Dead Hands

A Social History of Wills, Trusts, and Inheritance Law

Lawrence M. Friedman

• Publisher: Stanford Law Books
• Year: 2009
• Print ISBN: 9780804762090, 9780804760362
• eBook ISBN: 9780804771085
• Edition: 1
• Topic: Law
• Subtopic: Legal History
• Index: Law

The law of succession rests on a single brute fact: you can't take it with you. The stock of wealth that turns over as people die is staggeringly large. In the United States alone, some $41 trillion will pass from the dead to the living in the first half of the 21st century. But the social impact of inheritance is more than a matter of money; it is also a matter of what money buys and brings about.

Law and custom allow people many ways to pass on their property. As Friedman's enlightening social history reveals, a decline in formal rules, the ascendancy of will substitutes over classic wills, social changes like the rise of the family of affection, changing ideas of acceptable heirs, and the potential disappearance of the estate tax all play a large role in the balance of wealth. Dead Hands uncovers the tremendous social and legal importance of this rite of passage, and how it reflects changing values and priorities in American families and society.

CHAPTER 1

INTRODUCTION

ON AUGUST 13, 2007, Brooke Astor, at the ripe old age of 105, died at her estate, Holly Hill, in New York. Brooke was, by all accounts, a warm and winning human being; she was often called New York City’s “unofficial first lady.” She was also a very rich lady. She had inherited a massive fortune from her third husband, Vincent Astor. She became well known for her charitable activities; she gave away more than $200 million. Money, she said, “is like manure”; it “should be spread around.” In 1998 the Presidential Medal of Freedom was awarded to Brooke Astor.¹

But in her last years, ill and demented, she sank into the dim world of those who suffer from Alzheimer’s disease. Her one son, Anthony Marshall, acted as her guardian, managing her affairs. His management, however, had somewhat scandalous results. Marshall’s own son, Phillip, accused him of abusing the old lady and pillaging her estate. Anthony, it was claimed, lined his own pockets, while Brooke Astor slept on a couch that smelled of urine and lived on pureed peas and oatmeal; her beloved dogs, Boysie and Girlsie, were locked in a pantry. The court removed Anthony from his position of trust. The court named Annette de la Renta, an old friend, as guardian of the person—in charge of Brooke Astor’s life and health; a bank became guardian of the estate—in charge of her fortune. And when Brooke Astor finally died, an unseemly quarrel broke out over the estate; the scandal even touched the lawyers who were involved.

Squabbles over the money and bodies of old people, and over the estates of the dead, are nothing new. They have been around for centuries. In 1889, for example, the city of Pasadena was abuzz over what the newspapers called the Banta will contest. Isaac Banta, who died in Ohio, had left behind considerable property in California. His legacy also included a nasty fight, between his daughter and son-in-law on one side, and the rest of his family on the other. The son-in-law, Pierce (according to the family), had gotten hold of this old, feeble man and plied him with alcohol and laudanum. The old man was a virtual prisoner; Pierce, moreover, had poisoned his mind against his near and dear ones and induced Banta to give the bulk of his property to Pierce. Testimony on both sides was as different as night and day. One witness argued that Banta was “perfectly rational,” and in fact an “exceedingly shrewd businessman.”² Another, Frank Wilson, called him “crazy as a loon” and told a story about a trip to the mines, during which Banta jumped out of a wagon “and ran off into the desert”; they had to bring him back forcefully, singing and carrying on in a way that seemed totally insane.³ In the end, after a long parade of witnesses, the jury sustained the will: they declared that the old man was sane after all, and that there was no fraud, no undue influence.⁴ There was talk of an appeal to the California Supreme Court; the family, however, rather meekly agreed to a settlement a month or so later. Pierce resigned as trustee of the old man’s property, but essentially he won the case.⁵

The struggle over the Banta estate was unusual. Every year, thousands of estates pass through probate (which is, briefly, the legal process of settling the estate of a deceased person), without a whisper in the press. The Banta case was extreme; yet old age, decay, family quarrels, and money passing from one generation to another—these are normal, everyday affairs. They do not, ordinarily, involve courts and lawsuits, let alone newspapers. The machinery, as a rule, runs smoothly. In some ways the legal system plays an obvious role in this process; in other ways it is silent and almost invisible. Some concepts that are relevant here are so fundamental that we take them for granted: the concept of family, or private property, or marriage. Yet these are legal concepts as well as everyday ideas; and the probate process presupposes them.

