THE LAST WILL, TESTAMENT, AND SHOES OF THADDEUS ATHERTON, SR.
“The shoes, sir.”
The shoes, indeed. For they were never my shoes to Brooks, nor were they “your father’s shoes,” but always “the shoes, sir”—even though they were in fact my shoes (being that I not only owned them but wore them) and they had previously been owned and worn by my father, Thaddeus Atherton, Sr., before I’d inherited them.
Yes, a pair of shoes is an odd, unlikely thing to inherit. But my father had had a sense of humor, which is why the relevant bequest in his last will and testament read, “To my son, Thaddeus Atherton, Jr., I leave my shoes, that he might step into them, and fill them, and in doing so control the entirety of my personal fortune.” I was my father’s sole heir (pun unavoidable), being an only child whose mother had predeceased his father. At 36 years of age, I came into no small fortune indeed: several tens of millions of dollars. And one pair of shoes.
Those damned shoes.
Oh, but that’s not fair. The shoes aren’t to blame. Nor, for that matter, is my father, who was just trying to inject a little levity into what he had to have known was going to be a keenly difficult event for me. He couldn’t have anticipated that Brooks, my valet, would within three years of his (my father’s) passing sue for my inheritance, claiming that in that time (the aforementioned three years) the shoes—not merely the emblem of the inheritance but the sine qua non of it—had—slowly but surely, as we say—become his (Brooks’s), and with my express complicity, no less.
That morning Brooks was suggesting to me that the shoes needed some further repair, as far as I was (un)concerned only the latest in a series of periodic component replacements that kept them intact—but which Brooks knew was the reparation that would remove the last pieces that had been part of them (the shoes) when my father had bequeathed them to me. Of course Brooks knew. He’d been planning his... well, shoe d’etat, if you will, for three years! And I readily admit that his notion was really quite brilliant.
“Your Honor,” Brooks’s lawyer argued, “ladies and gentlemen of the jury... none of the pertinent evidence is in dispute. The testimony—including admissions made here in open court by Mr. Atherton himself—reveals without any doubt the following:
“Thaddeus Atherton, Senior, was rather well-off at the time of his death. When he did die, his estate was transferred, by virtue of his will, to his son, the defendant, Thaddeus Atherton, Junior—‘Tad’—but not because the Senior Atherton had simply willed that it would be. As an expert on probate law has explained to you, had the father died intestate—that is, without a will—the entirety of his estate would have, by operation of law, been inherited by his son. So there was in fact no reason for Thaddeus Atherton, Senior, to make a will that left everything to Tad... if that’s all the will was supposed to do. And in fact that’s not what the will was intended to do. And that’s not what the will itself provides.
“To the contrary, the will bequeathed to Tad the estate of his father along with the father’s shoes. It might seem at first that the decedent was simply being comical, but a second look is necessary. For the elder Atherton literally left to his son his shoes—his favorite shoes, bespoke shoes, shoes that had been constructed specifically for him, the father, at no small expense, shoes that the father had worn almost every day of his final years. And only with the taking—and putting on—of those shoes did Tad Atherton gain the lawful ownership of his father’s estate.
“But then, with the gradual replacement of each component of those shoes, culminating inevitably in the complete lack of identity of the shoes that Tad Atherton wears today and the shoes left to him by his father, Tad Atherton’s right to his father’s estate was eliminated. Tad Atherton is no longer his father’s heir. Rather, the money goes with the shoes, and those shoes now belong to Martin Brooks.
“And there can be no dispute that Mr. Brooks obtained the shoes of Thaddeus Atherton, Senior, from Tad Atherton lawfully, by means of no deception. Tad Atherton has admitted as much to you: He consented to the replacement, over time—the past three years—of each component of those shoes. First the laces, naturally... and then the heels and soles—inner and outer—but also, in turn, each part of the rest of the shoes—what you’ve heard the expert cobbler in his testimony identify as the...” (here Brooks’s lawyer consulted his notes, but furtively, before continuing) “...the quarters, the counters, the bindings, the linings, the welts, the tongues and throats, the insteps, the flaps, the vamps, and indeed the very wing tips. No part of the shoes that Tad Atherton wears now was part of the shoes that Thaddeus Atherton left to his son.
“But what of those parts? Had each part been discarded when removed, to be replaced—with Tad Atherton’s express consent... indeed, some at his specific request or insistence—had each or any removed component been discarded, then we would not be here today. But none was discarded. No piece of either shoe was removed but not saved. For my client, Martin Brooks, a man of what you might call thrift, or economy, asked the family shoemaker—the same craftsman who had designed and constructed the senior Thaddeus Atherton’s beloved shoes in the first place—not to scrap those pieces of leather or rubber or other material once removed, but instead to retain them. To reserve them. To keep them aside for him, Mr. Brooks.
“There can be no doubt, of course, that Tad Atherton relinquished his ownership of each piece of his father’s shoes when he asked—or had his valet, Mr. Brooks, ask—that it be replaced. For what did Tad Atherton need with this old piece or that old piece of his father’s shoes?
