George Washington

George Washington signed his will on July 9, 1799, five months before he died. He wrote it himself, over the course of that summer, on fifteen sheets of specially prepared paper carrying his own watermark — twenty-nine written pages, front and back. He signed at the foot of every page except one, where he appears to have believed his signature was already there.

He also wrote, inside the document, a sentence that estate lawyers have been quoting at each other for two centuries: that in its construction it would readily be perceived that no professional character had been consulted, or had any agency in the draught.

That was true, and it shows — in both directions. The will is meticulous where a lawyer would have been meticulous: debts to be paid punctually and speedily, a life estate to Martha in the whole of the property, a residue carved into twenty-three shares for named relations, seven executors, and an attached Schedule of Property listing more than fifty thousand acres across New York, Pennsylvania, Maryland, Virginia, and the Ohio, Kanawha, and Little Miami rivers, with an aggregate estimate of roughly $530,000.

It is also, formally, a document that no modern American state outside a minority would accept as written. Washington executed it as a holograph: entirely in his hand, signed, and unattested. There are no witnesses named at the end of it. Virginia in 1799 did not require any.

What the will did, and what it could not do

The provision the will is remembered for concerns the people Washington enslaved, and it has to be stated exactly, because it is routinely stated wrong in both directions.

What the will did. Upon the death of Martha Washington, the enslaved people held in his own right were to receive their freedom. He directed that the aged and infirm among them be clothed and fed by his estate for the rest of their lives. He directed that children without parents able to provide for them be bound out by the court, taught to read and write, and brought up to a useful occupation. He expressly forbade the sale or transportation out of the Commonwealth of any of them, under any pretence whatsoever. And he instructed his executors to see the clause fulfilled religiously, without evasion, neglect, or delay.

His valet, William Lee, was treated separately and immediately: freedom at once if he chose it, or the option to remain, and an annuity of $30 a year for life.

What the will could not do. In 1799 there were 317 enslaved people at Mount Vernon. Washington owned 123 of them — some counts say 124. Another 153 were dower slaves: property of the estate of Martha's first husband, Daniel Parke Custis, in which she held only a life interest. Neither George nor Martha Washington had the legal power to free those 153. They belonged, in law, to the Custis heirs. A further forty were rented from a neighbour, Penelope French, and were never his to free at all.

Over decades the two groups had married each other and raised children together. Freeing one group and not the other did not liberate a community. It cut through the middle of families, and it did so along a line drawn by a property interest created before Washington ever married into it.

This is not a technicality that can be waved past. It is the central legal fact of the clause. A will can only give away what the testator owns. Washington owned 123 people and freed 123 people. The other 194 stayed enslaved, and the law that kept them there was ordinary property law, working exactly as designed.

Martha did not wait

The will made the manumission take effect on Martha Washington's death. She did not wait for it.

In December 1800, roughly a year after her husband died, she executed a deed of manumission, recorded in the Fairfax County court records, and Washington's 123 became free on January 1, 1801 — more than eighteen months before Martha's own death in May 1802. Contemporary accounts differ on her reasons and this page will not guess at them.

The dower slaves were not freed. On Martha's death in 1802 they passed, as dower property does, to the Custis heirs and were distributed among her grandchildren. Some of the families divided in 1801 were divided again.

Washington also used the will to fund institutions rather than only people: fifty shares in the Potomac Company toward a national university in the District of Columbia, and one hundred shares in the James River Company to Liberty Hall Academy in Rockbridge County — an institution that is now Washington and Lee University. The Potomac Company gift produced nothing; the company failed, and the national university was never built.

The document is better than its reputation and worse than its legend

Read as a piece of drafting rather than as scripture, the will is a very good amateur job with the exact defects you would predict from an amateur job.

It is unusually clear about intent — Washington keeps explaining why he is doing things, which is why historians can still read his reasoning two centuries later. It is unusually thorough about contingencies among his relatives, running the residue through twenty-three named shares.

It is weakest on formality and administration: no attestation, seven executors with overlapping authority, a schedule of speculative western land that took the estate years to convert into money, and a charitable gift tied to the shares of a single company that later collapsed. His nephew Bushrod Washington and the other executors spent years selling land to satisfy a document that assumed the land could be sold.

• Intent, stated. He explains his reasoning inside the instrument. Modern drafting mostly does not, and modern litigation mostly wishes it had.
• Formality, skipped. No witnesses, because Virginia did not require them. That single choice is what makes the will unenforceable in most of the country today.
• Charity tied to one asset. Fifty shares in one company, and when the company failed the gift failed with it.
• Illiquid schedule. Fifty thousand acres of frontier land is a valuation, not a fund. Executors pay bills in cash.