“Send me dead flowers to my wedding, and I won’t forget to put roses on your grave”

by:  Peter J. Gallagher (@pjsgallagher)

I don't handle any family law cases, mostly because I do not think I could deal with the emotional issues that are often involved in them. But every now and again a family law decision piques my interest. The recent unpublished Appellate Division decision in Taffaro v. Taffaro was one of those cases. In that case, plaintiff was estranged from his half-sister after a dispute over their mother's estate. After the dispute, he began "attaching paper items" to her gravestone, "frequently directed at [his half sister] and referencing the dispute." When some of these items were removed, plaintiff assumed his half-sister did it, so he pursued criminal charges against her and, when these proved unsuccessful, sued her for conversion, invasion of privacy, intentional infliction of emotional distress, and negligent infliction of emotional distress.

The court dismissed the invasion of privacy and intentional and negligent infliction of emotional distress counts on statute of limitations grounds. Even assuming that defendant took the items from the gravestone, which there was no evidence to support, they were taken more than two years before plaintiff sued and plaintiff's claims were thus untimely. The trial court then held a bench trial on the conversion claim and eventually dismissed it as well, holding that plaintiff had abandoned the items. Plaintiff appealed.

The Appellate Division affirmed. It held that conversion is the "unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another . . . ." But, abandonment, which is the relinquishment of "all right, title, claim and possession" of property "with the intention of not reclaiming it," is a complete defense to conversion. In Taffaro, the Appellate Division held that the "necessary overt act" demonstrating abandonment occurred when plaintiff placed the items at his mother's grave. The Appellate Division held that the "ephemeral nature of the cards and decorative items, which were made of paper and left outside" demonstrated plaintiff's "intent to abandon." And, the Appellate Division noted that the purpose of the items was to harass defendant, not honor the memory of plaintiff's mother. Therefore, for all of these reasons, the court held that plaintiff had abandoned the items and could not maintain a cause of action for conversion.

[Fun little fact about the title of this post, which obviously is a portion of the lyrics from one of my favorite Rolling Stones songs, "Dead Flowers." My friend and I went to see Steve Earle at Tradewinds in 1998 when he was touring in support of his El Corazon album. Great show. But then, for the encore, he came walking out with Bruce Springsteen. Now, in the interest of full disclosure, my friend and I went to the show mostly because we were big Steve Earle fans, but partly because of the chance that Bruce might show up. Lucky for us, he did, and they played a couple of Stones songs, including Dead Flowers. They also played Everybody's Trying To Be My Baby" for Carl Perkins who had died a few days before the show. Anyway, click here for the full audio from the encore.]

Worth The Wait? Midwest Lumber Baron’s Fortune Passes To Heirs 90 Years After His Death

by:  Peter J. Gallagher

Anyone who went through law school remembers the rule against perpetuities, and with very few (entirely twisted) exceptions, most don't remember it fondly.  For the uninitiated, Black's Law Dictionary provides that the Rule Against Perpetuities prohibits "a grant of an estate unless the interest must vest, if at all, no later than 21 years . . . after the death of some person alive when the interest was created."   The rule goes back many centuries, and was intended to prevent landowners from controlling the use and disposition of property from beyond the grave and otherwise tying up property for generation after generation.  (Note:  If, at this point, you have no idea what the rule means or how it would be applied, then you find yourself in the same position I did right before my Property final.)  While some law schools no longer even teach the Rule Against Perpetuities because many states have modified or eliminated it by statute, a recent story from Michigan may cause them to rethink this position.

In a recent article, "Perpetuities Rule Finally Ends $100M Waiting Game For Lumber Baron's Heirs, 92 Years After His Death," the ABA Journal told the story of Wellington Burt, a "cantankerous Michigan lumber baron" whose hand-written will provided that his heirs were not allowed to collect their share of his fortune until 21 years after the death of his youngest grandchild in existence when he died.  Well, sadly for that youngest grandchild, this triggering event finally happened, so Burt's 12 great, great great, and great great great grandchildren, who range in age from 19 to 94 years old, will finally see their respective shares of his fortune some time month.  Incidentally, Mr. Burt died in 1919.


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