Vance Sterling: The Cuyahoga Docket — Book 5
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“If my said daughter shall die before attaining the age of thirty years,” Adele read, “leaving no issue her surviving, then upon her death the Trustee shall pay over and distribute the entire trust estate then remaining, together with all accumulated and undistributed income thereof, to my brother, Nelson Lowry, if he shall then be living, to be his absolutely and free of any trust, and this trust shall thereupon terminate.”
She did not need the page. She had read the instrument more often than anybody living, the lawyer who drew it included, and she could have given him the eleventh article from the far end of the house with every comma where it belonged. She read it off the page anyway, with a finger under the line, and when she came to his name she gave it the capital letters it had in the typing, which could be done with a voice if a person took the trouble.
She had heard him come in the way he came in every night, the car into the garage and the side door and the closet in the back hall, and then he had stopped just inside the library door with his briefcase in his hand. He dined at his club and was home by half past ten every night of her life, except the nights the telephone kept him downtown, and for six years she had arranged her evenings so that by half past ten she was upstairs with her door shut. Tonight she had been at the long table since dinner. It had been the forge’s board table until her grandfather brought it home, and it was long enough to hold her copy of the instrument, open at the clause, and every one of Mr. Baumhart’s annual statements, out of the shoebox she kept them in and laid in a row with the earliest at the far end.
The statements ran four pages each, and each had a column headed Undistributed at the right-hand side of the third page. She had never before read that column with the clause open beside it.
He was sixty-two. He owned four gray suits and had them pressed by the same man on Superior who had pressed her grandfather’s, and she knew to the dollar what it cost to keep a man in four gray suits, because the bills came to the house.
“That’s the reversion,” she said. “Article Eleven. It’s the only place in the whole instrument your name appears except the article that makes you trustee, and I’ve been reading it wrong for three years, because I read it the way it’s meant to be read, as a thing that happens if I die, and since I don’t intend to die I went past it the way you go past the part of an insurance policy about floods. The point is it isn’t about my dying at all, it’s about the months I’m alive, because every one of those months you decide what I get, and whatever you don’t decide goes into a column that comes to you.”
She turned back to the fourth article, which she did not need either.
“‘So much of the net income and principal as the Trustee in his sole and absolute discretion shall deem advisable for her support, maintenance and education.’ That’s all I get. Whatever you deem. And everything you don’t deem goes back in and sits there, which is why the check on the first of the month is the same check it was when I was nineteen, and why I had to put the car to you in writing, and why the apartment on Lake Avenue wasn’t a prudent use of the income, and why you were so reasonable when I left college after three semesters, since three semesters is a great deal cheaper than eight. Every dollar you’ve decided I can do without is on that third page, and it goes to you the day I walk in front of a bus, accumulated and undistributed, because that’s what it says. I’ve just read it to you.”
“It is not a reversion,” Nelson said. “A reversion returns to the grantor.”
“Then it’s whatever you call it when it goes to you.” She found the line and read him the end of it again, more slowly. “‘To be his absolutely.’ There’s one thing that word means. I sat with it a long time on Sunday to make certain it didn’t mean anything else, and it doesn’t, and it doesn’t matter in the least what the lawyers call the paragraph when the paragraph says absolutely.”
He came the rest of the way in then and set the briefcase on the desk, and she was up from the table before he had let go of the handle.
“You could end it,” she said. “You know you could, you’ve known it longer than I have. A trustee can go into court and ask to have a trust ended, and when there’s nobody in the world with an interest in it but the beneficiary and the man who’s asking, a court will give it to her, because who is there left to object? Only you, and you’d be the one who asked. I’m not asking you to be generous. I’m asking you to give up the chance you’ve been holding for six years that I’ll walk in front of that bus before I’m thirty, which is five and a half years from now, and the point is you’d be giving up a chance and not one dollar, since a chance isn’t in any column. Mr. Baumhart hasn’t got a line for it. I’ve looked.”
“That is not the arrangement,” Nelson said.
He sat down at the desk and opened the briefcase and took out a folder.
There were papers in it, typed, a thin stack. He uncapped his pen, and while she stood at the long table he signed them one at a time and turned each one face down on the blotter and took the next, without reading any of it, because he signed whatever came to him on the right paper and had since before she was born.
