1 IN THE NAME OF GOD, AMEN: LANGUAGE IN LAST WILLS AND TESTAMENTS Karen J. Sneddon* I. INTRODUCTION This Article undertakes a rhetorical analysis of the genre of wills. This qualitative analysis of 168 wills is tethered in a specific geographic, legal, economic, and social context and anchored in nine discrete time periods. The wills were executed between 1821 and 2003 and recorded and probated in Bibb County, Georgia. Based on the rhetorical analysis, this Article uncovers five characteristics of the genre of wills; characteristics that flow from the history, rituals, and customs of the drafting, interpretation, and implementation of wills. First, the wills have a lyrical title, "Last Will and Testament," that summons religious images and beliefs. Second, the sonorous invocation of the introduction, also known as the exordium, infuses a ballad-like quality to the will. The third characteristic is the deliberate use of antiquated phrasing to accord weight to the gift, bequest, and devise of the rest, residue, and remainder of the estate. Fourth the wills bestow responsibility, both legal and moral, in the nomination of fiduciaries. And fifth, the wills close with a resonating reflective statement, also known as the testimonium. In addition to using the rhetorical artifacts to identify the characteristics of the genre of wills, this Article contemplates the * Associate Professor of Law, Walter F. George School of Law, Mercer University. This Article was presented at a colloquium entitled How Rhetoric Shaped the Legal Word hosted by Washington College of Law, American University on October 15, Thanks to Professors Judith Stinson, Kelley Mauerman, Andrea Susnir Funk, Kirsten Davis, and Carrie Sperling, participants of the 2010 ALWD Scholars' Forum held at the Rocky Mountain Legal Writing Conference on March 21, 2010, and thanks to the attendees of the Faculty Development Presentation at Stetson University College of Law on January 28, I would like to express gratitude to the personnel at the Bibb County Probate Court for making this Article possible and to thank my diligent research assistants Kathryn S. Seabolt and Scott Teague. Also, I would like to express my appreciation to Mercer Law School for a summer research grant that supported work on this Article. 665
2 666 QUINNIPIAC LAW REVIEW [Vol. 29:665 function and purpose of these characteristics. Estate planning is the confrontation of one's mortality, assessment of one's life, and contemplation of one's legacy. The will memorializes that process. In this digital age, wills seem like anachronistic documents because they continue to be actual pieces of paper requiring actual signatures. Wills are one of the oldest forms of legal documents, with one of the oldest known wills dating to the time of the Egyptian Pharaohs. Wills are also some of the most traditional forms of legal documents. Not only have wills been resistant to many suggestions of change, such as digital executions, but wills also contain apparently vestigial language that dates to the Middle Ages when unschooled draftspersons penned bequests that they worried would not be enforceable. This Article places the reviewed wills in their legal, economic, and social context to better understand the interplay among testators, draftspersons, beneficiaries, and society as a whole. Specifically, this Article first considers the nature of language, a means of communication unique to humans that is imperfect and imprecise. Second, this Article sketches the theoretical parameters of the rhetorical analysis of genre. In so doing, the rhetorical analysis of genre is revealed to encourage understanding of the rhetorical choices made to both assess past rhetorical choices and guide future rhetorical choices. Third, to situate the wills in the appropriate social context, this Article highlights some of the development and use of wills. Upon examination of the relatively stable genre of wills, the will is revealed to be a structured, formalized document with five preserved ritual points: (1) the title, (2) the introduction, (3) the residuary clause, (4) the nomination of fiduciaries, and (5) the closing. Despite adherence to a rather rigid set of conventions, wills, at their core, are personal documents. Each will displays a sense of the individual testator that can be observed in the naming of beneficiaries important to the testator, such as family and members of a family business. The individual can also be observed in the gifts of property important to the testator, such as unharvested crops, a rocking chair, a pickle dish, or a knitted bedspread. Finally, this Article ponders how rhetorical choices for wills may change because of changing testator demographics and changing perceptions of drafting. A rhetorical analysis of the genre of wills allows for the consideration and critique of past rhetorical choices. Moreover, it informs future rhetorical choices in a manner that facilitates the drafting of wills.
3 2011] LANGUAGE IN LAST WILLS AND TESTAMENTS 667 II. RHETORICAL ANALYSIS The word "rhetoric" is loaded with negative connotations.' Many would think of the word in connection with the dismissive phrase "mere rhetoric." But rhetoric is more than a derogatory term for bombastic, substantively deficient language. Rather, rhetoric is the study of communication. 2 This section considers language as a method of communication, including highlighting the inherent limitations of language. Then, this section examines one particular method of rhetorical analysis: genre analysis. 3 A. Language "Language makes us members of a community, providing us with the opportunity to share knowledge and experiences in a way no other species can."4 This means that "[l]awyers are students of language by profession." 5 In the context of wills, to understand the process of drafting and implementation, attorneys must understand language. All species communicate, but that communication does not necessarily rise to the level of language. "[H]umans are the only species 1. For the classic rhetoric primer, see EDWARD P.J. CORBETT & ROBERT J. CONNORS, CLASSICAL RHETORIC FOR THE MODERN STUDENT (4th ed. 1999). 2. See, e.g., SONJA K. FOSS, RHETORICAL CRITICISM 3 (4th ed. 2009). For overviews of the rhetorical analysis of genre, see FORM AND GENRE: SHAPING RHETORICAL ACTION (Karlyn Kohrs Campbell & Kathleen Hall Jamieson eds., 1976); FORM, GENRE, AND THE STUDY OF POLITICAL DISCOURSE (Herbert W. Simons & Aram A. Aghazarian eds., 1986); Karlyn Kohrs Campbell & Kathleen Hall Jamieson, The Generic Approach: Introduction to Form and Genre, in METHODS OF RHETORICAL CRITICISM 331 (Bernard L. Brock, Robert L. Scott & James W. Chesebro eds., 3d rev. ed. 1989). For collections of articles about rhetoric, see Michael R. Smith, Rhetoric Theory and Legal Writing: An Annotated Bibliography, 3 J. ASS'N LEGAL WRITING DIRECTORS 129 (2006); Kathryn Stanchi, Persuasion: An Annotated Bibliography, 6 J. ASS'N LEGAL WRITING DIRECTORS 75 (2009). For an examination about the development of rhetoric, see JAMES L. KINNEAVY, A THEORY OF DISCOURSE (1971). 3. The literature uses the phrasing "rhetorical critique," "rhetorical criticism," and "rhetorical analysis" interchangeably. This Article uses the term "rhetorical analysis" throughout. 4. ROBIN DUNBAR, GROOMING, GOSSIP, AND THE EVOLUTION OF LANGUAGE 7 (1998) (positing that as humans moved from small social groups to large social groups, language evolved to allow our ancestors to engage more efficiently in social interaction); see also STEVEN PINKER, THE LANGUAGE INSTINCT 19 (1994) ("In nature's talent show we are simply a species of primate with our own act, a knack for communicating information about who did what to whom by modulating the sounds we make when we exhale."). 5. FREDERICK A. PHILBRICK, LANGUAGE AND THE LAW, at v (photo. reprint 1993) (1949).
