The Family Tree Problem Solver: Tried-And-True Tactics for Tracing Elusive Ancestors (16 page)

The next step in the probate process was to appoint two or three disinterested parties to inventory the estate. You should note these people as well, because they were likely to be neighbors and close associates who weren't entitled to direct inheritance. Both real and personal property were expected to be included in the inventory, which can provide you with an intimate look at your ancestor's life. In that inventory are clues to literacy, religious denomination, occupation, level of wealth, identity of slaves, household goods, and what was important to your ancestor during his lifetime. If there was not enough cash on hand to pay the creditors, an estate sale was held to raise the money needed. Genealogists can find clues from reading the list of buyers who attended the sale. Many of the items may have been purchased by relatives. In addition, the list can help you identify neighbors and other associates, and perhaps aid in sorting out individuals of the same name. Moreover, the estate sale may prove the existence and provide names of females who may not appear in other legal records.

If minors or other dependents survived the decedent, the court may have assigned an allowance until settlement of the estate. This allowance was exempt from creditors' claims. You will find these allowances in the court minutes. This was also the time at which the widow's dower was set off to provide for her support. Therefore, it is important that we distinguish between the terms dower and dowry, even though I have found them incorrectly used in court records themselves.

A dowry was the property that a woman brought to her husband at their marriage
, sometimes referred to as “her portion.” You may see cases in which a man willed back to his wife “her portion” as he divided his assets.

Dower was the provision of the law by which the widow was entitled to a one-third life-estate in the lands and tenements of her husband at his death.
This was true if he died intestate or if she dissented from his will. By English common law, the amount was one third of the real property that her husband held at any time during the marriage. If the marriage was childless, the widow could claim one half of her husband's real property. Dower represented the minimal right of a woman to her husband's estate and was to provide for her care and that of her minor children. A man could leave his wife more than the law required, or even his entire estate, but he could not give her less. If a husband ignored the dower rule, his widow could renounce the will and demand an assignment of her thirds. This meant, however, that she could not claim part of the personal estate beyond her own “paraphernalia.” In America, the usual practice was that her dower included one third of the personal estate as well as the real property. Nevertheless, the practice varied throughout the English colonies.

Under common law, the widow received a dower before payment was made to the creditors. This was to ensure that neither she nor her children would become dependents on the town or county. In Pennsylvania and Connecticut, however, a dower included a share only in what the husband owned at his death, and in Pennsylvania, the creditors were paid before the widow received her dower. In the South, English common law was much more closely observed. Maryland, Virginia, and South Carolina made it possible for the wife to exercise a legal right to veto her husband's land conveyances and to establish a separate estate for herself. Connecticut wives, on the other hand, possessed no property rights whatsoever until 1723. Therefore, in Connecticut and Pennsylvania, the wife had no right to influence the sale of her husband's real estate so you will find no dower releases on property. By the middle of the eighteenth century, women were beginning to participate in land sales, and in the research I have done, I usually find that the deeds in which the woman did participate had to do with the estate of her husband, father, or unmarried brother. This is not a hard and fast rule, but can be a helpful clue.

The dower right of a widow represented a life interest only. She could not sell her dower property absolutely, but she could enjoy the rent and profits from the lands during her lifetime. If, in the rare instance that her dower was valuable land and someone wished to take the chance that the widow would have a long life, she could sell the land temporarily. At her death, however, the dower land would return to her husband's estate. When the widow died, her dower estate descended to her husband's children in the same manner as the rest of the estate.

This was a simple process if the only children they had were with each other. If the wife had children by a prior marriage, they would not inherit her dower. If the husband had children by a previous marriage, the dower would go to those children. If no children survived the widow, the property descended to her husband's heirs: his siblings, parents, nephews and nieces, and so forth.

There were some peculiar laws and interpretations of laws in the South with regard to the inheritance of slaves. If you are dealing with a slave-holding family, it's wise to study the laws that applied during that time in the particular state or colony. Valuable clues to ancestry and relationships can emerge from the transfer of slaves, but the law varied to such a degree that it would be difficult to make any helpful generalizations.

Another important term to understand for the colonial period — especially in the South — is curtesy.
This was the estate that a woman may have had held either in fee simple or entail, and to which her husband was entitled at her death.
He was entitled to land held by the curtesy only if the couple had children born alive and capable of inheriting. Land held in curtesy was held for his natural life. It was a right not only to one third, but to the entire estate. As tenants by the curtesy, men held the real property of their wives in their role as guardian of the children of the marriage. The husband could not convey the property or devise it, but he retained all rents and profits and managed the estate. The estate would then go to their children at his death.