“Did you know it was in there?” she said. “When he signed it. Were you in the room?”
He signed the next sheet.
“You were. You’d have had to be. Nobody makes a man trustee of an instrument he’s never seen, which means you sat in whatever office it was while your brother signed it, which means you watched your own name go by in capitals and didn’t say anything then either, because there wasn’t anything you needed to say when all you needed to do was wait.” She took last year’s statement off the near end of the row while she talked, and brought it to the desk and put it down on the blotter in front of him, open at the third page. “And you’ve waited nine years. You don’t even take the commission. There’s no line for it on that or on any of the others, not one year, which I used to think was decent of you, before Sunday, because why would a man take a commission on a thing he’s getting all of?”
He moved the statement to the edge of the blotter with the back of his hand and signed the sheet that had been under it.
She had known since she was fifteen what his silences were for. A man argued with people whose opinion could cost him something. He did not argue with the girl who brought in the coffee, and in six years he had not once argued with her.
She had been married since the seventeenth of May to Tony Gorsek, a millwright on the day shift at her grandfather’s forge, and nobody had been told. The ring was upstairs in the drawer of her dressing table, in its box, under her gloves.
She told him all of it again, from across the desk, with her copy still open on the long table. It went better the second time, because she had recently rehearsed it, the article and the income and the discretion and the check on the first of the month, and each part of it came out more exact than it had the first time. When she reached the end of it she went on to the apartment on Lake Avenue, which she had already told him, and from the apartment to the car, and from the car to the three semesters. He went on signing.
“I have an appointment on Monday,” she said, “with a lawyer in the Terminal Tower, and I’m going to have it broken. All of it. The discretion and the corpus and Article Eleven, and whatever the right word is for Article Eleven.”
Nelson turned the sheet over and signed the next one.
She took the statement off the edge of the blotter. At the long table she put it and the others back in the shoebox in the order they had come out, the earliest at the bottom, and fitted the lid on, and picked up her copy of the instrument and closed it on one finger at the clause, out of habit. When she got to the door he was still signing.
Miss Lowry would not give Miller the shoebox until she had explained what was in it.
“They’re the annual statements, Mr. Baumhart’s, who’s kept the books on the trust since my father made it, and they’re every one there’s ever been, in the order they came, with the earliest at the bottom, because that’s how he sends them and it’s how they have to be read. Each one carries the one before it forward. If you start at the top you’re reading the whole thing backward, which is what I did for three years.” She still had both hands on the lid. “It’s the third page that matters. There’s a column on the right-hand side.”
“Third page,” Miller said. “Right-hand side.”
Miss Lowry let go of it then. Miller took it to the table under the window, and came back for her pad, and sat at the end of the desk where she could see the client’s face and Sterling’s both.
She was twenty-four. She sat on the front of the client’s chair with a bound copy of the trust instrument on her knees, closed, and her coat still buttoned, and Sterling had decided before she was finished with the shoebox that she would make a very poor witness and that nobody would ever manage to tell her so.
“Who sent you to me, Miss Lowry?”
“Nobody sent me. I made a list of every lawyer in Cleveland who’s had lunch with my uncle, or with my father while he was alive, or with anybody at the club, which turned out to be nearly all of them, and then I made a list of the ones who’ve beaten the county in a courtroom more than once, and yours was the only name on the second list that wasn’t on the first, which is why I’m here and not in some office where they knew my father. Because I can’t have a lawyer who’ll telephone my uncle to ask what he thinks before he tells me what I can have, and every one of them would, since they all have, every time I’ve asked for anything in six years.”
He had asked her who sent her. She had told him why she came, which was the answer to a better question than his, and Sterling, who did that to people for a living, could not tell whether she had meant to.
“Tell me about the trust.”
She told him without opening the copy.