4 668 QUINNIPIAC LAW REVIEW [Vol. 29:665 with the ability for what may rightly be called language..",6 In other words, only humans have the ability to convey abstract thoughts and develop complex grammatical structures. Scientists cannot identify why humans are the only species to have developed the ability to create and use language. 8 The study of language, however, has been the focus of many researchers who have advanced the field in recent years. 9 For instance, advances in "[m]olecular biology (including the publication of the human genome) and the so-called evo-devo paradigm now permit us to establish new and often quite unexpected connections among very different species."'o Scientific advances have furthered our understanding of language. Language is a dynamic, imperfect medium of communication." The English language is a mix of tribal Celtic sounds, words, and tones from the Angles, Saxons, and Jutes, a sprinkle of Latin, 12 and a large 6. Juan Uriagereka, What Songbirds, Dancing, and Knot-Tying Can Tell Us About Why We Speak, SEEDMAGAZINE.COM (Sept. 25, 2007), of language/. "[O]ther species communicate through ritualized and repetitious songs, calls, or gestures, humans have developed linguistic systems that can express a literally infinite variety of separate and distinct thoughts. This incredible evolutionary leap is what distinguished humans from all other organisms on earth." The Evolution of Language, REPLICATORS: EVOLUTIONARY POWERHOUSES, (last visited Aug. 24, 2011). 7. For two linguistics primers, see JEAN AITCHISON, LINGUISTICS (5th ed. 1999); ADRIAN AKMAJIAN ET AL., LINGUISTICS: AN INTRODUCTION TO LANGUAGE AND COMMUNICATION (1980). 8. These "specific linguistic behaviors... have appeared only within the past 200,000 years-an eye-blink of evolution." Uriagereka, supra note 6. "Knot-tying, dancing, and typing, for instance, are all part of the unique equation that gave rise to language."id; see also ORIGINS AND EVOLUTION OF LANGUAGE AND SPEECH (Stevan R. Hamad et al. eds., 1976). For an interdisciplinary approach to the analysis of the evolution of language, including analysis by biologists, computer scientists, cognitive scientists, linguists, neuroscientists, psychologists, and speech scientists, see LANGUAGE ORIGINS: PERSPECTIVES ON EVOLUTION (Maggie Tallerman ed., 2005); see also ELIZABETH MERTZ, THE LANGUAGE OF LAW SCHOOL (2007) (examining what "thinking like a lawyer" conveys, especially when communicated by professors of different races, genders, and backgrounds). 9. See, e.g., STEVEN PINKER, HOW THE MIND WORKS (1997); PINKER, supra note 4; JEAN AITCHISON, LANGUAGE CHANGE: PROGRESS OR DECAY? (2d ed. 1991). 10. Uriagereka, supra note See generally Erez Lieberman et al., Quantifying the Evolutionary Dynamics of Language, 449 NATURE 713 (2007) (studying "the regularization of English verbs over the past 1,200 years"). 12. For an accessible legal Latin primer, see RUSS VERSTEEG, ESSENTIAL LATIN FOR LAWYERS (1990). English words sprung from Latin roots have traditionally been associated with intellectual and social respectability because, historically, Latin was studied by the privileged social classes. Consequently, to sound classy and smart, many people choose Latinate words: They demonstrate instead of show; initiate instead of start
5 2011] LANGUAGE IN LAST WILLS AND TESTAMENTS 669 dose of Norman French. 13 The English language is a hodgepodge of all these languages that has engendered a variety of words. 14 For example, the word "right" derives from Old English, and the word "wrong" derives from Old Norse. 15 "The English language is composed of nearly 600,000 words, constituting the largest number of words in one language." 16 Moreover, usage of words changes over time. For instance, words such as "impact" and "access," that started as nouns, are now commonly used as verbs.' 7 Social movements also influence the or begin; select instead of pick; increase, not add. It's mendacity, not a lie. One is inaccurate, not wrong. One does not have a bent for art but a propensity. DONA J. HICKEY, DEVELOPING A WRITTEN VOICE 74 (1992). "Words we often label as 'Latinate,' however, are not exclusively of Latin origins. Because English has been influenced by so many languages and the influences are mixed, we tend to use the term loosely, indicating generally, multisyllabic words." Id. 13. E.g., THE OXFORD HISTORY OF ENGLISH (Lynda Mugglestone ed., 2006) (discussing the influences of Latin, Norse, and French on the English language); RICHARD W. BAILEY, IMAGES OF ENGLISH: A CULTURAL HISTORY OF THE LANGUAGE (2d ed. 1992) (referring to past opinions about the English language to analyze our present notions and to challenge the concept of English triumphalism); M.J. HARPER, THE HISTORY OF BRITAIN REVEALED: THE SHOCKING TRUTH ABOUT THE ENGLISH LANGUAGE (2007) (asserting that English does not have Anglo-Saxon roots and was spoken in Britain before the Roman invasion). 14. See generally PINKER, supra note 4, at Historical linguists have catalogued many types of change that can occur in the evolution of individual languages, changes such as weakening and strengthening of the meaning of words, change of basic word order, loss of inflections, grammaticalization of lexical words (nouns, verbs, adjectives) into grammatical function words (articles, pronouns, auxiliaries), merger of phonemes, the emergence of novel phonemic distinctions, lowering, raising, fronting, backing and rounding of vowels, palatalization, glottalization, and so on. James R. Hurford, The Evolution of Language and Languages, in THE EVOLUTION OF CULTURE 173, 174 (Robin Dunbar et al. eds., 1999); see also STEVEN PINKER, WORDS AND RULES: THE INGREDIENTS OF LANGUAGE (1999) (analyzing the "phenomenon" of regular and irregular verbs). 15. DAVID MELLINKOFF, THE LANGUAGE OF THE LAW 54 (1963). The word "law" comes from Old Norse. Id. at Kenneth Wesson, The Magic of Human Language, BRAIN WORLD MAGAZINE (Dec. 27, 2010), see also PINKER, supra note 4, at 85 ("If a speaker is interrupted at a random point in a sentence, there are on average about ten different words that could be inserted at that point to continue the sentence in a grammatical and meaningful way."). Great creativity is also fostered in the exploration of a limited number of words. For example, The Cat in the Hat uses 236 words, with only 15 words more than one syllable, to engender a classic childhood tale; see generally Michael Ridgeway, 7 Tiny Books that Packed a Big Punch, MENTAL FLOSS (Jan. 2, 2011) (noting that the seventy-two page book took Dr. Seuss a year and a half to pen). 17. See, e.g., BRIAN A. GARNER, A DICTIONARY OF MODERN LEGAL USAGE 13, 420 (2d ed. 1995). "[L]anguage varies as people use it; those variations create the possibilities for
6 670 QUINNIPIAC LAW REVIEW [Vol. 29:665 development of language.' Words referring to taboo subjects may disappear from use. Even words that sound like taboo words may disappear from use entirely. For example, the word "feck" is rarely used in modern society.9 Since Victorian times, English has been cleansed of one-syllable words that begin with the letter "f' and end with the letter "k" for the obvious association with profanity. 2 0 Thus, language shapes perceptions and the ability to communicate. 2 1 Although language is dynamic and sophisticated, language also places restraints on the ability to communicate, such as the inability to identify words to express a 22 particular point or the inability to engage a group of individuals. Part of the need for attorneys grew from the general public's inability to use language to communicate. At a time when the spoken language of English was not used in the written language of the law, which was often Latin or French, attorneys served as translators. 23 For instance, until the eighteenth century, "[w]rits and court records were all written out in Latin." 24 Thus, the attorney's knowledge of language made the attorney 25 an indispensable part of proceedings. Despite the expertise of the language user, language itself is imperfect: Each word or phrase we use interacts with, changes, and is changed by the other words, phrases, and discourse that it encounters, whether in speech or in writing. Words alter and are altered by surrounding words in a sentence as well as shifting in meaning over time and context, or historically. 26 In the context of wills, one need only review the mountain of changes, as some variations are adopted and, with continued and widespread use, later become recognized as changes in the language." AMY J. DEVITT, WRITING GENRES 89 (2004). 18. See KATE BURRIDGE, BLOOMING ENGLISH 44 (2004). 19. Id. 20. Id. The word "feckless," on the other hand, has remained in use because it is a twosyllable word that does not convey the same connotations as "feck." Id. 21. This is one reason that gender neutral language should be used. For an overview of feminist legal methods, see Katharine T. Bartlett, Feminist Legal Methods, 103 HARV. L. REV. 829 (1990). 22. DUNBAR, supra note 4, at "Norman French gradually fell into disuse during the reign of Edward III as a spoken language, but it was still used in the courts, where many words and phrases had acquired technical meanings which could not easily be translated into English." MICHAEL BIRKS, GENTLEMEN OF THE LAW 53 (1960). 24. Id. at Id. at DARSIE BOWDEN, THE MYTHOLOGY OF VOICE (Charles I. Schuster ed., 1999) (citing M.M. BAKHTIN, THE DIALOGIC IMAGINATION (1981)).
