As he went into rehearsals, the Wilkes-Barre Record reported good news: ‘the friends of C. D. Foster will be pleased to learn that he is improving.’ Notwithstanding this cheerful bulletin, the newly wedded Mrs Bayfield hastened home.
6: LEGATEE
‘I was with my father that day all morning. Went to the dentist at noon and was with him again during the afternoon.’ The woman known above all for the unique character of her voice is, at least in the documentary records, silent for the first forty years of her life. Then on 11 December 1909 Florence Foster Jenkins entered the witness stand in the Orphans’ Court in Wilkes-Barre and spoke. Her first words located her selflessly at her father’s side, a post she abandoned only to have her teeth checked. But how on earth did Florence fetch up in court just over two months after her father’s death?
Charles Dorrance Foster died on Wednesday 29 September, aged seventy-two, having suffered from kidney disease for much of the year. An operation failed to halt his decline, as did the trip to Cuba and Florida, and a final sojourn in the clean air of the Pennsylvania hills. He returned home for the final three weeks of his life, where he was joined for the last two by his daughter. On 30 September an attorney in court suggested a minute be made of the passing of a distinguished member of the Luzerne Bar. The minute might not have been made if the court knew what was to happen next.
The funeral took place in St Stephen’s church on 1 October, after which Foster’s body was laid to rest in the family mausoleum he had built in the Hollenback cemetery on the outskirts of Wilkes-Barre. His remains joined those of his mother, younger daughter and half-sister. It was a fraught day for the family of the deceased. Mrs Foster was so upset she said she wasn’t sure she could attend the funeral. Florence was to be found upstairs, desperately weeping because she believed her father had cut her out of his will. Foster’s considerable personal property, real estate and life insurance promised to be a big fortune to miss out on. That night she stayed at the house of a friend of hers called Miss Black.
On 2 October a party of at least ten squeezed into the office next door to the Foster home for the opening of the safe in which the last will and testament had been locked. His widow was among them. So too was his attorney, John McGahren, who was also his partner and friend of many years. Florence was absent, but eight of Foster’s Bulford relatives – the descendants of Foster’s older half-brother – turned up in hopeful profusion. McGahren opened the outer door of the safe but the key to an inner door which he expected to be there had gone. Two locksmiths were called. Even after the inner door had been drilled open, the shelf on which the will had last been placed was found to be empty. The search continued the next day and again ended in failure.
McGahren’s astonishment was soon shared by readers of the Philadelphia Inquirer, who were told that charities stood to lose $50,000 unless the will was found. The potential for a swift resolution loomed when McGahren revealed that he had kept a record of the details of Foster’s last wishes. These he submitted to the Deputy Register of Wills of Luzerne County, Peter J. McCormick, in the form of an official memorandum. As presented by McGahren, there was a will drawn up by him in 1903, copied from a previous will made in 1898. It made provision for the payment of various debts and small honorary bequests including $1,000 to endow a memorial window in St Stephen’s Episcopalian church for Florence’s sister Lilly. There was also an annuity for Foster’s older half-sister Olive. But it made over the bulk of the testator’s fortune to his widow and daughter. Considerable influence was left in their hands. Foster’s investments were to remain unchanged except in case of urgent necessity, ‘and then only,’ he stipulated, ‘upon approval of my wife and daughter or the survivor in writing.’ Florence and her mother also had to give permission for the sale of any of Foster’s real estate or land, of which there was a considerable amount in and around Wilkes-Barre, and there were investments available to provide them with a ‘suitable, becoming home’ for life, either living together or apart in Wilkes-Barre or elsewhere. The will, being originally written when Florence was thirty, then copied when she was thirty-five, allowed for the possibility that she may yet have children. The only clause that acknowledged the Bulfords, although not by name, stipulated who would benefit if Foster’s wife and daughter both died without issue. In that case three-quarters of his property and estate would ‘become vested in my next of kin then living, share and share alike those of the half blood taking equally with those of the whole blood when of the same degree’. McGahren was bequeathed Foster’s law library and office furniture.
