This Article analyzes wills and inventories probated in three Kentucky counties, Boone, Woodford, and Wayne Counties, between 186 and 187. The results of the study show that married women in the three counties generally did not execute wills during the sample period, which is an expected result given the testamentary limitations imposed upon married women by Kentucky law. Despite dual encumbrances imposed by common and statutory law during the sample period, legislative and judicial action before, during, and after the sampled decade illustrates the advance of women's property rights in Kentucky. The Kentucky General Assembly passed a number of private and public bills that expanded the testamentary authority of married women after 1848, which is striking given the relative absence of legislation that authorized wills by married women before 1848. Furthermore, a number of testators placed assets in separate use trusts for the benefit of daughters thereby allowing those daughters to transfer separate estates by will after marriage pursuant to Kentucky common and statutory law. The authority to execute a will to dispose of a separate estate provided a married woman with an opportunity to express her intent on paper with the sanction of law. The largest difference between wills probated before and after 1865 is the distribution of slaves. Notably, sampled testators opted to distribute slaves to females (wives and daughters) with greater frequency than to males (sons). Although women are historically depicted as bystanders to the slave economy, testamentary gifts of slaves to women suggests a greater degree of participation in the slave market than suggested by the traditional narrative. Regardless of the distribution of slaves by gender, each and every recipient of slaves by will did so before the ratification of the Thirteenth Amendment in 1865. The passage of the Thirteenth Amendment not only transformed enslaved persons to free persons, but also had a visible effect in the recorded pages of probate books-- slaves are listed in testamentary instruments probated before 1865 but vanish in the wills and inventories of decedents' estates after 1865.
Alberto B. Lopez,
Antebellum and Postbellum Testamentary Transfers in Three Kentucky Counties Symposium: Empirical Analysis of Wealth Transfer Law,
UC Davis L. Rev.
Available at: https://scholarship.law.ua.edu/fac_articles/596