7 2011] LANGUAGE IN LAST WILLS AND TESTAMENTS 671 construction and interpretation cases to see that language is an imperfect lens through which to reflect the testator's intent. 27 As stated: Language often inadequately describes intention because (1) it is inherently imperfect and inadequate to express all phases of thought, (2) it may be unskillfully or improperly used, (3) the human mind is unable to foresee all contingencies, and (4) the meaning of words may be altered or eroded by the 28 passage of time. Because "[w]ords are the principal tools of lawyers and judges, whether we like it or not.... we need to know more about their imperfections." 29 B. Rhetorical Analysis Rhetorical analysis is "a qualitative research method that is designed for a systematic investigation and explanation of symbolic acts and artifacts for the purpose of understanding rhetorical processes." 30 Artifacts are texts or other "tangible evidence" of rhetorical acts See Jane B. Baron, Intention, Interpretation, and Stories, 42 DUKE L.J. 630 (1992); Andrea W. Cornelison, Dead Man Talking: Are Courts Ready to Listen? The Erosion of the Plain Meaning Rule, 35 REAL PROP. PROB. & TR. J. 811 (2001); Kent Greenawalt, A Pluralist Approach to Interpretation: Wills and Contracts, 42 SAN DIEGO L. REV. 533 (2005); Edward C. Halbach, Jr., Stare Decisis and Rules of Construction in Wills and Trusts, 52 CALIF. L. REV. 921 (1964); S. Alan Medlin, Even a Single Word Can Affect the Construction of a Trust, PROB. PRAC. REP., June 2008, at 1, 1 (stating that "it is difficult[,] if not impossible[,] to draft a perfectly clear document"); Richard W. Power, Wills: A Primer of Interpretation and Construction, 51 IOWA L. REV. 75 (1965); Richard F. Storrow, Judicial Discretion and the Disappearing Distinction Between Will Interpretation and Construction, 56 CASE W. RES. L. REV. 65 (2005); Jeffrey Daniel Haskell, Note, When Axioms Collide, 15 CARDOZO L. REV. 817 (1993); Jiri Janko, Note, Linguistically Integrated Contractual Interpretation: Incorporating Semiotic Theory of Meaning-Making into Legal Interpretation, 38 RUTGERS L.J. 601 (2007); Scott T. Jarboe, Note, Interpreting a Testator's Intent from the Language of Her Will: A Descriptive Linguistics Approach, 80 WASH. U. L.Q (2002). 28. Daniel M. Schuyler, The Art of Interpretation of Wills, in PROBATE IN MIDCENTURY 101, 102 (R.O. Schwartz ed., 1975). 29. Zechariah Chafee, Jr., The Disorderly Conduct of Words, 41 COLUM. L. REV. 381, 382 (1941). For an analysis of language that facilitates the creation of the attorney-client relationship, see Gay Gellhorn, Law and Language: An Empirically-Based Model for the Opening Moments of Client Interviews, 4 CLINICAL L. REV. 321 (1998). 30. Foss, supra note 2, at Id. "Calling a genre a 'cultural artefact' is an invitation to see it much as an anthropologist sees a material artefact from an ancient civilization, as a product that has particular functions, that fits into a system of functions and other artefacts." Carolyn R. Miller, Rhetorical Community: The Cultural Basis of Genre, in GENRE AND THE NEW RHETORIC 67, 69 (Aviva Freedman & Peter Medway eds., 1994); see also DAVID
8 672 QUINNIPIAC LAW REVIEW [Vol. 29:665 There are many methods of rhetorical analysis, such as metaphor criticism, ideological criticism, narrative criticism, and pentadic criticism. 32 This Article undertakes a genre analysis. Although "[r]hetorical genres have been studied since antiquity," 33 analyzing genre is not exclusive to the field of rhetoric. Genre has been examined "in a range of different areas, including folklore studies, linguistic anthropology, the ethnography of communication, conversational analysis, rhetoric, literary theory, the sociology of language, and applied linguistics." 3 4 Genre in rhetorical analysis allows for the ability to better understand the rhetorical choices made and "then place[s] us in a better position to assess past performances and guide subsequent rhetorical efforts." 35 In other words, "[a] focus on form and genre facilitates awareness of the critical constraints imposed and the creative options opened by classification." 36 Genre analysis groups artifacts together into types or kinds. The word "genre" comes from the Greek word genus that means "sort" or "kind." 3 7 Humans have a natural desire to classify surroundings and experiences. "The attempt to understand phenomena by referring them to other phenomena both similar and dissimilar is one of the basic human conceptual activities." 8 Language is about grouping and BARTHOLOMAE & ANTHONY R. PETROSKY, FACTS, ARTIFACTS AND COUNTERFACTS: THEORY AND METHOD FOR A READING AND WRITING COURSE (1986). 32. See generally Foss, supra note 2, at 6; see also SONJA K. Foss, KAREN A. Foss, & ROBERT TRAPP, CONTEMPORARY PERSPECTIVES ON RHETORIC (3d ed. 2002). 33. M.M. BAKHTIN, The Problem of Speech Genres, in SPEECH GENRES AND OTHER LATE ESSAYS 60, 61 (Caryl Emerson & Michael Holquist eds., Vern W. McGee trans., 1986). 34. BRIAN PALTRIDGE, GENRE, FRAMES AND WRITING IN RESEARCH SETTINGS 5 (1997); see also Christine Adam & Natasha Artemeva, Writing Instruction in English for Academic Purposes (EAP) Classes: Introducing Second Language Learners to the Academic Community, in GENRE IN THE CLASSROOM 179, 183 (Ann M. Johns ed., 2002) (noting use of rhetorical genre analysis in the university classroom, office of tax accountants, high tech companies, social work agencies, banks, and industry). For an example of genre analysis in the literary criticism of dramatic monologues and mark lyric, see ADENA ROSMARIN, THE POWER OF GENRE (1985). See also Joanne Yates & Wanda J. Orlikowski, Genres of Organizational Communication: A Structurational Approach to Studying Communication and Media, 17 ACAD. MGMT. REV. 299 (1992) (examining office memos and the responses to changes in business management, business organization, and company philosophy); CHARLES BAZERMAN, SHAPING WRITTEN KNOWLEDGE (1988) (examining scientific writing and responses to changes in scientific knowledge). 35. Herbert W. Simons & Aram A. Aghazarian, Genres, Rules, and Political Rhetoric: Toward a Sociology of Rhetorical Choice, in FORM, GENRE, AND THE STUDY OF POLITICAL DISCOURSE, supra note 2, at 45, FORM AND GENRE: SHAPING RHETORICAL ACTION, supra note 2, at ROSMARIN, supra note 34, at Robert J. Connors, Genre Theory in Literature, in FORM, GENRE, AND THE STUDY
