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| Researching Court Records
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Probate cases are distinctive enough to be discussed separately from equity proceedings. The records they generate are among the most valuable genealogical materials we have in America. They are also among the most complicated, filled with pitfalls for the unwary.
In New York State Probate Records: Genealogist's Guide to Testate and Intestate Records, Gordon Remington says, "To the genealogical purist, the title 'Probate Records' may not be quite accurate, for technically this term refers only to persons leaving wills (Testate) and not those who died without one (Intestate). The word probate, however, has come to mean the general class of records associated with an estate. Even Black's Law Dictionary (6th edition) states that 'in current usage this term has been expanded to refer to the legal process wherein the estate of a decedent is administered.'"14
The probate process transfers the legal responsibility for payment of taxes, care and custody of dependent family members, liquidation of debts, and transfer of property title to heirs from the deceased to an executor/executrix (where there is a will), to an administrator/administratix (if the person dies intestate-without a will), or to a guardian/conservator if there are heirs under the age of twenty-one years or in cases where a person has become incompetent through disease or disability.
When a person makes a last will and testament, he or she leaves a testate estate. Originally, only personal property (money and movables) could be bequeathed (given posthumously) by will. Not until 1540 did the Statute of Wills first permit land and other real property to be devised (granted posthumously) by will. Some authors have asserted a distinction between a will and a testament, applying one to real property and the other to personal property, but courts have uniformly held the terms to be equivalent. The phrase "last will and testament," like many deliberately redundant legal phrases, combines synonymous Anglo-Saxon and Norman-French terms.
Wills are of three different kinds: (1) Attested wills are prepared in writing and signed by responsible witnesses who certify to the court that the will was written at the instance of the deceased of his or her own free will and choice and that he or she was of sound mind at the time. (2) Holographic wills are handwritten entirely by the person making the will, signed, dated, and not witnessed. If any other person writes on the will, it is invalid. In addition, the will must be found among the individual's important papers. It cannot be filed with an attorney or other third party unless all valuable papers are so filed. In some jurisdictions, this kind of will is not valid. (3) Nuncupative wills are oral, deathbed wills dictated to witnesses who convert them to writing at the earliest possible moment and present them to the court within a specified period of time after the person dies. In some jurisdictions, this kind of will is also invalid.
When a person dies without making a will, his or her property becomes an intestate estate. It is divided according to settlement shares determined by law. In most states, if the deceased is a married man, the widow receives a prescribed interest in any real property her husband owned (known as her dower rights) and a prescribed share of his personal property, and the rest is divided equally among the children. If a child is dead, his share is divided among his own legal heirs. An illegitimate child is entitled to inherit from his or her mother. Unless the father has acknowledged his parenthood in writing, duly witnessed and accepted by the court, or unless he later marries the mother, a child born of unmarried parents cannot inherit from the father. Some states allow the father to petition for a legislative act to legitimize his children so they can inherit, and some allow naturalization of deceased persons by special act so their heirs can inherit.
If a person dies without issue, his or her estate passes to the spouse. If there is no spouse, the estate passes to his or her parents and brothers and sisters. In some states, descent of property goes no further than this. In some, lines of descent become quite complicated, with provision even for nephews, second cousins, and others.
In community property jurisdictions (Louisiana, California, Washington, Idaho, etc.), the property that a husband and wife own at the time of marriage and the property that each individually inherits afterward remain separate property; the property that they acquire together during their married life be-comes community property in which each has an undivided one-half interest. Upon the death of one spouse, the common estate automatically reverts to the surviving spouse in fee simple-that is, with the right to sell, mortgage, exchange, bequeath, or gift by written document.
Dower and Curtesy
In non-community property states, a woman has a dower right or life-estate, usually in one-third of her husband's real property. This right must be legally recognized in all transactions, including transfers of land. A man has the right of curtesy-a life-estate in any property his wife owned when they married or in any she inherits in her own right during the marriage-providing they had at least one living child who could inherit from them. Otherwise, he has a right to one-third of her property only.15 Marriage settlements contracted before the time of marriage can change these provisions.
