{"id":3511,"date":"2020-05-20T16:04:12","date_gmt":"2020-05-20T20:04:12","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=3511"},"modified":"2020-09-23T21:09:47","modified_gmt":"2020-09-24T01:09:47","slug":"trickster-lawyer-trickster-daughter","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2020\/05\/20\/trickster-lawyer-trickster-daughter\/","title":{"rendered":"Trickster Lawyer, Trickster Daughter"},"content":{"rendered":"

Jessie Allen, School of Law, University of Pittsburgh<\/a><\/p>\n

Book the Second.\u00a0 Chapter the Seventh.\u00a0 Of FREEHOLD ESTATES, of INHERITANCE.<\/em><\/strong><\/a><\/p>\n

This chapter<\/a>\u00a0is about the way you need to own something in order to pass it down to your children.\u00a0 \u201cEstates of freehold then are divisible into estates\u00a0of inheritance,\u00a0<\/em>and estates\u00a0not of inheritance<\/em>. \u201c\u00a0 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\u00a0no<\/em>t ultimately be passed down to your descendants. \u00a0It\u2019s 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 \u201cestate.\u201d \u00a0\u00a0And of course, Blackstone being Blackstone, it\u2019s about how the law creates, overcomes and tangles these two different aspects of ownership.<\/p>\n

Blackstone explains that there are basically two kinds of estates \u2013 the kind that you can inherit and the kind you can\u2019t.\u00a0 But the not so hidden subtext is that the law \u2013 and lawyers \u2013 have ways to turn one into the other, sometimes without the owner\u2019s realizing what is happening. \u00a0It seems there is more than one kind of inheritable property interest.\u00a0 To own something \u201cin fee\u201d is to own it in a way that allows you to pass it down after you die \u201cclear of any condition, limitation or restrictions to particular heirs.\u201d II., p. 106 . \u201cTenant 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.\u201d II., p. 104 \u00a0\u00a0On the other hand, there are \u201climited fees, or such estates of inheritance as are clogged and confined with conditions or qualifications.\u201d II, p. 109.\u00a0 But much of the chapter is devoted to describing how lawyers have found ways to turn one sort of estate into another.<\/p>\n

Blackstone is a stone cold positivist when it comes to property rights in general, and the right of familial inheritance in particular. \u00a0Regarding children\u2019s right to inherit from their parents he observes, \u201cwe often mistake for nature what we find established by long and inveterate custom.\u201d II., 11. \u00a0He unequivocally declares that \u201cthe permanent right of property, vested in the ancestor himself,\u201d is a matter of positive law, \u201cno\u00a0natural<\/em>\u00a0but merely a\u00a0civil,<\/em>\u00a0right.\u201d \u00a0Id.<\/em>\u00a0\u00a0Nevertheless, when it comes to inheritance, the law has an ambiguous role to play.\u00a0 On the one hand, it\u2019s the law that determines the default rules of succession that property owners must overcome if they want things to go differently.\u00a0 On the other hand, they can only overcome those rules through the law, and the whole process is channeled through lawyers, \u00a0cast as the intermediaries who know how to use the statutes and craft a \u201cdevise\u201d to defeat the common law.<\/p>\n

Property rights may not be natural, but there\u2019s an element of \u00a0accident here \u2013 a potential for slips and trickery.\u00a0 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, \u201cif a man grants all\u00a0his estate<\/em>\u00a0to another, every thing that he can possibly grant shall pass thereby.\u201d II., p. 103\u00a0 Thus the hapless owner who intends only a limited gift may inadvertantly give away the whole kaboodle by using the powerful \u201cestate\u201d word. Conversely, someone who intends a complete alienation may fail by omitting other magic words:\u00a0 \u201cThe word, heirs, is necessary in the grant or donation in order to make a fee, or inheritance.\u00a0 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.\u201d\u00a0 II., p. 107.<\/p>\n

The image of lawyers slipping words in and out of donors\u2019 grants and using legal structures to defeat structures put me in mind of the trickster figures who\u00a0Lewis Hyde\u00a0<\/a>says work through both accident and guile.\u00a0 Trickster is the ambivalent culture-antihero who pops up in various guises (or who is identified by Western anthropologists in lots of different places) \u2014 the border-crossing, boundary- flaunting, fooling thief and messenger.\u00a0 Coyote is the Native American trickster; his Greek counterpart is Hermes.\u00a0 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.<\/p>\n

