It's a great pleasure to talk about Jason Kirklin's recent posting on ssrn, "Measuring the Testator: An Empirical Study of Probate in Jacksonian America," which will appear in the Ohio State Law Journal's next volume. The article is an empirical study of who left wills and what they did with their property in a rural Indiana county in the years leading into Civil War. Here is his abstract:
“Measuring the Testator” employs an empirical study of wills probated in Hamilton County, Indiana, from 1840 through 1852. It asks who used the probate process and what testators did with their wealth. It reveals that testators kept property within the family, often through implied testamentary trusts. Those trusts provided for loved ones after the testator’s death and also by and large treated heirs equitably. The paper responds to studies examining how testators have behaved by filling a gap in the literature. There has not yet been a comprehensive study of these questions regarding testation in the old northwest (what is today considered the midwest).
In this respect, “Measuring the Testator” provides an important comparison to several recent studies, including one by Stephen Davis and Alfred Brophy, who identified the pre-Civil War era as an important period for the study of testation and the probate system in the deep South. The paper examines similar issues with its eye trained on a northern county in order to test some of the findings of Davis and Brophy, particularly as to the use of trusts, the treatment of widows, and the distribution of property to female and male issue. In so doing, "Measuring the Testator" seeks to present a clearer picture of similarities and differences in patterns of testation between North and South in the years leading to Civil War. It theorizes that differences in distribution are due at least in part to testators’ different levels of wealth.
This is an exciting projevt for a number of reasons. First, it's evidence of the revival of interest in scholarship in trusts and estates -- and particularly the empirical investigation of the probate process. There are lots of records just waiting serious study in courthouses throughout the country, which promise to tell us much about how we as a people think about family relationships and property transmission; and also how we use the technology of law (often trusts, but even more frequently wills) to manage and pass on property. Second, it's evidence of the increasing importance of legal history in mainstream law journals. I've been concerned of late that major law journals seem to have been cutting back on legal history, so I'm particularly happy that the editors there are publishing a serious and original work of legal history. Third, I find this interesting because it's a great comparison with the testators that Stephen Davis and I studied in Greene County, Alabama at around the same time. Kirklin found fewer trusts than we did -- perhaps an artifact that his Indiana testators aren't as affluent as our Alabama testators. But it might also be a sign that the Indiana testators spent less time trying to hold property strictly within the family (or less time trying to control what their issue did with their property). As I say, this is an exciting project and it invites work in other regions of the country (like Massachusetts, Pennsylvania, and Ohio, and Virginia and North and South Carolina), as well as in more affluent counties in Illinois and Indiana. People, particularly students, looking for a nice topic for an essay, note, or article, could easily use Kirklin as a model.
I hope Kirklin's work is the start of a trend.
The image in the upper right is of the Hamilton County Courthouse; the image on the lower right is the William Conner house in Hamilton County, from the Library of Congress' Historic Buildings Survey.