In late December 2003, Warren Whitaker, a trust and estates lawyer, received a call from Francis Morrissey, a fellow trust and estates lawyer who needed help drafting a codicil to a will. Morrissey, whose talent tended toward beguiling little old ladies to remember him in their bequests rather than the nuts and bolts of legal documents, explained that he was representing the grandest little old lady of them all—Brooke Astor.
Mrs. Astor, he went on, had a few days earlier added a codicil that hadn’t gone far enough in giving control over her estate to her beloved son Anthony Marshall. Upon reflection, she wanted to give him more. There were a couple of issues, however, that added to the urgency of the moment. Mrs. Astor was so old she could croak at any minute. Morrissey was also concerned that the lawyer who’d crafted the last codicil, Henry Christensen III, and his law firm, Sullivan & Cromwell, which had represented Mrs. Astor for 50 years, might challenge any new codicils.
Employees have previously testified to Mrs. Astor’s irrational—though perhaps not that irrational—fear of men in dark suits.
Apparently none of these conditions seemed fishy to Whitaker, 58 years old, or gave him pause. (Perhaps he was not aware that, according to The New York Times, Mr. Morrissey has been accused in the past of taking advantage of the mentally incompetent elderly and being left apartments and artworks in their wills. The cases were settled in confidential agreements without Morrissey admitting wrong.) He wrote a letter to Morrissey suggesting a second codicil and pitching himself as the man to do it. He included a legal article he’d written and some biographical information. And if Morrissey desired to reach him between Christmas and New Year’s, he’d be able to find him at the El Conquistador Hotel in Puerto Rico.
Over the next few weeks, in meetings and phone calls, Whitaker and Morrissey crafted a codicil that gave to Anthony Marshall outright $60 million that previous wills and codicils had earmarked for charity. That was in addition to the millions Marshall stood to gain from selling his mother’s apartment on Park Avenue and her estates in Westchester County, N.Y., and Maine. Not once did Whitaker meet with Mrs. Astor to determine her wishes, even though he was billing her, and not her son, at the rate of $500 an hour. Under skeptical questioning by prosecutor Joel Seidemann, Whitaker said that he took Morrissey’s word that while Mrs. Astor and her son had had their differences in the past, they’d grown closer in recent years and she wanted Marshall, rather than Sullivan & Cromwell or Henry Christensen—who had previously been designated as co-executor of her estate—to exercise sole control over her affairs.
Another welcome development, Whitaker learned from Morrissey and Marshall, was that Mrs. Astor’s frigid feelings toward her daughter-in-law Charlene Marshall had apparently thawed faster than the polar ice caps. Previous wills had had the $60 million residuary trust, of which Tony was to get 7% of the annual income during his life, going to charity upon his death. But now Brooke wanted that money to go to Charlene, and even to Charlene’s children.
“Did you say, ‘Can I call Mrs. Astor?’” Seidemann asked Whitaker.
“I thought meeting her was preferable,” the lawyer explained, adding that Morrissey and Marshall had told him that Mrs. Astor had good days and bad days (though not that she’d been diagnosed with Alzheimer’s). “I’m certainly not going to call her up and take a chance.”
He added, “I thought it would be strange given her fame and wealth and age to get a call from someone saying, ‘I’m just checking up on things.’” (It can’t be ruled out that Whitaker’s credulity may have had something to do with the $3.4 million in legal fees he’d be splitting with Morrissey as Christensen’s replacement. He was subpoenaed to testify by the prosecution but did so under immunity.)
So on January 12, 2004, Whitaker, accompanied by Robert Knuts, another lawyer at his firm, visited Brooke Astor’s 778 Park Avenue apartment to explain the codicil and, if she agreed with its provisions, to have her sign it. Much of the trial—which now seems destined to extend into late July if not August—has been consumed with “A-list” witnesses (Barbara Walters, Henry Kissinger, Louis Auchincloss, Philip de Montebello, et al.) testifying that their once-feisty, charismatic friend no longer recognized them, that her memory was gone, that she wandered the streets of the Upper East Side lost when she was allowed to go out alone. But repeating the defense’s mantra that Mrs. Astor “had good days and bad days,” Whitaker testified that, fortunately, January 12th turned out to one of Mrs. Astor’s best days in years.
