overcomes and tangles these two different aspects of ownership.

Blackstone explains that there are basically two kinds of estates – the kind that you can inherit and the kind you can’t.  But the not so hidden subtext is that the law – and lawyers – have ways to turn one into the other, sometimes without the owner’s realizing what is happening.  It seems there is more than one kind of inheritable property interest.  To own something “in fee” is to own it in a way that allows you to pass it down after you die “clear of any condition, limitation or restrictions to particular heirs.” II., p. 106 . “Tenant in fee simple (or as he is frequently stiled, tenant in fee) is he that hath lands, tenements, or hereditaments, to hold to him and his heirs forever; generally, absolutely, and simply.” II., p. 104   On the other hand, there are “limited fees, or such estates of inheritance as are clogged and confined with conditions or qualifications.” II, p. 109.  But much of the chapter is devoted to describing how lawyers have found ways to turn one sort of estate into another.

Blackstone is a stone cold positivist when it comes to property rights in general, and the right of familial inheritance in particular.  Regarding children’s right to inherit from their parents he observes, “we often mistake for nature what we find established by long and inveterate custom.” II., 11.  He unequivocally declares that “the permanent right of property, vested in the ancestor himself,” is a matter of positive law, “no natural but merely a civil, right.”  Id.  Nevertheless, when it comes to inheritance, the law has an ambiguous role to play.  On the one hand, it’s the law that determines the default rules of succession that property owners must overcome if they want things to go differently.  On the other hand, they can only overcome those rules through the law, and the whole process is channeled through lawyers,  cast as the intermediaries who know how to use the statutes and craft a “devise” to defeat the common law.

Property rights may not be natural, but there’s an element of  accident here – a potential for slips and trickery.  It turns out that it is quite possible to give away things that one meant to keep, and to fail to make the gifts one fully intended to proffer. According to Blackstone, for instance, “if a man grants all his estate to another, every thing that he can possibly grant shall pass thereby.” II., p. 103  Thus the hapless owner who intends only a limited gift may inadvertantly give away the whole kaboodle by using the powerful “estate” word. Conversely, someone who intends a complete alienation may fail by omitting other magic words:  “The word, heirs, is necessary in the grant or donation in order to make a fee, or inheritance.  For if land be given to a man for ever, or to him and his assigns for ever, this vests in him but an estate for life.”  II., p. 107.

The image of lawyers slipping words in and out of donors’ grants and using legal structures to defeat structures put me in mind of the trickster figures who Lewis Hyde says work through both accident and guile.  Trickster is the ambivalent culture-antihero who pops up in various guises (or who is identified by Western anthropologists in lots of different places) — the border-crossing, boundary- flaunting, fooling thief and messenger.  Coyote is the Native American trickster; his Greek counterpart is Hermes.  Above all, tricksters are conduits, and figures of reversal, through whom all things travel and who can carry messages back and forth between the living and the dead, make the river flow backwards and reverse the otherwise one-way arrow of time.

For Christmas, my 94-year-old mother gave me a check with which to buy presents for myself, my husband and my daughter – who’s eleven.  It was the day my daughter and I went over to the assisted living facility where my mom lives, to put a few Christmas decorations in her room.  My mother’s short term memory is completely shot along with much of her orientation in time and space.  One minute she’s clear about her own whereabouts on the outskirts of Pittsburgh as a result of my having taken a job at the university here, the next she’s asking me if she remembered to phone her father to tell him she won’t be home for dinner at “8630” – that would be 8630 Oak Street, the address of the house in New Orleans where she was born in 1917.  On this particular day having learned that the holidays were upon us, she was asking me over and over again whether she had given me a present.  “Did I get you anything for Christmas,” she would ask, and I would say, “no, not yet, but if you like, I’ll write a check from your account and buy presents for me, Doug and Lincoln.”  “Oh,” she would reply, “that is the best kind of present from my point of view – you do all the work! Now tell me, did I get you anything for Christmas”?

While my daughter busied herself stringing beads on a dinky potted Christmas tree and setting up the little carrolling figures from Rite Aid, my mother and I must have repeated this litany ten times.  I use the word “litany” advisedly.  I’ve learned that if I approach these conversations as a kind of ritual call-and-response the repetition is less frustrating.  It’s a kind of game in which I sometimes strive for exact choral repetition and other times riff on my repeated lines with variations of syntax and expression.  After this particular round, I wrote myself a check, and on Christmas Eve I drove over to the Macys in the mall across the river and bought presents – shirts for my husband, a robe for my daughter and a really nice pair of pajamas for me.  Later that afternoon, as we sat wrapping presents my daughter came up with the idea that she should wrap the pajamas without me watching, so that it would seem more like I was getting a gift chosen especially for me, instead of something I bought for myself, albeit with someone else’s money.  And so it was that in the Christmas scrum, when my daughter handed me the familiar box, now swathed in gold gift wrap, the card she had attached to it was addressed to me from my mother.   In fact, it was addressed  to me “from your great and amazing mom, who loves you till infinity.”

I was struck by the apparent ease with which my child had, almost casually, moved to reconstruct for me a mother intact and undiminished by dementia.  And I was struck by the fact that I have never really applied the terms “great and amazing” to my mother.  Long before her senility, indeed for as long as I can remember, my mother has been a puzzlingly diminished presence.   There is a quality of semi-transparency about her, as though she were in some way fading, however gently and nicely, from view – a watered down quality, as though nothing about her was exactly at full strength.  I have always put this down to the loss of her own mother when she was just 19, a death apparently treated by her whole family with such total and unwavering Germanic denial, that, in my narrative anyway, it left my mother forever after unable to live entirely in the present.  In any case, whether because of the unmourned loss of her own mother, or for more mysterious reasons, my mother has always had a subtly absent quality. Not that she was ever cold or distant.  To the contrary, she was and remains unfailingly kind and sensitive to others’ feelings.  I have no doubt that she appreciates me and is grateful for my care – because she tells me so every single time I see her.  Unlike so many of my friends’ mothers who complain that they don’t visit or call enough, my mother never fails to thank me for my efforts.  “I’m so glad you could come,” I hear, whenever I stop by even for a few minutes, and “I’m so sorry you have to take so much time to do these things for me.”  “What would I do without you?” she asks over and over, and I reply (again in litany) “You would muddle through,” and we laugh.  So, gratitude?  Yes.  Heartfelt appreciation? Definitely.  But love till infinity?

How “amazing” then, indeed, that my daughter, a child overflowing with feelings of all kinds, for whom it is probably inconceivable that a mother could not love passionately and infinitely, and who perhaps has inherited some of her grandmother’s thoughtful attention to others’ feelings, came up with a little trick through which to give me a sort of backwards inheritance, a gift of mother love, full strength and undiluted, pouring back through time out of her into me.

First Published on December 28, 2011.