(OR MORE THAN YOU WANT TO KNOW ABOUT INTESTATE DESCENT & DISTRIBUTION)
My recent article about Col. Thomas Winn of Lunenburg County, Virginia (circa 1718 – 1781) may have been unclear about that question. The answer: Thomas was married more than once. More importantly, Thomas had children by more than one wife. A Lunenburg chancery lawsuit concerning the estate of his son Washington Winn makes it abso-effing-lutely impossible to conclude otherwise. This might be important to some, because a legion of people claim Col. Thomas as an ancestor.
Perhaps the only way to set the record straight on this issue is by analyzing the chancery lawsuit orders. But first, let’s flesh out the bottom line …
Col. Thomas had seven children by his first wife (or wives). Their mother is unproved but she is traditionally identified as Elizabeth Bannister.
- JOHN, who predeceased Col. Thomas
Col. Thomas Winn’s widow, who was at least his second wife, was named Sarah. Her maiden name is also unproved, although she is often identified as Sarah Bacon. Sarah and Thomas had four children who survived him:
- HENRIETTA MARIA (or MARIE)
Proving these children is not easy. If you don’t wish to hear how the law of intestate descent and distribution in late 18th century Virginia treated siblings and half-siblings, or why a married woman was not allowed to appear as a party to a lawsuit on her own and how that matters in this case … and if you have no desire to dissect just the style of a lawsuit for family information, and also scrutinize the court’s distribution of estate assets for more family information … for heaven’s sake, people, quit reading NOW!! Otherwise, grab a cup of coffee or an adult beverage and pull up a chair. Anyone who makes it all the way to the end will receive a suitable reward to be announced later.
Before we start, it is important to know that Washington Winn, whose estate was the subject of the chancery lawsuit, was a son of Col. Thomas Winn. See Lunenburg Will Book 3: 75, FamilySearch.org Film #32,380 (will of Thomas Winn proved 1781 named his underage son Washington Winn).
Some law and why it is important for figuring out Col. Thomas Winn’s family
First, the easy part: legal issues. This discussion is largely based on personal knowledge. I will spare you and myself citations to Hening’s Statutes at Large. I will try to explain why this legal esoterica is important to identifying the family of Col. Thomas.
- Coverture is “the condition or state of a married woman … [sometimes used] … to describe the legal disability which formerly existed from a state of coverture.” Black’s Law Dictionary, from a very ancient edition I acquired during law school. What it means is that a married woman had no legal rights of her own because she had no legal existence apart from her husband. Thus, a married woman could not be a party to a lawsuit on her own behalf. Her husband had to be a party to assert her rights and to receive her award, if any. On the other hand, when a lawsuit involved a married man, there was no need to include his wife as a party. She just.didn’t.matter, to mangle a famous Bill Murray line.
Why is coverture important to the family of Col. Thomas? Because understanding it proves that Elizabeth Winn and Mourning Hix were his daughters. It also tells us that Elizabeth’s husband was Joseph Winn, who was a son of Daniel Winn, not Col. Thomas. The chancery lawsuit is the only evidence of the identity of Joseph Winn’s wife that I have found.
- Style of a case. “Style” refers to the title of a lawsuit, so to speak. For example, Marbury v. Madison. The style of the Winn chancery suit is not easy to decipher. That is because it is very, very long and the clerk of court wrote it differently in two separate court orders. He also made an error or two. But deciphering the style of the Lunenburg chancery case is essential to identifying members of this Winn family.
- The law of intestate descent and distribution. “Intestate” as a noun means a person who died without a will. If a deceased person left a valid will, the estate is distributed according to provisions of the will. Period. If there is no valid will, then the decedent’s estate is distributed according to the applicable statute of intestate descent and distribution. Every state has such a statute (although I can’t speak for Louisiana, which is its own form of crazy). Here is what the chancery suit reflects about the Virginia law at the time:
- If a person owning an estate died intestate without a wife or children, his estate was distributed to his siblings and a surviving parent. This is important because it tells us that Washington Winn had no wife or children and he died intestate. His estate would therefore be distributed “according to the statute,” as the court said. Washington’s mother Sarah also received a “child’s share” of his personal property, although we aren’t concerned about that here. The important thing is that Washington’s estate distribution revealed the identities of the other children of Col. Thomas – and Washington’s relationship to each one.
