Ben and Sam found themselves in old age constantly contending with family strife in their practices of law and medicine. Time after time they watched families disintegrate into discord, indeed mutual hate. They often were on hand when a patriarch or matriarch died, only to witness strife break out among the children with unbelievable ferocity.
“Why,” one or the other of the curmudgeons would ask the other after a family eruption, often happening soon after a funeral. Today they were alone in Ben’s office at 5 PM, Joanne having left for a hair appointment after making sure they had a bowl of fresh ice and club soda and enough of The Macallan. As Sam put ice in their plastic mugs and Ben uncapped a split of club soda, Ben said, “There will be hell to pay.”
Sam nodded agreement. Sam had discovered the reason for the coming eruption earlier today. It happened like this.
Fred Cubbage, owner of Mossy Swamp Plantation, and an old friend, client and patient of the curmudgeons, was in hospice at home, slipping in and out of consciousness. Sam was overseeing his care (three caregivers were serving eight-hour shifts, and a hospice nurse came each morning, assuring that the morphine drip functioned). Sam had met in turn today with Fred’s sons, Bill and George, to tell them of their father’s fast approaching death. What they told him came as a major surprise.
Bill came to Sam’s office at nine. He took Sam’s news calmly at first, then suddenly shifted to alarm after giving Sam news that shocked Sam.
Said Bill, “There will be hell to pay when George hears how Pop is leaving Mossy Swamp all to me. Don’t know how he is making up for that to George.”
But the real shock to Sam came when George arrived at noon. He too at first took Sam’s news about his father calmly, but then told Sam exactly what Bill had, but with himself as receiver of Mossy Swamp. Like Bill, his alarm was fear of how his brother would take the news he was inheriting none of the thing both sons valued above all else on earth.
Sam knew at once that one son was mistaken, then quickly suspected both were. As soon as George left, Sam called Ben and told him what the sons had said. At first silence, then Ben’s trademark chuckle. “The old goat….I wonder, did he lose his nerve, or just decide to get revenge on both for all the trouble they have caused him. Come over at five o’clock and I’ll tell you what’s really going to happen with Mossy Swamp Plantation.”
As soon as each curmudgeon had three fingers of single malt, two cubes of ice and a splash of soda in hand, Ben read from Fred’s trust agreement.
“My trustees shall in my sons’ presence determine by lot which son gets Mossy Swamp LLC. The other son shall receive liquid assets of equal value selected by my trustees. Final estate tax values shall control.”
“Who are the trustees?” Sam asked.
“You and me,” Ben said.
“Fred said we would be paying for all those years of bream fishing by dealing with his sons. I am not sure whether he couldn’t bring himself to tell them the truth or had in mind teaching them a lesson. What could have been fairer?”
“Objectively, nothing could be fairer, but the boys won’t see it that way. Each will feel betrayed, but you and I know it is eminently fair to both and proves he loved them equally. “
“If they come in time to realize it is fair I will be proud of them,” Ben said.
“I’ll bet they don’t,” Sam said.
Fred died that night. His ashes were buried on Mossy Swamp two days later, and the day after that the sons came to Ben’s office for the will and trust reading. Each son was dreading dealing with his brother when it became known that Mossy Swamp would be left just to him. The shock on both sons’ faces when they learned the truth of what their father had provided for the plantation made it hard for Ben and Sam not to laugh. The sons were silent for fully five minutes, and so were Ben and Sam. Then Ben broke the silence. “Any questions?”
“When do you propose to do it?”
“As soon as you like. The plantation will have to be appraised and the rest of the estate’s value computed so you know what the estate tax will be and what each of you gets, take about three weeks.” A date to reconvene was set. The sons rose to leave. Then Ben said, “By the way, if you are willing to put a conservation easement on the plantation you can save estate tax.” Then he explained. He closed with, “If you split Mossy Swamp between you there would be plenty for each of you and you could afford it better. That is what your father hoped you would decide to do, but he knew you were both dead set against it.”
Ben and Sam retired to the library-conference room for a drink. “What do you think they will do?” Sam asked.
“No telling,” Ben said. “But it will be an interesting experiment in human nature.”
* * * * *
When the appraisal of Mossy Swamp Plantation came in and Fred’s other assets were tallied, it was clear the son who got Mossy Swamp would be very land poor. So when a month after Fred’s death the four met again reality had set in and the sons had questions for Ben.
“If we were going to divide Mossy Swamp how could we do it? Bill asked. Ben produced an addendum to Fred’s trust agreement and read:
“If my sons decide to divide the plantation my Trustees shall in their presence determine by lot which of them shall draw a division line. He shall have two weeks to draw it. Once it is drawn the other son shall have a week to chose which parcel he wants and the son who drew the line shall have the other.”
Silence resounded for five minutes. Then Ben said, “Of course that is intended to make you two work out between you how you want to divide it. And if the two parts are not of equal value you can agree to equalize with liquid assets.”
Ben also gave them the estate tax number and an estimate of what they could save by imposing a conservation easement that would prohibit development of the plantation. The son’s faces were somber but Sam could see their brains calculating — both were good business men.
Ben closed with this, “Mossy Swamp is ten thousand acres. Half that will give each of you all the quail land, duck marsh, turkey woods and dove fields you will have time to hunt. There are two houses on separated parcels each good enough to be a Big House. The appraiser we used is a genius in figuring out this sort of division, taking account of your differing preferences. Sit down with him together — but without your wives — and see what you can agree on.”
A month later a division had been agreed as had the terms of a conservation easement, to be granted to Tall Timbers. Best of all, Bill and George had restored cordial brotherly relations and buried the hatched on the petty feuds that had plagued their relationship for decades, the causes of which from childhood neither could remember.
(This fictional story is dedicated to Norman Long, MAI, Richmond Va., and Bill Young, CPA, Petersburg, Va., masters at figuring out fair divisions).