There Is More Than One Way to Leave a Legacy

This guest post if authored by Sarah Nelson, current Regent Law 3L, former Wills, Trusts & Estates student and Family Law student:

How do you get hundreds of thousands of people to remember you after you pass on to the next life? Charles Vance Millar had a unique way of accomplishing that goal.

Charles Vance Millar, 73, was an upstanding citizen, prominent attorney, and had done well for himself in his career. Stephanie Foo of This American Life describes his legacy as never married, no children, avoiding scandal his whole life. Millar hinted to others at leaving his fortune to his Alma Matter, an amount that by inflation standards would be about $9 million today, however, upon execution, many began referring to his will as “an elaborate prank.” Foo likens Millar’s will to throwing a bunch of money out of a window to watch what would happen. Millar left stock in a brewery to prohibitionist pastors. He left his racing stock to people who did not believe in betting. He left his Caribbean vacation home to three other lawyers, describing it as “a nice thing for them to share,” except the three hated one another.

Millar’s will has been adapted into movie screenplays, become the subject of college dissertations, and, as described above, the topic of talk radio segments. However, the conversation centers the last provision of his will, what he decided to do with the remainder of his fortune. He wrote, “At the expiration of ten years from my death, give it and its accumulations to the mother in Toronto who has since given birth to the greatest number of children as shown by the registrations under the vital statics act.” Since Millar has passed, confirmation is impossible, but it is easy to speculate that this was not a decision motivated by social justice or charity. If Millar really wanted to help a struggling mother, he could have easily left the money to the woman who had the most children at that time. Instead, Millar’s will shot the gun at the starting line for an elaborate “baby-making race.”

Foo explains that rumors say Millar was trying to test the legal system’s ability to uphold a crazy will. Millar acknowledges the twisted-ness that he thrust forward by stating, “This will is necessarily uncommon and capricious because I have no dependents or near relations and no duty rests upon me to leave any property upon my death and what I do leave is proof of my folly in gathering and retaining more than I required in my lifetime.” The freedom of disposition, a fundamental constitutionally protected right to transmit your wealth as you wish, is a uniquely American concept. Note, Millar’s story centered in Canada, but it begs the mind to wonder what if this will had been drafted a few miles south or if a prankster copycat might arise one day. Hodel v. Irving, a United States Supreme Court case many years after Millar’s estate was executed pronounces that American law does not grant courts any general authority to question the wisdom, fairness, or reasonableness of the donor’s decisions about how to allocate his or her property. This concept has been translated into restatements and leads one to believe, ‘yes, this crazy provision would stand.’

After Millar died, the Canadian Attorney General attempted to nullify the will and have the money donated. Invalidating the will caused a huge public outcry disagreeing with the government intervening in people’s wills and affairs, so the government retracted its actions to invalidate the will. Considering the freedom of disposition and American law, we can hypothesize if the Canadian government had proceeded, arguments likely would have centered around public policy. However, most often provisions excluded for being contrary to public policy include encouraging a crime, or an unreasonable restraint on marriage/divorce. Could this provision be chalked up to contrary to public policy?

This story takes a sad turn when realization strikes that this was an old man making a joke to encourage women to go through childbirth as many times as possible within a ten-year period and to have children for selfish reasons rather than considering the sanctity that exists behind God’s gift of creating a family. Karen Nolan, writer of the screenplay based on Millar’s will, explains that media outlets made this contest even more circus-like, coining the phrase, “the Stork Derby” and comparing it to a horse race.

The Great Depression followed the first six years after Millar’s death; almost 25% of families were on welfare and starving. Women who desperately needed the money were drawn into the contest by the media, who wrote stories of numerous contenders. Stephanie Foo’s radio segment describes the life of a few of the front runners, one being Grace Bagnato. During her lifetime, Grace Bagnato was pregnant twenty-four times, though only twelve of those children lived. Grace Bagnato had been having a baby per year long before she ever heard of the contest. She was hauled into the contest solely from the attention of the media. Grace was Catholic, married to an Italian immigrant, and worked as a translator for Polish, German, and Yiddish. In the era again leading up to World War II, Italian families in the “race” received phone calls calling their families fascists and threatening their children.

Other mothers did not have such innocent intentions. Foo described another front runner, Mrs. Kenny, as “in it to win it.” Though Kenny was a petite woman, not even five feet tall, she carried nineteen pregnancies to term and was nasty to other mothers who had agreed to split the bequest since they all desperately needed the money. One of the most disturbing “runners” was Mrs. Clark, whose boyfriend drew up a contract in which he received half of her winnings if he impregnated her enough to indeed win the race. Mrs. Clark’s boyfriend abused her physically, sexually, and mentally. Mrs. Clark had ten children by age twenty-four. Her tale brings back the daunting question of the public policy behind the will. Is a contract that encourages actions intertwined with illegality enforceable? Did Mrs. Clark’s boyfriend take advantage of her? Was the “prank” plunged into the realm of domestic violence? We want to hope Mrs. Clark is far from Millar’s testamentary intent.

