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Wills and probate records are a source that you should not overlook in
your genealogy research. While you may believe that your ancestors were
simple farmers and did not have any wealth to bequeath, remember that
one of the primary reasons for coming to the U.S. was the availability
of land. Many immigrants did succeed in owning land, and one of the main
purposes of a will is the disposition of real estate. People who had worked
so hard to acquire it wanted to be sure it was passed on to the right
people and, therefore, did make wills. With the large families it could
also be important to write down what a person considered to be the fair
disposition of his worldly goods. Even if a person did not leave a will
(died intestate), the court may have stepped in at the time of his death
to provide for the transfer of his goods or to assign a guardian for underage
children.
What Does a Will Look Like?
Wills can be a page with virtually no information or can run many pages
and generate even more records. The worst will is the man who says "I
leave everything to my wife." I call this a generic will, as it allows
him to change wives several times without paying to have the will rewritten!
Similarly, he may leave everything to his children "to be divided equally,
share and share alike." While these non-descriptive wills can be frustrating,
it is not the end of the line if property was involved. Go to the land
books where that property will be recorded under the names of all of the
children. It may even list their spouses, too.
A more typical will gives the name of the spouse and at least some of
the children. Usually the sons are listed in order of birth, followed
by the daughters. The married daughters are often listed as "my daughter
Mary Jones, wife of Ephraim Jones" thus providing valuable marriage information.
When one child seems to be missing from the list, you should not attach
too much importance to this. It does not mean he or she was disinherited.
The family farm may have been passed on to the older son when the father
retired. Since he already had his inheritance it wasn't necessary to name
him in the will. Another son may have been given money to start his own
business or to move west. Daughters were often given their share at the
time of their marriage, so married daughters might not be named. An indication
of hostility might be a bequest that is so tiny as to be insulting, "to
my son Edward I leave 5 cents, should he ever demand it." If a child has
died and left heirs, grandchildren will probably be named in the will, inheriting
their parent's portion.
Don't limit yourself to wills of direct ancestors. Check also for aunts
and uncles. A generous uncle may also mention a nephew, especially if
the boy's father is dead. One of the best types of wills is by maiden
aunts. They would often bend over backwards to be fair to everyone in
the family and would name all their brothers and sisters, nieces and nephews.
The more complicated a probate appears to be, the better it is for the
genealogist. Take the case of Richard Duncan who died in Schenectady,
New York in 1819. His wife and two children had predeceased him and he
left a very complete will giving cash bequests and personal items to several
people, but did not mention property. That seemed to be the end of it.
Richard Duncan was a Tory and for his services had been granted a lot
of land in Dundas County, Ontario. These lots originally granted to Duncan
later turn up in the land books as belonging to a John Gardiner. In John
Gardiner's will of 1828, he states that he was the "heir at law" of Duncan,
even though he was not mentioned in Duncan's will. A legal dictionary
indicates that an "heir at law" was a blood relative entitled
to inherit in case of intestacy. In the probate records for Dundas County
in 1822, three years after Duncan's death, were many records relating
to the administrators' not doing a proper job in administering the estate.
Finally Gardiner made his claim in which he had to show his relationship
to Duncan. This included the sworn statement of several people, including
servants, which gave the parents of both Richard and John and named their
common grandparent, thus proving that they were first cousins. So, this
complicated will provided three generations of family, plus a link back
to Scotland in a time period when links to Europe are hard to prove.
Finding Wills
In the United States, wills are generally found at the county level in
the probate court, filed by year. Canadian wills are also filed with a
probate court, but if only land was disposed of they may be found in with
the land records.
English wills after 1858 are kept at a central registry at Somerset House
in London. Before that date they were handled by ecclesiastical courts,
roughly on a county basis, with dozens of local exceptions. When a person
had property in more than one jurisdiction, the will would be proven in
the higher jurisdiction. On a nationwide basis, the Prerogative Court
of Canterbury (P.C.C.) had jurisdiction throughout England and Wales,
but people in the north would often use the Prerogative Court of York
(P.C.Y.). It was often a matter of status to use the P.C.C. or P.C.Y.
rather than a local court as it implied more importance.
In France, wills are handled by notaries (a type of lawyer) and are kept
in their files. Records over 125 years old may be deposited with regional
archives or National Archives but will be filed under the notary's name.