“It’s inter vivos, which means my father made it while he was living, nine years ago in June, and he put into it everything that was going to be mine, which is the stock in my grandfather’s forge, mostly. My uncle is the sole trustee and has been from the first day, because Article Three names him and nobody else. Article Four is what I get.” She gave it the way a well-prepared witness gives a date. “‘So much of the net income and principal as the Trustee in his sole and absolute discretion shall deem advisable for her support, maintenance and education.’ That’s until I’m thirty, and I’m thirty in five and a half years. Article Nine is the spendthrift clause, so I can’t sell it and nobody I owe can come and take it, which my father meant kindly. And Article Eleven is the reversion, which is the one that matters, because if I die before I’m thirty and there aren’t any children then all of it goes to him, absolutely, and that’s the instrument’s word and not mine. I went past it for three years like the flood part of an insurance policy. The rest is boilerplate. That’s Mr. Baumhart’s word.”
She stood and opened the copy on his blotter at the eleventh article, turned so that it faced him, and sat down again, and went on before he had it read.
“He’s in two articles, Three and that one, and everything else in it is about me, what I get and when I get it and who has to agree to it, and it’s always him who has to agree.”
Sterling read it. It was a gift over, contingent twice, on her dying under thirty and childless and on her uncle’s being alive to take it, and it was, as she said, absolute.
“The gift over in Article Eleventh,” he said.
“The reversion.”
He did not argue the word.
“Who has the original?” Miller said.
“His lawyer has it. This is the conformed copy, which I had to put to him in writing when I was twenty-one, the way I’ve had to put everything to him in writing, the car and the apartment and college, because he won’t answer anything that isn’t on paper and half the time he won’t answer that.”
“What is it you want?” Sterling said.
“I want it broken. All of it, the discretion and the corpus and Article Eleven, and him out of it. I told him so on Thursday, in the library, and I told him I was coming to a lawyer in the Terminal Tower today, and do you know what he said? ‘That is not the arrangement.’ That’s all he said. He didn’t even look up.”
“There are two ways to go at a trustee,” Sterling said, “and I will take them in the order a court would. The first is the one you came for, which I cannot do for you, because a court will end a trust before its time only if everyone with an interest in it asks, and only if ending it defeats nothing the man who made it meant to accomplish. Your father meant you to wait until thirty. He wrote that down. Your uncle, under Article Eleventh, holds an interest of his own, which on Thursday he told you he will not give up.”
“Then you can’t do anything,” she said, “because that’s the only thing I came for, and if it can’t be broken then I’ve told him for nothing, and he’ll go on deciding what I get for five and a half more years, and the car will still be a letter and the apartment will still be imprudent and every dollar he doesn’t decide will still go into that column on page three, which is exactly what he’s always wanted, because the point is—”
“The second is open to you,” Sterling said, “and it is the one I will take. A trustee owes an account. I do not mean a statement his accountant has typed up from whatever he was handed; I mean an account, which shows every share, every dividend, every dollar in or out, with his reasons for each. We will ask him for a full accounting, in writing, by a date we set.”
“Fourteen days,” Miller said. “From receipt.”
“If he produces it, we will know what is in this trust, which at present nobody in this room does. If he refuses, or sends us something that is not an account, I will ask a court to remove him.”
“On what grounds?”
“Abuse of discretion.”
“It says absolute. You’ve just read it. ‘Sole and absolute.’”
“It does. Lawyers put that word into instruments because clients like the sound of it, and it has never once meant that a court will not look. A discretion is abused if it is exercised in bad faith. It is abused, too, if it is never exercised at all, since a man who holds back the income year after year without being able to say why is not exercising anything. He is keeping it. A judge will want to know the difference.”
“Then that’s what he’s done,” she said. “That’s exactly it, because he’s never once said why about anything, not the car or the apartment or college or the check, which hasn’t gone up since I was nineteen, and if not saying why is an abuse then he’s abused it every month for six years. He knows it, too. He’s frightened, and I can prove it, because on Saturday morning I heard him twice, first to his lawyer and then to his banker at home, in the same words both times, which is how I know they were the words he meant. He was in the library with the door open. He’s never lowered his voice in that house in his life, since there’s never been anybody in it he’d have to lower it for, so I didn’t have to come any nearer than the front hall.” She gave them the way she had given the clause. “‘The question is what she will sign.’ He’s frightened of what I’ll sign, and he ought to be, because I’ll sign anything it takes.”
“Then his lawyer’s expecting a letter,” Miller said.
