If you are researching in Colonial America, you will find yourself introduced to some unique laws that favored the oldest son over the other siblings, especially in the case of an intestate estate. Remember that if an estate is intestate, the deceased has not written a will. Without the will, the property of the deceased is divided up according to the laws of inheritance for the particular state at that time. The laws change over the years, however, from 1607 to the 1780s, the oldest son very often got a much bigger piece of the inheritance than the rest of the siblings.
The law of primogeniture was the inherent right of the eldest son to inherit the entire estate. If you were the oldest son this was a great law. If you were one of the younger sons or a daughter it wasn't so great. Even in the states that didn't have laws of primogeniture, daughters very often did not receive a fair portion.
Primogeniture -- the eldest son takes all.
When Did It Apply?
Generally the law of primogeniture applied only in the case of an intestate estate. If the deceased wrote a will, the property was divided up according to his wishes. And most people during this time did not include the law of primogeniture when determining the division of their estate. If you are researching in the states of New York, New Jersey, Virginia, North Carolina or South Carolina, you will want to keep this law in mind when working with probate records. If you do find a will in which the complete estate does not appear to be bequeathed, you may want to see if there was possibly another son, who was the oldest. Sometimes because of the law of primogeniture, the oldest son was not mentioned in the will as his inheritance was already secured.
In the state of Massachusetts, they did not follow this law. The distribution of property to the heirs was patterned after a model found in the Bible in the book of Deuteronomy. Inheritance patterned after this model gave the oldest son a double portion.
However, more often than not you will find division of property done by what is called "partible" inheritance. In this model all the heirs were given somewhat equal inheritances. However, as you read the wills and divisions of property, you will find that in most cases it was the sons who inherited the real estate and the daughters received the personal property, such as linens, silverware and household goods.
In most Quaker families, there was equal division of an estate, except that daughters did not inherit land. Instead, they were given "portions" at marriage and a share of the personal estate. Quakers often remembered their grandchildren, leaving them small gifts. And their wills often included charitable bequests, as philanthropy was an important part of their culture.
The Law at the Time
In applying the laws relating to the descent of property to particular genealogical situations, remember that inheritance laws and customs changed from time to time. The particular law in effect at the moment must be considered.
As you delve into probate records, you will want to keep in mind the laws of inheritance that were likely to be in effect at the time of your ancestor's death. You will find that these laws can affect the distribution of the property and may even affect who is named in the will.
Rhonda R. McClure is a professional genealogist specializing in celebrity trees and computerized genealogy. She has been involved in online genealogy for fifteen years. She is an award-winning author of several genealogy how-to books, including The Complete Idiot's Guide to Online Genealogy, The Genealogist's Computer Companion, and Finding Your Famous and Infamous Ancestors. She may be contacted at [email protected].
See more advice from Rhonda in her columns Expert Tips, Tigs and Trees, and Overheard in the Message Boards.