But this was not the only document submitted by McGahren. His memorandum also included a codicil, created on 30 January 1909 by Foster himself, which he asked two members of the Westmoreland Club in South Franklin Street to sign as witnesses. It set aside small sums of money to ‘persons having been very kind to me in sickness’, including two nurses, and $1,000 to a Miss May Smith. It also introduced for the first time a bequest to William Bulford. Bulford was the eldest grandson of Foster’s half-brother and had been farming the family land – quantified here as 321 acres – as a paying tenant. He was now bequeathed ownership of the land for the duration of his lifetime, subject to an annual payment of $300 each to Foster’s widow and his daughter. The farms – there were two of them – would pass to Bulford’s offspring if he had any. If he died without issue, the farms would go to the United Charities of Wilkes-Barre. The proviso was that he – or the United Charities – must continue to pay the $300 a year each to Florence and her mother for the remainder of their lives.
These two documents were both missing from the safe. A few days after Foster’s death, the safe was searched again and another document was found, although not on the shelf where McGahren originally placed it. It was this single sheet of paper, containing a second codicil, which would prove most contentious.
On 16 September, McGahren told the court, Foster gave him the keys to the box in his office in which the 1903 will and the codicil of 30 January were kept, with instructions to examine them and establish that the codicil he had personally drawn up was legally acceptable. The following day Foster asked McGahren to add a second codicil. It was executed on 21 September; the only other witness was Foster’s male nurse.
In it Foster made substantial provision for three beneficiaries, diverting huge lump sums away from the inheritance apportioned to his wife and daughter. He gave $5,000 to the Wyoming Historical and Geological Society, $10,000 to St Stephen’s, and $20,000 to William Bulford in trust to distribute among the other heirs of Foster’s mother by her first marriage, to be paid five years from the date of Foster’s decease. The size of the sum reflected the abundance of those heirs. Charles D. Foster’s half-sister and half-brother had both died more than a decade earlier, and the former had no children, while another half-brother went west and lost contact with his family. But John Jacob Bulford had three children who survived into adulthood. Between them the three proceeded to breed innumerably. It was a vast clan of potential beneficiaries.
This initial hearing exposed the distrust between the widow and the attorney. There had been an atmosphere of tension and suspicion in the household as Foster dwindled towards death. Mrs Foster frequently asked McGahren if she could see the will. As a precaution he took the key to the safe box away with him. Appointed as her attorney, John M. Garman argued in court that Mrs Foster and her daughter were ‘the natural and legal heirs of the state’, and that the memorandum of the will couldn’t be trusted because McGahren was ‘personally interested’. McGahren was aggressively questioned for two hours. The two Luzerne attorneys had been sparring in court for years but this new dynamic, in which one cross-examined the other, helped shorten the fuse of both. Garman’s plan was to cast doubt over McGahren’s memorandum and, in the absence of the stolen will, have the decedent declared intestate. McGahren explained the circumstances of the 1903 will, drawn up when Foster was ill following the family trip to California and copied from a will made in 1898. Garman po
inted out the oddity of the provision made for Foster’s half-sister, who had been interred in the family mausoleum five years earlier. The district attorney and the county detective duly paid a visit to the mausoleum and reported back to the court that she did indeed die in 1898.
By 9 October the Wilkes-Barre Times was referring to ‘the now famous Foster will’. Picking up the story as far away as Virginia, the Freelance in Fredericksburg added that Foster was survived by his wife and a daughter, ‘the wife of Dr. Frank Thornton Jenkins of Philadelphia’. It wildly over-estimated the size of the estate at around $1,500,000. The paper’s interest was pricked because the Jenkins family were from Virginia, and one of its scions might be expected to inherit.
It wasn’t until the second week of December that all parties were back in court for a hearing to determine whether the contents of the memorandum should stand. After William Bulford petitioned for the will and codicils to be probated, on 10 December Mrs Foster withdrew as a respondent in the will contest, declaring that whatever the outcome she would be of independent means.