9 2011] LANGUAGE IN LAST WILLS AND TESTAMENTS 673 classifications because "words classify unique items into linguistic classes: each chair is a unique construction of materials, shapes, and designs, for example, but people call all manner of things they sit on 'chair.'" 39 Although it is a common phenomenon and an everyday occurrence, a precise definition of genre is difficult to formulate. 40 "Both genres and language standards are sets of conventionalized expectations for using language." 4 1 The seminal article in the modern conceptualization of genre analysis is Carolyn Miller's 1984 article entitled "Genre as Social Article." 4 2 In addition to examining the rhetorical situation and social context of the genre, this article focused analysis on the "action a particular genre aims to accomplish, as well as how these aspects might change through time, rather than focussing [sic] on formal characteristics of texts in isolation." 4 3 In addressing this approach, one author notes: One strength of this emerging work is its successful adaptation of a rhetorical approach originally used for highly-valued literary, political or religious discourse to more mundane academic writing-and one reason for its success has been a built-in assumption that discourse is indeed both socially situated and designed to achieve rhetorical goals." 4 Accordingly, genre is best defined by "the language users."4 5 To that end, the rhetorical situation and social context of the genre must be considered in the analysis of the genre. 46 OF POLITICAL DISCOURSE, supra note 2, at 25, 25 (theorizing that "[g]enre theory is almost as old as written language"). "[G]enre is quite easily used to refer to a distinctive category of discourse of any type, spoken or written, with or without literary aspirations." JOHN M. SWALES, GENRE ANALYSIS: ENGLISH IN ACADEMIC AND RESEARCH SETTINGS 33 (1990). 39. DEVITT, supra note 17, at SWALES, supra note 38, at 33 (stating that "[t]he word [genre] is highly attractiveeven to the Parisian timbre of its normal pronunciation-but extremely slippery"). 41. DEVITT, supra note 17, at For a revised version of this article, see Carolyn R. Miller, Genre as Social Action, in GENRE AND THE NEW RHETORIC, supra note 31, at 23 (article originally published in the Quarterly Journal of Speech in 1984). For earlier recognized rhetorical analysis of genre, see EDwIN BLACK, RHETORICAL CRITICISM (Univ. of Wis. Press 1978) (1965); LESTER THONSSEN & A. CRAIG BAIRD, SPEECH CRITICISM (1948); L.W. Rosenfield, A Case Study in Speech Criticism: The Nixon-Truman Analog, 35 SPEECH MONOGRAPHS 435 (1968). 43. PALTRIDGE, supra note 34, at SWALES, supra note 38, at DEVITT, supra note 17, at 9. For an example of a genre analysis, see Bruce E. Gronbeck, Celluloid Rhetoric: On Genres of Documentary, in FORM AND GENRE: SHAPING RHETORICAL ACTION, supra note 2, at DEVITT, supra note 17, at "Genres embody socially established strategies
10 674 QUINNIPIAC LAW REVIEW [Vol. 29:665 Part of what all readers and writers recognize when they recognize genres are the roles they are to play, the roles being played by other people, what they can gain from the discourse, and what the discourses are about. Picking up a text, readers not only classify it and expect a certain form, but also make assumptions about the text's purposes, its subject matter, its writer, and its expected reader.4 7 Genre analysis has been criticized as encouraging only descriptive analysis. 4 8 In the words of one author, "[a]t its worst, genre is a trivial and dangerous concept. It merely names what writers have created... and specifies formal features... yet it artificially compares unique authors and works of art... and stifles true creativity...." Nevertheless, "[b]ecause all works are not only unique but also resemble other works, generic criticism is essential" to the understanding of works and their place in the social context. 50 Genre analysis is applicable to legal documents. 5 ' As a renowned rhetoric scholar wrote: When you have a serious legal matter you must hire a lawyer not so much to tell your story as to know the sequence and timing of various utterances, to help you navigate the welter of genres-to file the right papers at the right time, to object at a particular moment, to know when you are wasting your breath-that is to know the legal moves or manoeuvres. In turn, the moves of others, whether examiners, judges, legislators or opponents in a court case can be met with only a limited number of appropriate moves by yourself for achieving purposes in rhetorical situations." Richard M. Coe, The New Rhetoric of Genre: Writing Political Briefs, in GENRE IN THE CLASSROOM, supra note 34, at 197, DEVITT, supra note 17, at See, e.g., Aviva Freedman & Peter Medway, Locating Genre Studies: Antecedents and Prospects, in GENRE AND THE NEW RHETORIC, supra note 31, at 1, DEVITT, supra note 17, at Campbell & Jamieson, supra note 2, at 340. The authors present a brief analysis of eulogies and notes that the eulogy is "a juxtaposition of past and present tense" that "eases confrontation with mortality" by the audience. Id at 335. For a consideration of the use of genre in teaching, see THE POWERS OF LITERACY: A GENRE APPROACH TO TEACHING WRITING (Bill Cope & Mary Kalantzis eds., 1993). 51. See generally PETER GOODRICH, OEDIPUS LEX: PSYCHOANALYSIS, HISTORY LAW 13 (1995) (asserting that law is a genre of rhetoric). For other sources examining rhetoric and law, see JAMES BOYD WHITE, Reading Law and Reading Literature: Law as Language, in HERACLES' Bow: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW 77 (1985); Linda L. Berger, Linda H. Edwards & Terrill Pollman, The Past, Presence, and Future of Legal Writing Scholarship: Rhetoric, Voice, and Community, 16 LEGAL WRITING: J. LEGAL WRITING INST. 521 (2010); Linda L. Berger, Applying New Rhetoric to Legal Discourse: The Ebb and Flow ofreader and Writer, Text and Context, 49 J. LEGAL EDUC. 155 (1999); Teresa Godwin Phelps, The New Legal Rhetoric, 40 SW. L.J (1986); Gerald Wetlaufer, Rhetoric and Its Denial in Legal Discourse, 76 VA. L. REV (1990).
