# Possession is 9/10ths of the Law **URL:** \ **Category:** Cecil's Columns/Staff Reports\ **Created:** [February 9, 2007, 10:12am UTC](https://boards.straightdope.com/t/possession-is-9-10ths-of-the-law/391478 "2007-02-09T10:12:02Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [February 12, 2007, 4:57pm UTC](https://boards.straightdope.com/t/possession-is-9-10ths-of-the-law/391478/21 "2007-02-12T16:57:30Z")
[QUOTE=Bricker] Shall we now discuss the Slothful Executor and the Fertile Octagenarian? 🙂 [/QUOTE] Let’s not forget the movie _Body Heat_. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [February 12, 2007, 5:16pm UTC](https://boards.straightdope.com/t/possession-is-9-10ths-of-the-law/391478/22 "2007-02-12T17:16:51Z")
Guys, if all you want to do is bring back nightmares of the days of yore, you are doing a very good job!!! 😉 :eek: ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 12, 2007, 10:20pm UTC](https://boards.straightdope.com/t/possession-is-9-10ths-of-the-law/391478/23 "2007-02-12T22:20:55Z")
You know it’s an outstanding and thorough report when the associated thread can only cavil about highly technical side-issues not remotely related to the original subject!! 😃 Excellent report, **G**! > [@](#): > > Let’s not forget the movie Body Heat. Was RAP the problem in Body Heat? I don’t remember the details as well as I might, except for the then smokin’ hot Kathleen Turner, but my recollection was that the new will was invalid for some witnessing problem. If it was a RAP issue, why didn’t the old will remain valid? (Unless the revocation clause in the new will was not dependent on the validity of remaining portions of the new will, I guess). There’s a reason I chose criminal law… Property made my head ache. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [February 12, 2007, 10:54pm UTC](https://boards.straightdope.com/t/possession-is-9-10ths-of-the-law/391478/24 "2007-02-12T22:54:57Z")
[QUOTE=Bricker] You know it’s an outstanding and thorough report when the associated thread can only cavil about highly technical side-issues not remotely related to the original subject!! 😃 Excellent report, **G**! [/QUOTE] Thanks. > [@](#): > > Was RAP the problem in Body Heat? Yes. That’s the only thing I think I learned in the first half of property. My class was taught by a guy who had never practiced and was more skilled as a linguist and Viking scholar. Allow me to illustrate with an example from my past. [insert flashback music and wavy screen distortion here] Prof: Gfactor, you’ve inherited some property from your uncle, and you’ve just learned that someone has been using the property in an adverse, open and hostile fashion for one day short of the statute of limitations. What do you do? G: File a suit for ejectment. P: Today is saturday. G: Ok. Statutes of limitation don’t run on weekends. P: Really? G: Um . . . yeah. I’d have until Monday to file. P: [eyes light up as if he has a brilliant rejoinder] But there’s no way you can get the guy served the same day, is there? G: Well, I probably could, but why does that matter? The statute is tolled once the case is filed. My next deadline is the expiration of the summons, usually about six months from the date the complaint was filed, and I can probably get it renewed a few times or get an order for substituted service if the guy ducks my process server. P: Are you sure? G: Yes. Aren’t you? P: [looks around the room for another victim] Mr. Jones . . . > [@](#): > > I don’t remember the details as well as I might, except for the then smokin’ hot Kathleen Turner, but my recollection was that the new will was invalid for some witnessing problem. If it was a RAP issue, why didn’t the old will remain valid? (Unless the revocation clause in the new will was not dependent on the validity of remaining portions of the new will, I guess). There’s a reason I chose criminal law… Property made my head ache. Right. The thing was, Hurt’s character had been sued for malpractice for screwing up a will based on a RAP problem. That’s why he was selected. So he was approached by Turner to modify her hubby’s will (and kill him). Apparently, he again doesn’t spot the perpetuities problem, which leads the lawyer who drafted the original will to bring this information to the attention of the authorities. . . . There’s more, but I don’t remember what it is. The new will was invalid, or at least that particular part of it was, which again, I’m hazy on the details, too . . . allows Turner to take as a residuary beneficiary, I think. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [February 12, 2007, 10:58pm UTC](https://boards.straightdope.com/t/possession-is-9-10ths-of-the-law/391478/25 "2007-02-12T22:58:05Z")