- Half-sisters and half-brothers were called “siblings of the half-blood” by the Lunenburg court. By law, each received half as much of the distribution amount paid to a “sibling of the whole blood.” The amount distributed to each sibling thus tells us whether he or she was a half sibling or a full sibling. The court’s order proves that Washington had siblings of both the half-blood and the whole blood. His siblings of the whole blood had the same mother as Washington, namely Sarah, Col. Thomas’s widow. His siblings of the half-blood had a different mother than Washington. Thus, Col. Thomas necessarily had a wife (or wives) before he married Sarah, by whom he had children who survived him.
- If a sibling (claimant) of an intestate has died, his share was divided among his children, if any. If he had no children, then his share went to his surviving siblings.
At this point, we have no alternative except to dive into the court’s orders in the lawsuit. These were difficult for me to grasp, and I like to think I have had some decent experience in the law. I nevertheless had to read the orders several times before I began to comprehend them. That also makes them difficult for me to explain, so the explanation may induce “MEGO” (“my eyes glazed over”). If so, I understand and sympathize.
The court clerk recorded two slightly different versions of the style of the suit. See Lunenburg Order Book 17 at 134 (order of 12 Nov 1796) and at 292-293 (order of 10 Nov 1797) (FamilySearch.org, Lunenburg Order Books 1796 – 1805, Film #32,410, image 113 and image 192 et seq.)
Here is the style in the 1796 order. The silly colors make it easier to discuss each group.
John Hix and Mourning his wife, Joseph Winn and Elizabeth his wife, Thomas Winn, Richard Winn, William Winn and Banister Winn, Children and Coheirs of Thomas Winn, dec’d, and Harrison Winn, Beasley Heart and Elizabeth his wife, and John Winn, children and legal representatives of John Winn, decd, who was the son of the last mentioned Thomas Winn, dec’d, and Susanna Bacon, Sarah Bacon, Lyddal Bacon, and Thomas Winn Bacon, infants, by Edward P. Bacon their guardian and Keturah Hardy, Armstead Hardy, Sally Hardy, Edmund Hardy, and Jeane Hardy, by Alexander Winn, Gentleman, their next friend,
Complainants in Chancery,
Edmund Winn, administrator of Washington Winn, dec’d, and Sarah Winn,
And here is the style in the 1797 order.
Mourning Hix, wife of John Hix, dec’d, Joseph Winn and Elizabeth his wife, Thomas Winn, Richard Winn [William Winn’s name omitted here] & Bannister Winn, Children and Coheirs of Thomas Winn, dec’d, Harrison Winn, Beasley Heart & Elizabeth his wife, and John Winn, children and legal representatives of John Winn, dec’d, who was son of the last mentioned Thomas Winn, Susanna Bacon, Sarah Bacon, Lyddall Bacon & Thomas Winn Bacon, by Edmund P. Bacon their next friend, William Winn [William is moved here from the first group] & John Hardys children by Alexander Winn, Gent., their next friend
Complainants in Chancery,
Edmund Winn Administrator of Washington Winn, dec’d, and Sarah Winn,
Might be time for a refill on that adult beverage.
Let’s start with the parties listed in red. They are described as “children and coheirs of Thomas Winn, dec’d.” Thomas is Col. Thomas. An early Winn researcher transcribed “COHEIRS” as “COUSINS.” This is an understandable mistake because the handwriting is small and cramped, but it will drive you nuts if you try to make sense of the relationships among all the parties on that basis. I stared closely at the original in the Lunenburg courthouse. It is “coheirs,” I promise, not “cousins.”
First, notice the four men separated by commas at the end of the red group: Thomas (Jr.), Richard, William and Bannister. They are obviously children of Col. Thomas because that is how they are expressly described. Because men had legal rights of their own, there was no need to name their wives as parties.
Now consider coverture, and notice “John Hix and Mourning his wife” in the first order in the red “children and coheirs” group. John Hix was obviously not Col. Thomas Winn’s child, so Mourning must be his daughter. Her husband John had to be named as a party, though, because … Mourning had no legal existence or rights apart from him.