11 2011] LANGUAGE IN LAST WILLS AND TESTAMENTS 675 Moreover, each of these moves or acts or generic utterances has identifiable conditions of success, so an objection or application or appeal can be ruled on (accepted or rejected) by the appropriate official. 5 2 Wills could be classified in the following genres: legal documents, transactional documents, estate planning documents, attorney-drafted wills, and holographic wills. 53 Wills have been a relatively stable genre for hundreds of years, as fits their purpose of memorializing the wishes of an individual who may no longer convey his or her wishes. Although the use of nonprobate devices has seemingly diminished the role of the will in succession, as demonstrated in the analysis below, the nonprobate revolution has not fundamentally altered the structure or the language of the will. III. HIGHLIGHTS OF THE DEVELOPMENT AND USE OF WILLS A will is defined as the unilateral disposition of one's property, in whole or in part, that takes effect on the individual's death. 54 It is generally revocable, and it is generally written. Moreover, in a will, an individual can also nominate executors, trustees of testamentary trusts, and guardians for minor children. Because the rhetorical context is relevant, highlights of the development and use of wills is necessary to situate the forthcoming analysis. "Wills reflect, as a mirror, the customs and habits of the times when written...."5 The concern encompassed in wills-taking care of 52. Charles Bazerman, Systems of Genres and the Enactment of Social Intentions, in GENRE AND THE NEW RHETORIC, supra note 31, at 79, See, e.g., DEVITT, supra note 17, at 10 (classifying contracts as a genre because "contracts use a specified legal language and terminology"). For a genre analysis of patent applications, see Bazerman, supra note 52, at 80-86, 89, For a genre analysis of documents prepared by tax accountants, see Amy J. Devitt, Intertextuality in Tax Accounting: Generic, Referential, and Functional, in TEXTUAL DYNAMICS OF THE PROFESSIONS: HISTORICAL AND CONTEMPORARY STUDIES OF WRITING IN PROFESSIONAL COMMUNITIES 336 (Charles Bazerman & James Paradis eds., 1991). 54. See, e.g., Olin L. Browder, Giving or Leaving-What is a Will?, 75 MICH. L. REV. 845, (1977) (noting that the difference between wills and inter vivos gifts is the testamentary nature of wills). 55. See, e.g., H.D. Hazeltine, General Preface to DOROTHY WHITELOCK, ANGLO- SAXON WILLS vii-xi (1930) (noting that so-called Anglo-Saxon wills were oral and irrevocable); see also Browder, supra note See generally Thomas L. Shaffer, Nonestate Planning, 42 NOTRE DAME LAW. 153, ( ) (providing an annotated will form for an individual with minimal assets and young children). 57. VIRGIL M. HARRIS, ANCIENT, CURIOUS, AND FAMOUS WILLS, at viii (1911). For
12 676 QUINNIPIAC LAW REVIEW [Vol. 29:665 loved ones and disposing of a lifetime's worth of accumulations-has always been present. Consequently, the origin of the will predates the invention of writing. Wills are one of the oldest kinds of legal documents with one of the oldest known written wills dating to Ancient Egypt. 9 Although wills were known in the ancient world,6 the execution of wills was restricted to individuals with great wealth. 6 Throughout the Middle Ages, "[w]ritten conveyances were still rare, and wills were mostly for the wealthy." 62 Nevertheless, the will was becoming an increasingly common type of legal document. 6 3 At that time, the only requirement for a draftsperson was the ability to write, and that ability was "an unusual accomplishment."" There were a limited number of individuals who could call themselves draftspersons. 65 As the last rites were being performed, clergymen were sometimes asked an examination of the role of the draftsperson in constructing a persona, see Karen J. Sneddon, Speaking for the Dead: Voice in Last Wills and Testaments, 85 ST. JOHN'S L. REV. (forthcoming 2011). 58. ALISON REPPY & LESLIE J. TOMPKINS, HISTORICAL AND STATUTORY BACKGROUND OF THE LAW OF WILLS 2 (1928). For an examination of the invention of writing from notches to words, see STEVEN ROGER FISCHER, A HISTORY OF WRITING (2001). See also A HISTORY OF WRITING: FROM HIEROGLYPH TO MULTIMEDIA (Anne-Marie Christin ed., 2002). 59. For the text of the wills dating to 2550 B.C.E. and 2548 B.C.E., see HARRIS, supra note 57. See also THOMAS E. ATKINSON, HANDBOOK OF THE LAW OF WILLS 2, at 7 (2d ed. 1953) (attributing some of the will execution rituals to Ancient Egypt). Traces of Ancient Egypt abound in modem society. For example, mosquito netting was an Ancient Egyptian innovation. See generally LIONEL CASSON, EVERYDAY LIFE IN ANCIENT EGYPT 26 (Johns Hopkins Univ. Press rev. and expanded ed. 2001) (1975). 60. For excerpts of a will from Ancient Mesopotamia, see Martha T. Roth, Mesopotamian Legal Traditions and the Laws of Hammurabi, 71 CHi.-KENT L. REV. 13, (1995). For more about the historical nature of wills, including the origin of estate planning attorneys, see Malcolm A. Moore, The Joseph Trachtman Lecture: The Origin of Our Species: Trust and Estate Lawyers and How They Grew, 32 ACTEC J. 159 (2006); Julius A. Leetham, Probate Concepts and Their Origins, 9 WHITTIER L. REV. 763 (1988); Barbara R. Hauser, The Tale of the Testament, PROB. & PROP., Sept./Oct. 1998, at See, e.g., EDWARD CHAMPLIN, FINAL JUDGMENTS: DUTY AND EMOTION IN ROMAN WILLS, 200 B.C.-A.D. 250 (1991). For an examination of estate planning in The Illiad, The Thousand and One Arabian Nights, and The Godfather, see G. Warren Whitaker, Estate Planning in World Mythology, EXPERIENCE, Winter 2007, at MELLINKOFF, supra note 15, at 50; see also LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 250 (2d ed. 1985) ("Willmakers tended to be landowners, men (and some women) of substance."). 63. See generally 2 FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND, THE HISTORY OF ENGLISH LAW BEFORE THE TIME OF EDWARD I (2d ed. 1978); see also W.S. HOLDSWORTH, SOURCES AND LITERATURE OF ENGLISH LAW (1925). 64. BIRKS, supra note 23, at The schools of the day did not teach writing, instead limiting instruction to reading, grammar, and chants. Id.
