The Wizard of Oz is an icon of American movie making.  Even people who refer to movies as “film” or “cinema” will acknowledge the greatness and cultural impact of Dorothy Gale and her three companions as they followed the yellow brick road. This is a trusts and estates story about her blue gingham dress.

The poet tells us that April is the cruelest month because it mixes “memory and desire.”  The reference is not at all enigmatic if one substitutes “past and future” for “memory and desire.”  Young Dorothy was a lonely orphan taken in by her Auntie Em to live on a Kansas farm.  Before her arrival in Oz (and her “inheritance” of the ruby slippers),  Judy Garland sang a classic song by Harold Arlen and Yip Harburg. Perhaps there are people unmoved by Judy singing “Somewhere Over the Rainbow,” but if such chilly souls do exist, then I hope never to make their  acquaintance.

But enough of the past and the pull of memory – on to the present.  Judy Garland’s blue gingham dress from the movie is in the news, this time as the subject of a court battle over its ownership.

The dress was owned by the actress Mercedes McCambridge.  In gratitude for his help in overcoming an alcohol problem,  Ms. McCambridge gave the dress to her friend, a Dominican priest at the Catholic University of America.  Fr. Gilbert Hartke founded the school’s theatre department and achieved a large measure of renown in the field.  When he died, the dress remained with the University, languishing in a box on campus as a gift from the good father from 1986 until a year or so ago.  The University finally realized the value of its possession and rather than put it on display or give it to a museum, the University chose to auction the blue gingham dress.

Listed with Bonham’s auctioneers in New York, this piece of Americana caught the public’s attention, including the attention of Fr. Hartke’s elderly niece who claimed ownership of the dress because she is the priest’s “closest living relative.”  The action was commenced in the U.S. District Court for the Southern District of New York.  The auction was halted and motions to dismiss are pending and the reader of this blog who is also a trusts and estates practitioner will undoubtedly wonder how the federal judge will approach this case, a type that appears frequently in New York Surrogate’s Courts.

For those interested in following the case, the following links will be useful:

  1. Justicia:
  2. Above the Law:
  3. The New York Times:

Whatever the outcome of the case, and the facts at this early stage appear to favor the University, the story of Dorothy’s blue gingham dress should be a lesson to the casual reader.  The law in New York makes it very difficult for the recipient of a gift from a decedent to prove its validity when challenged by the estate’s personal representative.  Generally, the person who claims to be the recipient of the gift must prove the elements of the gift by clear and convincing evidence, a high burden to meet.  Also, the recipient of the gift will probably be precluded from testifying about the details of the gift by operation of an evidentiary rule in New York called the “Deadman’s Statute” (CPLR 4519).  Finally, if the recipient of the gift is held to have been in a “confidential relationship” with the decedent, then the court will require that recipient to prove a negative, i.e., to prove that the gift was free of undue influence exerted on the decedent by the recipient. Hence, if Mom or Dad wishes to gift you that baseball signed by the 1927 New York Yankees, then make sure there are witnesses to that happy event. You will be in a much better position if there are reputable and credible witnesses available to testify on your behalf if the gift is challenged.  In this case, perhaps Fr. Hartke presented the dress to the President of the University at a ceremony attended by a group of American bishops.  They would be reputable and credible witnesses, wouldn’t they?  Bueller?  Bueller?  Anyone?