Even when the role of the legal system is obvious, it does its work as a matter of routine. But what is routine is by no means unimportant. Routine is the heart of social action; a person’s heartbeat is routine; the work of the lungs is routine; the work of brain, stomach, legs, and kidneys is routine. So too of many actions and habits of daily life. And so too of the rhythm of life and death—and the passing of wealth and property from dead hands to living ones.

This book is about both the routine and the unusual in that branch of law we call the law of succession. In simple language, it is about the way property changes hands when a person dies, and about related processes that go on, as the legal phrase has it, “in contemplation of death.” It is about cases like Isaac Banta’s, but also about the untold thousands—or millions—who leave some sort of legacy behind when they die: people who matter to the people who survive and mourn them, but otherwise hardly make a ripple in the vast ocean of the law.

The whole edifice of the law of succession, legally and socially, rests on one brute fact: you can’t take it with you. Death is inevitable, fundamental, and definitive. When people die, everything they think they own, everything struggled, scrimped, and saved for, every jewel and bauble, every bank account, all stocks and bonds, the cars and houses, corn futures or gold bullion, all books, CD’s, pictures, and carpets—everything will pass on to somebody or something else. A certain amount can be spent on a funeral or a fancy coffin. A person can ask for, and get, an elaborate headstone and can buy a policy of “perpetual care” for the grave. People can, if they wish, be buried still wearing their favorite ring or a wedding band, or dressed in their favorite clothes. But these are incidentals. Fundamentally, when the body flatlines, a person’s iron grip on “assets,” all rights of ownership, all powers and authority supported by custom and law, dissolve, turn limp and flaccid; and the wealth, no matter how great, slips out of the person’s hands. There are people who have paid good money to have their bodies frozen in perpetuity at death. The hope is that medical science will figure out a way to wake them up in the future. The Reanimation Foundation, of Liechtenstein, will set up and manage a trust fund for such people, so that they won’t be revived as paupers.⁶ The ancient pharaohs, and many great kings and princes, erected huge pyramids and tombs for themselves. They buried themselves in luxury, wrapped and mummified in elaborate coffins, surrounded by gold and silver objects and all sorts of finery; they believed they could transport themselves and their goods into another world. In the long run, all this wealth and grandeur passed into the hands of looters and grave robbers; and much of what the looters missed, archaeologists dug up and put behind glass in museums. In the end, even the mightiest pharaoh probably took nothing at all to the other side.

This rite of passage, this transfer of goods at death, has tremendous social and legal importance. The transfer takes different forms in different societies, and in different times. There is no single name for the process. Here, as I said, we call it succession—a shorthand way of summing up social processes and institutions and their legal echoes, which govern the way property moves from generation to generation and to the living from the dead. “Succession” includes the law of wills, the law of intestacy, the law of trusts (for the most part), the law of charitable foundations, the law concerning “death taxes,” and even some aspects of an arcane field of law that lawyers call the law of future interests.

Obviously, when you die, you lose control in any literal sense. But human law can, and does, open the door to a certain amount of post-mortem control. The dead hand rules, if we let it, from beyond the grave, at least up to a point. The simplest way this is done is through a will, in which you have the right, if you follow certain formalities, to specify who gets what when you die. In our society, property is not abandoned like a corpse to the vultures. The will sets out a scheme for disposing of the property when you die; or, if there is no will, a body of rules of law, the law of intestate succession, gives you (by default) an estate plan. This book, to a considerable extent, is about the rights and powers, the scope and limits, of the dead hand: control of property, or lack of control, when a person dies.

