Wills and Testaments

by Donna Przecha

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!

About the Author
I began genealogy in 1970 when we were living in Ogden, Utah for a short time. I was immediately hooked when, on my first visit to the local Family History Center, I found my great-grandparents in the 1850 Ohio census. I have been researching ever since on my own family and for others. I soon recognized the value of computer programs for keeping track of the data. I was a founding member of the Computer Genealogy Society of San Diego and editor of the newsletter. I have written a third party manual on ROOTS III and, with Joan Lowrey, authored two guides to genealogy software. Using ROOTS III and WordPerfect, I have written several family history books for others, but have yet to stop researching long enough to complete my own family history!

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