On the same day Florence filed an answer to the court that her father was of unsound mind when the second codicil was signed. She also made the sensational claim that there was a conspiracy between McGahren, Bulford and others to procure Foster’s signature when, she argued, he was by then too feeble-minded to be aware of the consequences of his actions.
The court proceeded to test the veracity of this claim. First to be questioned was the widow. Mrs Foster painted herself as innocent of all knowledge of an outstanding will, and unable to persuade McGahren to enlighten her of its contents or whereabouts in the days before her husband’s death. ‘Whenever he got sick he would make wills,’ she said, ‘but destroyed them when he got better.’ When she asked her husband about a will he replied, ‘I destroyed all wills, and I don’t want to leave any will.’ She claimed to have no access to the safe. While he was still alive she conceded that she did try to gain possession of the key from McGahren, but that he was uncooperative and even sent her on a false trail, only to reveal that he would not surrender it without her husband’s permission.
After the friendly line of questioning from Garman came a hostile cross-examination from ex-judge Wheaton, representing the Bulfords. Casting around for a motive for stealing the will, Wheaton attempted to extract from her an admission that relations with her husband were ‘not pleasant’. He’d heard that she refused to cover him with enough bedding when he was ailing. This she dismissed to ‘some misunderstanding with the nurse’.
‘Did you persist in reading the Bible to him when he was sick, after him asking you to stop?’ asked Wheaton.
‘No, sir,’ she replied. ‘He wanted me to read the Bible to him and took comfort out of it.’
‘Did not he protest, and did not your daughter Florence try and get the Bible from you, and was it not torn in the squabble over it?’ Mrs Foster’s answer was evasive.
When it was Florence’s turn to be questioned by Wheaton, she knew even less than her mother about the will or either codicil, had never seen such a document nor known it to be in her father’s possession. She was perfectly ignorant of all arrangements to do with the office safe, and denied having taken or destroyed any such document, and she wasn’t there when the safe was opened. Wheaton asked Florence if she argued with her mother, if her father had had to ‘stand between her and her mother a great many times’. She denied it, though she allowed that her parents had been known to have ‘spats’ and that, yes, she had tried to prevent her mother reading the Bible to her father and had removed the book.
To counteract this unedifying vignette of the squabbling Fosters defacing a copy of the Bible, Garman now attempted to prove that Foster could not possibly have been of sound mind when he signed the second codicil, and that Bulford and McGahren had conspired to induce him to leave $20,000 to the Bulford clan. As Florence explained, she was there all day apart from her midday trip to the dentist, and testified that her father was drowsy and not roused even when McGahren strode in talking ‘in a loud and boisterous manner’. It was ‘as if he was addressing a jury’, she recalled. She told the court her father had already proved that day that he was of insufficiently sound mind to sign a legal document. He ‘wanted a hammock with his name on it,’ she said; ‘said he wanted it to fly in it’. Florence was asked if she had seen her father signing cheques on 21 September, the day on which he signed the second codicil. ‘He tried to that morning,’ she replied, ‘but was not able.’ When confronted with the fact that some cheques signed by him that day had indeed gone through the bank, she replied, ‘I don’t know about that.’ (Her mother confirmed that when a woman visited from the drugstore seeking payment, she had raised him up in bed and held the pencil for him to sign. ‘That was all he was able to do.’ She added that he had spent the last few days of his life ‘dazed, as if under the influence of powerful drugs’.)
Other witnesses were called who corroborated the story told by Florence and her mother. A man who wanted to transact some business found Foster’s mind unclear. Another was not recognised by him. Miss Black, with whom Florence stayed after the funeral, visited on 17 September and found his mind ‘clouded’. There was also disagreement about when the codicil was signed: McGahren claimed it was between ten and eleven in the morning, another witness at midday (when Florence was at the dentist).
In court one last tasty morsel relating to Florence was adduced when Miss May Smith, an extremely devout fifty-year-old spinster, was questioned. As a beneficiary of the first codicil to the tune of $1,000, she was grilled by Garman about the propriety of her relations with Foster on a recent visit to Atlantic City.
‘Were you and Mr Foster very good friends?’
‘Yes, sir, we were.’
