The Dead Hand

by Michael A. Kahn

  Sounds straightforward, albeit a little opaque.

  The problem is that the Rule deals with unknown future events. It asks whether there is a possibility, no matter how remote, that the interest will not vest before expiration of that twenty-one-year period. If so, the grant fails entirely. As a result, any attempt to apply the Rule leads you down a rabbit hole of what-ifs and hypotheticals. One silly example—a favorite of law school professors—is the so-called Case of the Unborn Widow. Here’s how it goes:

  Our grantor leaves the property to “Jack for life, then to Jack’s widow, if any, for life, and then to Jack’s children.” Sounds simple, eh? Brace yourself. Let’s suppose Jack was married to Jill but had no children at the time of that grant. This would mean that Jack and Jill were the only Lives in Being at the time of that grant. Now let’s consider one of the hypotheticals required by the Rule. If, say, Jack and Jill divorced (or Jill died) and then Jack remarried a much younger woman who was born after the date of that grant, then Jack’s new wife would not be a Life in Being. As such, she could outlive Jack by more than twenty-one years. If so, the transfer to Jack’s children after her death would be outside the twenty-one-year measuring period, thereby violating the Rule Against Perpetuities.

  Confusing?

  Agreed.

  Fortunately—or, actually, unfortunately—the violation of the Rule Against Perpetuities in the case of Danielle A. Knight v. Marsha B. Knight was subtle but not quite as obscure as in the law school hypotheticals. It involved the grant of a succession of various interests in the Fontainebleau Estates, a luxury high-rise apartment complex in Clayton, the fashionable suburb of St. Louis. The apartment complex generated about a half-million dollars in profits a year.

  Under the property deed at issue—which was dated about two months before the entry of the divorce decree in In re the Marriage of Jerome R. Knight and Marsha B. Knight—the Fontainebleau LLC, a limited-liability company owned by Jerry Knight, was to transfer the apartment complex to Jerry Knight not less than one week prior to entry of the divorce decree. Jerry was to hold the property as a life estate until one year after the divorce decree became a final judgment, at which point the property was to vest in Marsha Knight as a life estate but subject to forfeiture if she ever sought to modify any aspect of the divorce decree. Upon her death or forfeiture, the property was to be held jointly by the descendants of any child fathered by Jerry Knight after entry of the divorce decree.

  In other words, you didn’t need an advanced degree in property law to see that there were some RAP issues with that deed. For example, one hypothetical that arguably violated the twenty-one-year limit was the one that vested a life estate in Marsha Knight “one year after the divorce decree became a final judgment,” since the divorce decree might never become a final judgment. The divorce decree did become a final judgment, of course, but the quirkiness of the Rule Against Perpetuities, which had been modified in other states to include a wait-and-see provision, remained in full force in Missouri.

  In short, as I said to myself as I closed the Westlaw link on my office computer, Marsha Knight had a problem.

  A big problem.

  Chapter Four

  The Cross Family Law Firm is one of the preeminent divorce firms in St. Louis, and its reception area sets its vibe and target demographic. The magazines fanned out on the coffee tables include Vogue, Ms., and Women’s Health. The framed movie posters feature Erin Brockovich, Catwoman, and Kill Bill: Vol. 2. And then there is the Norma Cross “Wall of Frames,” which features photographs of Norma posing with a variety of powerful women, including Gloria Steinem, Hillary Clinton, Meryl Streep, and Olympic gold medalist Jackie Joyner-Kersee. In short, this was a divorce firm that represented women.

  Norma Cross was on the shortlist of the unhappy wives of most of the rich men in St. Louis. Many of those husbands had discovered—or would soon discover—that Norma was a most painful Cross to bear. Norma Cross was also one of the more loathed members of the family practice bar—a noteworthy distinction in a field large with competition for that title. In representing her worshipful clients, Norma’s arsenal included fierce aggression and brazen dishonesty. One of her longtime opponents told me that he refused to even have a telephone conference with her unless he could record it.