Succession, as I have already said, is a social process of enormous importance. In a rich country, the stock of wealth that turns over as people die, one by one, is staggeringly large. In the United States, according to one estimate, some $41 trillion will pass from the dead to the living in the first half of the twenty-first century. This figure has been disputed, and an argument rages among economists as to the exact amounts—all the way from “only” $10 trillion to the high estimate of $41 trillion. But no matter who is right, clearly we are dealing with immense amounts of money.⁷

Anything that involves trillions of dollars is important in and of itself. But the social impact of inheritance is more than a matter of money. More broadly, it is also a matter of what money buys and what money brings about. In our society—and in many societies—money determines social class, social structure. George Marcus and Peter Hall, in their study of “dynastic families,” have pointed out the supreme importance of law and legal institutions to these dynasties; law and legal institutions determine whether or not these dynasties will persist.⁸ But institutions of succession are significant far beyond the world of the great families. What DNA is to the physical body, processes of succession are to society—that is, to the social body. An elite, an upper class, is a class that inherits. A lower class is a class that inherits nothing. There may be a certain amount of regression to the mean—that is, over generations, great fortunes tend to become somewhat diluted. But this occurs, if it occurs, pretty slowly.⁹ And yes, there is social mobility. Poor children can grow up to be rich adults. A certain number of heirs squander their money and sink into the mud at the bottom of society.¹⁰ Still, on the whole, the poor stay poor and the rich stay rich; and inheritance is a large part of this story.

In short, succession is one of the most vital and fundamental of all social processes. And of legal processes too. Estate planning is a lucrative business for lawyers—and a necessary business for their customers. Thousands of lawyers make their living, or part of their living, by drawing up wills and trusts, handling estates of the dead, and helping rich and very rich people avoid or minimize death taxes. There is plenty of material to guide and instruct these lawyers—a big literature of practical knowledge. The social science literature is much skimpier. Economists have nibbled at the edges of the subject. Sociologists have hardly looked at it at all.¹¹ There are occasional studies of such things as inheritance of farms in rural communities.¹² Anthropologists have told us something about succession—though mostly about the customs and habits of tribal people in exotic places. There are a handful of studies of the probate process, sampling wills and estates here and there in the United States. Some of these are historical, ¹³ or old enough to be treated as historical.¹⁴ But historians, like the social scientists, have hardly even started to exhume the detailed history of succession laws. There are a few honorable exceptions—very notably, a pioneering study by Carole Shammas, Marylynn Salmon, and Michel Dahlin, which looks at patterns of testation over the first 200 years of the United States.¹⁵ Other, smaller studies focus on patterns of testation in particular places and at particular times—for example, Cuyahoga County, Ohio; or San Bernardino County, California, in the 1960’s.¹⁶ There are other scattered studies and collections of data; but on the whole, the literature is hardly as rich as one might like. Of course, for the general public—for the intelligent lay reader—there are guides (how to make your own will; what every man and woman should know about probate; and so on), but very little looking at succession as a social process, as an area of life with cultural meaning and importance. This book is a modest attempt to fill some of the gaps, by recounting some aspects of the social history of the law of succession.

The story is important in its own right, as I said. It also has significance for those interested in theories about the relationship between law and society. Big changes in the law of succession necessarily reflect big changes in society. At one time, for example, no married woman could make out a will disposing of land her parents might have left to her. Her husband had total control. In modern society, of course, such a rule would be impossible. In fact, the old rule has been dead for a century and a half. The social and economic position of women, including married women, has changed enormously since, say, 1800. This much is obvious.

