There is a story behind the creation of this will. I first learned of it when I was about 17. My father and I were in the car, parked outside the house on Greenville Street. At some point the conversation turned to the matter of the Phelps money and Dad said, "Apparently you don't know about my grandfather's will." I admitted that I had no knowledge of this bit of family lore. Dad said, "It is something that you need to understand." And he proceeded to tell me the story.
It was early December 1902. Sheffield Phelps, then 38 years old, was out in the South Carolina countryside with his son William Walter, age 9. At some point they drank water from a well. Typhoid fever was the result with both father and son becoming rapidly ill. The child would in time recover, but Sheffield's condition grew worse by the day.
Being a young man, with a wife and three small children, Sheffield had not given much thought to matters eternal. He did not have a will. When it became apparent that there was a good chance he was not going to survive the fever, the family called for a lawyer. Their local law firm sent over Julian Salley, then newly out of law school. I should point out here that I knew Julian Salley, who remained our family lawyer for decades, and could not conceive of a time when he might have been a bit wet behind the ears. Everyone has to start somewhere.
Salley had little experience with the complexities of wills and in this instance very little time to sort through the details. Racked with fever Sheffield was in no position to give the matter any great clarity of thought. Thus a mistake – seemingly tiny, but with terrible implications – slipped into the will and went unnoticed until it was far too late to fix.
The will placed the bulk of the family fortunes in a trust. As each of the three children reached 21, they would receive the income from a quarter portion, with the fourth part to support their mother (Claudia Wright Lea Phelps) and their family home Rose Hill in Aiken. Under the terms of the will when the last of the second generation died the trust would end and the money would be divided amongst "the surviving grandchildren."
And that is where the mistake appeared. Usually such generation skipping trusts read "the surviving grandchildren and per stirpes." Those three little words – meaning and through the seed – were left out, and thus the problem was that if a grandchild did not survive the second generation that grandchild's line would be cut off. The second generation consisted of William Walter Phelps, II who had three sons, Claudia Lea Phelps who had no issue, and Eleanor Sheffield Phelps Wilds who had two sons and a daughter, Claudia Phelps Wilds, also without issue.
When Sheffield's widow Claudia died in 1955 an attempt was made to change the will, but to no avail. His youngest child, Eleanor, was the first of her generation to die, passing of cancer in January 1967. Another attempt to break the will failed because the situation was still hypothetical. In 1975 the next sibling died, being William Walter Phelps. I do not know if another attempt was made. It did not really matter until 1982. While dancing at a wedding the first of the grandchildren died. William Walter Phelps, III fell from a massive coronary and was gone. What had been hypothetical now became very real.
I spoke with my father around this time and he said the trouble was that one should not wager on the life expectancy of middle aged men when placed against that of an elderly woman. It had been agreed when my grandmother died that should future attempts to break the will fail, the surviving grandchildren would make a gift from each share to cover the heirs of any grandchild who had not survived. Such gifts are terribly expensive from a tax perspective and this was obviously not the best solution to the problem.
Efforts to break the will went into high gear. With Cousin Walter's death the family now had the necessary impetus to convince a judge. It was still not going to be a simple matter. Somehow it never is.
The last of the second generation was in her high 80s and not in good health. Claudia Lea Phelps, whom we called Aunt Bill, probably had some manner of abdominal cancer. Her physician, Dr. Robert Lipe, confided to us that he had no wish to run any further tests because once he made a diagnosis he might be obliged to treat the cancer and any such treatment would most certainly kill her faster. It was resolved to keep the matter quiet, only ensuring that she was in no pain.
To the best of my recollection the document the lawyers produced did not so much break the will as to add the missing three words in the belief that it was what Sheffield Phelps intended. The only hitch was that every adult heir had to agree, such agreement indicated by a notarized signature. I believe there were 27 of us at the time. Our signatures had to be received BEFORE Aunt Bill died, so the race was on.
I was running a home daycare business at the time and fortunately had been the nanny to a lawyer's child. The lawyer was nice enough to oversee my signature and apply her seal gratis, impressed that after 80 years we were still trying to sort out this will.
To the best of my knowledge, 26 of the heirs were prompt in their signatures and return. Only my brother's signature was lacking. After a furious call from my father, one of many over the years where I spent most of the time calming him down and promising to look into sorting the matter, I learned that my brother had received the envelope, shoved it unopened into his backpack, and started hitching across the south on his way back to Aiken. After some frantic phone calls from my to my mother and from mother in a quest for my brother, the envelope was located, as was a notary, and the document returned.
Aunt Bill died September 14, 1984. The documents were already filed and the will had been fixed, but if anyone ever needed a cautionary tale about attention to details and unintended consequences, it would be this.