Dower rights in Colonial America were based upon English common law and were practiced in most, if not all, colonies. One of the first states to enact specific provisions for widow's dower land was North Carolina in 1784. Lee Albright and Helen F. M. Leary, in North Carolina Research: Genealogy and Local History write:
- The widow, upon her petition, was put into possession of a third of the land her husband had owned at his death, plus enough provision to support her and the minor children for a year. In the personal property division she received the same portion a child did. If slaves were part of her ‚Äòchild's part' she held them only for her lifetime; at her death they returned to her husband's other heirs. If the deceased had no children, however, a third of the personal estate went to the widow absolutely, even if that third included slaves.16
Tennessee, which initially applied North Carolina's law, soon made changes. Beginning in 1813, a widow became entitled to a year's support in provisions and the use of crops from her husband's estate. Eventually, tools, leather, and iron were included, then household goods were added. By 1825, widows received one-half of the personal estate as well as the real estate share. An 1833 refinement gave the widow "1 plow, 1 hoe, 1 set gears for plowing, 1 iron wedge, 1 horse, mule, or yoke of oxen." Throughout this time, the intent of the law was to allow the widow to continue living in the family home. For a full discussion of the dower application process and the documents created, see Gary R. Toms and William R. Gann, Widows' Dowers of Washington County, Tennessee,17 from which this paragraph was adapted. This title is the first known book of compiled dower records and should be examined by all researchers hoping to locate similar documents in Tennessee or elsewhere.
Under recent legislation, however, a woman has the right to renounce her dower claim to her husband's estate. She must acknowledge that full disclosure of the total worth of the estate was made and that she understands what she is renouncing. This protects the estate against undue litigation. A man cannot legally disinherit his wife and leave her destitute, on the public's mercy. In most jurisdictions, welfare help is denied, even in cases of divorce, if the husband is in a position to pay for the wife's upkeep. Some states now designate a share of the intestate spouse's entire estate to the survivor, as an alternative to dower or curtesy, though this applies only to real estate.
A guardian is a responsible individual of legal age appointed or acknowledged by the court to manage the property ownership of those incompetent by reason of youth or mental or physical handicap to handle their own affairs. A guardian may also be called a conservator, a curator, a tutor, or a receiver.
An orphan is a minor whose father is dead or whose deceased mother left separately owned property to her child but excluded the father. In both cases, a guardian is appointed to assume the legal responsibilities of property ownership. In other words, the "orphan" may have a living parent in either case. Such a child may also be called a ward or infant. It is also common for a mother or father to be appointed guardian of his or her own children without implying adoption, formal or otherwise.
The appointment of a guardian for a minor may be a separate court process from probate, handled by a different court. Depending on the jurisdiction, the appointment of a guardian for an adult who is incompetent to handle his or her own affairs may require two separate court processes: the first to declare him or her incompetent, and the second to appoint someone to act in his or her behalf.
Since the procedures followed in both testate and intestate cases are almost identical, both can be considered together. Most states require that probate begin the first term of court following the death of a property owner, between thirty and ninety days after death.
1. Usually, the principal heir petitions the court for authority to begin the probate process. Until recent years these petitions were made verbally and recorded only in the probate minute books. However, some jurisdictions require written petitions bearing the names of all heirs, their residences, and their ages; these are filed with the original estate papers. Such petitions are especially valuable because they may be the only documents that list all the heirs. The attached image is an example of a petition to commence probate.
In a testate estate, the executor petitions for letters testamentary or authority to probate the will. In an intestate case, the surviving spouse or oldest son normally petitions for letters of administration or authority to administer the estate according to the laws of the jurisdiction.
It is the responsibility of the executor or the administrator to look out for the best interest of the estate, the needs of the heirs, and the claims of the creditors.
2. Proving the will is a step that applies only to testate cases. The document is presented to the court. The witnesses to the will appear and attest that they saw the individual sign the will, that he or she was in sound mental condition and that he or she expressed his or her own free will. The court, after hearing this sworn testimony, will order that the will be recorded. Wills judged invalid are not proved and, hence, are not recorded in the will book but can often be found among the loose or miscellaneous papers of the courthouse or town hall. They will not appear in the index to probate records, and they are rarely microfilmed. You have to ask for these records to be searched at the courthouse. Some jurisdictions now provide for pre-proved wills. At the same time the will is signed by the testator, the witnesses swear in writing before a notary that the testator was of sound mind and acting freely. Wills executed in this manner are accepted for probate without the witnesses appearing personally.
