This morning, a friend asked a legal question about a recent post of mine. Her question made it obvious that I had failed properly to explain a legal issue affecting a family history analysis. It seems I have a bad habit of throwing around legal terms and principles as though they are familiar to everyone, which is both unfair and thoughtless.
To help remedy that, here is a short and sweet primer of legal stuff that every family history researcher needs to know. My emphasis is on law prior to the twentieth century. Some of these concepts don’t lend themselves to a prose discussion that flows logically from point to point. In those cases, I have simply provided a list of terms with explanations. In other cases, I have carried on as usual.
Disclaimer #1: every colony (and then state) passed its own laws, so the law was not the same in every colony/state. We are talking general concepts here.
Disclaimer #2: I am not going to use the cumbersome “his or her” in this discussion, at least not with respect to laws concerning estates. For my reason why, let’s start with a discussion of women’s legal status prior, for the most part, to the twentieth century.
Laws Concerning Women
Here’s a real golden oldie: the concept of coverture. That refers to the condition or state of a married woman or, alternatively, the legal “disabilities” that attached to a married woman. A single woman had some legal rights: she could own property, enter into a contract, and sue/be sued in her own name.
The “disabilities” of a married woman, on the other hand, were total; states only gradually removed these legal disabilities. The bottom line: a married woman had no legal existence whatsoever apart from her husband. Property ownership? Are you kidding? Absent a prenuptial agreement, anything a woman owned prior to marriage became her husband’s property the moment she said “I do.” If she inherited something while married, it immediately became her husband’s property. If a woman inherited something from, say, her father, the phrase generally used in the records was that the husband owned it “in right of his wife.”
Having no legal existence, a married woman could not sue or be sued in her own behalf. Her husband had to be named as a party. For example, if there was a lawsuit concerning the estate of a married woman’s father, the list of parties would usually include the names of all her brothers (although not the names of the brothers’ wives) and the names of all her sisters (and the names of their husbands). Knowing this sometines helps to sort out the relationships among parties in lawsuits concerning estates.
Moreover, since a married woman had no legal existence apart from her husband, she had no right to enter a contract on her own. A bid at an auction is an offer to enter into a contract to purchase the item being auctioned. When the auctioneer knocks off an item to a bidder, he is accepting the bidder’s offer; a contract of sale and purchase is formed when the hammer comes down.
Consequently, if you see a woman’s name listed as a buyer at an estate sale through (roughly) the entire 1800s, you can rest assured that she was an unmarried woman or a widow.
Dower right: the right of a widow to a life estate in the real property (land) of her husband who died without a will. Keep in mind here: when someone leaves a valid will, the will governs. Absent a will, the law provides the rules. Usually, a widow’s dower right was to one-third of the husband’s land. When you see an entry in a court record or a deed book stating that a woman was “privily examined” regarding her husband’s sale of some of his land, that means she had formally acknowledged her agreement to the sale (even though she had no right to convey land herself). She was thereafter precluded from asserting any dower right to that particular tract of land. This was, of course, to protect the buyer – not the wife.
A widow’s dower right was a life estate, only during her lifetine – i.e., her ownership interest ended the instant she died. After the widow died, ownership of the land passed to the husband’s heirs according to the colony’s (or state’s) laws of intestate descent and distribution if he died without a will. See discussion of laws concerning estates, below.
Some colonies (I’m thinking Virginia) at one time gave a married woman a right to disavow her husband’s will if he devised to her less than the dower life estate allotted by law. So you will see records in which a widow accepts or rejects such a will. If she rejected it, then she received the jurisdiction’s dower allotment.
Many colonial and 19th-century men who left a will devised to his wife all or some portion of his land “for life or until she remarries” — not wanting his property to fall into the hands of a new husband. Occasionally, although not very often, one finds an eighteenth or nineteenth century will in which a man left everything to his wife to “dispose of as she chooses,” which did not limit her ownership in any way. I am always tickled pink to be descended from one of those enlightened gentlemen. There weren’t very many.
Laws Concerning Estates
Here it is more straightforward to begin by listing a few definitions.
Estate: property of whatever kind that is owned by someone who has died. “Real property” means land and any improvements – houses, orchards, whatever. “Personal property” means everything else. When an estate inventory was taken, only personal property was listed – not real property. Likewise, a record of a sale of a decedent’s estate typically included only personal property. Under the English common law, adopted by all the colonies, real property – land, the source of all wealth prior to the industrial revolution – had a special place in estate distributions. [Note: once tobacco became the cash crop in Virginia, land – which was absurdly cheap, a way to attract immigration – wasn’t nearly as valuable as the people who worked it. Enter slavery, an institution which might not have become the colonial norm but for tobacco.]
