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After the Revolution: “Reform” of the Law of Inheritance

Published online by Cambridge University Press:  28 October 2011

John V. Orth
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Extract

The American victory in the Revolutionary War was followed by a spate of lawmaking, the silence that succeeded the clash of arms being promptly shattered by a legislative hubbub. One North Carolina judge in 1787 likened the colonists' legal situation after the Revolution to that of “a set of people shipwrecked and cast on a marooned island.” Like so many Robinson Crusoes, they were “without laws, without magistrates, without government, or any legal authority.” A new political order was urgently required, so constitutions were drafted and adopted in short order. Civil laws were needed as well, and rules of decision for the new state courts. By and large, English common law was maintained, a familiar system with which most people were satisfied and one, moreover, that had gained added luster from revolutionary arguments based on defense of the rights of “freeborn Englishmen.”

Type
Articles
Information
Law and History Review , Volume 10 , Issue 1 , Spring 1992 , pp. 33 - 44
Copyright
Copyright © the American Society for Legal History, Inc. 1992

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References

1. Bayard v. Singleton, 1 N.C. 5, 6 (1787).

2. Jefferson, T., Notes on the State of Virginia 137 (1787; Peden, W. ed. 1954).Google Scholar

3. PA. CONST, of 1776, § 37. Compare N.C. CONST, of 1776, § 43.

4. S.C. CONST, of 1790, art. 10, § 5.

5. Of the seven canons of inheritance, the first three operated together to produce the result in favor of the first-born male.

I. Inheritances shall lineally descend to the issue of the person last actually seized, in infinitum; but shall never lineally ascend.

II. The male issue shall be admitted before the female.

III. Where there are two or more males in equal degree, the eldest only shall inherit; but the females all together.

See 2 Blackstone, W., Commentaries on the Laws of England 208, 212, 213 (1765-69)Google Scholar.

Surviving spouses were not heirs at common law. Widows were entitled to dower (a life estate in one-third of the lands of which their husbands were seized during marriage). If live issue was born to the marriage, widowers were entitled to curtesy (a life estate in all lands of which their wives were seized during marriage). See 2 Blackstone, supra note 5, at 129, 126.

6.4 Kent, J., Commentaries On American Law 14-15 (O. W. Holmes, Jr. 12th ed. 1873).Google Scholar

7. Webster, D., First Settlement of New England: A Discourse Delivered at Plymouth, on the 22nd of December, 1820, in 1 The Writings And Speeches of Daniel Webster 211-15 (J. W. Mclntyre ed. 1903).Google Scholar

8. Webster, N., On the Education of Youth in America, in A Collection of Essays and Fugitiv Writings 24 (1790; repr. 1977).Google Scholar

9. 1 de Tocqueville, A., Democracy in America 50 (1835; Bradley, P. ed. 1945)Google Scholar.

10. Administration of Estates Act, 1925, 15 Geo. 5, ch. 23, § § 45-46. For the mechanics of the modern arrangements see Cheshire's Modern Law of Real Property 170-74 (Burn, E. H. 12th ed. 1976).Google Scholar

11. 2 Tocqueville, supra note 9, at 370 (App. G).

12. See Hall, K., The Magic Mirror: Law in American History 43 (1989).Google Scholar

13. See Shammas, C., Salmon, M. & Dahlin, M., Inheritance in America: From Colonial Times to the Present 32–33 (1987).Google Scholar

14. Deuteronomy 21:17. See Haskins, , The Beginnings of Partible Inheritance in the American Colonies, 51 Yale L.J. 1280-1315 (1942).CrossRefGoogle Scholar

15. Act of 1785, ch. 60, § 2, reprinted in 12 Laws of Virginia 146 (Hening, W. W. ed. 1823).Google Scholar

16. Ga. Const, of 1777, art. 51, explained by Act of Feb. 22, 1785, reprinted in Digest of the Laws of the State of Georgia 313 (Watkins, R. & Watkins, G. ed. 1800)Google Scholar. See also Ga. Const, of 1789, art. 3, § 6, explained by Act of Dec. 23, 1789, reprinted in id. at 414.