Some jurisdictions require that all heirs of the estate be notified and present at the reading and recording of the will. Anyone who would argue against the admission of the will to probate may make claim then or generally forfeit any future right to contest the will.
3. The executor designated in the decedent's will must be formally approved by the court. In intestate cases, the court appoints the administrator. Each state prescribes the order in which persons are entitled to be appointed, but, in general, this order is maintained: spouse, one of the children, parents, grandparents, brothers or sisters, uncles, aunts, nephews, nieces, great-uncles, great-aunts, first cousins, creditors, anyone legally competent, public administrators, etc.
4. An administrator must post a bond equal to the worth of the assets of the estate to insure his or her faithful performance of duty and to protect the heirs in cases of misconduct. In most states, an executor is not required to file a large bond if the decedent's will exempts him or her from that trust.
Bondsmen were usually relatives or family friends until recently, when bonding companies replaced personal sureties. If the wife is executrix, the bondsmen will usually be her relatives. If a brother or son is executor, they will be chosen from the family of the deceased. Bondsmen can also be heirs to the estate.
5. In most testate and all intestate estates, three disinterested people (often relatives who are not potential heirs) are appointed by the court to inventory and appraise all the property of the estate. They are usually ordered to submit the inventory at the next term of court or within ninety days. This inventory protected the executor or administrator from excessive claims against the estate and protected heirs against fraud or pilfering of their inheritance. The court also used it to set probate fees, as in modern practice. As a result, the values given to each item were close to current market value, although there seems to have been a tendency to keep them low. Thus, the fees levied against the estate were lower.
6. As soon as the inventory is made, publication of the pending probate is published. In early times, notices were tacked on the doors of courthouses, town halls, churches, etc. Later, the court required public posting at the town hall and publication three successive weeks in the major county, town, or district newspaper before probate to give interested parties opportunity to be present to voice disagreement or to present claims against the estate. The law required preservation of those publication notices. Some jurisdictions keep copies of the newspapers in which notices appeared at the county courthouse or town hall, while others clip the notices and preserve them with the case packet. It is thus possible to find missing issues of newspapers at the probate authority.
7. Another step taken before probate begins is assigning an allowance for the dependents from a portion of the estate (usually the amount is determined annually) until the estate is settled and distributed. It may take the form of cash, income-producing property (such as a herd of cattle), or money from the court-authorized sale of certain property. Usually the property so designated is exempt from creditors' claims. At this time, also, the widow's dower right will often be set off to provide for her support.
8. In estates involving minors or incompetent individuals, a guardian is appointed to receive and assume stewardship over their respective shares. Attached is a petition of minor children for their mother to be appointed guardian. As with administrators and executors, guardians must post a bond equal to the worth of the orphan's estate. To the right is another attached image that is an example of the required bond.
9. To raise funds for the support of the widow and children or to convert perishables to cash, it is frequently necessary to conduct periodic sales of property under the surveillance of the court. First, the administrator/executor or guardian petitions the court for authority to sell, stipulating the items, why the income is needed, and how much is expected to be realized. If the court authorizes the sale, a public auctioneer is appointed and a careful account is kept of what was sold, how much each item brought, and to whom the item went.
10. In some jurisdictions, executors/administrators or guardians must account annually to the court for income received and expenses paid out of the estate, and for what purposes. In others, executors may be required only to account upon request from heirs or creditors. Because these records show heirs who die and women who marry before final settlement, they are extremely valuable for the genealogist.
11. Prior to the final settlement and distribution of the estate among the heirs, additional publication notices are issued to give claimants one last chance to voice their desires.
12. The executor/administrator must make a final accounting of receipts and disbursements of the estate before the remaining property can be divided and the responsibility ended. The image at right shows a final accounting.