All three of the mothers above suffered an emotional toll of having stillborn babies during the “race.” Most women could not afford to have their children in hospitals and 34% of the babies associated with this “contest” died, six times the national average. Media headlines inconsiderately said things like, “Stillborn Infant May Still Assure Prize.”

When the contest ended in 1936, a substantial legal battle ensued. Arguments arose over whether illegitimate children, stillborn children, and children born at home counted under the law. The court scrutinized Mrs. Clark’s abusive sexual history. Attorneys argued in front of the mothers whether the babies’ hearts ever beat or if the babies ever breathed. Often, lawyers threw in crude jokes during the trial. Some women fled the courtroom due to the pain and ridicule of the conversations. In answer to “how legitimate is a dead baby,” one Judge opined, “A child born dead is not, in truth, a child. It was that which might have been a child.” One can contemplate the unimaginable power a Judge’s statement like this might have had in modern times when abortion debates are ensuing. Though not necessarily the law now, in terms of testamentary laws, this discussion would be disadvantaged if it did not point out that probate had historically treated children born out of wedlock, adopted children, or “half-blood” children differently under the law.

Mrs. Bagnato, with nine children at the time, was eventually disqualified due to registration issues. The women with the most babies, technically the winners, were disqualified because they did not have enough money to navigate the legal system properly. The winners were all white, middle-class, protestant women, with clean welcoming homes that did not need the money. Four women with nine babies won, each acquiring what would equal about $2 million today. With that many children, how valuable is the prize? In wrongful death suits, sometimes formulas are calculated to determine the parent’s worth to a surviving child. This formula considers the parent’s salary along with inflation and potential promotions. This formula also contemplates what it would cost if the child were to hire a home chef for every meal, a driver for school and activities, a babysitter for home time, etc. Take that formula in the inverse; it equals the parent’s worth to a child but is also all a parent has to provide a child. Add the cost of groceries, clothes, hobbies, housing, health care, and the bare minimum expenses cost a great deal. In 2017, a CBS news study declared that raising a child costs about $14,000 annually. Multiply that amount by nine children: 17 years under parental provision x $14,000 a year x 9 children is $2,142,000.  Considering what these women had children for, there was no excess money to pocket and prize.

Dishearteningly this contest also spurred inappropriate conversations amongst legal scholars. Some say the contest “encouraged the poorest of women to have the most children,” while others made statements like “these ‘unspeakable women’ should never have been reproducing.” Others contended “these poor children would eventually reduce wages and lower the standards of living.” Another stated that the contest attracted “those whose progeny would be of little use to the state.”

In December 2017, Stephanie Foo attended the 89^th annual Bagnato holiday party. Mrs. Bagnato’s twelve children now have great-grandchildren, their family grew to about 150 direct descendants, and 110 of them were gathered for the Christmas celebration. Many were teachers, one was an agent for the cast of The Young and the Restless, a few were writers, and one was a former mayor.

Foo asked Mrs. Bagnato’s great-granddaughter if their family was angry that she did not receive the money. “No, life is not all about money,” she replied. “She was an amazing woman with a huge heart. And I do not think she would get angry.” Mrs. Bagnato’s great-granddaughter recounted a story Mrs. Bagnato’s oldest daughter told to support this conclusion: “She made a huge pot of sauce on the stove for Sunday dinner and she had asked Mildred and one of the boys to put it out on the back porch to cool off. When they went out to get it, it was gone. Mildred was very angry and her mother said, ‘But just think, Mildred, somebody is having such a wonderful dinner tonight.”

Stephanie Foo reminds us that “Charles Vance Millar did not have any children, and unless you preface it with ‘remember that crazy Stork Derby guy,’ nobody remembers his name. But more than a hundred people get together every year to share stories about Grace Bagnato. There’s more than one way to leave a legacy.”  Could this be what family restoration is all about?

 

Photo credit for both Bagnato photos is CBC Canadian Radio for a story titled Amazing Grace and captions the photos: "Grace Bagnato (front center) alongside husband, Joseph Bagnato, and their children pictured in the mid-to-late 1930s;" "Grace's remaining grandchildren at the 88th annual Bagnato Christmas party"

Stephanie Foo’s entire story and interviews, Babies Got Bank, may be heard at https://www.thisamericanlife.org/668/the-long-fuse.