The latest example I have seen of this practice was a deed from 1866, when Stephen H. Chism held land as “tenant by the curtesy” in Franklin County, Arkansas. In deed book C:50, he clearly stated that he had inherited this land from his third wife, Corinna J. (Rose) Quinn, and was holding the property for his stepchildren and his child by Corinna.

Moving back to the sale of the estate, if an insufficient amount of money was raised by selling the personal property, the administrator would petition the court to sell a piece of the real property. This sale was usually a private administrator's or sheriff's sale and would not name the heirs. If all the property had to be sold to pay the creditors there was nothing to be distributed to the heirs. The estate was then said to be insolvent. Unfortunately for researchers, because insolvent estates do not yield any inheritances, the documents may not yield any names of heirs.

If property did remain after the debts were paid and all the money owed the estate was collected, the court would then be ready to distribute the assets among the heirs. If the property could not be divided equally, the heirs may have filed a “friendly suit” for a land partition, in which each of the heirs would be named and an agreement made for the land to be sold. If some of the heirs did not reside on the estate, legal notice was again published in a local newspaper.

If all the persons named in the suit were residents of the estate, their names would usually be listed in the circuit court petition and then again in a deed when the land was sold (see
Figure 5-2
).

In estates involving minors or incompetent individuals, a guardian was appointed to receive and assume stewardship over their share. Guardians were required to submit annual accounts to the court for the income received and the amount spent for care of the children. These accounts can provide a wealth of information, including locations of the children, their ages (or dates when they came of age), schools they attended, any illnesses they may have contracted, their marriages, their deaths, and other genealogical and family details. It was largely through the guardian's account of clothing purchased for an illegitimate child that I built a case for the identity of my third great-grandfather, Elijah Robinson. This article, entitled “Trousers for Elijah,” was published in
The American Genealogist
in April 1988.

Figure 5-2
Newspaper court reports, Steel vs. Horn.

When there was an estate to be managed, guardians were appointed for children under the age of fourteen. Children fourteen and over could choose their own guardian. Females usually reached legal adulthood at eighteen, males at twenty-one. Most minors were eager to manage their own estates and usually went into court to release their guardians soon after reaching legal age. Knowing this can help researchers working in the colonial period, when it is often difficult to determine an individual's age.

You can get some idea of how the children lived, when they became ill, where they went to school, and so forth from reading the receipts in guardianship and curator files. In Figure 5-3 on page 98 we can see the goods bought by the guardian of Bessie Lindinbower. Items include shoelaces made from the skin of a baby goat, silk, gloves, four yards of fringe, and handkerchiefs. We can already tell that Bessie Lindinbower has inherited a good deal of money.

Just before final settlement, notices were published once again to give creditors and heirs a last chance to make a claim on the estate. The administrator or executor then made a final accounting to the court and the remaining property was divided in a final distribution. If one is lucky, the heirs and their residences may be listed in the court minutes. Usually, it is necessary to go through the loose papers to find receipts indicating that the heir received the amount due him from the estate. When each heir received his or her share of the distribution, they signed receipts or releases to the executor or administrator. These receipts give the name of the heir, the description or amount of property received, the name of the guardian of minor children, and usually the name of the deceased. (See
Figure 5-4
). The percentage of the estate inherited is helpful for determining the heir's relationship to the deceased, and sometimes may provide clues to the married names of the daughters. It is not unusual to find that a daughter was designated as single when the probate began, but was married by the time of final distribution.

One must be aware of two types of inheritance law in effect during colonial times that are no longer in force:
the law of primogeniture and the tradition of giving a double portion to the eldest son. Before the Revolutionary War, in the New England colonies as well as in Pennsylvania and Delaware, an equal division of land and movables in the estate was granted to the children in an intestate proceeding, with a double portion to the eldest son. Remember that even when the division includes a double portion, the number of shares still reveals the number of heirs. In other words, if the records declare that there were five shares and that the eldest received a double portion, then you know that there were only four children. The double-portion rule applied only to male heirs. If the decedent had no sons, the eldest daughter did not receive an extra portion.

Figure 5-3
List of goods bought by guardian of Bessie Lindinbower.

Primogeniture
refers to the exclusive right of the eldest son, by virtue of his seniority, to succeed to the estate of his ancestor — to the exclusion of the younger sons. In other words, the eldest son inherited all real property. If there were no sons, the daughters shared equally in the real property. In cases where the decedent made a will, the eldest son may even have been omitted from that will, as his rights were clearly protected by law. The law of primogeniture affected only real estate, not personal estate; the decedent could pass on the latter in any way he saw fit. Keep in mind that many individuals did not follow the law and by practice distributed their land equally to sons, or even to all their children. This was particularly true in New York, in German families, and in parts of the country where there was great antipathy for English common law. The closer in time to the American Revolution, the more likely it was for families to ignore the common law of primogeniture.