[QUOTE=Gfactor] No interest is valid unless it must vest with 21 years after some life in being at the time of the creation of the interest. [http://boards.straightdope.com/sdmb/showthread.php?t=243190&highlight=perpetuities](http://boards.straightdope.com/sdmb/showthread.php?t=243190&highlight=perpetuities) _Lucas v. Hamm_, 56 Cal.2d 583 (Cal. 1961) 😃 [/QUOTE] Wow, a clear one-sentence explanation that makes sense even to a layman! Nice! 🆒 Of course, I need to tell you I did a doubletake in reading it because what I saw was: “…some life in being at the time of the creation of the internet.” :o ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [February 12, 2007, 11:59pm UTC](https://boards.straightdope.com/t/possession-is-9-10ths-of-the-law/391478/26 "2007-02-12T23:59:40Z")
[QUOTE=Bricker] If it was a RAP issue, why didn’t the old will remain valid? [/QUOTE] Went looking for a quote from Ned Racine [Hurt]'s confrontation with the big city lawyer who drafted the original will. All I found was this: Forgot to mention that there was another, more significant, problem with the new will: It was forged. The whole point was to implicate Hurt. > [@](#): > > Oscar: Whatcha got for pie today Stella? > Stella: I got cherry, cherry and cherry. > Oscar: Well, what do you recommend? > Stella: I like the cherry. > Oscar: Bring it on. [http://www.imdb.com/title/tt0082089/quotes](http://www.imdb.com/title/tt0082089/quotes) Ah . . . here it is: [Unavailable](http://www.screentalk.biz/moviescripts/Body%20Heat.pdf) (the fun starts at pdf p. 82). This is my favorite: I knew that a probate judge in Miami would spot the mistake right away. That’s all they do all day, they’re expert. So I thought I’d bring it up here to Okeelanta County – since Edmund had the residence here–and see if I could get lucky with a judge who didn’t know estate law quite so well . . . perhaps find one with the same training as Mr. Racine. And the punchline: He died intestate, so as his wife, Matty takes the entire estate. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [February 13, 2007, 12:18am UTC](https://boards.straightdope.com/t/possession-is-9-10ths-of-the-law/391478/27 "2007-02-13T00:18:10Z")
[QUOTE=Polycarp] Wow, a clear one-sentence explanation that makes sense even to a layman! Nice! 🆒 Of course, I need to tell you I did a doubletake in reading it because what I saw was: “…some life in being at the time of the creation of the internet.” :o [/QUOTE] Let’s leave poor Al Gore out of this. 🙂 This kind of reminds me of an old story: > [@](#): > > There’s an old story we all learned as children about a stranger who came to the two teachers of the first century, Hillel and Shammai, with an odd request. “Teach me the Torah while I stand on one foot.” > > First, he came to the sage, Shammai and he makes his request, “Teach me the Torah, Rabbi, as I stand upon one foot.” The Talmud teaches that Shammai picked up a builders rule, a piece of a two by four, and smacks him along side of the head, and the man left him. > > Then he came to Hillel and made the request, “Teach me the Torah as I stand on one foot.” So Hillel taught him: “That which is hateful to you, do not do to your fellow. That is the whole Torah, all the rest is commentary. Zil u’gemar, now, go and learn it.” [http://www.vbs.org/rabbi/rabfeins/onefoot.htm](http://www.vbs.org/rabbi/rabfeins/onefoot.htm) You see, while the whole rule is indeed compressed into that single sentence, the compression robs it of all nuance. And you see, like the Torah, it’s all in the commentary. [Rule against perpetuities - Wikipedia](http://en.wikipedia.org/wiki/Rule_against_perpetuities#Problems_with_the_rule) Here’s a quiz: [Error Page - Santa Clara University](http://www.scu.edu/law/FacWebPage/Carbone/RAP/start.htm) ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [February 13, 2007, 12:59am UTC](https://boards.straightdope.com/t/possession-is-9-10ths-of-the-law/391478/28 "2007-02-13T00:59:22Z")
What a tricky quiz! Question: Does the possibility that a male may have posthumous children, i.e., ones conceived before his death but not born until afterwards, violate the Rule? E.g., if John marries Mary, and leaves Mary a life interest with remainder to his children at their majority, and she discovers she is pregnant with his only child after his death, does that violate the 21-years provision, since Mary may die before the child turns 21, and he, a life legally “not yet in being” at John’s death, will not attain his majority until more than 21 years after John’s death? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [February 13, 2007, 1:25am UTC](https://boards.straightdope.com/t/possession-is-9-10ths-of-the-law/391478/29 "2007-02-13T01:25:40Z")
