Home -> Law Blog Directory -> Federal Judiciary Blogs -> Supreme Dicta

Federal Judiciary

: Supreme Dicta

Retarded state courts: equity.

Our favorite thing to do here at the dicta is call state governments "retarded," because let's face it: state governments are frequently retarded. The legislature of Alabama has actually entertained a bill to repeal the laws of gravity. California experienced that marvelous phenomenon of a political party telling its supporters to vote against recalling an unpopular governor AND to vote for a replacement for that governor. And for retarded courts, you can't beat a court of law sitting in equity.

For the law students and non-lawyers who read here, let me let you in on a little secret that law students know and lawyers may eventually forget: in law school, the professors teach you what they call "The Law," but then you get into a court of equity and "The Law" is "Whatever the judge thinks is fair." Literally - courts of equity come from the English Chancery, which was the "conscience of the king" in medieval times, and could do violence to the law in the interests of justice as defined by the Chancellor. So you think you're learning something resembling a science, with some type of predictability, and then you get thrown into a court of equity, and no, you aren't - and oh, by the way, you better hope the judge likes his Post Toasties soggy, because he may rule against you for no better reason than "I wanted Cream of Wheat for breakfast."

Nowadays, in America, courts of equity basically have one realm of jurisdiction left, and that's probate - that's right, wills (aside: there are other circumstances in which a court sits in equity, but they're relatively minor). So let me tell you a story:

Suppose you were an elderly gentlemen, and you had some descendant of yours placed on your bank account as a signatory, so they could care for you. Does this bank account pass via your will?

Now, a little bit of background is in order (I promise, it'll only hurt a little). For purposes of this exercise, there's two types of property - probate and non-probate. Probate can be passed via will; non-probate cannot. Joint tenancies (which joint bank accounts are) are non-probate properties for reasons too complex to go into. So, does the bank account pass via will?

Those who say no, are correct on the law. The addition of the second signatory makes it a joint bank account, and when the owner of the account dies, his interest is extinguished and his caretaker signatory takes the entire account.

But remember, we aren't a court of law; we're a court of g*dd*mn m*therf*cking equity. So no, the account does in fact pass via will - IN COMPLETE DEFIANCE OF THE LAW.

Franklin v. Anna National Bank, 488 N.E.2d 1117 (Ill. App. 1986).

Here's the scary part: shit like this goes down every damn day. People walk into "probate court" or "chancery court" or "court of common pleas" and throw out an argument that basically boils down to "but Daddy, it's not FAIR!" with strong overtones of whining, and they win.

This, more than anything else, is what makes my head go asplode-y when I deal with wills. The idea that the court can walk into chambers, stare at its navel, and come back and announce that it will ignore the law in favor of "justice," whatever the hell that means, makes my shoulders shake with rage.

I have said it before, and I will say it again: I am a lawyer. I deal in law. I leave justice to philosophers.

'Course, if you want to pay me to argue "IT'S NOT FAIR!" I'll do it. But no whining. That costs extra.

And grovelling is even more expensive.

Full post as published by Supreme Dicta on December 13, 2007 (boomark / email).