  On the wall near the door was a framed color photograph of the late Adam Fox, Marsha Knight’s lawyer in her divorce. Fox was a handsome man with sandy hair, blue eyes, a cleft chin, and a beguiling smile. The brass plaque read:

  Adam Fox

  In our Hearts and Memories Forever

  Beneath that inscription were the years of his birth and death. I did the math. He’d died at the age of 34.

  “Miss Gold?”

  I looked over to the receptionist. “Yes?”

  “Miss Cross will see you now. Joyce will take you to her.”

  The receptionist gestured toward the inner doorway, where a stern, gray-haired woman in a brown checked pantsuit stood waiting.

  She gave me a sour look. “Follow me.”

  I followed Frau Farbissina down the hallway to the large corner office.

  “Ms. Cross,” she announced, “I have here Rachel Gold.”

  Norma Cross was seated behind a glass-and-chrome desk, jotting notes on a yellow legal pad. The picture windows behind her displayed a panoramic view of the arch and the riverfront.

  She removed her reading glasses, nodded at Joyce, and gave me a cold smile. “Come in.”

  I took the seat facing her desk.

  Norma shifted her focus to her assistant, who was still in the doorway. “That’ll be all, Joyce. Close the door.”

  I heard it close behind me.

  Norma capped her fountain pen, set it on the legal pad, and leaned back in her chair. She steepled her hands under her chin and frowned. “I don’t believe we’ve met.”

  “We haven’t. But I’ve heard a lot about you, Norma.”

  She nodded. “And I you. You have many admirers among our colleagues.”

  Unable to truthfully repay that compliment, I just smiled. “That’s nice.”

  According to the year shown on the framed St. Louis University Law School diploma on the wall, Norma Cross was in her early fifties. Whether it was good plastic surgery or good genes or a prudent combination of the two, she looked healthier and fitter and much younger than her years. She had dark brown hair cut in a wavy bob that framed a face that went well with her reputation: angular features, including prominent cheekbones, a strong nose, dark eyes, thin lips, assertive chin. She was wearing a white silk blouse with a pearl necklace and matching earrings, a navy skirt, cordovan flats, and no wedding ring.

  Twice married and twice divorced, as I recalled. The first husband a state court judge, the second a hedge-fund manager. Both had—according to the news coverage of divorce cases—given Norma Cross plenty of street cred to back up the slogan featured in the full-page ads her law firm ran in the upscale suburban weeklies: “If You Deserve to Get Even, You Better Get Cross.”

  “So what brings you here?” she asked.

  “A former client.”

  She raised her eyebrows, her jaw tightening. “Of mine?”

  “Of your firm.”

  “Who?”

  “Marsha Knight.”

  She frowned. “What about her?”

  “She’s been sued by her ex-husband’s widow.”

  She shrugged. “It happens.”

  “The lawsuit involves a document your firm, either drafted or approved as part of the property settlement.”

  “And?”

  “His widow is seeking to invalidate that document.”

  “How does that concern me?”

  “The document is a real estate deed. It was the heart of the divorce settlement. It’s provided my client with an annual income of nearly half a million dollars plus the apartment where she
lives.”

  “Good for her.”

  “So far. But if the widow wins the lawsuit, that all vanishes. My client would be homeless and destitute.”

  “You still haven’t told me how this is of any concern to me.”

  “The deed, that’s how it’s of concern to you. There are major flaws in that document—flaws that a diligent lawyer for Mrs. Knight should have caught and should have corrected.”

  “So you say. And who was that lawyer?”

  “Adam Fox.”

  “Who’s no longer here to defend himself.” Her smile morphed into a sneer. “How convenient for you.”

  “See for yourself.” I opened my briefcase, removed a copy of the deed, and slid it across the desk. “Read it.”

  She stared at me for a moment, eyes cold, and then picked up the document.

