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  • The Life of the Law of Death
  • Alfred L. Brophy (bio)
Lawrence M. Friedman . Dead Hands: A Social History of Wills, Trusts, and Inheritance Law. Stanford: Stanford Law Books, 2009. 230 pp. Notes and index. $24.95.

One need only look to the university campus to find cases where law carries out the wishes of long-dead donors. For instance, Vanderbilt lost a lawsuit in 2005 to the United Daughters of the Confederacy when the university tried to rename one of its buildings from "Confederate Memorial Hall" to just plain old "Memorial Hall." The Tennessee Court of Appeals found there was a contract stretching back to the 1930s between the United Daughters and Peabody College. That contract bound Vanderbilt as well, as the successor to Peabody College.1 Sometimes contracts go back even further. In the midst of our country's financial crisis, California lawmakers looking for ways to save money proposed to completely cut off public funding for the University of California's Hastings Law School. The school was named for a donor, Serranus Clinton Hastings, who gave money at the end of the nineteenth century on the condition that the state always provide at least 7 percent of the funding for the school. That gift was a prominent part of the argument against cutting off funding—for much, if not all, of the funding from Justice Hastings' trust would need to be repaid.2

Lawrence M. Friedman's Dead Hands: A Social History of Wills, Trusts, and Inheritance Law provides an accessible introduction to the multiple ways that "dead hands"—dead donors—control the disposition of property and influence the actions of the living, sometimes long after those donors have passed away. It is also an important synthesis of the ways that wills and trust law and practices reflect the values of American society. For those of us who think about these issues primarily when we are writing wills or filling out beneficiary forms, Friedman is an important reminder that past decisions can have continuing and direct impact on the present. For donors with substantial amounts of money, they can control decisions of their families or others for a very long time.

Friedman's book has his characteristic wit and his broad vision as he surveys the law and social practices of inheritance throughout the United [End Page 474] States' history. Dead Hands is organized around topics—from what happens if someone dies without a will (what is called "intestate"—as in "without a testament"), to the basics of wills law, will contests, will substitutes (ways to pass property at death without a will), private trusts, limitations on trusts (the feared "rule against perpetuities"), charitable trusts, and inheritance taxes. This organization is familiar to those of us who teach contemporary trusts and estates law, because this is exactly how we typically organize the course. That organization makes Dead Hands seem more about contemporary trusts and estates law than about historical development. Indeed, much of Friedman's focus is the recent past.

Yet, there is a theme of historical development here. Like sex and taxes, inheritance is something we all deal with at some point in our lives, sometimes at several points. Hence, inheritance law and practices ought to tell us about a lot of things that historians are interested in, including who we consider our closest relatives and friends to be, how we control our family members (or give them freedom from control), how we deal with children, whether we treat children differently based on their gender or birth order, and how spouses provide for their survivors. Historians of colonial America have used probate records for evidence of the transmission of wealth between generations. Philip Greven's Four Generations drew a lot of inferences about parental control from probate records; in contrast, Barry Levy's Quakers and the American Family used similar records for the middle Atlantic, as supplemented by evidence of transfers during life, to conclude that Quakers were more likely to give their children independence than were Greven's New Englanders. Parts of other important books, like Suzanne Lebsock's Free Women of Petersburg, also mined the rich social history in probate records to determine how...

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