Beyond
the Index
1856
Illinois Probate Manual
by
Michael John Neill
Records of the settlement of estates are sources
frequently used by genealogists. Their value lies
in the fact that they often document relationships,
residences, and other life details necessary to distinguish
one individual from another. However sometimes these
records are not easy to use. Difficulties with using
these records generally result from the following:
- Changes in the law over time. What was true in 1850 may not have been true
in 1950 or 1750.
- Frequent differences in the law from one state to another. The law surrounding
probate and inheritance is governed by state statute.
- An unawareness of the precise legal meaning of specific terms. The law may
use a word in a different sense from a layman.
We've discussed probate records before in this column:
- "Trientje's
Testate Tidbits," A discussion of a 1920s-era probate.
- "Probate:
An Introduction"
This week we take a slightly different approach.
I recently came across a book that provided me with
a better understanding of probate in the mid-nineteenth
century in Illinois. This contemporary guide to probate
gave me an excellent overview of the probate process.
It actually explained a few records that had previously
never made sense to me.
The book I located was: Elijah M. Haines, The
Probate Manual, Being a Complete Guide for Executors,
Administrators and Guardians, Under the Laws of
Illinois, with Practical Forms, Chicago, Keen
and Lee, 1856.
This guide summarizes state statute, case law, and
common practice, all of which impact records utilized
by family historians. Our discussion this week focuses
on Illinois in the 1850s, but significant parts are
applicable to other areas during this same time period.
Researchers are encouraged to learn about records
in their specific locations and times. It is not
necessary to read such guides in order to use these
records, but an understanding of the underlying probate
process is very helpful towards putting the materials
in context. Below is a sampling of what I found in
the guide:
Who Can Make a Will
A will indicates to whom property should descend
upon the death of the person writing and signing
the will. Not just anyone was legally able to make
a will. All persons twenty-one years and older, and
unmarried females eighteen years and older were able
to dispose of their own real and personal property
via a last will and testament. All persons seventeen
years and older (except married women) could dispose
of any personal estate by a will and testament. Married
women had the power to dispose of their separate
estate, both real and personal.
After the Death
Within thirty days of the testator's death, the
will should be brought before the county court to
begin the probate process. In the 1856 Illinois probate
guide it is indicated that the executor can bring
the will after this deadline, but that there will
be a fine of twenty dollars per month. It is highly
likely that most wills were brought within the deadline
specified.
Where to Probate
"If the testator has a mansion house, or known
place of residence," his will is to be proved in
the county court where that resident is located.
Wills of testators with no place of residence who
bequeath real property should be probated in any
county in which the property is located, typically
the county where the bulk of the property was located.
Who
Can Be Executors
A will should name an executor, the person who
is charged with carrying out the terms of the will.
According to the 1856 Illinois probate manual, anyone
over seventeen may be named as an executor (and approved
by the court), but if the person is under twenty-one
another person will be appointed by the court to
manage the estate until the executor comes of age.
There are other reasons why the executor named in
the will may not be approved by the court, including:
-
Being of unsound mind
- Being a married woman (A married woman can be approved as an executor, provided
that her husband and two or more men sign a bond with sufficient security.)
- Having been convicted of an infamous crime, including (but not limited to)
perjury, robbery, kidnapping, and counterfeiting.
On the flip side, an executor named in a will can
also refuse to act.
The executor must post a bond in sufficient security;
in the case of Illinois probates for this time period,
the bond must have a stated value of at least twice
the value of the estate. This bond is to cover any
misappropriation of funds by the executor, in which
case the court will bring action against the executor
and the securities in order to recover the money.
The will can indicate that the executor not post
a bond, but the court can choose whether or not to
honor this request. There are many reasons why this
may be denied, including the liquidity of the estate
and the likelihood of fraud.
No Will?
If there is sufficient estate to require a probate,
an administrator must be appointed by the court if
no will is brought before the court. The husband
must be granted administration on the goods and chattels
of his wife, and, in other cases, the widow or next
of kin (or several of them) have the first right
to be administrator of the estate.
A creditor may be appointed administrator, but must
produce satisfactory evidence that those with the
first right to administrator the estate (widow and
children) have relinquished their first chance at
administration. If the deceased has property in the
county and no heirs or creditors, the county's public
administrator can be appointed administrator of the
estate.
The administrator is to post bond with a security
double the value of the estate.
Revoking Letters of Administration
If the administrator becomes insane, becomes
a habitual drunkard, commits an infamous crime, or
mismanages the estate, he can have his letters of
administration revoked. The same is true of the executor.
Descent and Allowance to the Widow and Family
The widow is allowed her dower portion and the
balance to the children in equal parts. If there
is a widow and no descendants, then the wife is to
get half the real estate and the whole of the personal
estate (the rest to the husband's heirs). The husband
of a married woman with no descendants gets half
of any real estate she may own.
Allowance to the Widow
The widow is allowed, in exclusion of creditors,
as her sole and exclusive property:
- Necessary beds, bedsteads, and bedding, for herself and her family
- Necessary household and kitchen furniture
- One spinning wheel
- One loom
- Wearing apparel for herself and her family
- One milk cow and calf for every four persons in the family
- One woman's saddle and bridle
- Fuel for herself and her family for six months
- Other items
The widow may take an equal value of other property
or actual cash. The widow is also allowed one-third
of the personal estate, after the payment of debts.
Inventory and Appraisement
The administrator or executor of the estate shall
make out a complete inventory of all real and personal
estate within three months of his being appointed.
Three persons of discretion (not related to the deceased)
shall be appointed as appraisers of the inventory
of the estate.
Next week we continue our look at this interesting
1856 guide, including the discussion of dower.
Michael John Neill is the Course I Coordinator at
the Genealogical Institute of Mid America (GIMA)
held annually in Springfield, Illinois, and is also
on the faculty of Carl Sandburg College in Galesburg,
Illinois. Michael is the Web columnist for the FGS
FORUM and is on the editorial board of the Illinois
State Genealogical Society Quarterly. He conducts
seminars and lectures on a wide variety of genealogical
and computer topics and contributes to several genealogical
publications, including Ancestry Magazine
and Genealogical Computing. You can e-mail
him at mjnrootdig@myfamily.com or
visit his website at www.rootdig.com,
but h e regrets that he is unable to assist with
personal research.
Copyright 2004, MyFamily.com.
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