Italian wills are also handled by notaries and may be found in State Archives,
the local Notarial Archives or the town Registry Office. German wills
are at the District Court House or State Archives. In any country you
may have to look in several places to find a will, but they do exist in
most countries.
When looking for wills, keep this in mind: Although a will should be
filed shortly after a person's death, it may not appear in court records
for years after the death. Situations can also come up years later that
require it go back to court such as the above situation with Richard Duncan.
One Englishman did not administer his wife's will when she died and it
was not until his death some 20 years later that his son finally had it
probated.
What Can You Learn from a Will?
Wills can be a wonderful source for family historians because they can provide
a look at an individual's life and reveal what was important to him or her.
Also remember that simple things had more value two or three hundred years
ago. In these days of dumping large bags of used clothing at a local charity,
it is hard for us to understand how valuable clothes used to be. One only
has to look at old pictures to realize how much more complicated clothing
was. And, everything was handmade. There was no "off the rack," one-size-fits-all.
If you look at pictures of the immigrants arriving at Ellis Island you see
even the poorest man wore a suit, vest, tie and hat. Women's dresses with
their yards and yards of material, laces, ribbons, linings and petticoats
were a big item. In one will in the 1760s, one man gave his brother his
"best suit of clothes, watch, silver buckle and buttons and best hat." A
lady bequeathed her clothes and other things to one person and then added
"all that is not other ways wanted I should like packed up and sent to my
sister-in-law. I am sure she will be glad with it."
Farming implements, kitchen utensils, and household furniture were also
important enough to be mentioned in wills. (Originally, a will disposed
of land and buildings while a testament bequeathed personal, moveable
possessions. Hence the document would begin "This is my last will and
testament....") Bedding and beds were important and frequently mentioned.
Shakespeare left his "second-best bed" to his wife. Plates and eating
utensils were also often specifically mentioned. Of course, silver plate
and flatware, if the family was lucky enough to own it, would often be
enumerated. It is thrilling to find mention of a family possession —
a Bible, a watch, a ring, or a picture and realize that the object still
is owned by the family.
The very act of departing this earth and leaving behind assets and obligations
seems to create many complications which the state feels a need to oversee.
If a person dies without leaving specific instructions — either a
formal written, witnessed will, a holographic will (handwritten) or nuncupative
will (oral, deathbed statement) — then he is said to have died intestate.
The probate court will handle the distribution of the estate according
to the legal formula for that particular time and place. With or without
a written will, there still may be an inventory of assets. This can also
provide much insight into the standard of living of the family. One man
died in an accident leaving a widow and 7 children. The appraisal set
off some property for the family which included "all spinning wheels,
the family Bible, 4 bedsteads and all the bedding, 1 table, 6 chairs,
6 knives and forks, 6 plates, 6 teacups and saucers and 12 spoons." I
don't know if they actually owned more than 6 knives, etc. but it certainly
wasn't adequate for the family of nine unless they ate in shifts!
In addition to material goods, you can also learn about an individual's
state of mind. In the days when women could not own property, many men
seemed paranoid about their widows inheriting their hard-earned land and
money and then having it fall into the hands of a wastrel second husband.
Frequently the man would leave money and property to his widow for "as
long as she remains a widow." If she remarried, it was all forfeit. The
desire to control from beyond the grave was very strong. One man left
his widow a pension of ten pounds a year from his estate for 15 years
"as long as she lives a widow and chaste." The rest of his estate went
to his brother. I don't know what his wife was supposed to do after 15
years!
What Else Should I Know About Wills?
Many other types of documents may be spawned by the death of a person, with
or without a will. An executor or administrator will be appointed to handle
the estate. This may involve duties over a period of several years and the
individual(s) may have to file papers with the court on a regular basis
accounting for their handling of the case. There may be a dispute amongst
the heirs which ends up in court and may generate reams of paper with claims
and counter-claims. An illegitimate child may turn up asking for a portion.
Other heirs may not feel the executor or administrator is doing a good job
and will file a complaint.
Part of the fun of looking into wills is you never know what you might
find. This is not like a death certificate with set questions and you
know that only those answers will be found. You may come across old family
secrets or an eccentric maiden lady such as the one who named all her
cats, leaving them by name to various individuals along with
sufficient funds to care for each cat!
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