Despite some changes, at Independence the law of inheritance, which the English jurist Sir William Blackstone described as "the double preference given by our law, first to the male issue, and next to the firstborn among the males," retained the imprint of its feudal origins. In every society the rules governing inheritance—the principles by which property descends to an heir—embodied economic structures, social norms, and cultural preferences. As Blackstone correctly pointed out, English law had developed its rules of succession at a time when a monarch had to identify and sustain those on whom he counted for military aid: "the ability for personal service was the reason for preferring males at first in the direct lineal succession."
Among these rules was that of primogeniture, according to which land held by a person who died without a will went in its entirety to the eldest son. Consistent with their reformist impulses, every New England colony abolished it and replaced it with a biblically inspired rule dividing lands among all chil-dren—sons as well as daughters—equally, except that a double portion went to the eldest son. This rule of "partible inheritance," established in the Puritan colonies, followed religious impulses; but it also reflected a distributive ideal of spreading property broadly to produce a society of numerous independent households. A significant number of New Englanders drafted wills providing for all their children with some legacy of property. Outside New England, by contrast, all but the Quaker colonies of Pennsylvania and West New Jersey retained primogeniture, with its traditional English dynastic ideal of keeping property consolidated within a male bloodline. Widows were not heirs of their husbands: a widow was entitled only to her "dower" rights of one-third of her husband's personal property and the use of one-third of his real property during her lifetime, after which the property went to the husband's legal heirs. Such rules, which Blackstone described as "intended for [a married woman's] protection and benefit," also barred her from bequeathing any of her own land to her husband. In practice, many men left real property to their widows or made them executors in charge of their estates. Mortality left many a widow but also many an orphan, and Maryland created courts to assure the proper use of assets left to minors.
The limited abolition of primogeniture marked the limits of colonial inheritance reform. All the colonies continued English rules that gave priority to male heirs and allowed them to preserve their lands undivided by converting them into "fee tail" estates passing to "the heirs of my body." Because title to the land could pass to no one else, these heirs could not sell or mortgage it. As in England, ending an entail was costly and time-consuming, and Virginia, where many estates were entailed, made it even more so in 1705. Tradition held out, therefore, supported by social ideology and enforced by English authority when challenged, as the Privy Council made clear in 1728 when it invalidated Connecticut's law on partible inheritance.
Independence provided the opportunity to reshape inheritance law consistent with the goals of the Revolution. As a type of property law, the rules governing succession were left to the states; but the shared impulses of creating republican societies produced some general patterns of change in state statutes of distribution. Because Virginia's laws governing succession were particularly retrogressive, the reform efforts of Thomas Jefferson and others stand as noteworthy attacks on an ancien régime of law that protected huge landed properties. "The transmission of this property from generation to generation in the same name," he wrote, "raised up a distinct set of families who, being privileged by law in the perpetuation of their wealth were thus formed into a Patrician order, distinguished by the splendor and luxury of their establishments." His proposals to abolish primogeniture and entail provoked fierce opposition among conservatives, one of whom said that only a "mid-day drunkard" would think of doing so. Nevertheless, reformers persisted in using law instrumentally to create what Jefferson called "a system by which every fibre would be eradicated of antient or future aristocracy; and a foundation laid for a government truly republican." Their goals went beyond the political and envisioned a reform of social behavior as well. The entailment of estates, Jefferson argued, was "contrary to good policy" because it deceived lenders, discouraged improvement, and emboldened children to disobey their parents.
Despite its defenders, entailment aroused powerful opposition as a bulwark of privilege and obstacle to economic growth. Jefferson believed that each generation held its property as "usufruct"—a term describing land possessed for use only—and that en-tailment denied a people's right to determine its own policies. Virginia abolished entail in 1776, and in the process crippled the dynastic tool of the "strict settlement" that had also been used to tie up property for generations. Massachusetts, acting in 1791, was among other states following suit in abolishing en-tailment.
In 1777 Georgia became the first southern state to end primogeniture, followed by North Carolina in 1784. Virginia, to Jefferson's embarrassment, did so only in 1785. Massachusetts, which had replaced primogeniture with its double-portion rule in the seventeenth century, finally ended even that discrimination by making all shares equal in 1789. In any event, as more and more people made wills in the post-Revolutionary era, such a rule governing intestacy was of diminishing practical importance.
As a Connecticut judge commented, inheritance was "not a natural, but municipal right," and the powerful force of Revolutionary positivism overcame resistance and propelled legislatures across the new nation to reform the law of succession. Statutes weakened the paternalistic and aristocratic English system and in its place made inheritance law an instrument of creating responsible property-holding citizens. Where English law had served to preserve an aristocratic family bloodline by excluding halfbrothers and half-sisters from inheriting, for example, Virginia abolished the discrimination and allowed them legacies. Although statutory change stopped short of expanding the inheritance rights of women, they benefited from the expanded use of practical methods that allowed families to create legal settlements in the form of trusts or chains of future interests.