“But he did need them... if he was to retain ownership of his father’s estate. Because—and we must never lose sight of this—only with the shoes comes the money.
“There came a day, however, when Martin Brooks realized that he had, at Tad Atherton’s request, with Tad Atherton’s full knowledge and permission, taken the shoes of the father to Thaddeus Atherton’s shoemaker so many times, for so many different reasons, that nothing of the original shoes—that is, the shoes as stepped into by young Tad—still remained in the shoes that Tad Atherton now wore. And on that day—or, rather, on his next day off—Martin Brooks visited Thaddeus Atherton’s shoemaker and asked that he construct—reconstruct—a pair of shoes—the pair of shoes—from the parts salvaged and held aside, according to the original design. And then, when the work was completed, and Martin Brooks took the new shoes that were, really, the old shoes... well, then Martin Brooks, according to the terms of the last will and testament of Thaddeus Atherton, Senior, became entitled to the late millionaire’s fortune, or as much of it as remained after three years.
“And those are the simple facts.”
Suffice it to say that my lawyers argued to the jury more or less the exact opposite of what Brooks’s lawyer had said. That is, the facts were what the facts were—and they were just as Brooks’s lawyer had recounted them from the testimony given (by me, by Brooks, and by my late father’s bespoke shoemaker)—but the inescapable conclusion was rather a different thing entirely.
The judge charged the jurors, reminding them of the metes and bounds of their responsibility, then sending them out of the courtroom to discharge that responsibility, and after four days of deliberation—in which time the jurors asked for several different portions of the transcribed testimony to be provided to them for their review—the foreman informed the judge, by way of note given to the court officer, that the jury was hopelessly deadlocked.
So the judge released and dismissed the jurors, with the thanks of the court, and presented to Brooks’s lawyer a choice: The judge could declare a mistrial (which would have meant starting over from the very beginning with a new jury), or the parties could agree to let the judge himself serve as finder of fact (as well as authority on the applicable law). As the plaintiff, Brooks had the prerogative to choose. After consultation with his client, Brooks’s lawyer respectfully asked the judge decide the case. After consultation with me, my lawyers raised no objection.
“Very well,” His Honor said. “I will issue my ruling in the morning.”
In the morning, the judge ruled as follows:
“The last will and testament of the late Thaddeus Atherton, Senior, plainly provides that his estate was to be inherited by he who stepped into his shoes—literally. Thaddeus Atherton bequeathed those shoes to his son, the defendant Thaddeus Atherton, Junior, known as Tad. The father had only one son, indeed, but he had more than one heir, inasmuch as the alienation, in parts, over time, of his father’s shoes by Tad Atherton culminated in his alienation of his bequest, his father’s fortune. Although Mr. Atherton—Tad—did not intend to give away his inheritance, it can not be said that he did not willingly remove and replace from his father’s shoes pieces until it could no longer be said that he wore the same shoes that he had donned at his father’s request, upon his father’s demise.
“Perhaps a different conclusion might have been appropriate had the replaced parts not been reassembled, but they were, and in the presence of such reconstituted shoes—composed of the very same elements of which the late Thaddeus Atherton’s last shoes had been comprised at the time of his death—there can be no argument that the shoes that Tad Atherton wears today have any identity with those he wore three years ago.
“Accordingly, Tad Atherton is no longer entitled to possess that much of his father’s estate as is in his possession currently.
“However,” the jurist concluded, “the remainder of the estate of Thaddeus Atherton, Senior, does not belong to the plaintiff Martin Brooks. For I have searched the record of the trial of this matter, and I have found no evidence whatsoever to indicate, or even to suggest, that Mr. Brooks gave to the shoemaker who reconstructed the shoes of Thaddeus Atherton any consideration for the shoes that Mr. Brooks took from him and now wears. While I do find that Tad Atherton relinquished his right to possession of each component of his father’s shoes, in turn, over time, notwithstanding that Mr. Brooks brought the shoes each time a repair was required to the shoemaker and each time requested that the removed part or parts be reserved, Mr. Brooks never had legal ownership of any such part or parts.
“Rather, the shoemaker did. And he still does.
“Therefore, it is my ruling that the entirety of the estate of Thaddeus Atherton, Senior, that exists currently in the possession of Thaddeus Atherton, Junior, is legally the property of non-party witness Geoffrey Shumacher, and judgment is to be entered to that effect.”
“Moreover, the shoes currently in the possession of plaintiff Martin Brooks, being constructed of parts removed from the shoes currently in the possession of Thaddeus Atherton, Junior, are also the legal property of Mr. Shumacher.”
And in that way, my father’s shoemaker became a very wealthy man, indeed, and I was left with nothing. Nothing but my shoes, that is. At least I could still claim ownership of the shoes on my feet. I took some small consolation from knowing that Brooks, my disloyal valet, couldn't even do that.