She was gracious; she joked with the lawyers that she wouldn’t be around much longer. “She would very enthusiastically say ‘good’ when I explained something was going to her son,” Whitaker told the jury. Mrs. Astor read “half aloud” arcane passages having to do with co-executors and successor executors, Mr. Whitaker said, agreeing, again, that it was “good” that Henry Christensen get the boot because Tony “had to dance behind me for many years, because he was always a gentleman.”
She even plucked bon mots out of the air, charming the men in dark suits with her sauciness. (Employees have previously testified to Mrs. Astor’s irrational—though perhaps not that irrational—fear of men in dark suits, and Pearline Noble, the nurse on duty that day and an upcoming witness, is prepared to testify, according to prosecutors, that Mrs. Astor literally had to be “dragged” into the meeting.) When, Whitaker recalled, “I said very specifically, ‘He can leave it all to Charlene,’” meaning the $60 million, “Mrs. Astor said, ‘Are they still happy? Are they happy in bed?’ We were all kind of surprised by that. Morrissey said, 'They’re very happy.’ She said ‘good.’”
Prosecutor Seidemann peppered the witness with questions about drafts of subsequent memos about that afternoon that went back and forth between Whitaker and Morrissey, probing whether this effort to agree on their version of events wasn’t aimed at protecting themselves if anyone at Sullivan & Cromwell contested the codicil. Whitaker said it was not. However, the memos seemed to undergo more revisions than the Declaration of Independence as the lawyers labored to get their stories in perfect alignment.
Now they make for great reading and showcase Morrissey’s novelistic flair for detail. Morrissey, 66, who has been charged along with Tony Marshall with defrauding Mrs. Astor, is a gloomy if amiable Gus who buttonholes journalists outside the courtroom to impress them with his bafflement at finding himself, in his abject innocence, a party to this whole mess. He wrote of the appointment with Mrs. Astor, that she “sat down dressed in a blue tweed suit with appropriate jewelry, beautifully coiffed and made-up.” The memos go on to say she discussed the events of 9/11—notable since earlier witnesses have testified that Mrs. Astor was so far gone that she knew only that something horrible had happened that day. Not so, according to Morrissey who said that Mrs. Astor described the terrorist attack as a “religious war” and “she likened it to the feeling she had in China during the Boxer Rebellion.”
Seidemann pointed that that Mrs. Astor was born two years after the Boxer Rebellion, but so it goes.
The memos also addressed Mrs. Astor’s signature on the codicil, which apparently wasn’t as robust as one might have desired. The lawyers had an explanation for that, too. They wrote that she complained her pen wasn’t working well and also that the library lacked a hard surface upon which to write. Seidemann then flashed a photo of the library on the courtroom’s giant screen and indicated the coffee table in front of the couch where Mrs. Astor had been seated. Might that not have sufficed? he inquired.
“I think it was cluttered with things,” Whitaker said.
Whitaker returned to Mrs. Astor’s apartment on January 27th to have her sign a new document that gave her son exclusive power of attorney, rather than having to share it with Henry Christensen, as he had in wills dating back to the mid-1990s. Mrs. Astor managed to pen her initials near, though not in, the boxes designating the changes. There was also to be a third codicil, in March, designating the Vincent Astor Trust rather than Marshall himself, as in previous wills, as the party that would pay the millions in taxes and brokers fees associated with the sale of her real estate, which would deplete the monies going to charity even further.
Unfortunately, Whitaker never got to discuss the third codicil with Mrs. Astor or see her sign it. According to his testimony, on the date of its March 2004 execution, Francis Morrissey called to inform him that Mrs. Astor wasn’t feeling well, and that he would be going over alone to have it signed.
The prosecutor asked Whitaker whether he was surprised by the strength of Mrs. Astor’s signature on the document when he eventually saw it. Morrissey has been charged with forging that signature. Whitaker conceded that he was surprised, but that “I just looked at the fact there were two witnesses. I felt comfortable with that.”
Ralph Gardner, Jr. is freelance writer whose work has appeared in New York magazine, The New York Observer, The New Yorker and other publications.