Sterling had heard it the same way, and so, plainly, had the woman who brought it to him: a trustee who learned on Thursday that his niece was going to a lawyer on Monday, and who spent Saturday morning telling his own lawyer and his bank what he was afraid she would put her name to.
What he could not make ordinary was the fear. Why would a man with nine years of absolute discretion behind him be afraid of anything she could sign? Not a petition to end the trust. He would beat that in an afternoon, and his lawyer would have told him so on Saturday before breakfast. An accounting, then. Somebody reading the books.
“I will tell you what I make of your uncle’s telephone calls,” he said, “when I have read Mr. Baumhart’s statements, and not before.”
“Then start with the third page,” she said, “because that’s where all of it is, every year of it, and you’ll see it the way I did a week ago Sunday, and you won’t need me to tell you what it means, which nobody ever needed to tell me either, once I’d seen it.”
She left the copy of the instrument where it was on his blotter. At the door she said to keep it, that she didn’t need it, and Miller said they would, and then the outer door closed behind her.
Miller brought the shoebox back from the window and took the lid off and looked at the statement on top without taking it out. “Inter vivos,” she said. “No court’s ever seen an account of it. Nobody’s looked at those books in nine years.”
The spendthrift clause was worth nothing in Ohio, and it took Miller until half past ten to be sure of it, and most of that was the walk.
She had the conformed copy open on her desk at eight, at the ninth article, which was a single sentence and sixty words. She counted them. “No beneficiary hereunder shall have any right or power to anticipate, alienate, assign, sell, transfer, pledge, encumber or charge her interest in the income or principal of this trust, nor shall any such interest be liable for or subject to the debts, contracts, obligations or liabilities of any beneficiary, or to attachment, execution, garnishment or other legal or equitable process.” Miss Lowry had read that to mean nobody she owed could come and take it. Her father had paid a careful man to write it, and the careful man had written it the way the form books wrote it, and there was nothing wrong with a word of it except the state it was written in.
At nine she walked up to the county law library and asked for the Ohio State Reports and the citator, and the assistant librarian brought both without her having to say the second thing. He had the volume down off the shelf before she had her gloves off.
Sherrow v. Brookover, 174 Ohio St. 310. The Supreme Court of Ohio had held a spendthrift provision void as against the claims of creditors, and the reports gave it six pages, and she read all six standing at the shelf and did not sit down once. Then she ran it forward in the citator. Nothing had disturbed it. No court of appeals in the state had gone around it, no later case had cut it down to its own facts, and it had sat there most of Adele Lowry’s life, doing what it said.
So the clause protected nothing. Anybody Adele Lowry owed money to could reach whatever interest Adele Lowry had, and the sentence her father bought to prevent precisely that would not hold him up an afternoon. What would hold him up was the article in front of it. Until the trustee decided she should have a dollar she had no right to a dollar, and a creditor standing where she stood could take only what she could demand, and she could demand nothing at all. The clause was decoration. The discretion was the wall.
She wrote it on the pad in four lines, on the walk back, at the light on Superior, and she did not telephone the client.
The shoebox had been on the table under the window since Monday afternoon. She took the statements out in the order Miss Lowry had put them in and laid them along the table from the far end back toward the door, so the years ran left to right and the oldest was under her hand. Nine of them. Four pages each, stapled once in the corner, and the staple of the oldest had rusted a brown circle into the top sheet.
The first page was the accountant’s letter and the summary. The second was the schedule of the corpus. The third was income and what had been done with it, and the fourth was a page of notes that said less each year, until the most recent one said nothing at all beyond the date the last of them had been prepared.
Page three carried the column. It was on the right-hand side, under the income summary, headed “Undistributed,” and it ran down the page a line to the year, footed in bold at the bottom the way a ledger foots. The dividends came in on the left. They had been good for the first four years and thin after that, and last year they were the thinnest of all, and Baumhart had not said why, because Baumhart was not being paid to say why. The most recent statement showed distributions for the year of $4,800, which was four hundred dollars a month and nothing besides, no tuition and no automobile and no extraordinary item at all, and it showed the accumulated undistributed income carried forward at $214,806.
Miller put the two figures on the pad, one above the other, and looked at them long enough to be certain she had not transposed anything.