Move to Protect Mrs. Astor May Cost an Inheritance

By A. G. Sulzberger

Philip Marshall said he never expected to become fabulously wealthy from the Astor fortune.

So when he first raised concerns that his father, Anthony D. Marshall, was mistreating his grandmother Brooke Astor, he insisted he was doing so without financial motive.

In fact, the chain of events he set off — which culminated on Thursday with the conviction of his father on more than a dozen charges of conspiring to steal from Mrs. Astor — may cost him and his twin brother, Alexander, about $10 million each in an inheritance they had never realized they were entitled to.

The reason spans more than four decades and delves into the intricacies of estate law.

Under a 1962 divorce agreement, the elder Mr. Marshall is required to leave “at least one third of his gross estate” to his sons. Over the years, his ex-wife and the mother of his sons, Elizabeth Wheaton-Smith, had forgotten about the decree. The sons never even knew it existed, until Meryl Gordon, the author of “Mrs. Astor Regrets,” noticed a reference to it midway through the trial.

The twins were stunned when confronted with the news by Ms. Gordon, which their mother then confirmed after discovering a copy of the old decree in a steel cabinet in the soggy basement of her Vermont home.

Philip Marshall said that in the early 1990s, his father had casually mentioned over lunch that he was planning to leave a third of his money to his sons, a third to his wife, Charlene, and a third to charity. But he later assumed his father had changed his mind. “I was sure I had been disinherited,” he said.

Despite their familial connection to one of New York City’s most vaunted fortunes, Philip and Alexander Marshall had not grown up around wealth. After their parents’ divorce, they lived with their mother in Vermont, and their grandmother’s occasional acts of generosity were of the more humble sort, like paying for half of Alexander Marshall’s used car (even the $1 million each that she left them in her will was just a fraction of her $180 million estate).

“Most people just assume that Brooke Astor’s grandsons are wealthy,” said Ms. Gordon. “She never really gave them much money.”

Despite the Marshall brothers’ ignorance of the divorce agreement, their father appeared to have had it in mind over the past few decades, informing some of the financial maneuvering that got him in trouble.

A 1990 memo to Brooke Astor from her lawyer Henry Christensen III explained that Mr. Marshall preferred to receive the residuary estate she was planning to bequeath to him in the form of a special type of charitable trust that he would be able to live off during his lifetime. “On his death it will go to charity, rather than to his sons,” Mr. Christensen wrote.

When he remarried in 1992, Mr. Marshall began trying to find a way to leave more money to Charlene Marshall upon his death.

One result of that effort was an amendment to Mrs. Astor’s will — known as the second codicil, signed by Mrs. Astor on Jan. 12, 2004 — that allowed Mr. Marshall to receive her estimated $60 million residuary estate outright, rather than in the charitable trust he had set up earlier. The change allowed him to bequeath money to his wife, although he was still bound by the divorce agreement that one-third of his estate would be set aside for his sons.

(Some estates lawyers said the elder Mr. Marshall could have tried to circumvent the divorce agreement by transferring his assets to his wife before his death, as he has been doing for years. But they warned that such a move could be susceptible to a legal challenge if it appeared his intent was to sidestep the divorce agreement.)

But before Mrs. Astor died, Philip Marshall filed a court petition accusing his father of allowing Mrs. Astor to live in squalor while he looted her fortune, which led to her being placed in the care of new guardians and kicked off battles in civil and criminal court. He also said the latest will and the amendments should be thrown out, arguing that his grandmother had not known what she was doing when she signed the documents.

He concedes he did not know the possible financial ramifications of his contesting a change that could have provided him a $10 million windfall when his father died. The jury ruled against the elder Mr. Marshall on three counts directly related to the second codicil, which experts say increases the likelihood that it will be rejected in the upcoming battle over the Astor estate in Westchester County Surrogate’s Court. But Philip Marshall said he did not regret it.

“It’s really strange, but I’ve always felt that this money didn’t belong to us,” he said. “To take money that our grandmother intended to give to charity is like taking blood money.”

This article "Move to Protect Mrs. Astor May Cost an Inheritance" originally appeared at The New York Times.