Coping strategies in old age have not received sustained attention from legal and social historians. Hendrik Hartog slices into the topic by analyzing over 200 New Jersey cases from the 1840s to the 1950s arising from promises such as “Care for me, and you will get my property” (6). Younger people, usually relatives, sometimes housekeepers, moved into an older person's house, expecting to inherit, and then found they were not named in the will. Hartog mines trial transcripts to illuminate the nature of the care work performed, older people's tactics for keeping adult children close, and the labor negotiations at the core of family life. The epilogue offers a thoughtful rumination on the disjunctions and continuities between today's legal and moral landscape of eldercare and the family-based arrangements of the period under study, which Hartog sees as a single “historical era” (14).
The pages of this book are not studded with influential jurists, flashy lawyers, famous plaintiffs, important precedents, or dramatic doctrinal change. The focus is on probate, contract, and equity actions that were understood at the time as “the ordinary work of state courts throughout the nation” (9). New Jersey was not distinctive; it merely provides a useful sample of cases that pivoted on the “King Lear problem” (33), and that we would learn little about if we consulted nineteenth and twentieth century legal treatises. In an era when the judicious deployment of land (the farm, the urban townhouse, and shop) could mean a decent old age, “older people used promises—not transfers or executed contracts” (33) to avoid being vulnerable to Regans and Gonerils.
Hartog convinces us that the “someday this will be yours” cases not only contain unique information on household arrangements but also open up distinctive angles on “the moral life of a liberal capitalist society” (75). In order to compensate caretakers, judges were pressed to articulate limits to testator freedom, a principle broadly honored in common law and American culture. More pointedly, judges were asked to find exceptions to the seemingly iron-clad Statute of Frauds, which decreed that all land conveyances must be in writing. To do so, they invoked a “counter-norm” of partial performance wherein the promisee's arduous care work proved the existence of a prior oral agreement and argued for not defrauding the caregiver. The key legal test, Hartog finds, was “a life transformed” (181). Caregivers who demonstrated they had deferred careers, family life, or geographic mobility might win the farm or compensation for their labor (the latter, in quantum meruit actions). However, legal rules were weighted against petitioners; more claimants lost than won, and lawyers must have discouraged many disappointed promisees from bringing suit.
“A capitalist legal culture defined by free labor and expectations of mobility” offered little support either to older folk strategizing to keep their adult children nearby or adults opting to stay in (or return to) the parental home out of filial duty or a desire to help their elders avoid the poorhouse (279). Caregivers who counted on promised bequests foolishly put themselves at risk, according to conventional legal thinking. They should have insisted on a written agreement, demanded the deed, or contracted for a wage. But the culture's obsession with contract ran up against family members' reluctance (then and now) to pay relatives or fictive kin for intimate carework. The parties preferred “to live out the partial fantasy that everything . . . was being done out of love” (104).
Women had a harder time than men passing judicial tests, such as that a promisee must have offered exceptional care, above and beyond what a family member customarily contributed. Because housework and nursing were seen as inherent to female duty, and because opportunities for wage work were limited, judges often saw the daughters and housekeepers who brought suits as not having given up alternative prospects and, therefore, not having been defrauded (98). Moreover, grown daughters, but not sons, who continued to live at home might be seen in the eyes of the law as unemancipated dependents.
Like a dramatist, Hartog narrates the tales of promises extended and care given, often juxtaposing the opposing parties' stories. The texture of household life, the unpredictability of old age, and the applicability of legal rules provide the backbone of the book; the author eschews quantitative analysis. Readers may find that the topics of Chapters 1–4 blur together. Some chapter openings meander and prove repetitious. The book as a whole and some chapters in particular would benefit from unobtrusive roadmaps.
This book should be required reading for all who study the care work economy and how resources are mobilized to support the elderly. We can hope that it prods family historians to pay more concerted attention to the relations between parents and grown children. Finally, although Hartog focuses primarily on a world prior to Social Security, pensions, and managed care, he identifies some startling continuities with our day, which give us food for thought: security in old age is not easy to arrange; adult children are not legally “compelled to stay home and serve” (283); and family relations remains “a field of tacit contractual relations” (281).