  I leaned back in my chair and waited.

  The wall to the left of the picture windows featured framed college and law school diplomas and various certificates of membership in bar and family law organizations. The other wall featured framed awards and certificates from that other side of Norma Cross—the one who competes in triathlons, places in bike races, trains in kickboxing, and climbs mountains. If that wall of plaques was meant to convey a message to her clients, then the message was clear: I will kick your husband’s attorney’s butt.

  “Okay.” She slid the copy of the deed back across the desk. “So? What’s the problem?”

  “The lawsuit seeks to invalidate the grant to Marsha Knight.”

  “On what grounds?”

  “They claim it violates the Rule Against Perpetuities.”

  She snorted. “Are you kidding me?”

  I shook my head.

  “The Rule Against Perpetuities?” She shook her head. “That’s a good one.”

  “Not if my client loses.”

  “Well, then, you better make sure she doesn’t lose. I wish her good luck.”

  “I didn’t come here for encouragement, Norma. If she loses, you lose.” I removed an envelope from my briefcase. “I decided to deliver this in person instead of by messenger. It’s a notice of a potential claim against your firm. The letter is clear: if Marsha loses her case, we’re coming after your firm. You should send a copy to your malpractice carrier. Nothing personal. I’m sure the claim will be covered.”

  I slid the envelope across the desk. Norma ignored it, her eyes fixed on me.

  I stood. “I’ll be in touch.”

  As I reached the door, she said, “You better man up, little girl. Grow some balls and figure out how win your case. Because if you lose and you’re stupid enough to come after me, I will destroy you and your spoiled cunt of a client.”

  I looked back as I opened the door. She was glaring at me, her face red.

  “Don’t be a fool, Norma. Notify your malpractice carrier.”

  As I started down the hall toward the reception area, she called out, “Fuck you, bitch.”

  I paused a moment, shook my head, and continued down the hall.

  ***

  “Grow some balls, eh?”

  I nodded.

  We were back in my office.

  Jacki Brand smiled. “I’m thinking you could use co-counsel in this case. Sounds like Norma might need a good bitch slap from someone who actually cut off her own balls.”

  I had to smile.

  Back when we first met, Jacki Brand was a big, beefy Granite City steelworker named Jack Brand who’d quit his day job to pursue his two dreams: to become a lawyer and to become a woman. I hired him/her as my legal assistant at the front end of those pursuits, back when he had just started attending law classes and taking hormone shots and needed my help in picking out appropriate dresses and shoes and a wig. The week after Jacki received her law school diploma, she underwent the surgical procedure to lop off the last dangling evidence of her original gender. When she passed the bar exam, I changed my firm’s name to Rachel Gold & Associates, Attorneys at Law. Three years ago, I made her my law partner. Unaware of my plan, she had left for court that morning from the offices of Rachel Gold & Associates. When she returned, the new sign read Gold & Brand, Attorneys at Law. You haven’t experienced joy and gratitude until you’ve been swept off your feet in a bear hug by your blubbering six-foot three-inch, two-hundred-fifty-pound high-heeled partner.

  “If Norma’s smart,” I said, “she’ll notify her malpractice carrier once she cools down.”

  “She doesn’t sound like the type that cools down.”

  I shook my head. “It’s a weird situation.”

  “You think Marsha’s case is a loser?”

  I shrugged. “It’ll be a challenge. That real estate deed is a mess.”

  “But the judge did approve it.”

  “Actually, he didn’t. The deed was kept separate from the divorce decree. The decree had provisions for their daughter—the one in law school now—and a temporary alimony arrangement for Marsha: twenty-five thousand dollars a month for six months. But the remainder of her alimony and the property settlement were kept separate from the decree.”

  “Why?”

  “Marsha said there was some sort of real estate tax or zoning issue that had to be cleared up. She didn’t understand, but her lawyer told her it was just routine, that it would all be fine.”

