Defamation From Beyond the Grave

Halloween is a time when many contemplate how they want to leave this world.  Do they want to go out peacefully, or kicking and screaming from the grave?  And if they do want to have their will or trust contain spurious language directed toward others, what may the consequences be to their estate?

Judge John Marshall Gest, recounted a 1908 bequest of Garvey White as follows:

“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.”

Another interesting Will provision is contained in Charles F. Hoeckel’s 1920 will:

“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.”

Getting in the last word, or other vengeance in wills was one way many individuals used to employ to get in their last word, and people had to listen to it if they wanted their share of the estate.  Many believed that the best reason of all to use this method for revenge was that it allowed the testator, now protected by the veil of death, to get in 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, the general law and belief was there wasn’t anything those surviving enemies could do about it.

Redacting the Dead

Once again this anomaly is supplanted by the well known phrase “he who has the gold makes the rule.” In the case of Godley v. Crandall & Godley et al, reported in The Washington Law Reporter, Volume XLII, 469, (Ct. App. N.Y.,1914)  the Appeals Court discussed testamentary libel, and noted that beginning with the case of Curtis v. Curtis, dating to 1825 in the English Prerogative Court of Canterbury, the Court refrained from redrafting a will on the basis it contained unscrupulous or libelous content.  Mr. Curtis left all his money to his sister Mary and not his widow, because “of the cruel and murderous conduct of my wife, in this illness, as well as in past instances.” Mrs. Curtis’ contested the will based upon the scandalous content of the will and not on the disallowance of monetary matters. 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 the Curtis view was slowly eroded, as noted in the 1892 Matter of Bomar, wherein the New York Surrogate 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 individuals, having the court strike a portion of the will dealing with libelous or scandalous statements was enough.  For others, however, mere elimination of offensive statements was insufficient; those offended by the written word 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.

Bucking the trend, Patrick J. Brady, filed suit against the estate of VVV Gallagher. 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, Mr. Brady was prime to become a partner in a law firm, and had been active on the social circuit trying to gain favor with local heavyweights.  One of the individuals he became friends with, was none other than William Howard Taft, who encouraged him to contest this unfounded malicious statement. Brady, heeding the advice of his new friends, filed suit against Gallaher’s estate for testamentary libel, claiming damages of $50,000 (about $1.5 million by today’s terms).

Fortuitously, Mr. Brady’s case had the proper venue, jurisdiction and timing.  The case was heard before Chief Judge W.G. Hawkins on a motion to dismiss.  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 declared that the entire purpose behind 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 would no longer 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 the matter of Kleinshmidt 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.  However, in 1934, the Pennsylvania Supreme Court effectively overruled Gallagher’s Estate, and Oregon likewise backtracked in 1978.  The issue hasn’t resurfaced in any published opinions.

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 over seventy years and.  Accordingly, it is alright to die in South Carolina, Georgia, Pennsylvania, Oregon and probably Illinois as well. Everywhere else, testamentary libel, like death itself, is a great unknown.