13 2011] LANGUAGE IN LAST WILLS AND TESTAMENTS 677 "to write down the wishes of the dying man." 66 The clergy did not have a monopoly in will drafting in the Middle Ages, however. There were two groups of draftspersons: (1) clergy 6 7 and (2) other individuals who possessed the ability to write. 8 In fact, there is some evidence that traveling writers, who would go from town to town, 69 used their skills to draft not just wills, but also deeds, letters, and all manner of written texts. 70 These individuals who possessed the skill of writing were called scriveners. The word scrivener is apt to be misleading, for it might imply that he owed his origins entirely to his skill with the pen.... The scrivener earned his money as much by his ability to compose documents as by his penmanship. It is true that obscure and technical meanings had not yet become associated with particular words and phrases, and consequently early legal documents were fairly straightforward. Nevertheless there was quite a variety of documents in common use from very early times, and as customs varied considerably in different parts of the country there was more to the drafting than mere grammar and composition. 7 ' The end of the Middle Ages saw a third group of draftspersons emerge: attorneys. Attorneys appeared in Glanville's Des Legibus in 1190 and are specifically mentioned in a statute enacted in In approximately the mid-thirteenth century, attorneys, who represented clients in the increasingly sophisticated legal system, 73 began to serve as draftspersons for wills. 74 Legally untrained writers continued to serve as 66. MILLIE CONSIDINE & RUTH POOL, WILLS: A DEAD GIVEAWAY 11 (1974). 67. In the Middle Ages, church officials filled the vacuum left by fallen Roman administrators. JAMES A. BRUNDAGE, THE MEDIEVAL ORIGINS OF THE LEGAL PROFESSION: CANONISTS, CIVILIANS, AND COURTS 49 (2008). Wrinkles in the will execution ceremony have been traced back to attempts to prevent overreaching church figures who scuttled to death beds and grasped property from those nearly departed souls who clasped for salvation. POLLOCK & MAITLAND, supra note 63, at BIRKS, supra note 23, at They also set up stalls at fairs and marketplaces. Id. at Few documents were written, in part, because of the expense of parchment. Id. at 68. The first paper mill in England began production in Id. This innovation resulted in more written documents. BIRKS, supra note 23, at Id. at See EDMUND B.V. CHRISTIAN, A SHORT HISTORY OF SOLICITORS 5 (photo. reprint 1983) (1896). 73. BRUNDAGE, supra note 67, at 74. A statute passed in 1236 recognized the right of representation and actually used the name "attorney." See Moore, supra note 60, at 160 (referring to the Statute of Merton). The attorney, as conceptualized by modern society, is probably of Norman origin. BIRKS, supra note 23, at 12, (describing the practice of attorneys in Medieval England). 74. The earliest trained draftspersons were probably notaries who drafted a variety of
14 678 QUINNIPIAC LAW REVIEW [Vol. 29:665 draftspersons of wills until the end of the sixteenth century; 75 attorneys, however, eventually eclipsed both clergy and legally untrained writers as draftspersons of wills. By 1390, ordinances required that a scrivener swear that he would write "no deed touching inheritance nor other deed of great charge of which I have no knowledge without good advice and confirmation of counsel." 76 Such ordinances represent a muscling out of the competition and a possible acknowledgment of the growing complexity of the substantive area of law. With regard to wills drafted during this period: "Not all these documents are florid, but such excesses as there are must be read with the draftsman's knowledge that enforcement at law was conjectural. Some extra words and a good, strong curse might stay a grasping hand.", 7 Part of this uncertainty can be attributed to lack of formal legal training for the draftspersons, but part of this uncertainty can also be attributed to the court system of Medieval England. 79 Jurisdiction of probate matters involving personal property was vested in the ecclesiastical courts, while jurisdiction of probate matters involving real property was vested in the Royal courts.so Consequently, an estate could have been required to pass through probate in two different courts.8' Naturally, a draftsperson "might documents including contracts, charters, and wills. BRUNDAGE, supra note 67 at For a review of this book, see Emily Kadens, Book Review, 60 J. LEGAL EDUC. 184 (2010). 75. Beginning in the thirteenth century, attempts were made to limit the work of the scriveners. See BIRKS, supra note 23, at Id at Id. at 81 (noting that "[o]ther factors which led to a closer association between draftsmen and practising lawyers were judicial interpretation of documents by the courts and the greater reliance placed on decided cases brought about the publication of printed law reports in the sixteenth century."). See also BRUNDAGE, supra note MELLINKOFF, supra note 15, at 50. The following language from a ninth-century will illustrates the entreaties that might be included in a will in an effort to ensure compliance with the document: And I entreat the community [i.e., the Church] for the love of God, that the man to whom the community grants the usufruct of the estate carry out the same arrangements with regard to a feast at my anniversary, as my heirs shall have appointed it, and so obtain the divine reward for my soul. Id. (alteration in original). 79. For a discussion about the development of English court systems, see A.T. CARTER, A HISTORY OF ENGLISH LEGAL INSTITUTIONS (Fred B. Rothman & Co. 1986) (1902). For brief consideration of the Lincoln's Inn, one of the four London Inns of Court, see RONALD ROXBURGH, THE ORIGINS OF LINCOLN'S INN (Wm. W. Gaunt & Sons, 1986) (1963). 80. Moore, supra note 60, at 166 (royal courts became the common law courts). For an examination of probate courts in the United States, see Lewis M. Simes & Paul E. Basye, The Organization of the Probate Court in America, in PROBLEMS IN PROBATE LAW 385 (1946). 81. Moore, supra note 60, at 166. In England, "this bifurcated jurisdiction continued
15 2011]1 LANGUAGE IN LAST WILLS AND TESTAMENTS 679 reasonably indulge in an abundance of caution and words" at a time when the law of wills, even the definition of terms, was unsettled. 82 In the eighteenth century, lawyers were "a scattering of largely illtrained practitioners on the periphery of society," yet, beginning in the nineteenth century, the lawyering profession transformed into "the present, enormous, highly trained profession with extensive, political, economic, social, and legal power." 83 Given the development of the draftsperson, it is not surprising that the language of Wills is ritualistic. As one writer states, "[i]t is an article of faith among lawyers who write wills that rigid adherence to words and phrases that have survived for centuries will lead to less ambiguity and therefore fewer will contests." 84 Draftspersons continue to "worship at the shrine of evolutionary perfection," meaning that the draftsperson's actions are, in part, "dictated by the experiments and mistakes of the past." 8 5 The American lawyer, from colonial times to Reconstruction, faced similar uncertainty about the law. The American colonial lawyer was faced with few resources to learn his 86 craft. 8 7 Prior to 1776, only thirtythree books relating to law, including eight editions of the same one, were printed in America. Before 1776, there were no American into [the] early 19th century." Id. For an examination of solicitors, see CHRISTIAN, supra note MELLINKOFF, supra note 15, at Gerard W. Gawalt, Introduction to THE NEW HIGH PRIESTS: LAWYERS IN POST- CIVIL WAR AMERICA, at vii (Gerard W. Gawalt ed., 1984); see also CHRISTOPHER W. BROOKS, LAWYERS, LITIGATION AND ENGLISH SOCIETY SINCE 1450 (1998). 84. ADAM FREEDMAN, THE PARTY OF THE FIRST PART 148 (2007). 85. Albert Martin Kales, The Will of an English Gentleman of Moderate Fortune, 19 GREEN BAG 214, 224 (1907). 86. Women were not eligible for bar membership in the state of Georgia until Legal Profession, NEW GA. ENCYCLOPEDIA, (last updated May 11, 2009). In 1918, Arlene Harden was declared "Macon's first lady lawyer" to be admitted to practice. FRANK M. MCKENNEY, THE JUDGES AND LAWYERS OF MACON , at 107 (2005). In 1919, Katherine Pierce Jackson was the first female graduate of Mercer Law School to practice in Macon. Id. Nevertheless, the percentage of female practitioners did not become a significant percent until In 1971, only one woman graduated from Mercer Law School. For an article advocating the inclusion of women on juries, see Amber Wallin Anderson, Jury Service for Women?, 11 GA. B.J. 196 (1948). See generally Jill Norgren, Ladies of Legend: The First Generation ofamerican Women Attorneys, 35 J. SUP. CT. HIST. 71 (2010). The first black lawyer admitted to practice in Macon was Cassander N. Sellers in MCKENNEY, supra, at 105; see also Wingate Dykes, Integration of the Bar, 12 GA. B.J. 166 (1949). 87. See generally FRIEDMAN, supra note CHARLES WARREN, A HISTORY OF THE AMERICAN BAR 157 (William S. Hein & Co., 1990) (1911).