13. When all parties concerned come to an agreement or when all heirs are twenty-one years of age, the property is divided and distributed to those heirs entitled to receive it, the case is closed, and the executor/administrator is released. In many probate jurisdictions, lengthy division documents will be found listing all heirs and their addresses, husbands of female heirs, and second marriages of widows. In some states, these settlement documents are found in the Office of the Land Recorder-Division of Real Estate.
14. As each heir receives his or her portion of the estate, he or she signs a receipt or release to the executor/administrator. These receipts give the name of the heir, the amount and description of property received, the name of the executor/administrator, the names of guardians of minor children, and the name of the deceased. These releases are filed among the original estate papers.
Probate records can provide an intimate glimpse into the lifestyle of an ancestor and specific facts about the family. From wills you can discover how often the men on your pedigree entrusted their assets to a wife, whether all sons inherited equally, how the daughters fared in comparison, whether a man distributed his property to his children before his death, and who was instructed to care for the widow and younger children or for incapacitated or handicapped family members. Servants were sometimes released by will and slaves freed.
What provision was made for the widow? Was firewood delivered to her door? Were living quarters and a cash allowance for needed purchases provided? Did the allowance end on remarriage? What was to happen to her portion of the estate if she remarried?
What are the demographics of your family? Who lived in the household? What was the ratio of adults to children, males to females? Did the men live to see their grandchildren? Did the women outlive the men? How many children reached adulthood before their parents died? What were the sizes of your family units? What standard of living did your family have? Did they read and write? Did a bequest include paintings, a family Bible, fine furniture, a carriage, or musical instruments?
Also revealed in a will is biographical information: title, occupation, religious affiliation, age, place of residence, place of property ownership, associates of the family, and relationship to prominent families in the area.
Did your ancestor bequeath assets to charities, such as schools, hospitals, and churches? Did he make a contribution for the upkeep of roads and bridges? Did she support a political party?
How did your ancestor speak? Indications of local dialect and pronunciation can be found in spelling variants, especially when a will is a holograph. It can also reveal personality, character, and level of formal education.
The probate inventory gives other insights into your family's life and how your family compared to others in the community.18 If items are listed room by room and the rooms labeled, you know who slept where. A man was often judged by the kind of bed he slept in, so inventories usually listed bed and bedding in considerable detail: bed curtains imply a canopied bed to keep out cold drafts. Featherbeds, sheets, coverlets, blankets, and spreads may also be listed separately.
Table linens may be listed (damask, diaper, flaxen, canvas); cooking utensils and dishes (pewter, wood, china, porcelain, silverplate, brass); lighting (candles, lamps, wicks, lantern glass, and lighter fluids). In poor households, a clock might represent almost a quarter of the estate's total value. Pots and pans may be valued by weight, since that is the way they were bought and sold. Unfamiliar items, such as kimblins, piggins, and eshons (cheese vats and presses), may appear.
The processes of cooking, brewing, baking, dairying, and washing are described in the kinds of utility tubs and bowls used. The presence of smoothing tables or boards and flat irons indicate that clothes were ironed before wearing, and bedding may also have been "smoothed." Sanitary facilities inside the house could consist of chamber pots and close stools, often both. The larder hints at diet-butter, cheese, ham, bacon, hanging beef, salt pork, potatoes. Particular trades or occupations emerge from tools, mercantile inventory, record books, contents of barns, granaries, and crops in the field.
A comparison of inventories from one generation of the family to another will show improvements in living conditions-from fireplace cooking to stoves, from enclosed bedsteads to heated bedrooms, from wooden platters to china. Glass in windows, unless bequeathed as heirlooms to a family member, could be sold separately from a house, so panes may be listed in the inventory as well.
Sometimes an item will be missing from an inventory because the owner gave it away before his or her death, because it was sold to cover debts prior to death, or because it is specified in the will and falls in the executor's charge. Some inventories will end with "things unseen or forgotten," a category with an arbitrary dollar value assigned.
An inventory is also useful for distinguishing between persons of the same name by matching inventory contents, such as horses, cattle, and pigs, with tax rolls and agricultural census entries. You can also prove the relationship between a man and his children with property, real or personal, listed in inventories and wills from one generation to the next.
