Book Review: Hartog’s Someday All This Will be Yours

Hendrik Hartog, Someday All This Will be Yours: A History of Inheritance and Old Age (Harvard University Press 2012)

Dirk Hartog’s Someday All This Will Be Yours:  A History of Inheritance and Old Age is a book about story telling in the law, as well as a rich description of work within families, of the complex relationship between labor, money, and love.   It is also a new and critical (in several senses of that word) text for the developing field of elder law.    Elder law as a discipline  that is just now coming into its own, an event that, not coincidentally, is occurring as the baby boomers begin to hit retirement age and as the sandwich generation has become increasingly vocal.  More than half of all law schools now include, in their listed curriculum, a course on elder law.

Hartog, who is the Class of 1921 Bicentennial Professor in the History of American Law and Liberty at Princeton University, is also the author of Man and Wife in America (2000), which served as a legal history of marriage in America from the late 18th century through the middle of the 20th century, and was based on studying how ordinary men and women attempted to use the law either to escape their dissatisfying marriages or to seek shelter through the status of marriage. Someday All This Will Be Yours does something similar, also arguably within the context of family law, by studying how, from the mid-nineteenth to mid-twentieth century, ordinary men and women arranged for their own care as they aged, and then how their alleged caretakers attempted to use the law to make good on these arrangements. Aging individuals used the promise (in these cases, the illusion) of inheritance to induce the needed caretaking at a time when there was no default of Social Security and Medicaid and before the widespread development of pensions.  The book analyzes the resulting conflicts about property inheritance, using an extensive database of more than 200 cases from 19th- and 20th-century New Jersey courts as well as more extensive trial transcripts in 60 of those suits.  Hartog closely, carefully, and painstakingly examines these cases for what they show about changing patterns in care for the elderly, parent-child relations, the tensions between family and commodification, and the development of the common law outside of precedent-setting and frequently cited cases.  As he points out, the cases involve two different “shadowy figures within family la as it has ordinarily been conceived:  the adult child and the elderly person.”  (p. 21)

The book has two major sections, and an epilogue that has a “presentist” kick, which relates this legal history of elder care to contemporary issues.  Hartog starts the book by describing the strategies that elderly people used to induce those around them to provide the requisite care.  There were few executed contracts, although there were some invalidly executed wills, which provided evidence of intent.  Instead, the core inducement was an explicit promise that was allegedly made by the older person that the younger person would receive the family farm or some other property in exchange for providing caretaking services.  The care might consist of physical labor, such as cooking, cleaning, and nursing, or it might consist of companionships, to protect against the loneliness and solitude of aging, and the younger person might be a family member, the spouse of a family member, or a close friend.  The database of cases provides multiple different contexts in which these promises were made.

In the second section, titled “Death and Lawyers,” the book turns to what happened when the older person failed to fully perform on the alleged promise, thereby precipitating the lawsuits that Hartog scrutinizes.  This was when the caretaker consulted with a lawyer, trying to establish the legal grounds for the promised property, an action typically based on contract law.  Once in court, judges had to decide whether the services had been performed gratuitously, with the mere expectation of compensation, or based on an explicit offer and acceptance.  In reading through the range of cases discussed in the book, it is difficult to develop overarching legal principles as to when courts would order relief; indeed, Hartog concedes that “[i]t Is often hard to discern why a case came out as it did . . many of the cases leave the reader uncertain why work revealed by the testimony did or did not entitle the complainant [] to special compensation.”  (pp. 257-58)

Consequently, Hartog has not sought to write a history of the development of specific legal doctrine.  Instead, the book is focused on negotiations within relationships, on informal practices that sought legal recognition. More broadly, as he points out in the Epilogue, he is looking at the psychological, emotional, and cultural dilemmas in caring for older people.   During the time period he studied, care was privatized, and older people used the power of property, of inheritance and its corresponding freedom of testation to protect themselves; today, much of elder care has become more public, and older people turn to others not based on power, but as a result of need. Nonetheless, he ends by noting that the stories revealed by the cases, of how to understand one’s role within a family as both parents and children age (the parents become elderly and the children become adults), resonate today, particularly given our increasing longevity

The book touches upon family law, trusts and estates, property, contract, commodification, and (of course) the role of legal history, and  it pulls these together  with wonderful complexity and intertwined themes.   It also should speak to many people on a personal level, whether they feel “’trapped’” into caring for elderly family members, well-compensated for providing this care, or simply honored to do so.

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Naomi Cahn is a professor of law at the George Washington University Law School and author of Red Families v. Blue Families: Legal Polarization and the Creation of Culture (Oxford Univ. Press 2010) (with June Carbone).

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