For Christmas, my 94-year-old mother gave me a check with which to buy presents for myself, my husband and my daughter \u2013 who\u2019s eleven.\u00a0 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.\u00a0 My mother\u2019s short term memory is completely shot along with much of her orientation in time and space.\u00a0 One minute she\u2019s 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\u2019s asking me if she remembered to phone her father to tell him she won\u2019t be home for dinner at \u201c8630\u201d \u2013 that would be 8630 Oak Street, the address of the house in New Orleans where she was born in 1917.\u00a0 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.\u00a0 \u201cDid I get you anything for Christmas,\u201d she would ask, and I would say, \u201cno, not yet, but if you like, I\u2019ll write a check from your account and buy presents for me, Doug and Lincoln.\u201d\u00a0 \u201cOh,\u201d she would reply, \u201cthat is the best kind of present from my point of view \u2013 you do all the work! Now tell me, did I get you anything for Christmas\u201d?<\/p>\n

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.\u00a0 I use the word \u201clitany\u201d advisedly.\u00a0 I\u2019ve learned that if I approach these conversations as a kind of ritual call-and-response the repetition is less frustrating.\u00a0 It\u2019s 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.\u00a0 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 \u2013 shirts for my husband, a robe for my daughter and a really nice pair of pajamas for me.\u00a0 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\u2019s money.\u00a0 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.\u00a0\u00a0 In fact, it was addressed\u00a0 to me \u201cfrom your great and amazing mom, who loves you till infinity.\u201d<\/p>\n

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.\u00a0 And I was struck by the fact that I have never really applied the terms \u201cgreat and amazing\u201d to my mother.\u00a0 Long before her senility, indeed for as long as I can remember, my mother has been a puzzlingly diminished presence. \u00a0\u00a0There is a quality of semi-transparency about her, as though she were in some way fading, however gently and nicely, from view \u2013 a watered down quality, as though nothing about her was exactly at full strength. \u00a0I 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.\u00a0 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.\u00a0 To the contrary, she was and remains unfailingly kind and sensitive to others\u2019 feelings.\u00a0 I have no doubt that she appreciates me and is grateful for my care \u2013 because she tells me so every single time I see her.\u00a0 Unlike so many of my friends\u2019 mothers who complain that they don\u2019t visit or call enough, my mother never fails to thank me for my efforts.\u00a0 \u201cI\u2019m so glad you could come,\u201d I hear, whenever I stop by even for a few minutes, and \u201cI\u2019m so sorry you have to take so much time to do these things for me.\u201d\u00a0 \u201cWhat would I do without you?\u201d she asks over and over, and I reply (again in litany) \u201cYou would muddle through,\u201d and we laugh.\u00a0 So, gratitude?\u00a0 Yes.\u00a0 Heartfelt appreciation? Definitely.\u00a0 But love till infinity?<\/p>\n

How \u201camazing\u201d 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\u2019s thoughtful attention to others\u2019 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.<\/p>\n

First Published on December 28, 2011.\u00a0<\/a><\/p>\n\n

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Jessie Allen, School of Law, University of Pittsburgh Book the Second.\u00a0 Chapter the Seventh.\u00a0 Of FREEHOLD ESTATES, of INHERITANCE. This chapter\u00a0is about the way you need to own something in order to pass it...<\/p>\n","protected":false},"author":10,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[268,255,492],"tags":[132,200],"class_list":["post-3511","post","type-post","status-publish","format-standard","hentry","category-jurisprudence","category-law-and-philosophy","category-william-blackstone","tag-news","tag-william-blackstone"],"jetpack_shortlink":"https:\/\/wp.me\/pasVL2-UD","jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3511","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/comments?post=3511"}],"version-history":[{"count":3,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3511\/revisions"}],"predecessor-version":[{"id":3519,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3511\/revisions\/3519"}],"wp:attachment":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/media?parent=3511"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/categories?post=3511"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/tags?post=3511"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}