American Probate Law
Despite their usefulness, probate records are filled with traps for the unwary genealogist. The first pitfall is contemporary law. Probate is a function of state authority, with only one federal prohibition: primogeniture, or passing a landed estate automatically to the eldest son, is forbidden; by 1811, all former colonies had revoked it by statute. Because probate is a state function, probate procedures vary from state to state and have changed over time.
In addition to the pitfalls presented by ignorance of legal language and past laws, another problem may arise if a researcher concentrates only on the case files or probate packet. You should not overlook other records leading to probate that appear among the records of other courts. For example, the Court of Common Pleas in Pennsylvania was responsible for hearing evidence of incompetence and determining the status of such individuals.
Appearance Docket, Vol. A, p. 536, Perry County, Pennsylvania, contains the petition of John River, brother-in-law of Peter Arnold of Buffalo Township, to issue a writ of incompetence since Peter Arnold was a habitual drunkard. Peter's heirs are listed as George, Peter, William, and daughter Barbara, wife of George Varns. The court confirmed the petition on 16 March 1824. By 10 November 1827, Peter had reformed and petitioned the court to have his rights restored. The court granted his request and released the guardian.19
In the attached chart is a checklist of documents produced by probate courts.20 Important supporting legal documents can also be found in these non-probate categories of records:
- Bastardy papers
- Legitimation of children
- Child custody papers
- Name changes
- Loose papers
- Unfiled documents
- Inquisitions of lunacy
- Petitions for freedom
- Certificates of freedom
- Dower releases
- Marriage contracts
- Marriage settlements
- Lis Pendens
- Tax liens
- Land sold for back taxes
- Legislative papers
- Congressional petitions
- Orphans' court records
- Attachments of property
Also available at law libraries are the state law codes. To locate a law effective when your ancestor was alive, check the current law code (dower rights, for instance, or age when a minor could make a will). Get the reference to the next earliest code when the law was changed or modified and work backward in time until you find the law as it was.
Although this process seems tedious, it is sometimes necessary and nearly always illuminating. The law determines the specifics in much of the probate process. Court officials do not explain what they are doing or their reasons for acting in a certain way in the records. They expect you to know that already.
The law also determined the ages at which your ancestors could transact legal business. The attached chart summarizes the most common ages (and exceptions) in the United States.
When courthouse fires have occurred, these other court documents may have survived if they were filed in other buildings or kept among the personal papers of justices or court officials. Some of these records are used legally in lieu of probate processes. For example, Jacob Hoofman (Hoffman) Sr. died intestate in Fairfield County, Ohio, leaving sixteen children. The probate clerk, when a search was requested, found no will, but a careful search brought an extremely detailed deed to light.
Jacob had distributed his lands to his children before his death but had died before the deed he executed for his son Simon could be recorded. The property went into his estate. Jacob had recorded the transaction in his own account book and the court accepted the transaction, requiring only that a quitclaim deed be signed by all sixteen children and their spouses. The document is invaluable, but it was found in the deeds, not the probate records.
Many probate records have been published by societies and individuals. As is true with any extract, some transcripts are complete and others are incomplete or have been misread. "Check the Original! Two Lessons Learned the Hard Way" (National Genealogical Society Quarterly) is an instructive two-part commentary on the perils of not checking compiled works against original records.21 Part 1, "Hardy of South Carolina-A 'Discreet' Omission to Hide an Indiscretion" by John Anderson Brayton, matches a 1969 abstract of the 1769 will of Mathew Hardy of St. John's Parish, Colleton County, South Carolina, against a verbatim transcription of the will. He notes the abstract "omitted the primary heir and left out significant information that changed the entire thrust of the document."22 Brayton suspects the omissions were to hide a master-slave concubinage hinted at in the will.