But some smaller, more technical changes in the law have, in a way, even more theoretical interest than big changes. This is an area of law (not the only one, of course) where the average citizen knows very little, and cares very little too, about it—that is, until somebody in the family dies. Then, all of a sudden, the rules and practices can become extremely important. It is also, in some ways, a very technical field. It is a field that rarely makes the headlines. There is the occasional big will contest, cases like Isaac Banta’s, or more recently, the sad sagas of Anna Nicole Smith and Brooke Astor. Otherwise, there is media silence. That affirmative action or abortion are the stuff of politics and sociology is painfully clear. But what about the politics and sociology of the rule against perpetuities? Or doctrines about mistakes in wills? What are the forces that mold and shape an area of law insulated from the media, an area that works in routine and quiet ways?

Necessarily, this book leaves out a lot of details. Some treatises on the law of wills, or on the law of trusts, run to many volumes (and pretty dreary volumes at that). Here we will have to bypass some interesting highways and byways in the law. I include little or nothing about dependent relative revocation, or ademption by extinction, or anti-lapse statutes—meaning no disrespect to these noble doctrines; or about an enormous body of doctrine and case law about the rights and duties of trustees. This book is selective; it touches only on certain salient aspects of the law of succession. These are, on the whole, aspects that bear most directly on the book’s theme: the social meaning and impact of the law.

Probably every society has inheritance rules. There were rules about inheritance in Greek and Roman law and in the laws of Egypt. There are references to inheritance laws in the Old Testament and in the codes of the ancient Middle East. There are rules of inheritance and succession in preliterate societies. Every modern country, of course, has rules and norms about inheritance and succession. For the most part, I concern myself chiefly with the United States; there are some references, too, to England, which was the source of many of the American rules and practices, and the source of the very vocabulary of succession.

American society is exceedingly wealthy. The United States is a member of a lucky and exclusive club—societies that are democratic, rich, and highly developed. Most countries in Western Europe, along with such countries as Japan and Australia, are members of this club. In these societies too, the populations tend to live long, healthy lives—lives much longer and healthier than those of their ancestors. These are also primarily middle-class societies. Millions of people have money in the bank, own a house or an apartment, possibly too some stocks and bonds. A small but crucial fraction of the population is made up of people and families that are really rich. These are the ones who leave behind big “estates” when members of the family die off.

At the time of the American Revolution, most people in what became the United States lived on farms and farmed for a living. In the southern part of the country, there was, to be sure, a kind of aristocracy: rich planters, men like Washington and Jefferson, who owned large tracts of land, with gangs of African slaves to do the work. In the North, most people lived on what we would now call family farms. With few exceptions, there was nothing in the North like the southern plantations—or, for that matter, like the English landed gentry, the class of people described by Jane Austen or the Victorian novelists, people who had servants and country estates, and who lived (and lived very nicely) off the rent paid by tenant farmers. English inheritance law had been molded, or had evolved, to suit the interests of the landed gentry. American inheritance law, on the other hand, had different tasks; it had to meet the needs and wants of a big class of smallholders, families that owned small tracts of land.

The idea of the yeoman farmer, and his family, was a crucial element in the theory of American democracy. Private ownership of land by masses of people was a fact of life. It was also a critical pillar of ideology. Americans tended to think that their way of life was the best and most advanced, a way of life ...

Table of contents

• Title Page
• Copyright Page
• Dedication
• Table of Contents
• ACKNOWLEDGMENTS
• CHAPTER 1 - INTRODUCTION
• CHAPTER 2 - DISTRIBUTION AFTER DEATH
• CHAPTER 3 - THE LAST WILL AND TESTAMENT
• CHAPTER 4 - BREAKING A WILL Will Contests and Their Social Meaning
• CHAPTER 5 - WILL SUBSTITUTES
• CHAPTER 6 - DYNASTIC AND CARETAKER TRUSTS
• CHAPTER 7 - CONTROL BY THE DEAD AND ITS LIMITS The Rise and Fall of the Rule against Perpetuities
• CHAPTER 8 - CHARITABLE GIFTS AND FOUNDATIONS
• CHAPTER 9 - DEATH AND TAXES
• CHAPTER 10 - CONCLUSIONS
• NOTES
• INDEX