Probate: matters and proceedings pertaining to estates. Used as a verb, as in “to probate a will,” it generally means to present a will and prove it to a court. An estate was probated in the county where the decedent resided. Still is, at least in Texas.
Testator: a person who has left a will. When a decedent leaves a valid will, the estate is distributed in accordance with the wishes of the testator as expressed in the will. Of course, there was no need to name all one’s children in a will. Frequently, colonial men “provided for” their children as they came of age or married with gifts of cash, land, or other property. The ones already “provided for” might not be mentioned at all in a will, or might be left a token gift, such as a shilling. This was not because Dad was cheap, or didn’t like the child who received one shilling (although that happened, too). It was just to prevent a challenge to the will based on the theory that, hey, I was his child, too, and he just forgot to mention me! He must have been unduly influenced … or non compos mentis …
Executor or executrix: a man or woman (sometimes more than one) named by a testator in his or her will to handle the matters of the estate in accordance with the will.
Intestate: a person who dies without leaving a will. In genealogy, it is often better (especially if there are good estate records for the county) to find an intestate among your ancestors than an ancestor who left a will. As noted above, there is no need to name all one’s children in a will. The distribution of an intestate’s estate, however, went to all his “heirs at law” according to the “laws of intestate descent and distribution,” see below. There was therefore potentially a great deal more information to be obtained from a distribution of an intestate’s estate than a testator’s estate.
Administrator or administratrix: a person appointed by the court to handle estate matters of an intestate decedent. Usually, an administrator/trix was a member of the intestate decedent’s family – wife, father, son – who applied for “letters of administration.”
Laws of intestate descent and distribution: let’s call it “law of intestate distribution” for short. This refers to either statutory law (rules passed by a legislature) or common law (principles estabished by common usage and court decisions) governing the distribution of the estate of an intestate decedent.
This is where the law gets really fun as it applies to genealogical research. Remember, every state had its own laws governing the distribution of an intestate’s estate … so there are no hard and fast rules. However, the old English principle of primogeniture – the rule that the eldest son inherited everything – didn’t have much application in its purest form in the colonies, so far as I have seen. Makes sense, because the colonies were populated by, inter alia, some of those younger sons who didn’t inherit.
Some colonies had variations on the notion that the eldest male was entitled to a greater share than other heirs, sometimes with different rules regarding who received how much real property versus personal property. If you are dealing with an intestate distribution, check the applicable law.
Most states passed intestate distribution laws that required a division of an estate between all of the intestate decedent’s heirs. You may have seen the phrase “heirs at law” in court or probate records. That means persons who inherit a decedent’s estate under the laws of intestate distribution. “Heirs at law” are different than “beneficiaries,” who inherit under a will. Be aware that colonial clerks of court did not always make such fine distinctions.
As a general rule, all of a man’s children were his heirs at law. If a child had predeceased his father, then any of his or her children – grandchildren of the intestate decedent – were heirs. If a man had no children, then his parents and his siblings were his heirs. (Reminder: every state has variations). All of these heirs will be named in the distribution of the estate, if you are lucky enough to have those estate records survive. FYI: there are virtually no abstracts of detailed estate records. You have to go to the county courthouse (or wherever the county keeps probate records), or the state archives, or to film available from the Family History Library in Salt Lake City to get those records. If you are a serious family history researcher, those records are well worth it.
Sometimes there are lawsuits concerning an estate, which are (believe it or not) even better. Frequently, an administrator of an estate wanted to sell some land in order to pay debts, or because one of the heirs wanted his money, or because there wasn’t enough land to divide among 13 children in decently-sized tracts. An administrator had to ask the court for permission to sell an intestate’s land, and he had to join all of the heirs – each of whom had an interest in the land (or its proceeds) – as parties to a lawsuit. You will occasionally see lawsuits in such circumstances in which an administrator sues a widow and her children. Those aren’t necessarily unfriendly lawsuits; they were just what the law required to make sure everything was kosher.
Those lawsuits nearly always recited whether any heirs were underage, because any underage children had to be represented by a guardian or guardian ad litem (meaning guardian “for the day,” or for the purpose of the lawsuit). Petitions (or complaints, depending on the jurisdiction) also recited the locations of adult children who may have moved away, because due process requires that all parties to a lawsuit be given notice that they have been sued.
I now see that I have passed 2,000 words, which is more than enough for any one article. So let’s rate this as a “to be continued.” I will make notes of legal issues as they occur to me and will post another article like this when it seems worthwhile.
Shalom!