I've already mentioned the paper "A Critical Research Agenda for Wills, Trusts, and Estates," by Bridget Crawford and Tony Infanti, but I want to post their abstract:
The law of wills, trusts, and estates could benefit from consideration of its development and impact on people of color; women of all colors; lesbian, gay, bisexual, and transgendered individuals; low-income and poor individuals; the disabled; and nontraditional families. One can measure the law’s commitment to justice and equality by understanding the impact on these historically disempowered groups of the laws of intestacy, spousal rights, child protection, will formalities, will contests, and will construction; the creation, operation and construction of trusts; fiduciary administration; creditors’ rights; asset protection; nonprobate transfers; planning for incapacity and death; and wealth transfer taxation. This essay reviews examples of what the authors call “critical trusts and estates scholarship” and identifies additional avenues of inquiry that might be fruitfully pursued by other scholars who are interested in bringing an “outsider” perspective to their work in this area.
I think this is exciting because they lay out a specific agenda of work that needs to be done. This inspires me to think about a research agenda for work in the history of trusts and estates. These days so much of my thinking is on the old south that I have a very biased set of questions. But there are a lot of topics that need attention. One area that's among the most exciting work I've seen on the history of probate is Lorena Walsh's book Motives of Honor, Pleasure, and Profit, which studies probate in 17th century Virginia. Walsh uses those sources to pinpoint the time when Virginia transitioned to slavery.
Some decades ago a bunch of historians made careers by studying patterns of devises in colonial New England. Scholars like Phillip Greven showed that parents hung onto their property until the end in New England. That led in turn to work in more southern colonies. Barry Levy wrote a terrific book that demonstrated that Quaker parents gave away a lot of their property to children during life and had more equitable distribution among their children than did testators in New England. (Property was also used to keep children within the church -- and Levy discusses some the ways that settlements were used to keep property within Quaker families).
I'd like to see a lot more empirical work on differences between female and male testators from the colonial era through the late nineteenth century. One of the topics that Stuart Gold and I spoke about at the conference were differences between male and female testators on emancipation of slaves. My limited data suggests that male testators did more of that than female testators, though I think there may be two confounding issues here. First, men owned a lot more slaves than did women; second, men were more likely to have slave who were family members (wives and children) than were women.
There's a lot of work to be done on the growth of trusts in the nineteenth century. Allison Tait has shown that they were important in the eighteenth century for maintaining property within the family -- but I think that there's a huge story here to correlate with the market revolution. And the growth of trusts (and doctrines designed to police trustees) correlates -- unsurprisingly -- with the growth in the market economy. This is reflected in the fictional literature as well as the caselaw. Tanner Kroeger and I are working on a paper on Harvard College v. Amory, which addresses the development of standards for trustee investment. There's a ton to be done on the development of protections for beneficiaries, against both trustees and creditors. And trusts scholarship can speak to a lot of issues in legal history more broadly -- such as how ideas migrated from one jurisdiction to another, how legal forms were transmitted between lawyers, and the role of political and economic interests in the development of doctrine. The growth of trusts in the middle of the nineteenth century (and particularly charitable trusts) came as suspicion of concentrations of wealth declined; this is an important story, which Robert Ferguson has told in some detail. But my guess is there's more to say here, particularly about the suspicion of concentrations of wealth before the 1840s. And there's a story to tell about the general expansion in the purposes for charitable trusts after about 1840.
In the context of slavery, there's a story about the conflict between testators' power to treat property as they would like and the power of the community to police the boundaries of slavery. About this I hope to have more to say sometime soon, as I work on my paper on testators' attempts to free their human property.
The illustration is of James McDowell's house in Lexington, Virginia. McDowell was an important proponent of gradual abolition in Virginia in the 1830s and a proponent of slavery later.
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