Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Thursday, April 6, 2017

Article on Trusts & Probate Before the Civil War

Civil war willAlfred L. Brophy & Douglas Thie recently published an Article entitled, Land, Slaves, and Bonds: Trust and Probate in the Pre-Civil War Shenandoah Valley, 119 W. Va. L. Rev. 345 (2016). Provided below is an abstract of the Article:

Land, Slaves, and Bonds samples wills probated in Rockbridge County in Virginia's Shenandoah Valley from 1820 to 1861, to detail the changes in testamentary devises and the technology of wills and trusts during that era of market revolution. We report the gender, familial status, distributions, and incidence of trusts for the 128 testators sampled. This study also traces changes in the sophistication of wills and accompanying trusts over time. Thus, it provides a window into how Rockbridge County residents used the legal process to transmit wealth between generations and to preserve it from creditors. It also details the response of lawyers and testators to the changing market.

The 40 years leading into the Civil War saw extraordinary expansion in the United States' economy. The legal technology studied here reflects that growth in wealth and sophistication. At the same time, as the vigorous market economy was expanding--as testators' wealth was increasingly reflected in personal property such as stocks and bonds, rather than real property--there were problems with identifying reliable agents (executors and trustees). Thus, testators continued to place a premium on family members to manage their wealth; and they also took extraordinary means, such as use of sophisticated trust documents and marriage settlements, to maintain property within their families. This study shows that testators turned frequently to legal technology to manage property and keep it within their families. They used the vehicles to keep property out of the hands of creditors, especially the creditors of their sons-in-law. Legal technology helped respond to the impersonal market revolution.

The data have several implications. They reveal how people reacted to the expanding, impersonal economy where property owners frequently had to rely on trust, even if it was dangerous to do so because it was difficult to police the actions of agents. That era of the breakdown of “trust” was a central impetus to the turn to trust documents to protect a family's wealth. The data show the importance of legal technology in adapting to a rapidly changing economy and a rapidly expanding world. They also demonstrate the rapid rise in sophistication of trusts and relocate the roots of modern trust law, such as the spendthrift trust, to the pre-Civil War era, even though it is frequently written about as a device of the post-War era.


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