[QUOTE=Polycarp] What a tricky quiz! Question: Does the possibility that a male may have posthumous children, i.e., ones conceived before his death but not born until afterwards, violate the Rule? E.g., if John marries Mary, and leaves Mary a life interest with remainder to his children at their majority, and she discovers she is pregnant with his only child after his death, does that violate the 21-years provision, since Mary may die before the child turns 21, and he, a life legally “not yet in being” at John’s death, will not attain his majority until more than 21 years after John’s death? [/QUOTE] In this particular case, it’s probably not an issue. Commentary, remember? The 21 year period includes an extension for gestation if the wife is pregnant at the time of death (_en ventre sa mere_). “Courts have long treated a child en ventre sa mere as a life in being for the purpose of the Rule.” [News Articles - FindArticles](http://www.findarticles.com/p/articles/mi_qa3714/is_200001/ai_n8887930/pg_6) ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [February 13, 2007, 2:49am UTC](https://boards.straightdope.com/t/possession-is-9-10ths-of-the-law/391478/30 "2007-02-13T02:49:53Z")
Some more perpetuities fun. Not that this has anything to do with the staff report. [http://osaka.law.miami.edu/~schnably/PerpetuitiesAnswers2006.pdf](http://osaka.law.miami.edu/~schnably/PerpetuitiesAnswers2006.pdf) ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [February 13, 2007, 3:30am UTC](https://boards.straightdope.com/t/possession-is-9-10ths-of-the-law/391478/31 "2007-02-13T03:30:14Z")
[QUOTE=Gfactor] Some more **perpetuities fun**. Not that this has anything to do with the staff report. [http://osaka.law.miami.edu/~schnably/PerpetuitiesAnswers2006.pdf](http://osaka.law.miami.edu/~schnably/PerpetuitiesAnswers2006.pdf) [/QUOTE] (Bolding added) I’m going to suggest that as the new paradigm of the word _oxymoron_. 😃 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 13, 2007, 3:35am UTC](https://boards.straightdope.com/t/possession-is-9-10ths-of-the-law/391478/32 "2007-02-13T03:35:23Z")
[QUOTE=Gfactor] And the punchline: He died intestate, so as his wife, Matty takes the entire estate. [/QUOTE] That’s what I don’t get. There was an earlier will: > [@](#): > > Mrs. Walker explained to me that when she and her husband decided to make some minor changes, they just took care of it up here for simplicity’s sake. And, indeed, as you know, the new will is almost identical to the old but for the disposition of a few items. Putting aside the forgery problem for a moment, it seems to me that if the new will was invalid because of a RAP problem, then the old will remains effective. I’m basing this on a dimly-remembered concept of equitable relief; the idea was that normally, the new will begins by revoking all prior wills. That revocation would not be held to be effective if based on the mistaken belief that the new will was valid. In other words, the testator says in the new will: (1) I revoke my old will, and (2) here’s what I want to do with my stuff. If the interests created by (2) don’t actually happen, then the testator’s revocation clearly isn’t what he meant to do. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [February 13, 2007, 4:06am UTC](https://boards.straightdope.com/t/possession-is-9-10ths-of-the-law/391478/33 "2007-02-13T04:06:04Z")
[QUOTE=Bricker] That’s what I don’t get. [/QUOTE] [spoiler]I think what we are both missing is that they are applying the law of the state of Body Heat. Let’s take a look at what we are dealing with, applying American law. We don’t have enough information to do this, as will soon be clear, but I’ll do my best. First, the lawyer apparently doesn’t know that the will is forged (which is possible), is in on the scam, or is somehow not objecting based on the forgery. For the sake of argument, we have to assume that the signatures won’t be challenged and are binding (because nobody complained about them). Second, the will seems to make two bequests, one of which is a \*valid \* bequest (pdf p. 82). That means that the _will_ isn’t invalid, despite what Hardin says. The grand it invalid. Could there be a clause that says the will won’t apply if a clause is invalidated? Maybe, at least in some jurisdictions. But Hardin doesn’t mention that, so we have to assume there is none. Third, the bequest to Heather is invalid. What happens to it? Ok. More assumptions. Most wills contain a residuary clause. The clause tells what happens to property that doesn’t pass under the other clauses. If that were the case, the residuary beneficiary would probably get Heather’s share. Again, Hardin doesn’t mention it, so we’ll assume there isn’t one. Ok. If property isn’t disposed of by a valid will (and we’re assuming this will is valid) it passes by the rules that apply to intestate state. So Hardin isn’t quite correct, unless Body Heat law says that an invalid clause automatically invalidates the whole will. If so, then you are right–you can’t revoke a will in an invalid instrument.[/spoiler] ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [February 13, 2007, 4:30am UTC](https://boards.straightdope.com/t/possession-is-9-10ths-of-the-law/391478/34 "2007-02-13T04:30:48Z")
