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The Deviance of the Will: Policing the Bounds of Testamentary Freedom in Nineteenth-Century America

Susanna L. Blumenthal

University of Minnesota - Law School and Department of History

Harvard Law Review, Vol. 119, 2006

Deviance is built into the very idea of a last will and testament. From its earliest usages, this legal instrument has provided individuals with a means of departing from conventional rules of inheritance. The freedom of a testator to do what he wills with his own was cast in especially expansive terms in the wake of the American Revolution. Yet antebellum American courtrooms were inundated with the petitions of disappointed heirs, charging that the testator's unnatural disposition was the product of an insane delusion or other improper influences. This Article seeks to account for the rising tide of testamentary litigation in this era, offering a doctrinal story that departs from conventional instrumentalist analyses of the phenomenon. Through a reconstruction of these will contests, it becomes apparent that they were more than merely material struggles over the testator's property - that they were also animated by deeper metaphysical concerns about the source and significance of human perversity. Each case confronted judges with the same fundamental dilemma: was the testator's deviant will best read as evidence of moral depravity or mental unsoundness? Answers to this question were eagerly supplied by a new band of medical men, specializing in the diagnosis and treatment of insanity. As their medical hypotheses were increasingly deployed in mid-century contests, however, judges came to fear they proved too much, threatening to obscure the distinction between sin and disease, leaving the law with no metaphysical basis for assigning responsibility. In the face of this threat, postbellum judges came to appreciate the importance of distinguishing the eccentric from the insane will as a means of safeguarding the ideal of human autonomy. In their opinions, they performed important cultural work, elaborating a new way of thinking about the timeless problem of evil, anticipating what would be called Pragmatism by the century's end.

Number of Pages in PDF File: 79

Keywords: Wills, Testamentary Freedom, Legal History

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Date posted: November 13, 2005  

Suggested Citation

Blumenthal, Susanna L., The Deviance of the Will: Policing the Bounds of Testamentary Freedom in Nineteenth-Century America. Harvard Law Review, Vol. 119, 2006. Available at SSRN: http://ssrn.com/abstract=839387

Contact Information

Susanna L. Blumenthal (Contact Author)
University of Minnesota - Law School and Department of History ( email )
229 19th Ave S.
Minneapolis, MN 55455
United States
612-626-5694 (Phone)
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