By Mr. John P. Alcock
President, Friends of the Virginia State Archives
Presented November 17, 1999
At the Library of Virginia
Sponsored by the Friends of the Virginia State Archive
A child whose father had died was an orphan in that era, even if her mother was living. The father in his will could name a guardian or guardians for his infant children (infant was the legal term for under age) to manage their estates and arrange for their education. If he did not do so or if he died intestate, the court could name the guardian unless the child was 14 or older, in which case he or she could choose one. However, quote where the estate of the orphan be so small value that no person will educate and maintain him for the profits thereof, such orphan shall be bound apprentice, every male to some tradesman, merchant, mariner, or other person approved by the court until the age of 21. End quote. Females were similarly bound but to age 18. The master or mistress of every servant was to provide quote diet, clothes, lodgings and accommodations and teach him to read and write and at the expiration of his apprenticeship to give him the same allowance appointed for servants of indenture end quote.
Te law concerning wills did not change in any basic way during the century. It provided that every person over 21 except married women could dispose of their lands by a will. To do so for chattels, i.e property other than real estate, the minimum age was 18. If the complete will was written by the testator himself, only one witness subscribing in his presence was required. If not two were needed. The rights of a posthumous child not provided for in the will were protected. He or she was guaranteed the same share of the estate gotten if the father had died intestate, and if there was no other child, the will became invalid.
The will could not prejudice the widow's dower. If she felt that it's provisions were less beneficial than her dower rights, she had a year to renounce the will, either by appearing in person before the court or by a deed. Once renounced she couldn't change her mind. Dower gave the woman a life interest in one/third of the real property and full ownership of a third of the chattels, one half if there had been no child of the marriage.
The testator usually named the executor he wished to manage his estate for the benefit of his heirs. Executors and guardians had to subscribe to bonds, in practice to the amount of 50 % more than the appraised value of the estates they were to manage. I know of one burned county, Prince William, where these fiduciary bonds have survived although the wills or orders causing them to be signed have disappeared. Other provisos included that a legatee could not be a witness. If he was, the will was invalidated with respect to his part in it. That condition allowed me to prove there were two Moses Lintons in Stafford Co in 1726. A will named one as a legatee and one was a witness. They could not have been the same person. The court could compel a person who knew of the existence of a will to produce it. Potential heirs wishing to challenge the will had seven years to initiate a chancery suit to do so. The 1786 revision decreed that all land held in fee tail meaning that it could be transferred only to certain lineal descendants of the original grantee according to the grantor's instructions (commonly given by the familiar clause of "and the heirs of his or her body") was automatically converted to fee simple as of Oct. 7, 1776.
One of the provisions required that when the will was recorded, the original was to be retained by the court and held there open to public inspection forever. In Fauquier County we have seen a couple of 200 plus year old wills of Mariana Alcock's ancestors but have not asked to handle them ourselves or to have copies made of them because of their fragility.
Soon after genealogical puzzle-solving became one of my hobbies, I ran into the term nuncupative will. At the time I had to go to an unabridged dictionary to find that it was simply legalese for oral. Such a will could be allowed if told to the person that put it in writing during the last illness of the testator or if two witnesses proved that the assistance of the scribe had been requested by him. The writing had to be presented within x days of the death. I don't know how much that bit of knowledge will help any of you, but in our case the 1810 will in Fauquier was of a dying man from Kent Co. Maryland. He was visiting a sister and made a bequest to another sister who lived in Loudoun That sister was an ancestor of Mariana Alcock. So we got her maiden name and with it the reason why her granddaughter, also Mariana's ancestor, had named the farm that adjoins ours Glanville. The moral may not be never say die.
Back to business. If there was no will, the court would appoint an administrator giving preference to the widow and if she refused to serve, then to the next nearest adult heiranother in the order of inheritance. This order was first to children or their descendents, second if no children, to the father, third to the mother, brothers and sisters, fourth divided equally between paternal and maternal sides starting with grandfathers, next grandmothers uncles and aunts, etc. . If you need to go further to determine who could share in an estate if there was no will, see Hennings October 1785. I presume that the same order rules today, except that the discrimination against women has been removed.
In practice as far as the appointment of an administrator goes, if there was no close relative who would serve, the court could appoint a creditor who had applied for the position or anyone else at its discretion. However if a will was produced later, it took preference. You will sometimes see administrators with the will annexed. This was done when there was a flaw in the will such as the failure to have qualified witnesses prove it. At the time of granting probate or appointing an administrator, the court named three appraisers who were to obtain an inventory of the estates personal property and appraise its value. This appraisement was the base point for estate accounts and for suits against or by the estate. The appraisers were almost always neighbors of the deceased.
The executor or administrator was required to sell all perishable goods not necessary for the sustenance of the family. Proceeds were used to pay off creditors. If that did not cover the debts of the estate, then other personal property was sold leaving slaves to the last. No distribution of property could be made to the heirs for at least nine months.
If you are unable to find a will, or an inventory, or the order for the appointment of an administrator for a person who has disappeared from the tax lists, you may be mistaken if you think he must have moved away and died elsewhere. The law did not require that the county clerk be informed of a death. So if the deceased was debt-free and had no real estate, the family could agree among themselves on the disposition of his assets. Even if he had received an advance on the year's crop, the family could arrange with the creditor to renew the loan to one of them.
Women's rights.
In Colonial Virginia a woman by marrying became "one body"
with her husband (Matthew 19, verses 5 - 6). Together with "wives
be subject to your husbands" (Ephesians 5, verses 22-24), these
dictums were the basis of English law and continued as American law
well into the 19th century. The result was that the rights of a
married women were severely restricted With certain exceptions, she
was not allowed to own land in her own right nor to make a will. Any
real property that she brought to a marriage automatically became her
husbands, unless she had insisted on a prenuptial agreement signed
before the marriage took place.. Even after she was widowed and had
received a life interest in a specific third of her late husband's
land following a division of the estate made by court-appointed
commissioners, she had no say as to whom it would pass after she was
gone. She could not sue in a court of law other than by the same
"next friend" procedure provided for minors and the
mentally incompetent. She had no legal say over who would be the
guardian of their minor children after her husband had died or what
religion they would be raised in, if her husband's will had provisos
to those effects. If her husband had been too poor to assure that she
and her children were not going to become a public charge, she had no
power to prevent the children from being taken away from her and
bound out to a stranger.
Only if a woman was an adult and unmarried, either as a widow or never a bride, could she sue in court, act as an executrix or administratrix, be officially designated as the guardian of her children, enter into contracts including indenture of servants, own slaves, sell or buy land, or obtain an ordinary license. If a servant, she could take direct court action against her master for ill treatment or his not abiding by the terms of the indenture. Whether or not she was married, she could witness documents and testify freely in court about them. Obviously she couldn't vote, serve on a jury, or hold any public office.