Between My Brothers and My Sisters
Some years back we had a file come through the office where an old bachelor had left his estate “equally between my brothers and my sisters”. As it turned out, he had three sisters and two brothers.
If you’ve been following the Friday Briefing, you’ll immediately spot “between” as trouble.
As counsel for the estate trustee, we were neutral, but each set of siblings sought out counsel. The brothers took the position that “between” meant “an equal share to each group of siblings”, while the sisters took the position that the brother really meant that each of his five siblings would share equally.
Unfortunately for the sisters, the court accepted the plain language that “between” meant that the brothers would share half and the sisters would share half. “Be-tween” derives from “by the twain” or “by the two”. Between is definitely a “two” idea, not a multiples idea. If the deceased had wanted each of his siblings to have an equal share, he could easily have used the word “among” rather than “between”. Sorry, girls, but language is language.
In everyday discourse we can get away with fuzzy parlance, but when things get parlous, the precise use of language counts for a lot. No prudent draftsperson should take a chance on “between” when you should really use “among”.
In my thirty seven years of practice I saw a lot of litigation over ambiguous, imprecise, or incorrect language. Unfortunately for the draftsperson, when it comes down to the crunch, the court has to accept the plain language in front of it. There is the doctrine of rectification, but only fools rely on that as a matter of course.
The moral of the story? Before you hit “send” or “save”, read your text through the eyes of a critic or an adversary to discern what advantages you are offering him by virtue of imprecise or doubtful language.