16 680 QUINNIPIAC LAW REVIEW [Vol. 29:665 printings" of Edward Coke or any other English legal writer, except for the writings of William Blackstone. 90 Litchfield Law School 91 was founded in 1784, and other law schools, such as Harvard and Yale, were founded in the mid-nineteenth century. 92 Thus, before the Civil War, an individual interested in pursuing the legal profession could serve through apprenticeship, law school, or a combination of both apprenticeship and law school. 93 "The mode, men and manners of legal practice were in a state of flux before the Civil War." 94 To that end, while lawyers were often viewed as the most literate members of the community, "the combination of lenient licensing standards and the perfunctory nature of most bar examinations enabled men to join the profession on the strength of having read an armful of books." 95 Even for an earnest student, uncertainty as to the laws existed. As in other states, Georgia did not have a Code until after the Civil War. After the founding of the 89. Id. at The laws of England were influential in the development of law in the colonies. For example, "[w]hen Georgia became an independent state, the English law of wills was adopted as the law of' Georgia. DANIEL H. REDFEARN, A PRACTICAL TREATISE ON THE LAW OF WILLS AND THE ADMINISTRATION OF ESTATES IN GEORGIA 58, at 89 (1923). In fact, even as late as 1923, gaps in law were filled, in part, by referencing decisions of English courts. See, e.g., id. at v. A vestige of English law is the age of testamentary capacity. In Georgia, unlike the majority of jurisdictions (including the Uniform Probate Code), the age of testamentary capacity is age fourteen. GA. CODE ANN (2010). In the Middle Ages, the age of testamentary capacity was twelve for women and fourteen for men. 1 HARRY CLAY UNDERHILL, A TREATISE ON THE LAW OF WILLS 170 (1900). Eventually the age of testamentary capacity was set at fourteen for all and has remained so in Georgia. The Redfeam treatise continues to be one of the most popular Georgia treatises and form books in the practice area. It is currently a two-volume set in its seventh edition. MARY F. RADFORD, REDFEARN: WILLS AND ADMINISTRATION IN GEORGIA (7th ed. 2008). 91. In the 1820s and 1830s, Litchfield Law School in Litchfield, Connecticut was "the most favored out-of-state law school" for Georgia students. MCKENNEY, supra note 86, at See generally HISTORY OF THE YALE LAW SCHOOL (Anthony T. Kronman ed., 2004). 93. Ann Fidler, 'A Dry and Revolting Study': The Life and Labours ofantebellum Law Students, in LAWYERS AND VAMPIRES: CULTURAL HISTORIES OF LEGAL PROFESSIONS 65, 69 (W. Wesley Pue & David Sugarman eds., 2003). For a list of required reading for the antebellum law student, see id. at 80. See also Jay F. Alexander, Legal Careers in Eighteenth Century America, 23 DUQ. L. REV. 631 (1985). 94. Fidler, supra note 93, at 67 ("The lax licensing requirements of the expanding West drew well-educated men from the East as well as the ill-educated sons of humble farmers to the bar."). 95. Id. at 72; see also MCKENNEY, supra note 86, at 35 (noting that "[u]ntil the end of the nineteenth century, each Superior Court Judge could set his own standard" to determine admission to the bar) WARREN GRICE, THE GEORGIA BENCH AND BAR: THE DEVELOPMENT OF GEORGIA'S JUDICIAL SYSTEM (1931). When the Georgia Code was compiled, it
17 2011] LANGUAGE IN LAST WILLS AND TESTAMENTS 681 American Bar Association in 1878, pressure to require formal legal education as a prerequisite to bar admission increased. 97 In 1906, the Association of American Law Schools adopted the three-year postgraduate course of study for law. 98 The increasing complexity of the practice of law buttressed the need for formal legal training. 99 With regard to wills, the twentieth century ushered in waves of reform in the area of succession."oo The much-decried probate system sparked legislative action and spurred development of will substitutes.o IV. RHETORICAL ANALYSIS OF WILLS EXECUTED BETWEEN 1821 AND 2003 Many studies of the language of wills focus on the foibles of testators, such as a testator who required his beneficiaries be at least six feet four inches tall or directed the sale of seventy-one pairs of his included both common law rules and principles of equity. Id. at 302. Before the code, digests were used. See, e.g., A DIGEST OF THE LAWS OF THE STATE OF GEORGIA: FROM ITS FIRST ESTABLISHMENT AS A BRITISH PROVINCE DOWN TO THE YEAR 1800, INCLUSIVE (1801). 97. For a biography of articles and books relating to the years of the American Bar Association from 1878 to 1960, see Norbert C. Brockman, The History of the American Bar Association: A Bibliographic Essay, 6 AM. J. LEGAL HIST. 269 (1962). To commemorate the semi-centennial of the American Bar Association, the Association compiled and published biographies of past presidents of the American Bar Association. JAMES GRAFTON ROGERS, AMERICAN BAR LEADERS: BIOGRAPHIES OF THE PRESIDENTS OF THE AMERICAN BAR ASSOCIATION (1932). See also John A. Matzko, "The Best Men of the Bar": The Founding of the American Bar Association, in THE NEW HIGH PRIESTS: LAWYERS IN POST- CIVIL WAR AMERICA, supra note 83, at ALBERT JAMES HARNO, LEGAL EDUCATION IN THE UNITED STATES 95 (1953). In 1898, the subjects of the Georgia bar were the following: "I.The common and statute law of England of force in this State; 2. Pleading and practice; 3. The Code; 4. The State and Federal Constitution; 5. The rules of practice of the Superior Courts." GRICE, supra note 96, at The law seems to have always been increasing in complexity. See, e.g., R. BLAIN ANDRUS, LAWYER: A BRIEF 5,000 YEAR HISTORY 173 (2009) ("The 1189 treatise called Glanvill discussed thirty-nine writs; about one hundred years later, there were 471 different writs.") See generally PROBLEMS IN PROBATE LAW supra note 80 (summarizing state of probate law and the need for reform). Although these issues gained public visibility in the twentieth century, concerns about the probate process had been of long standing. For example, complaints regarding the overcharging of fees for probating wills surfaced in ALISON REPPY, THE ORDINANCE OF WILLIAM THE CONQUEROR (1072)-ITS IMPLICATIONS IN THE MODERN LAW OF SUCCESSION 31, 32 (1954) See generally John H. Langbein, The Nonprobate Revolution and the Future ofthe Law ofsuccession, 97 HARV. L. REV (1984).
