Take Your Pick: a Testate or an Intestate Ancestor?

I’ve been looking for a subject of general interest rather than a topic concerning one of my ancestral lines. Two friends had similar questions about an ancestor’s estate administration that led me to this topic. It should be short and sweet.

Let’s start with a definition. An “intestate” is someone who dies without leaving a will. On the other hand, someone who leaves a will has died “testate,” and, as you might guess, is called a “testator.”

Which would you prefer? My choice any old day is for a man to die without leaving a will — provided, that is, that he owns property. If he does not, he is unlikely to leave significant records behind. Or to have left a will.

The problem with wills? I imagine we have all seen one in which the testator leaves his entire estate to be divided equally “among all my children,” without naming them. Or the testator names only his “son Joseph,” his “other children” (not named, and number of kids not stated) already provided for. That was Daniel Winn’s will (Lunenburg Co., Virginia Will Book 4:264). Turned out there were nine other children, and proving them was not by any means a cakewalk. Or the testator mentions a wife, without stating her name. ‘Nuf said.

I am not being sexist by referring to intestate men, above. Since we are usually dealing in this hobby with persons living prior to the twentieth century, a property-owning female was rare as hen’s teeth. That is because married women in English common law (i.e., in every state but Louisiana, which is sui generis and beyond my ken) were subject to the disability of “coverture.” In short, that meant a married woman had no legal existence apart from her husband. Absent a prenuptial agreement, she could not own property, even if she inherited it. Her husband inherited any property left to her “in right of his wife,” a phrase you may have run across in court records. A married woman could not even bid at an estate auction, because she lacked the legal capacity to enter into a contract — which is what a winning bid at auction produces.

Nor am I kvetching, although coverture is obviously a fertile field for righteous indignation. Coverture produces valuable genealogical information from time to time. For example, when you find a woman who has purchased something at an estate auction, you can be sure she was single. Likewise, when a man named Edmund Bacon is a party to a lawsuit concerning the estate of Washington Winn, it is a red flag that Edmund Bacon’s wife was one of Washington’s heirs, and possibly née Winn.

Time for another definition: “heir.” We genealogists are prone to conflate heirs, beneficiaries, and devisees. Even clerks of court confuse these terms from time to time.

….. a “beneficiary” is someone who receives a gift (“bequest”) of personal property in a will. Prior to the Civil War Amendments, personal property included enslaved persons.[1]

….. a “devisee” is someone who receives a gift (“devise”) of real property — land– in a will. Any property that is not real estate is personal property. Stocks, intellectual property rights, cars and boats, furniture, you name it.

….. an “heir” is someone who receives real or personal property (or both) under a state’s law of intestate descent and distribution. If a state had no such law, then the English common law system of descent and distribution applied.[2] Among other things, this means you might need to learn about the relevant jurisdiction’s law of intestate descent and distribution if you have an intestate ancestor.

Here are a few reasons why heirs — which exist only in connection with an intestate’s estate — are such wonderful treasures for genealogists.

• If there is a lawsuit concerning the estate of an intestate, all the heirs must be added as parties. They will be identified in the “style” — title, in effect — of the lawsuit.[3] In the lawsuit’s original filing, usually called a petition or complaint, the residence of each of the parties is usually stated. That is so notice of the lawsuit can be given to each party.
• If the intestate decedent owned land, a request to the court for permission to sell or divide it must also include all of the heirs.
• Better yet, “heirs” don’t just include children. If the child of an intestate decedent has died, the child’s heirs must be made parties to a lawsuit or request concerning land. If the intestate decedent had no children (depending on the law of the relevant jurisdiction), his siblings must be parties.
• But wait, there’s more! In Virginia, for example, the law of intestate descent and distribution treated half-siblings differently than siblings “of the whole blood.” This can reveal which children were the offspring of which wife if the decedent was married more than once.

If you really want to get into the weeds on this, there is an article on this blog about a lawsuit concerning the estate of a young, unmarried, and very wealthy man who had both siblings and half-siblings, as well as a mother who survived him. That lawsuit is a veritable goldmine. See it at this link.  If you have a Winn, Bacon, Hix, or Hardy ancestor in Lunenburg County, Virginia circa 1800, it should be required reading.

That’s enough from me today. I haven’t practiced law in a long darn time, and I can only spend so much time withBlack’s Law Dictionary before it’s time to take a break.

See you on down the road.

Robin

[1] Just typing that gives me the creeps.

 [2] We will stay out of the primogeniture morass. I have argued in vain with people who refuse to believe that one could leave a will ignoring the primogeniture rules.

 [3] E.g., the style of a case might be Bush v. Gore. I don’t know why that was the first thing that popped into my mind.