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In books that discuss figures in Colonial America and early American history (and I believe more broadly throughout contemporaneous European history), it is relatively common to see discussions of what property was owned by that figure and what property he controlled but was owned by someone else's estate. For example, when George Washington died, he owned 123 enslaved people who he could free in his will but there were another 153 enslaved people owned by the Custis estate at Mt. Vernon that he didn't (and to my understanding couldn't) free.

In the Washington example, the Custis estate was the estate of Daniel Parke Custis who died in 1757 some 42 years prior to Washington's death. In the modern era, a personal estate exists as an entity just long enough to pay off the decedent's debts and distribute any remaining property to whatever heirs are specified in the will. That can take some time in more complicated cases or when wills are contested but not 42 years. And certainly not 42 years when there was no apparent controversy about how to distribute the Custis assets.

In my head, it seems to more or less work when I replace "estate" in these contexts with the modern idea of a trust that was implicitly created by the decedent's will and which implicitly created trustees of either the executor of the will or the person given temporary control over the property. But I have no idea if this misses some important facet of 17th and 18th century estates. For example, it happens from time to time that someone worries about needing to reimburse the estate if some investment turns out badly while a modern trustee would be obligated to invest the funds of the trust prudently but wouldn't be personally liable for every market downturn.

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  • The Wikipedia page on Custis has some information on his estate; he died intestate but there were apparently common law provisions that led to his property coming under Martha's control (rather than George's). I'm not familiar with 18th century inheritance law, so maybe someone can explain more clearly. en.wikipedia.org/wiki/Daniel_Parke_Custis
    – Stuart F
    May 10 at 9:58
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In the case of Washington, at least, things were a bit complicated, because of the time and place.

Daniel Parke Custis was the first husband of Martha Dandridge, later Martha Washington. It was this woman who inherited Daniel Custis' estate when he died and she became a widow.

In the 18th century, when an American woman married or remarrried, her property "belonged" to her husband for the duration of the marriage. I used scare quotes because what this meant was that the husband, in this case George Washington, would have the use of her property, such as her slaves. That is, he could use his wife's slaves to farm his property at Mt. Vernon.

But "title" remained in the hands of the wife (and Martha outlived George). Upon her death, the Custis estate was passed on to the remaining Custis heirs. The actual ownership by the Custis' (as opposed to Washington's control), meant that Washington could not free these slaves.

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    So Martha possessed Custis' and Washington's estates until her death, and then they passed onto the respective heirs? And if she had married a third time, that husband would have use of three estates (if he had his own)? May 10 at 18:51
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    @AzorAhai-him-: That's my understanding.
    – Tom Au
    May 11 at 3:06

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