  “And now her lawyer is dead.”

  “As is her ex-husband.”

  “What about his lawyer?”

  “He’s still alive.”

  “Who is he?”

  “Irving Sliman.”

  Jacki’s eyes widened. “You’ve got to be kidding. Irving Slimeball?”

  “You know him?”

  “I had him in a divorce case once. He’s a creepy old guy. Must be at least seventy. Is he representing the widow, too?”

  “No. I think he’s retired. She has her own lawyer. Actually from my old law firm.”

  “Abbott & Windsor?”

  I nodded. “A partner in their St. Louis office. Tom Sterling.”

  “Irving Sliman.” Jacki shook her head. “Well, I’m more than happy to bitch slap Norma for you, but you got the Slimeball all to yourself.

  Chapter Five

  It happened just after the five-hour point. To be precise, at 3:13 p.m., according to the digital clock on the video recording. We had started the deposition at nine that morning, taken an hour break for lunch, and were a little over two hours into the afternoon portion. It occurred just after I’d shifted into my final line of questioning.

  Up until then, Danielle Knight—Jerry Knight’s widow, Marsha Knight’s adversary—had handled herself well. Surprisingly well, considering certain assumptions I’d made before meeting her that morning. As part of my deposition preparation, I’d done some searches on Google, where I’d learned that Danielle Purcell had been a waitress at Scape restaurant in the Central West End on the night she met the recently divorced Jerry Knight, who’d been dining there with three business associates. She was twenty-three years old; he was fifty-six. They had married four months later at the Esperanza resort in Cabo San Lucas. The Google search results included a photo of the newlyweds on the beach that someone at the wedding must have posted on Facebook or Instagram or some other social media site. In that photo, the pale, balding groom wore baggy red swim trunks that showcased his ample paunch. The deeply tanned, red-haired bride wore a tiny leopard-print bikini that showcased her enormous boobs.

  That photo had seemed to confirm my assumptions about Danielle Knight—most of which she shattered during the morning portion of her deposition. As I learned, she was the first member of her family to go to college, graduating with a B.A. in accounting from the University of Missouri at St. Louis. At the time she met Jerry Knight, she was working nights to pay for her second degree, a bachelor of science in nursing. Now a registered nurse, Danielle worked
in the Intensive Care Unit at St. Luke’s Hospital. Jerry died of a bone sarcoma two weeks before their fourth anniversary. During their marriage, she’d gotten pregnant twice, and both pregnancies had ended in miscarriages.

  Up until 3:13 p.m., Danielle had maintained the calm, thoughtful, unflappable aura of an ICU nurse. She’d listened carefully to each of my questions, paused, and then provided short and direct answers. Her attorney, Tom Sterling, who usually seemed to be channeling a Clint Eastwood character from a Sergio Leone spaghetti western, had spent most of the deposition smiling and nodding as she answered each question, occasionally glancing over at me with a subtle but smug expression that, if translated into Tom’s Ozark drawl, said, “Y’awl startin’ to catch on here, Missy? Seem to me that client of yours is up shit’s creek without no paddle.”

  The ten or so questions I asked leading up to the one at 3:13 p.m. concerned Danielle’s knowledge of the events culminating in Jerry Knight’s filing of the divorce petition, which, according to Marsha, came as a total shock. Although Tom Sterling made the obligatory “calls for speculation” and “lack of foundation” objections to each question, she was allowed to answer.

  “Did he ever talk to you about his decision to file that petition?”

  “Occasionally.”

  “And did he disclose to you that at that time he was carrying on a sexual affair with his secretary?”

  Her expression visibly stiffened. “I understand that he had a relationship with another woman at the time.”

  “And did he tell you that he used to meet his secretary in an apartment in the same building that’s at issue here, an apartment that he kept secret from his wife?”

  Danielle stared at me, her face coloring.

  “Objection, counselor. Irrelevant.”