Thursday, May 31, 2012
Stephen Duane Davis II (Associate, Maynard, Cooper & Gale P.C.) & Alfred L. Brophy (Judge John J. Parker Distinguished Professor of Law, University of North Carolina School of Law) recently published their article entitled, "The Most Solemn Act of My Life": Family, Property, Will, and Trust in the Antebellum South, 62 Ala. L. Rev. 757 (2011). The abstract of the article is available below:
“The Most Solemn Act of My Life” combines an empirical study of probate in Greene County, Alabama, one of the wealthiest counties in the United States in the years leading into Civil War, with a qualitative examination of property doctrine and ideology at that time. The data address three key themes in recent trusts and estates literature. First, what testators did with their extraordinary wealth; in particular, how they worked to maintain property within their families--and especially how male testators were suspicious of loss of their families' wealth through their daughters' marriages. Second, how testators used sophisticated trust mechanisms for both managing property and keeping it within their families. In the antebellum period, Americans celebrated the ways they harnessed technologies, from the steam engine to the telegraph to the printing press, to create wealth and improve society. This study reveals that trusts should be added to that list of technologies that assisted in the creation and management of wealth. Finally, the data reveal the salience of enslaved human property--often managed through trusts after their owners died and also frequently divided between family members--to the maintenance of family wealth.
While some in the United States at the time--including some jurists as well as politicians and novelists--questioned the desirability to our country of inheritance, the Greene County data show an extraordinary devotion to maintenance of family wealth. The findings in “The Most Solemn Act of My Life” invite further study in other Southern counties, as well as Northern, to gauge the extent to which wealth (particularly a wealth based on human property) led to different patterns of bequest from those seen among the rest of our nation's testators during that critical period of American history.