[QUOTE=Bricker] I’m basing this on a dimly-remembered concept of equitable relief; the idea was that normally, the new will begins by revoking all prior wills. [/QUOTE] Dependent relative revocation: > [@](#): > > The Fourth DCA defined the doctrine of “dependent relative revocation” by quoting from a 1940 Florida Supreme Court Opinion, Stewart v. Johnson, 194 So. 869 (Fla. 1940), as follows: > > ``` > This doctrine has been stated and reiterated by many courts since it was first expunded in 1717, but stated simply it means that where testator makes a new will revoking a former valid one, and it later appears that the new one is invalid, the old will may be re-established on the ground that the revocation was dependent upon the validity of the new one, testator preferring the old will to intestacy. > > ``` > > The problem in this case was that although Sister invalidly exercised her power of appointment, her last Will was valid under Florida law. So the court was left powerless to “re-establish” her previous Will. [http://www.flprobatelitigation.com/dependent-relative-revocation-doctrine-dependent-relative-revocation-doctrine-falls-short-in-attempt-to-fix-an-estate-plan-gone-awry.html](http://www.flprobatelitigation.com/dependent-relative-revocation-doctrine-dependent-relative-revocation-doctrine-falls-short-in-attempt-to-fix-an-estate-plan-gone-awry.html) ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [February 13, 2007, 2:53pm UTC](https://boards.straightdope.com/t/possession-is-9-10ths-of-the-law/391478/35 "2007-02-13T14:53:30Z")
Nice report, **Gfactor**. I always heard the dictum stated as “Possession is nine-tenths of the law,” and understood the other tenth to be actual right or legal entitlement. If you’ve got the actual thingie in dispute but nothing else, you’ve still got a leg up on a valid claimant who doesn’t have it and will have to fight you in court for it. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [February 13, 2007, 3:07pm UTC](https://boards.straightdope.com/t/possession-is-9-10ths-of-the-law/391478/36 "2007-02-13T15:07:06Z")
[QUOTE=Elendil’s Heir] Nice report, **Gfactor**. I always heard the dictum stated as “Possession is nine-tenths of the law,” and understood the other tenth to be actual right or legal entitlement. If you’ve got the actual thingie in dispute but nothing else, you’ve still got a leg up on a valid claimant who doesn’t have it and will have to fight you in court for it. [/QUOTE] Thanks. Beyond actual “title,” you could also say the other tenth is prior possession. This complicates things, though, because it makes some sort of possession 10/10ths of the law. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [February 13, 2007, 4:07pm UTC](https://boards.straightdope.com/t/possession-is-9-10ths-of-the-law/391478/37 "2007-02-13T16:07:59Z")
Maybe, like the amp in _Spinal Tap_, it goes to eleven. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 13, 2007, 6:55pm UTC](https://boards.straightdope.com/t/possession-is-9-10ths-of-the-law/391478/38 "2007-02-13T18:55:05Z")
[QUOTE=Gfactor] Dependent relative revocation: [http://www.flprobatelitigation.com/dependent-relative-revocation-doctrine-dependent-relative-revocation-doctrine-falls-short-in-attempt-to-fix-an-estate-plan-gone-awry.html](http://www.flprobatelitigation.com/dependent-relative-revocation-doctrine-dependent-relative-revocation-doctrine-falls-short-in-attempt-to-fix-an-estate-plan-gone-awry.html) [/QUOTE] Precisely it – dependent relative revocation. What would make someone voluntarily practice wills and estates? 🙂 ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [February 13, 2007, 7:01pm UTC](https://boards.straightdope.com/t/possession-is-9-10ths-of-the-law/391478/39 "2007-02-13T19:01:14Z")
[QUOTE=Bricker] Precisely it – dependent relative revocation. What would make someone voluntarily practice wills and estates? 🙂 [/QUOTE] I’ll have to ask my father again. 😉 BTW, dependent relative revocation sounds like something you might do to a pesky brother-in-law who takes up residence on your couch. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [February 13, 2007, 7:09pm UTC](https://boards.straightdope.com/t/possession-is-9-10ths-of-the-law/391478/40 "2007-02-13T19:09:59Z")
Gentlemen, we are getting into GD territory with this comment, and you can either respond briefly here or take it over there, but in _Rosoff v. Harding_, it appeared that it was rather a case of _Law v. Justice_ – and Justice lost. :mad: [Previous page](https://boards.straightdope.com/t/possession-is-9-10ths-of-the-law/391478.md?page=1) [Next page](https://boards.straightdope.com/t/possession-is-9-10ths-of-the-law/391478.md?page=3)