17. Act of 1784, ch. 22, § 2, reprinted in 24 State Records of North Carolina 574 (Clark, W. ed. 1905)Google Scholar.

18. Act of 1795, ch. 435, in 1 Laws of North Carolina 780 (Potter, H. ed. 1821).Google Scholar

19. Act of 1791, reprinted in 1 An Alphabetical Digest of the Public Statute Law of South Carolina 422-23 (Brevard, J. ed. 1814).Google Scholar

20. 13 Edw. 1, ch. 1 (1285).

21. Blackstone, supra note 5, at 116.

22. Act of 1776, ch. 26, § 1, reprinted in 9 Laws of Virginia 226 (Hening, W. W. ed. 1821).Google Scholar

23. See Waterman, , Thomas Jefferson and Blackstone's Commentaries, 27 U. Ill. L. Rev. 629-59 (1933).Google Scholar

24. Y. B. 12 Edw. 4, Mich. 25 (1472). For a description of the common recovery see Williams, J., Principles of the Law of Real Property 131-36 (Eastwood, R. A. 24th ed. 1926).Google Scholar

25. For a further explanation of seizin, see Maitland, , The Mystery of Seisin, 2 Law Q. Rev. 481-96 (1886).Google Scholar

26. Commonly the fee tail was limited to the male descendants only (“the heirs male of his body”), a refinement known as the fee tail male.

27. Since B had as yet no son, the remainder in tail was said to be contingent (i.e., contingent on the birth of a son), and this necessitated a further technicality: a trust “to preserve the contingent remainder.” Judicial acceptance in the seventeenth century of trusts to preserve contingent remainders was what clinched the effectiveness of strict settlements.

28. See Haskins, , Extending the Grasp of the Dead Hand: Reflections on the Origins of the Rule Against Perpetuities, 126 U. Pa. L. Rev 19–46 (1977).CrossRefGoogle Scholar

29. Quoted in Adams, W. P., The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era 195-96 (1980).Google Scholar

30. Act of 1705, ch. 21, reprinted in 3 Laws of Virginia, supra note 15, at 304, 320.

31. Act of 1734, ch. 6, § 6, reprinted in 4 Laws of Virginia 397, 400 (Hening, W. W. ed. 1820).Google Scholar

32. On the incidence of the fee tail at this time see Keim, , Primogeniture and Entail in Colonial Virginia, 25 Wm. & Mary Q. 545-86 (1969).Google Scholar

33. Act of 1749, ch. 4, § 2, reprinted in 23 State Records of North Carolina 316 (Clark, W. ed. 1904).Google Scholar

34. Act of 1784, ch. 22, § 5, reprinted in 24 State Records of North Carolina, supra note 17 at 574.

35. Id. (Codified at N.C. Gen. Stat. § 41-1).

36. 2 Tocqueville, supra note 9, at 369 (App. G).

37. Id. at 370.

38. 2 Blackstone, supra note 5, at 361.

39. Roy v. Garnett, 2 Wash. 9 (1794) (concerning the state of a title in 1780). The case involved a large estate and was elaborately argued; it is possible that the devise in question was well known to the legal community a decade before the litigation and illustrated the problems with the 1776 Act. See 2 Minor, J. B., Institutes of Common and Statute law 86 (2d ed. 1876).Google Scholar

40. Act of 1785, ch. 62, reprinted in 12 Laws of Virginia, supra note 15, at 156–57 [codified at Va. Stat. § 55-12 (1986)].

41. See Orth, , Does the Fee Tail Exist in North Carolina? 23 Wake Forest L. Rev. 761-95 (1988).Google Scholar

42. Fines and Recoveries Act, 1833, 3 & 4 Will. 4, ch. 74.

43. Burke, E., Letters on a Regicide Peace, in 5 The Works of the Right Honourable Edmund Burke 208 (1795–1797; 1854).Google Scholar