In her 1996 article, The Myth of Testamentary Freedom, Melanie Leslie argues that “many courts do not exalt testamentary freedom above all other principles” and “are as committed to ensuring that testators devise their estates in accordance with prevailing normative views as they are to effectuating testamentary intent.” I have always agreed with this statement, but Bernie D. Jones’s new book, Fathers of Conscience: Mixed Race Inheritance in the Antebellum South (Univ. of Georgia Press 2009), challenges this assertion. In her analysis of appellate cases from the antebellum era, Jones tells the story of white male slaveholders who used trusts and estates law to grant freedom and/or property to their enslaved mixed-race children and their mothers, thereby circumventing the law of slavery. These testators were counting on judges to exalt testamentary freedom above the law, especially in states where slaveholders’ ability to manumit during their lifetime was quite limited.
Although miscegenation was prohibited in the antebellum South, many white men had sexual relations (sometimes consensual, sometimes not) with female slaves and lived openly with Black women and the children they bore. Despite strong disapproval, there was little that society could do to punish privileged white men who breached social norms. However, these men did more than breach social norms when they sought to grant freedom, property, and the legal rights that follow, to mixed-race children and their mothers; their behavior threatened the institution of slavery itself.
Jones’ findings demonstrate that it is quite difficult to predict when judges will uphold testamentary freedom and when they will allow social norms to trump an “unnatural” bequest. Her analysis demonstrates that many judges who supported slavery, some slaveholders themselves, upheld testators’ right to dispose of their property as they wished, despite society’s (and their own) “disgust” at miscegenation. As such, these judges were compelled to grant the enslaved beneficiaries their legacies, including freedom and property. Other judges, however, focused on their communities’ interest in the continued enslavement of Blacks and rejected bequests to slaves as “void as against public policy.” These judges transferred the property the testator intended for his mixed-race children and their mothers to the testator’s white heirs. In these cases, social norms and community interests trumped the individual’s rights to dispose of his property as he wished.
These cases are all the more interesting because the slaveholders were unmarried or widowed men, and most had no “legitimate” children. (Nonmarital children had no legal right to inherit until the 20th century). Thus, their heirs at law were not dependent wives or children, but rather collateral (and sometimes distant) relatives who arguably had no moral claim to the testator’s property. In contrast, the beneficiaries of the wills were the testators’ children and women who shared intimate and sometimes marriage-like relationships with the testators. Thus, these men had a moral duty to care for their partners and children after they were gone, even if they had no legal obligation to do so. Jones’ analysis demonstrates that despite societal opposition to miscegenation, some judges believed that the men had a moral duty to care for their partners and children after death and even admired testators’ attempts to satisfy this duty.
The testators’ white relatives in all of these cases knew that the beneficiaries of the will were the children or intimate partners of the decedent, but that did not stop them from contesting the wills. While some contestants argued that slaves were property and thus, they could not take under the will, others avoided the language of slavery. They claimed to respect testamentary freedom and relied on traditional doctrines such as lack of capacity, undue influence, and duress that purportedly protect that freedom. As Jones illustrates, they portrayed the testators as “vulnerable, old men” coerced by powerful jezebels into bequeathing their property to them and their children.
While I was fascinated by the arguments of the white collateral relatives, I wish Jones had explored the perspective of the creditors which, although I hate to admit it, are somewhat complex. Creditors provided goods and services to slave owners on credit because they had significant estates, including slaves. (Slaves were legally considered property that could be sold to pay the slaveholders’ debts.) When testators bequeathed property and freedom to their enslaved children and their mothers, the remaining assets in the estate were sometimes insufficient to pay the creditors. It is hard to feel any sympathy for creditors who did not get paid since they were arguably complicit in the institution of slavery, but as Jones argues, the enslaved beneficiaries who demanded their legacies were themselves trying to benefit from slavery. Ironically, when the funds in the estate were insufficient to pay the mixed-race children their legacies, other slaves could be sold so that these former slaves could receive their legacies. I wonder whether some creditors were opposed to slavery just like the testators’ mixed-race children and partners, but were simply trying to support their families in a system that they may or may not have had a role in creating.
Researchers have noted that light-skinned African-Americans tend to have higher levels of education and greater wealth than their dark-skinned counterparts. Although this might be the result of ongoing discrimination against darker-skinned persons, Jones’ analysis of these cases suggests that it might be the direct result, at least in part, of the freedom and wealth secured by their mixed-race ancestors in those courts that exalted testamentary freedom. If we trace the descendants of the mixed-race children and compare them to other descendants of slaves who were freed later and did not receive any legacies upon their masters’ death, we might find that the effects of testamentary freedom in the antebellum period continue to reverberate generations later.