18 682 QUINNIPIAC LAW REVIEW [Vol. 29:665 trousers.102 Extraordinary bequests, such as Leona Helmsley's gift to her dog, appropriately named "Trouble," garner headlines But ordinary concerns underscore all wills: taking care of loved ones and cherished property and causes.'" Limiting review to probate records necessarily restricts review of wills. For example, a number of wills are never probated, such as the case of a first-to-die spouse where all the property was held as joint tenants with right of survivorship or passed via will substitutes. 105 This Article's rhetorical analysis of the genre of wills is tethered to a particular geographic location and anchored in 102. HARRIS, supra note 57, at 161, 177; see also ROBERT S. MENCHIN, WHERE THERE'S A WILL (1979) For a selection of wills by the rich and famous, including the wills of Benjamin Franklin, Katharine Hepburn, and Leona Helmsley, see Famous Wills: Wills of the Rich and Famous, LIVING TRUST NETWORK, https://livingtrustnetwork.com/information-center/lastwill-and-testament/wills-of-the-rich-and-famous.html (last updated Mar. 14, 2011) For a selection of articles using probate records as source material, see CAROL BUCHALTER STAPP, AFRO-AMERICANS IN ANTEBELLUM BOSTON: AN ANALYSIS OF PROBATE RECORDS (1993); Olin L. Browder, Jr., Recent Patterns of Testate Succession in the United States and England, 67 MICH. L. REV (1969); Kris Bulcroft et al., Elderly Wards and Their Legal Guardians: Analysis of County Probate Records in Ohio and Washington, 31 GERONTOLOGIST 156 (1991); Stephen Clowney, In Their Own Hand: An Analysis of Holographic Wills and Homemade Willmaking, 43 REAL PROP. TR. & EST. L.J. 27 (2008); James W. Deen, Jr., Patterns of Testation: Four Tidewater Counties in Colonial Virginia, 16 AM. J. LEGAL HIST. 154 (1972); Allison Dunham, The Method, Process and Frequency of Wealth Transmission at Death, 30 U. CHI. L. REV. 241 (1963); Carol A. Engler-Bowles & Cary S. Kart, Intergenerational Relations and Testamentary Patterns: An Exploration, 23 GERONTOLOGIST 167 (1983); Lawrence M. Friedman, Patterns of Testation in the 19th Century: A Study of Essex County (New Jersey) Wills, 8 AM. J. LEGAL HIST. 34 (1964); Lawrence M. Friedman et al., The Inheritance Process in San Bernardino County, California, 1964: A Research Note, 43 HOUS. L. REV (2007); Kristine S. Knaplund, The Evolution of Women's Rights in Inheritance, 19 HASTINGS WOMEN'S L.J. 3 (2008); Richard R. Powell & Charles Looker, Decedents' Estates: Illumination from Probate and Tax Records, 30 COLUM. L. REV. 919 (1930); Robert A. Stein & Ian G. Fierstein, The Demography ofprobate Administration, 15 U. BALT. L. REV. 54 (1985); Edward H. Ward & J.H. Beuscher, The Inheritance Process in Wisconsin, 1950 WIS. L. REV This also accounts for a slightly higher number of female testators than expected. These wills may represent the will of the second spouse to die where the first spouse's will was not probated because the property was held as joint tenants with right of survivorship. For an analysis of behavior and will drafting, see Alyssa A. DiRusso, Testacy and Intestacy: The Dynamics of Wills and Demographic Status, 23 QUINNIPIAC PROB. L.J. 36 (2009) [hereinafter DiRusso, Testacy and Intestacy]. Based on a national representative sample, one scholar found that sixty-eight percent of individuals surveyed died intestate. Id. at 39, 41. Of those surveyed, twenty percent had a will drafted by an attorney, and eleven percent had personally drafted their own wills. Id. at 41. Less than twenty-six percent of women surveyed had a will. Id. at 45. Of those individuals having advanced degrees, fifty-five percent had a will. DiRusso, Testacy and Intestacy, supra, at 50. For an analysis of gender and language, see Alyssa A. DiRusso, He Says, She Asks: Gender, Language, and the Law of Precatory Words in Wills, 22 WIS. WOMEN'S L.J. 1 (2007).
19 2011] LANGUAGE IN LAST WILLS AND TESTAMENTS 683 nine discrete time periods representing particular legal, economic, and social contexts. A. Selection ofartifacts The selected wills was procured from the Bibb County Probate Court in Macon, Georgia. Wills from Middle Georgia provide a rich pool from which to draw observations about the genre of wills.1 06 The charter to colonize Georgia was granted on June 9, The Georgia Colony 0 8 was founded in an attempt to limit Spanish expansion of Florida and to be a place where debtors could get a fresh start.109 Georgia has a rich legal history." 0 "By the beginning of the eighteenth century the legal profession was reasonably well organised in the Southern colonies....""' Trade between the South and England maintained a tie to English common law.11 2 In addition, before the Civil War, many Southern lawyers were trained in England." 3 Mercer Law School was founded in and has supplied a steady stream of 106. This location is admittedly also convenient. The courthouse is less than five miles from the Author's office STIRLING PRICE GILBERT, A GEORGIA LAWYER: HIS OBSERVATIONS AND PUBLIC SERVICE 180 (1946) For summaries of the dispositive provisions of wills in colonial Georgia, see NAT'L SOC'Y COLONIAL DAMES OF AM. IN THE STATE OF GA., ATLANTA TOWN COMM., ABSTRACTS OF COLONIAL WILLS IN THE STATE OF GEORGIA, (1981) GILBERT, supra note 107, at 180. Georgia was in the first group of states to ratify the Constitution after the Revolutionary War. See KENNETH COLEMAN, COLONIAL GEORGIA: A HISTORY (1976) GRICE, supra note 96, at 56. For the autobiographical reflections of a former Georgia Supreme Court Justice who was born in 1862, see GILBERT, supra note BIRKS, supra note 23, at See generally Carole Shammas, English Inheritance Law and Its Transfer to the Colonies, 31 AM. J. LEGAL HIST. 145 (1987). Continual traffic with the mother country kept the Southern colonies in close touch with the English way of life and many colonists could afford to educate their sons in England. Such young men were necessarily well to do, so that those who decided upon a legal career were more likely to join one of the Inns of Court than to enter into articles with an attorney. BIRKS, supra note 23, at MCKENNEY, supra note 86, at 32 (observing that "[t]he history of the legal profession in Macon and Mercer University's law school are tightly interwoven"). Macon was once home to another law school that a graduate of Mercer Law School founded. Id. at 34. The Maynard Law School, which was in operation from 1915 to approximately 1945, graduated 200 lawyers, including Viola Ross Napier. Id. Viola Ross Napier was one of the first female attorneys to practice in Macon, and she was the first woman to have a "long sustained practice." Id. at 34, 107.
20 684 QUINNIPIAC LAW REVIEW [Vol. 29:665 graduates to the Macon Bar.1 The Georgia General Assembly created the County of Bibb in December The city of Macon was chartered in Twelve thousand years before the Europeans landed in America, Creek Indians settled in the area between two rivers that would become Bibb County."' A military fort preceded the chartering of the city of Macon, located eighty-five miles south of the major metropolitan area of Atlanta.' 19 The city, in the heart of Middle Georgia, has served as a commercial hub due to its river access and later, the intersection of railroads Macon missed the direct damage of the Civil War when General William T. Sherman's main army skirted the city of Macon in the infamous March to the Sea.121 Today, Macon maintains its status as the hub of Middle Georgia The reviewed wills were executed as early as 1821, two years before the city was chartered, and as late as This time span represents the oldest accessible wills and the most recently accessible wills. The wills were randomly selected,1 23 with the only parameter being the date of execution. 124 Conscious that the context of any 115. A survey in 1923 determined that eighty-five percent of Macon lawyers received their formal education from Mercer Law School. MCKENNEY, supra note 86, at Id. at 13; see also JOHN CAMPBELL BUTLER, HISTORICAL RECORD OF MACON AND CENTRAL GEORGIA (1958) Cities & Counties: Macon, NEW GA. ENCYCLOPEDIA, (last updated Jan. 8, 2010); see also JEANNE HERRING, MACON, GEORGIA (2000) CAROL I. MASON, THE ARCHEOLOGY OF OCMULGEE OLD FIELDS, MACON, GEORGIA 3-4, 31 (2005) MASON, supra note 118 at Midstate-Bibb County, MIDSTATE (last visited Aug. 24, 2011) See, e.g., JO MCCONNELL & SADIE CRUMBLEY, MACON TREASURES REMEMBERED: THE ANTEBELLUM YEARS (2002); RICHARD W. IOBST, CIVIL WAR MACON: THE HISTORY OF A CONFEDERATE CITY (1999) Midstate-Bibb County, supra note So that the author did not inadvertently slant selection, the author's research assistant, Kathryn S. Seabolt, selected the wills. In doing so, she randomly selected seventeen wills without regard to the gender of the testator, the length of the will, the complexity of the terms, or the actual language used For example, a will may have been executed in 1974 but not probated until In that case, the will is included in the 1970s/1980s time group. See, e.g., Last Will and Testament of Lamar Barney Boothe, Apr. 25, (on file This also partly explains why the most recent will, based on the date of execution, was executed in 2003 and admitted to probate in Last Will and Testament of Charles Burkett, July 10, 2003 (on file The active files of the court, including wills recently submitted to the court and wills subject to current litigation were not accessible.