Justice Stephen Field wrote for a unanimous Supreme Court in the 1869 case of United States v. Kirby that “The reason of the law . . . should prevail over its letter.” Justice Field wrote these words in support of a decision holding that a sheriff who arrested a mail carrier for murder could not subsequently be criminally charged for “knowingly and willfully obstructing the passage of the mail.” The law was not to be applied in a way that led to an “absurd consequence,” even if that consequence followed naturally from the literal language of the law. The Kirby decision was a 19th century reminder that we are to adhere more closely to the spirit of the law than the letter of the law.
For those who grew up with an older brother or sister, feel free to understand this principle as the “I’m not touching you” doctrine. A sibling who has been clearly instructed “Don’t touch your little brother/sister!” by a parent is still going to be in trouble when that parent discovers them with their index finger poised menacingly only millimeters away from their victim’s forehead, even if they are not, technically, touching that forehead.
Probate courts usually have no problem following Justice Field’s admonition. Their primary purpose is to ascertain and carry out a testator’s intent. And typically, the intent of the testator is expressed most clearly in the literal language of his or her will or trust.
But every so often, a court will come across a case where the spirit of the law – the testator’s intent – comes into sharp conflict with the letter of the law – the language of the will. These arise most frequently when some interested person develops a plan by which the literal language of the testamentary instrument is somehow applied to contravene the testator’s intent – “I’m not touching you” from beyond the grave.
The Court of Appeal’s recent decision in Estate of Tarlow (2025) 109 Cal.App.5th 124 disrupted a masterful “I’m not touching you” plan devised by two sibling beneficiaries as to their departed brother’s estate. Decedent Barry had left the residue of his estate – just over $40 million – to be divided evenly between his brother Gerald and his sister Barbara. Gerald was to take his share outright, but Barbara’s share was to be held in trust, with funds distributed to her by a trustee as necessary for Barbara’s support, maintenance, health, and education. Following Barbara’s death, the remaining trust assets would go to Gerald, or a charitable fund if Gerald had already passed.
Barbara was not, it seems, pleased with Barry’s plan to administer her share via trust. So she and Gerald worked up a plan by which they would stretch – but not snap – the language of their brother’s will. Barbara first bought out the charitable fund’s remainder interest in the trust for the heavily discounted price of $100,000. She then purported to disclaim her interest in the residue portion of the estate, thus seemingly leaving the entirety of the estate’s residue to Gerald and cutting the trust – and the trustee – out of the equation. “See? I’m not touching him!” you could hear Barbara shout to her (presumably also deceased?) mother as her outstretched finger jabbed menacingly away.
Barbara and Gerald petitioned the probate court for final distribution of the estate. The named trustee – the decedent’s longtime friend David – objected to their petition and filed his own petition for Barbara’s share to be distributed to him as trustee, arguing that Barbara’s disclaimer was not valid, and that Barbara and Gerald’s proposed distribution would improperly deprive the trust of funds. On demurrer, the trial court ruled that Barbara’s disclaimer meant that David had no standing and dismissed his petition.
The Court of Appeal reversed, holding that the validity of Barbara’s disclaimer could not be resolved on demurrer. Further, the Court ruled that David had standing to petition the Court as the named trustee of a testamentary trust created by the will. Though not an heir or beneficiary himself, a named trustee of a testamentary trust is a “devisee” under the will as one who is “designated to receive the trust property from the estate and administer it according to the terms of the bequest.” This was sufficient to convey standing for David to pursue his claims.
The standing analysis in Kirby is likely correct and provides a solid, “letter of the law” justification for the Court of Appeal’s decision. The larger implication of the Court’s decision, however, may go to the “spirit of the law” in that the decision succeeded in preserving the testator’s intent (at least for now).
The decedent’s intent, expressed via his will, was extremely clear – he wanted half of the residue of his estate to go to his brother outright, and the other half to go to his sister in trust for her lifetime use, as managed by a trustee that he knew and relied upon. Barbara and Gerald’s plan, though apparently permissible under both the language of the will and the law, clearly subverted the decedent’s intent. David’s petition, in contrast, sought to preserve that intent. That it was David who found himself on the winning side in this round should serve as a reminder to all probate litigators: while a winning argument must contend with the letter of the law, it absolutely cannot afford to lose sight of the spirit of the law.
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