In Part 2, "Mallory-Blunt of Virginia-A Miscopied Name Blocks Line," Shana Elizabeth Proffitt gives evidence of an error in a long-accepted compilation by a leading English authority that resulted in a nearly thirty-year mystery. Proffitt's examination of the original files corrects the name: Michael, not Henry Blunt. The amendment of the error "will provide certain Blunt family descendants with a previously unknown connection to the Mallory family of colonial Virginia."23 As Proffitt notes, "Errors happen amid notetaking, writing, and publishing, and those errors stymie research."24
Another problem in probate research is that not all people are referenced in probate records. New England demographic research comparing wills and probate inventories with tax rolls and other inhabitants' lists shows that less than 50 percent of the male population was included among inventories and less than 40 percent left wills. In some areas, the percentage was below 25 percent. Less than 10 percent of the women had either wills or inventories. While some people had little or no property to inventory, a substantial number seem to have deliberately made provision for their estates to pass to their heirs without probate.25
Probate records are of uneven value when it comes to establishing specific death dates. Some probate records include the date of death. Some indexes include the date of death, while the probate record does not. Where the death date is not given, the date of the acknowledgment of witnesses is usually the first record made in the probate process, followed by admission of the will to probate. In some jurisdictions, however, the witnesses acknowledged their signatures and certified the mental soundness of the testator at the time the will was drafted-not after the person's death. To avoid these problems, the safest date to use is the date the will was recorded-usually between thirty and ninety days after the death of the testator.
Relationships between legatees and testator were seldom defined. As a consequence, brothers and nephews are mistaken for sons, sisters-in-law and daughters-in-law appear as unmarried daughters, and daughters with unknown married names may be unidentifiable. The legatees sometimes are mentioned by first names only. "In-law" was often a synonym for "step" and adopted kin. Because of these ambiguities, it is wise to corroborate all relationships with other sources.
Probate records can provide valuable leads to those relationships. Nine clues that may help determine relationship have been formulated by eminent genealogist Donald Lines Jacobus26:
- In states that allowed the eldest son a double portion of his father's estate, an estate with seven shares had six heirs, not seven.
- Daughters unmarried at the time a will was drafted may have been married by the time it was probated. The will and subsequent documents will contain different names. Watch given names carefully and always check all males listed in the final settlement, especially if they are not listed in the will as potential sons-in-law.
- Statements such as "my daughters Mary and Martha shall have five shillings each with what I have already given them" and "my daughter Grace shall have ¬£30 to make her equal with her sisters" imply that some daughters were married and had already received their portions.
- Special terminology may reveal relationships: "a femme sole" is an unmarried woman; "coverture" refers to a married woman.
- Where two executors are named in a will, one is usually the relative of the testator and the other a relative of the spouse. Both sides of the family were represented to safeguard the interests of all parties and to keep peace.
- Bondsmen are usually relatives who are willing to stand the risks and who have some leverage over the persons they guarantee. If the wife is executrix, the bondsmen will usually be her relatives. Where her maiden surname is unknown, look carefully at the names of the bondsmen.
- Guardians are usually relatives who have no potential interest in the estate. With some careful calculations, you can decide who these would be and perhaps identify missing surnames.
- When the court has to determine who inherits, unless extenuating circumstances dictate otherwise, the estate is usually awarded to heirs of the whole blood (related by blood to both sides of the family) rather than an heir of the half blood (related to one side only). In this way, the property is more likely to stay in the family.
- Second marriages of widows are most frequently documented among probate and guardianship records, as their new husbands assume responsibilities of the estate. This makes probate records especially valuable.
Sometimes, family members are omitted from a will because they are otherwise provided for. A man can settle a jointure on his wife at the beginning of the marriage in lieu of dower rights or subsequent claims against the estate. During colonial times, when the law of primogeniture was in effect, the eldest son was frequently not mentioned in the will, for the real property descended automatically to him. Most American men also owned other lands in fee simple that could be described and left to younger sons.
As daughters married, they were customarily given their portions in cash, land, household furnishings, food, horses, slaves, etc. Sons were given their property when they reached the age of majority or planned to marry. A family account book recorded the property conveyed to each child. If, when the father's estate was later settled, a child contested the settlement, this account showed what each marriage portion was. Thus, children who had received their shares were frequently omitted from the will.
The importance of probate records to the genealogist is recognized by the regional projects, online and in print, that produce indexes. An example of print works are Thornton W. Mitchell, North Carolina Wills: A Testator Index, 1665-1900. Carol Willsey Bell, Ohio Wills and Estates to 1850: An Index, and Brent Holcomb, Abstracts of South Carolina Wills for several counties. These three projects are models for needed work in other areas.27