We’ve all heard this disclaimer on modern ads, but do you ever think about how the terms of a will can help us solve problems?
Knowing more about the normal probate process, and terms used, will help us understand what is going on. ‘Real’ property was land, ‘personal’ property was anything not nailed down, (including the grain in the field), and in some places, the term ‘mixed’ was used to describe slaves as property. In other places, slaves were included in ‘real’ property. Even with a will, the probate process had an inventory of the property, including any debts due the deceased, and appraisement of the value of that property, often a sale, that might include listing WHO purchased all the items, and one or more settlements where the executor or administrator would list out assets, income, and expenses, showing what was left for distribution. When we are lucky, we can find a settlement or distribution list, giving each heir’s name and share.
But how can that help solve my problems?
Here’s my issue today – Aaron Hughes was married to Lucy Stewart (or Stuart). But there are several possible parents for Lucy listed in Family Search. (Yes, I know Family Search has some flaws; it can still be useful.)
As I’m wandering through the probate files of Hardy County, (West) Virginia – I find James Hughes will in 1802, which mentions Aaron is the oldest son. Aaron & the second son Jonathan (both of whom come to Ohio according to the 1887 Noble county history) are both given land in the will, but they have to fulfill some various conditions first, including in some cases waiting for the widow to die. Aaron & Jonathan Hughes apparently come to Ohio in 1804 – where they purchase land – so perhaps they sold the tracts of land they inherited, and then used the money to move West.
Since I’m in the digital probate files, I figure, hey, I’ll check the index for Stewart. There is both a Joseph Steward and James Steward in Will Book 2, which covers 1812-1818 in Hardy county. The James Steward will is interesting – he names his wife, Chloe, and kids, and the boys that get land have to pay the other siblings cash at specified times. I wonder what happens if there is a cash flow problem? Do people end up selling their inherited land, because they can’t make the payments to their siblings? He names one of his children as Lucy Hughes. Woot! Is this the proper parents of Lucy Stewart Hughes, the wife of Aaron Hughes, our Jackson township pioneer?
But, how can I prove or disprove this? The names matching isn’t conclusive – with a much smaller pool of first names popular at the time, and large families, it is possible for there to have been a number of Lucy Stewart’s who marry a Hughes.
But something about the terms tickles my memory. And then I figure it out. The land is described by the metes & bounds method, naming landmarks like trees, rivers, and the name of the owner’s property. (Or things like “the field that George Devault cleared on his father’s plantation.) James Steward refers to Abraham Frye’s land as part of one boundary. And I’m pretty sure another probate record did too. Which one was it? Not James Hughes, not David Ogden, . . . (now I’ve got to go back and re-read all the probates I’ve saved in the last couple of days.) Time to get out a sketch pad, and try to sketch out the shapes of each piece of land, and see if the two align. If the two families live side by side, it is MUCH more likely that we have found the proper parents for Lucy. It might take searching out old maps with landowner names. Checking for all the connected names in the County History books might give us a clue. We can check out the taxation records. And maybe, we will find enough details to make a case for Lucy’s parents, conclusively. (Stay tuned – this is still a work in progress.)
Another way the terms of the will can help us is to describe family dynamics. Often, when the adult children moved away and off the home farm, a portion was advanced to them. But like the biblical parable of the prodigal son, many of the property owners I’ve researched kept careful records, very concerned that they were fair, and didn’t allow the inheritance to be squandered. Often times, the terms of the will mention amounts that have been advanced. Another issue is that by law, the widow was entitled to one-third of the estate, for her use, during her lifetime. This was her right of dower. Sometimes the wills may make other provisions “in lieu of dower.” It may be because waiting until the widow died or remarried to divide the estate could delay settlement for years. The widow could challenge the provisions made for her, if she didn’t feel it would be equivalent to her dower rights – Rebecca Hughes Ogden did just that.
If an heir was omitted from the will, they could challenge the terms. That may be why you often see someone be given a token amount, like one dollar. If they were not omitted, it was much harder to challenge the terms. And when the will uses language like “I’ve chosen not to give my son, name-redacted, any part of my estate, for I believe I have given him enough already,” you know that family reunions were tense.
One of the quirks of inheritance law, before women could own property on their own, was that although a will might say it was going to a daughter, and her heirs of the body, if you can see the receipts for the estate distribution, it will be signed for by the husband. Even the dower share, paid out in cash, gets signed for by the widow’s new husband, not herself. When instead, you see language in a will that delays payment of the daughter’s share until after the death of her husband, or specifies that the husband is NOT to have any ability to control the inheritance, it has to make you wonder what those sons-in-law had done to really make their father-in-law so mad.
Looking at who was chosen to be an executor is also instructive. I’ve seen a lot of time where one of the sons-in-law was an executor. Since the normal way was for the sons to get land, and daughters to get cash, the son-in-law had a vested interested in getting the most cash out of the estate, but would help divide the land fairly, since they wouldn’t benefit from that part. This is common enough that when a married daughter is named in the will by given name-married name, if one of the executors has the same last name, I assume that is her husband, unless proven otherwise.
I’ve even seen a will, where a son left home at age 18, instead of waiting until he was a legal adult of 21. Clearly his father was irritated; the will required that 3 years farm laborers wages be subtracted from Jonathan Grosnickle’s share, and divided among his other siblings.
So today’s blog post didn’t actually solve any of my genealogy problems, but allowed me to wrestle with it awhile, and talk about wills. I didn’t get into using probates for the first 30 years of my genealogical journey, unless some other researcher cited the document. Now I probably spend more time in the probate files than the census files.
Thanks for visiting, and feel free to leave comments or questions.