Also, we already knew from Lunenburg Winns: Part I that John Hix was Col. Thomas’s son-in-law and Mourning was a daughter. That’s how Col. Thomas identified the couple in his will. See Lunenburg Will Book 3: 75, FamilySearch.org Film #32,380 (will of Thomas Winn proved 1781, naming his son-in-law John Hix and wife Mourning Hix). John had died by the second order, making Mourning a single woman. She was therefore no longer subject to a married woman’s legal disability of coverture and could be named as a party in her own right, as “Mourning Hix, wife of John Hix, dec’d.”
The remaining names in the red group are Joseph Winn and Elizabeth his wife. They are confusing because they are both Winns. Consider coverture again. If Joseph had been a son of Thomas Winn and was asserting rights to his brother Washington’s estate, his wife Elizabeth wouldn’t be named. Thus, Elizabeth, not Joseph, was a child of Col. Thomas. Joseph was her husband — who had to be joined as a party to the lawsuit because she had no legal rights except through him.
The only hiccup in the red group list is William, who migrated locations in the style from the first order to the second. He is included in the red group in the first record, but the clerk forgot him for a while in the second order … and stuck his name in between the blue group and the magenta group. I can sympathize with the clerk. All those names, and think how tedious all that copying must have been.
The red group proves these six children of Col. Thomas:
- Mourning Winn, wife/widow of John Hix
- Elizabeth Winn, wife of Joseph Winn
- Thomas Winn
- Richard Winn
- William Winn
- Bannister Winn
The next group, shown in green, is identified as “children and legal representatives of John Winn, dec’d, who was the son of … Thomas Winn, dec’d” (still Col. Thomas). We already know from Part I that Col. Thomas had a son John who predeceased his father. John died in 1768 leaving a will naming his children Harrison, Betty (a nickname for Elizabeth), and an unborn child. See Lunenburg Will Book 2: 326 (will of John Winn of Lunenburg dated and proved in 1768, naming children Harrison, Betty, and a child “wife Susannah is now big with,” and appointing his father Thomas as one of his executors).
This lawsuit nicely identifies for us the name of Betty/Elizabeth’s husband, Beasley Heart, and the name of the unborn child. Not surprisingly, John’s afterborn son was also named John.
This adds another name to the list of children of Col. Thomas:
- John Winn (who had children Harrison, Elizabeth [“Betty”] married Beasley Heart, and John).
Moving on to the blue group. The differences in the two versions of the style are not significant. The only substantive error the clerk made in the first version is that the Bacon children’s guardian should be Edmund P. Bacon, not Edward.
Susanna Bacon, Sarah Bacon, Lyddal Bacon, and Thomas Winn Bacon, infants, by Edward P. Bacon their guardian, in the first version, or
Susanna Bacon, Sarah Bacon, Lyddall Bacon & Thomas Winn Bacon, by Edmund P. Bacon their next friend.
These children, like Harrison Winn, Elizabeth Heart, and John Winn in the green group, were grandchildren of Col. Thomas. Because their surname was Bacon, they were obviously the children of a daughter of Col. Thomas who married (presumably) Edmund Bacon. She was dead by the time the lawsuit was filed, or she and her husband would have appeared in the “red” group and their children would not have been named.
The magenta group poses the same situation. A daughter of Col. Thomas married John Hardy and has died, leaving children. Had she been alive, she had John Hardy would have been listed in the “red” group and the names of their children omitted. Here is how they are identified in the two versions of the style:
Keturah Hardy, Armstead Hardy, Sally Hardy, Edmund Hardy, and Jeane Hardy, by Alexander Winn, Gentleman, their next friend, in the first version,
John Hardys children by Alexander Winn, Gent., their next friend.
FYI, Alexander Winn was just the legal representative of the Hardy children, not their guardian or a parent. He was a justice of the Lunenburg court, making him a good choice to be the Hardy children’s advocate.
