Measuring the Testator: An Empirical Study of Probate in Jacksonian America

Abstract

Measuring the Testator" employs an empirical study of wills probated in Hamilton County, Indiana, from 1840 through 1852. It asks who used the probate process and what testators did with their wealth. It reveals that testators kept property within the family, often through implied testamentary trusts. Those trusts provided for loved ones after the testator’s death and also by and large treated heirs equitably. The paper responds to studies examining how testators have behaved by filling a gap in the literature. There has not yet been a comprehensive study of these questions regarding testation in the old northwest (what is today considered the midwest).

In this respect, "Measuring the Testator" provides an important comparison to several recent studies, including one by Stephen Davis and Alfred Brophy, who identified the pre-Civil War era as an important period for the study of testation and the probate system in the deep South. The paper examines similar issues with its eye trained on a northern county in order to test some of the findings of Davis and Brophy, particularly as to the use of trusts, the treatment of widows, and the distribution of property to female and male issue. In so doing, "Measuring the Testator" seeks to present a clearer picture of similarities and differences in patterns of testation between North and South in the years leading to Civil War. It theorizes that differences in distribution are due at least in part to testators' different levels of wealth.

Keywords: Wills, Trusts, Antebellum Legal History