Professor Lawrence M. Friedman has had a remarkable career. Much of his work has focused on legal history, and he has served as president of the American Society for Legal History in recognition of his distinction in that field. He also helped to pioneer empirical legal studies as a subdiscipline of scholarship. And, most fortunately for those of us who work in wills-and-trusts, he has contributed to our area as well, with a stream of articles and one book, beginning in the early 1960s and continuing until today—no fewer than six decades of superb scholarship on inheritance law.
With this extended essay, Friedman returns to the expansive style of some of his early work in the field. His subject is the lengths to which people will go to leave an eternal mark upon the world. As Friedman concludes, it is a fanciful quest. Try as one might, no one can defy the laws of nature—and nothing lasts forever. Nevertheless, in a variety of ways explored in this essay, people keep on trying.
For those of sufficient means—and sufficient credulity—cryonic preservation offers the hope of resurrection in a distant future of medical miracles. Those individuals who choose to immerse their remains in liquid nitrogen often seek to freeze their assets as well, and “[s]ome perfectly respectable law firms have gone after this small but lucrative market” (P. 711) by creating cryonic preservation trusts for their clients. “Both of these actions reflect a vain hope of conquering death,” (P. 763) Friedman observes—it is the stuff of science fiction.1 And whereas those of lesser means cannot endeavor to preserve themselves, they can at least specify their manner of burial and set aside funds to maintain their gravesites. Because “even ordinary people have immortal longings,” (P. 738) such specifications and funds are common. Most states today allow persons to create trusts for the care of an individual gravesite in perpetuity. But this device, too, is doomed to failure. Trust funds struggle to keep up with costs and eventually “the lettering on tombstones fades into oblivion.” (P. 739.) As regards our corporal beings, we might say, death is the great leveler.
Yet, if literal immortality is impossible, people might still pursue “vicarious immortality,” (P. 763) and it is this possibility that occupies most of Friedman’s attention. People can create trusts that survive their deaths.
Some people establish trusts for future generations of family members. Others establish trusts to provide for charitable causes. And still others (albeit only occasionally) seek to fortify either sort by accumulating, rather than distributing, income, using compound interest to build trusts, their creators imagine, of “monstrous size,” (P. 698) thereby creating “a monument (in a way)” (P. 706) to themselves.
Envisioning vicarious immortality “might provide some sort of psychological lift; some sort of satisfaction in this vale of tears.” (P. 706) But in the end, it is always futile. Directions for accumulation invite lawsuits, some of which succeed and all of which eat away at capital; and trust investments have no immunity from risk. The most famous trust of this sort—the Thellusson trust in Great Britain—ended with a value only slightly greater than when it began, sixty-three years earlier.
Trusts and foundations for charitable causes can continue in perpetuity and in that respect cater to immortal longings. Historical constraints on these entities have vanished. Nonetheless, they cannot endure in their original forms due to the cy pres doctrine, allowing courts to alter the terms of trusts when they become impossible or impractical to effectuate if settlors have a “general charitable intent”—that is, so long as settlors would prefer that the terms mutate, rather than fail with distribution back to heirs. As Friedman discerns, courts are predisposed to find general charitable intent, even when it is improbable—even when, for example, it means that trusts will no longer discriminate, despite their creators’ bigoted or segregationist convictions. And, he might have added, this judicial predisposition is now codified in the Uniform Trust Code, which presumes general charitable intent rebuttably for twenty-one years and conclusively thereafter. The result is that, in the long run, charitable trusts and foundations perpetuate only the names of their (forgotten) founders, not their visions or personalities.
As concerns trusts for descendants, the laws—and consequences—have become similar. Whereas the Rule Against Perpetuities traditionally functioned to restrict (indirectly) the duration of private trusts for individual beneficiaries, most states have now either abolished the Rule or watered it down to allow trusts of such long duration as to be effectively unlimited. Simultaneously, whereas lawmakers in the United States traditionally insisted that restrictions and conditions tacked onto private trusts remained strictly enforceable over time, modern law has relaxed this requirement, again allowing courts to modify trust terms to account for changed circumstances. These legal developments are not unconnected. Perpetual private trusts with anachronistic restrictions would be no more tolerable to the living than charitable trusts with antiquated provisions. Vicarious immortality is unachievable, even in historical time. In geological time, billions of years from now, “the solar system [will] explode[],” (P. 753) and that will be that.
Now in his 90s, Friedman continues to write insightfully, with singular gracefulness and wit. This essay offers a shining example of his work, to which this brief review hardly does justice. If Friedman’s scholarship proves not quite immortal, it will continue to enthrall readers for many years to come.
- Friedman notes that “science fiction writers must have played with [the] theme” of ultra-rich people extending their longevity indefinitely while everyone else dies (P. 762)—and he is right. See Frederik Pohl and C.M. Kornbluth, Gladiator-at-Law (1955).
Trackbacks/Pingbacks