Here are the eighth and ninth children of Col. Thomas:
- _________ Winn Bacon, wife of Edmund P. Bacon
- _________ Winn Hardy, wife of John Hardy
And here are the remaining two children of the eleven who survived Col. Thomas:
- Washington Winn, the deceased son whose estate is the subject of the lawsuit; and
- Edmund Winn, administrator of Washington’s estate.
The last four (children #8 through #11) are identified in Col. Thomas’s will. He named his daughters Keturah and Henrietta Maria, not yet married when he wrote the will, and his sons Edmund and Washington.
We are down to two remaining questions: (1) which daughter married a Bacon and which married John Hardy; and (2) which of the children were Washington’s siblings of the whole blood, and which were Washington’s siblings of the half blood?
The order book muddies the answers to the first question. In the first order, I believe the clerk reversed the daughters’ surnames and entered this: “children of representatives of Keturah Bacon and Henrietta Hardy, deceased …” In the second order, the clerk entered, “to the children of Keturah Bacon, dec’d…” and “to the children of Keturah Hardy, dec’d,” erroneously using the same given name twice.
Both orders are probably wrong. In the original order book, someone struck out the Bacon entry “Keturah” in the second order and penciled in “Henrietta.” I believe the person who defaced the order book was correct … Henrietta Maria was the mother of the Bacon children and Keturah was the mother of the Hardy children. But I cannot find the evidence and I’m not certain! Can anyone help me out on that issue?
The last remaining question is the easiest. The second order details the amounts to be distributed to each party. It says this:
To Mourning Hix of the half blood £48.14.10
To Joseph Winn of the half blood ditto (recall Joseph was the husband of Elizabeth and therefore received her share)
To Thomas Winn of the half blood ditto
To Richard Winn of the half blood ditto
To William Winn of the half blood ditto
To Bannister Winn of the half blood ditto
To Harrison Winn, Beasly Hart & Elizabeth his wife and John Winn, heirs of John Winn, dec’d, son of Thomas Winn, dec’d, £48.14.10
The court doesn’t expressly describe John Winn, dec’d, son of Col. Thomas, as Washington’s sibling of the half blood, but the amount of the distribution (the same as the other half-siblings) proves it.
Tying a neat bow around the status of each sibling (ignoring the question of which daughter married a Bacon vs. a Hardy), the court record says:
To the children of Keturah [Keturah is struck out in pencil and “Henrietta” written in] Bacon, dec’d, Susanna Bacon, Sarah Bacon, Lyddall Bacon, Thomas Winn Bacon, of the whole blood, £123.9.8
To the children of Keturah Hardy, dec’d, Keturah Hardy, Ann Hardy, Sally Hardy, Edmund Hardy & Jeane Hardy of the whole blood, £123.9.8
to Edmund Winn his part £123.9.8
The court doesn’t expressly state Edmund’s status as Washington’s sibling of the whole blood, but the amount of his distribution again proves the relationship.
In the final analysis, here is what the chancery case proves regarding the children of Col. Thomas:
Seven children were Washington’s siblings of the half blood and were children of Col. Thomas’s wife (or wives) prior to Sarah:
The siblings of the whole blood, who were children of Washington’s mother Sarah, were:
- HENRIETTA MARIA (or MARIE)
Did anyone make it this far without experiencing MEGO? If so, are we clear, Col. Jessup? Answer (I hope): “Crystal.”
If not, I’m going to have to ask someone else to give it the ol’ college try. I’m tuckered out.
See you on down the road.
 I say that my prior article (Part I of ???) may have been unclear because a friend emailed to me a link to a website that cited this blog as a source. In fact, the website cited that specific article, which was primarily about Col. Thomas Winn. Among other things, the article identified his eleven children and their probable mothers. But the person citing my article as a source totally botched that family. Since that may have been caused by my lack of clarity, I figured I’d better try to explain it better.
6 thoughts on “Part III of ?? How Many Times Was Col. Thomas Winn Married?”
Thank you for following this Winn family. We had talked when I was working on them Without that importane lawsuit, I would not have solved what I was looking for. MerryAnne Pierson
Really great work. The explanations are clear and compelling. Winn researchers are the best.
What a tangled mess! Love the voice in your writing ❤
Thank you for explaining the case.
You’re welcome! That kind of chancery court case is worth its weight in genealogical gold.