Dead Hands: A Social History of Wills, Trusts, and Inheritance Law

This is a short book, “a quick look” as Friedman explains (178), about a very big story.  It is an ambling commentary, appearing to have been cobbled from class notes for his course on trusts and estates, covering many topics lightly, cherry-picking a wide variety of state and federal judicial decisions, some with an eye for illustrating a legal doctrine or rule; some for the drama; and some for the author’s political purpose.  Readers of such a volume as this should not expect that it offers a thoughtful summary of a deeper scholarship preceding it.  Friedman’s hallmark is the advocacy of the instrumental view of the law, hence his emphasis on an isolated present.  This man-centered view, often associated with Oliver Wendell Holmes, Jr., posits that the law follows social function and interest; so the viewpoint tends to yield commentaries which take little or no significant notice of higher law, constitutional or natural. 

Assuming that his readers will know what social history is Friedman asserts quite directly that the social history of the law is his justification for this book.  At several different times in the book social history, however, seems to mean different things to Friedman, ranging from current legislative fashion, the majority opinion of vocal legal scholars who find like-minded judges, and the passing whims of political fashion. There has been another significant assumption in this instrumentalist view of the law, an accompaniment which is associated with what might generally be viewed a Marxian view of the relation of the individual to the state wherein progress results from the exercise of mythic state power to control, shape, and thus to change, perchance to perfect, human nature.  The law figures in a central way in this construction as a handmaid of unencumbered power, the police power, one that carries within it an inherent assumption of justification.  Over time this produces embarrassing anomalies such as slavery and American-Japanese relocation camps and  eugenics, all made possible when expediency and current state interest, whether crown or legislature, trumps a higher morality.  On the other hand, spontaneity in the law such as common-law marriage and peaceful private legal orders in the many companies on the North American overland trail, ironically, poses an obstacle, a puzzle for the instrumental view of the historical development of the law.  Most important is Friedman’s fusing instrumentalism with an uncritical acceptance of police power, that presumption which is the exact opposite of the 18^th century American admonition to be forever “jealous” of the exercise of public power.

The first of the two major segments of the book treats individual wills, testamentary and intestate. Here the subject is as old as civilization, one that has at its heart the question of property.  So the central question, one that Friedman skips around, has been the relation of the state to the individual, something that legal scholars from the time before Justinian recognized, developing as they did through the centuries a commentary that paved the way for modern concepts of liberty that viewed property as “the guardian of very other right.”  (Charles Lee, mentioned in James W. Ely, Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights. New York. 1992, 26.)   A cursory historical survey of classical and Christian legal orders will sustain this view of the central importance of property—its acquisition and its disposition.  The history of philanthropy is tied inextricably to this history of property in all of its many manifestations.  And it is tied to future interest as well.  Of course, the history of law illustrates that the civil orders in western civilization have exhibited a public interest along with the assortment of private interests in taking note of the reach of “the dead hand.”  It is this distinction between the public and the private that is often mixed up in Friedman’s case stories with the result that the spotlight appears to be absorbed in these stories rather than in their general significance for the history of law. 

This recognition of the importance of property, however, is not Friedman’s focus.  Instead, he emphasizes the historical development of certain testamentary practices and the rules of intestacy, particularly those which treated the rights of women, a laudable subject, but one that obscures the general history of the law.  Absent is an account of the statutory treatment of intestacy, probate, and future interest so as to show the development of the state’s interest.  Here, for example, an examination of section one of the Northwest Ordinance (1787) would have been illuminating as a window into the history of property.  Also absent is any careful consideration of the state’s interest in protecting the property rights of creditors as this found expression in the statutory history of the laws of descent.

The second of the two major segments of the book treats the public dimension of wills, the construction of charitable devises.  The bridges Friedman provides for this transition are discussions of mortmain and a chapter given to “Will Substitutes.”  Mortmain introduced the subject of restrictions on gifts to charity, originally, according to Friedman, statutory restrictions in the American states of gifts to the Catholic Church, the corporate “dead body” so feared from centuries earlier in England.  Friedman asserts that this doctrine expanded in the American nineteenth century to include all sects, a practice that withered during the twentieth century, leaving in its wake a powerful precedent for the state to order limits of time and capacity for testamentary wishes either through the rule against perpetuities or the tax power.  The discussion of the cacophony of trusts begins with Friedman’s discussion of will substitutes, the instruments suited for a people with more wealth; for people who sought to extend the life of their future interests so as, among other things, to negate the rule against perpetuities; for people to provide for causes and interests beyond their cares for family; and for people to bypass the formal structures of wills and probate.  From here it was a short step to the legal construction of the profusion of foundations that became so prevalent during the second half of the twentieth century.

While Friedman stresses on several occasions that “charities are favorites of the law” (143), some may wonder.  Given that this book has been published in 2009, it is acceptable to assume that Friedman is knowledgeable about people with special political interests who are actively seeking to enlist the power of the states and the federal government to rearrange the structural organization and the missions of many charities so as to conform more closely to their various political views.  Friedman appears to accede as, disingenuously, he wonders why charitable foundations are exempt from taxation. Friedman views this legal status as one which “deprives the government of money that it otherwise would have collected” (143).  The implication of his words suggests that the state has prior claim on all wealth thus making an interesting mockery of the idea of “tax-exempt.”  The camel’s nose is fully in the tent. 

The charitable foundation becomes a fief of sorts, existing at the pleasure of the state which deigns to permit the charity to keep some of what is its property, albeit conditional, a fundamental denial of a principal foundation of ordered liberty.  Friedman embellishes this perspective in his discussion of cy pres, a traditional doctrine for the use of courts to fulfill the intention of donors if time and tide have made obsolete their original plans the design of which may have been too narrow.  Another reason for courts to intervene is to redesign the trust if its original purpose has become illegal.  Friedman, with a strong nod to the instrumental view of the law, emphasizing that “as society changes, the law of succession will change with it” (183), hints that this may become one area where courts can exercise an active role in effecting social policy.  Friedman takes special notice of “a lot of legal scholars” who assert that in some instances where the terms of the devise permit, courts should be less cautious, arguing for the exercise of “more power” (160).   Some might suggest that they whiff judicial ex post facto, but Friedman embraces the prospect that this would effect an expansion of the concept of cy pres.  As these transformations take place, the original intent of the donor can be transmogrified into a judicial vision of an institution rather than as an instrument of individual intention.  When combined with the police power of the legislative branch, this judicial discretion may effect a profound change in the direction of philanthropy’s future unless the framer anticipates this judicial burden with great care.  Overall, however, Friedman’s predictions are chilling insofar as rights in property as expressed in future interest will tend to erode, and as they do, slowly and surely, the lights of liberty will dim even further.

Lawrence Friedman casts a very long shadow in the world of American legal history.  The shadow that he casts with this “quick look” deserves careful scrutiny, more as a political prognostication than as an historical commentary on the American law of succession.

G. M. Curtis III is Professor of History at Hanover College.