Defamation From Beyond the Grave: Using Your Last Will To Get In The Last Word

CaptureHalloween is a good time to think about how you want to die. Do you want to leave the world peacefully? Or do you want to go down trash talking, making sure that your enemies know exactly what you think about them, and that everyone else knows what terrible people these enemies were?

Take, for example, this 1908 bequest of Garvey White, as recounted by Judge John Marshall Gest of the Philadelphia Orphans Court. White directed:

“That before anything else is done fifty cents be paid to my son-in-law to enable him to buy for himself a good stout rope with which to hang himself, and thus rid mankind of one of the most infamous scoundrels that ever roamed this broad land or dwelt outside of a penitentiary.”

Charles F. Hoeckel of Denver viewed his 1920 will as a precursor to

“I give and bequeath unto Clark Moore, of Fort Collins, Colorado, six hundred shares of stock of the Douglas Dome Royalty Company, which he sold to me on the damnedest misrepresentation conceivable, and which he can use as a marker in his Prayer Book.”

Vengeance in wills used to be somewhat popular, and it’s easy to see why: everyone has to listen to it if they want their money, it gets preserved in an official legal document, and it’s kind of spooky. Best of all, the testator, now protected by the veil of death, gets the last word. Some decedents took advantage of this protection by taking liberties with the facts, accusing their surviving enemies of at least a few things they didn’t actually do. And there wasn’t anything those surviving enemies could do about it.  Or was there?

Redacting the Dead

Reports of “testamentary libel” predate the 19th century, but the first published case still available is Curtis v. Curtis, heard in the English Prerogative Court of Canterbury in 1825. Mr. Curtis left all his money to his sister Mary, not his widow, because “of the cruel and murderous conduct of my wife, in this illness, as well as in past instances.” Mr. Curtis’ widow brought suit.  She didn’t want any money, but she did want her good name back.  She asked the Court to strike from the will the gratuitous reference to her.  The court refused on the grounds that it did not have the authority to amend a will, even where the alteration was immaterial, and even where all (living) parties consented.

Eventually, however, this view evolved in both England and the United States. In the 1892 Matter of Bomar, the New York Surrogate’s Court refused to admit to probate the “superfluous and libelous” claim that one of the testator’s children was illegitimate. The Court held that it could not change the operative portions of the will (such as a bequest). However, this particular statement could be deleted because it was not operative, “but simply cast[] an unwarranted slur upon an innocent child.”

“The Slings and Arrows of Outrageous Malice”

For some, having the court strike a portion of the will was enough.  For others, mere clerical relief was insufficient;  they wanted to sue for libel.  Up through the 19th century, however, such claims were barred by the common law maxim “actio personalis moritur cum persona,” meaning that claims against a person die when that person dies. This rule was subject to numerous exceptions, but libel wasn’t one of them.

That didn’t stop Patrick J. Brady, an attorney in Cleveland, Ohio. In 1900, a Mr. Gallagher of Pittsburgh died and in his will claimed that Brady had welshed on a loan and “owes me more than three thousand dollars.” Brady took this stain on his reputation seriously. He was up for partner at the Cleveland firm of W.T. Cashman, and had begun to hobnob with Ohio luminaries such as Senator Mark Hanna and an up-and-coming judge named William Howard Taft.  So Brady traveled to the Allegheny County Orphans’ Court and filed suit against Gallaher’s estate for testamentary libel, claiming damages of $50,000 (about $1.5 million by today’s terms).

The matter of Gallagher’s Estate came before Chief Judge W.G. Hawkins on a motion to dismiss. Fortunately for Brady, this was precisely the right place and the right judge for his claim. It turns out that, decades before, a wealthy and vengeful Pittsburg resident had directed in his will that two busts be placed in the Pittsburgh courthouse in order to publicly label his surviving enemies as the “two most unprincipled scoundrels who ever appeared before a court of justice.” Apparently, this bequest was fulfilled, and Judge Hawkins lamented that, during “all these years the objects of the testator’s hatred . . . have borne this gross imputation for which there may have been no justification.”  If there truly was no remedy for such “cold blooded” libel, Judge Hawkins opined, “no one would be safe from the slings and arrows of outrageous malice.”

Judge Hawkins noted that the purpose of the “actio personalis moritur cum persona” rule was to allow death to extinguish claims that had existed during the life of the defendant.  A claim for testamentary libel, however, cannot exist during the life of the defendant because defamation does not accrue until publication, and publication of a will happens after death.  Therefore, the common law maxim did not apply and Brady’s case could go forward.

The Absolute Privilege of Death

The Supreme Court of Tennessee came to the same conclusion in 1913 and adopted the tort of testamentary libel. The Supreme Court of New York followed suit in 1945. South Carolina and Georgia expressly rejected the cause of action but, in 1954, Oregon became the fourth state to adopt the tort in Kleinschmidt v. Mattieu, in which a woman left her grandson $10.00, an amount which “expressed the regard in which I hold my grandson, who deserted his mother . . .  and because he is a slacker, having shirked his duty in World War II.”

But that was just about the high-water mark for testamentary libel. The concept of “absolute privilege” began to be applied to all court documents, including the recording of wills. New York courts got around that issue by distinguishing between, on the one hand, the liability of the estate and, on the other, the privileged acts of an executor. But in 1934, the Pennsylvania Supreme Court effectively overruled Gallagher’s Estate, and Oregon also backtracked in 1978.  The issue hasn’t come up since, at least not in a published opinion.

So if you still want to libel someone in your will and get away with it, your best bet is to avoid death in New York or Tennessee, assuming you have faith in case law that hasn’t been revisited in about 70 years and 100 years, respectively. It’s OK to die in South Carolina, Georgia, Pennsylvania, Oregon and probably Illinois as well. Everywhere else, testamentary libel, like death itself, is a great unknown.

A version of this article appeared in the October 27, 2014 edition of the Massachusetts Lawyers Weekly. The image at the top of this article is from the 1731 will of Isaac Norris of Philadelphia, reprinted in the Temple Law Quarterly in April 1934, alongside Judge John Marshall Gest’s essay, The Jolly Testator. The text at the bottom of the image reads in part: “He that perverts this will of mine, View well this lot, ’twill soon be thine.”

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