‘You went on trips with him?’
‘Yes, but I paid my own bills, and Mrs Foster was with us.’
‘Didn’t you want to go to Atlantic City with Mr Foster and leave Mrs Foster behind?’
Miss Smith hotly denied the imputation.
‘Didn’t Mrs Jenkins catch you kissing Mr Foster?’
‘It’s a lie!’
‘Mrs Jenkins would not go to Cuba with her parents because you were going along?’
‘I don’t know about that.’
‘She would not sit at the same table with her parents at Atlantic City because you were at the table?’
‘I don’t know.’
‘You are the Miss Smith mentioned in his alleged will for $1,000?’
‘I may be.’
Florence seemed to be adept at making enemies in Wilkes-Barre. Garman asked another witness if McGahren ‘did not say to Mrs Jenkins that before he was through with her he would make her “crawl on her knees” before him’. An objection was sustained.
Other details which pointed towards a conspiracy were the frequent visits of William Bulford to McGahren’s office. McGahren, Bulford and his wife were among those called to the witness stand to testify that there was no conspiracy and that Foster was of sound mind when he signed the second codicil.
The entire case was reported with relish by the Wilkes-Barre newspapers, right up to the explosive final address from Attorney Garman summarising the case. He took the view that the alleged will’s beneficiaries were ‘malefactors, criminals, thieves, crows, cormorants, turkey buzzards, carrion, eaters, money grabbers, greedy for money, conspirators, knaves, fools, stupid and careless lawyers, crooks and vile schemers’. He talked for the best part of two hours. ‘At times,’ reported the Wilkes-Barre Times Leader, ‘he was quite vindictive.’
It took six months for the Deputy Register of Wills McCormick to come to a judgment. A week before he pronounced a verdict, Pennsylvania newspapers were full of news of a major industrial accident which put the case in the shade. An explosion in a quarry in West Coplay killed eight men, only a few miles from the Moravian Seminary Florence had attended in Bethlehem. The foreman left ten children; the rest of the dead were foreigners.
; There was a widespread expectation that, all the evidence having been tested, a decision would be made. ‘There are perplexing questions of fact confronting us in this great controversy,’ McCormick concluded on 10 June 1910, ‘in which is involved, among other things, large bequests to charitable institutions and partial disinheriting by a father of his only child.’ He could not disguise his bafflement at a situation in which the only living witness for the drafting of a missing will was also both interested as a legatee and its sole custodian. At the end of a long equivocation, McCormick admitted defeat: he could not determine whose claim had greater merit, the proponents who argued for the 1903 will and the two codicils, or the contestants who said Foster died intestate. He could do no more than ask others to decide for him: the case would have to go before a jury. The case of William Bulford v Florence Jenkins was fixed for October.
It was a dreadful mess, all of it the legacy of a prominent barrister. How did it happen? When his widow said that Charles D. Foster didn’t want to leave a will, it seems likely that he was giving voice to an anxiety over split loyalties. He felt responsible for his mother’s descendants by her first marriage, and perhaps carried a cargo of guilt having inherited his father’s farm then rented it out to a relative. And yet he also had a wife and a daughter to provide for. The will, drawn up when he was ill after the jaunt to California, ensured they would always be comfortably off. The first codicil was added just over five years later when he had again been ill. Hence the small bequests to his carers. He no longer expected his now forty-year-old daughter to have children, and therefore he needed to arrange for the disposal of the land after her death. Hence the bequest to William Bulford. In a gesture that suggested he wasn’t entirely depriving them of an interest in the farm, he added the proviso that Bulford pay his widow and daughter $300 each per annum.
The speculation centres on the second codicil. Was there a conspiracy? McGahren’s contribution can be viewed in either of two ways. On the one hand he made an honest effort to ensure that, after the theft of the will, the wishes of the decedent were honoured. On the other, he and William Bulford drew up the second codicil between them and extracted a signature from a practically comatose man at death’s door while his wife and daughter were both out, and got the nurse (who afterwards was nowhere to be found) to sign as a witness.
Florence Foster Jenkins Page 9