Brophy and Thie on Trust and Probate in the Antebellum Shenandoah

Alfred L. Brophy, University of North Carolina at Chapel Hill School of Law, and Douglas Bradley Thie have posted Land, Slaves, and Bonds: Trust and Probate in the Pre-Civil War Shenandoah Valley.  Here is the abstract:

“Land, Slaves, and Bonds” samples wills filed for probate in Rockbridge County in Virginia’s Shenandoah Valley from 1820 to 1861, to detail the changes in probate practice during that era of market revolution. We report the gender, familial status, distributions, and use of trusts of the 128 testators sampled. Their choices often involved leaving part of their property to their surviving spouses for their lives, then outright to their sons and in trust to their daughters. Nearly forty percent owned enslaved human property and distributed their slaves among their children. Occasionally they freed their enslaved human property. This study also traces changes in sophistication of wills and accompanying trusts over time. Thus it provides an important window into how Rockbridge County residents used the legal process to transmit wealth between generations and to preserve it.

The forty years leading into Civil War were ones of extraordinary expansion in the economy, communication, transportation, and technology of the United States; 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 stock 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-laws, Thus, legal technology helped balance 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.