The Kin-Hunters Guide — Issue No. 19
Sandusky County Historical Society, Fremont, Ohio — Founded 1874
Thaddeus S. Hurd, Genealogy Supervisor
March 1971 / March 1975

LAW AND INHERITANCE

Among the most valuable sources for genealogical research are the old law documents. Often they are the only records surviving from early years. Further, they are considered primary (best) evidence. Some knowledge of law is helpful both in locating and in interpreting them. This Guide discusses law in general, and inheritance law in particular. Land law may be discussed later. Legal points are presented here for historical and genealogical information only, and are not intended as legal advice.

WESTERN LAW
Law in western Europe and North America has two origins. That based on the law of ancient Rome is called civil law. That based on the tribal law of early England is called common law. Note that neither “civil” nor “common” here has its usual meaning.

CIVIL LAW
The continent of western Europe has civil law, established after the Middle Ages. This law was brought to the French and Spanish colonies of North America. It is the basis for the law of Quebec and of Mexico. Its influence persists in Louisiana, California and the southwest. It is characterized by lack of sharp distinction between land and moveable property.

COMMON LAW
England has common law. All traces of law of the Roman occupation disappeared. The Celts reverted to their old tribal law and religion. The Germanic invasion of the Angles, Saxons and Jutes brought their own tribal law. William the Conqueror’s later invasion from northern France in 1066 brought feudal law.

Feudalism of the Middle Ages — the time of cathedrals and castles, knights and ladies, crusades, King Arthur and his Knights of the Round Table — was essentially a social system based on military land tenure. William’s large land grants, which created the British nobility, required military service from the land holder.

RELIGIOUS LAW
Coexistent with secular law has been the ecclesiastical law of the church. King Henry VIII of England broke with the Church of Rome (Roman Catholic) and established an official English church, the Episcopal, or Church of England. It retained many of the powers of the previous church, including jurisdiction over marriage, divorce and inheritance.

LAW CLASSIFICATIONS
Laws of whatever origin may be grouped as: (1) unwritten law, the oral law of tradition; (2) codified law, that assembled into codes or constitutions; (3) statutory law, that adopted by acts of government; (4) case law, that established by court decisions. The latter three are written laws.

COLONIAL LAW — ORIGINS
The English colonists of North America brought here their English language, English customs and English law. Each colony’s charter also gave it some law-making powers, which all exercised. Colonial law is thus a mixture of Anglo-Saxon law, feudal law, common law, Biblical law and original law.

New Englanders were fleeing from religious controls and a feudal land system. Therefore the laws of neither were adopted, but were replaced by original laws. They also used the Bible as a source of law, adopting some of the laws of Moses.

Virginians were businessmen, called “adventurers.” They had come to make money. They had no quarrel with English institutions and transplanted most of them unchanged. The Church of England became the established church. Yet the different life in a new land necessitated new laws. They too, under their charter, adopted original laws.

Massachusetts, New York, Pennsylvania and Virginia were the dominant colonies. Massachusetts law affected Maine, New Hampshire, Rhode Island and Connecticut. New York law influenced east New Jersey. Pennsylvania law extended to west New Jersey and Delaware. Virginia law affected Maryland, the Carolinas and Georgia. Yet each colony with its different background and its own law-making powers made its own original law.

COLONIAL LAW — CHARACTERISTICS
While law did vary in the new colonies, it had more similarities than differences. In general it derived from English law. But it differed in five important respects: (1) codification, (2) recording and (3) partible inheritance.

Codification is spelling out the law in a written code, to define the limits of governmental authority. This was a reaction to the unwritten and ill-defined English legal authority of king, courts and church.

Recording is the committing to writing in a legally established place of the legal actions of individuals and groups. Again, this was a reaction to English practices. The English church recorded baptisms, divorces, marriages and inheritances. But land was still held under feudal policies, and the individual’s rights thereto were not a matter of public record, often resulting in great hardships.

Partible inheritance is discussed below. This and recording are of prime importance to American genealogists. The two have provided more law records here with genealogical data than are found in England.

Though there was similarity among the laws of the colonies, genealogists must remember that each colony had its own law. Thomas Jefferson of Virginia, in cataloguing his law library, put his Massachusetts law books under “Foreign Law.” When the colonies federated to form the United States, they yielded only the legal rights defined in the Constitution. As later states were formed each assumed similar legal rights. Thus in law each of the 50 states is like a separate nation except for powers yielded to the federal government.

LAW HISTORY
There are several publications which give a comprehensive history of English law. But strange to say, a history of American law is yet to be written. It obviously begins with colonial law. Yet until very recently the many surviving colonial documents have not been studied for law content by either historians or lawyers. The older writings on American law are not to be relied on.

There is no book to guide the genealogist in interpreting American law — colonial, federal or state. There are books and articles telling where the records may be found, but only fragmentary comments on their interpretation. There is no history of Ohio law. Only by trial and error can the genealogist find his way in interpretation of Ohio’s law records: naturalization, taxation, divorce, chancery, and the many others.

INHERITANCE

You can’t take it with you. All social groups, however primitive, have established customs or laws concerning disposal of a person’s possessions when he dies. Those who by law receive such possessions are said to inherit them, and what they receive is an inheritance. The law has regarded the family as important to social stability and has tended to distribute the inheritance so as to help preserve the family of the deceased. Only when the family’s importance sociologically is in decline does the government take from the dead for its own use — as in today’s inheritance taxes.

Among the powers long conferred on the individual by government is that of deciding how his property shall be disposed of after he is gone. He is allowed to express his wish or will, this expression known as his will or testament (Latin: testamentum), surrounded by law with safeguards, but also with restrictions.

PRIMOGENITURE AND PARTIBLE INHERITANCE
Chief among these restrictions has been the law of primogeniture. Feudal England’s military strength was through land tenure. To prevent the breaking up of large land holdings, consequently weakening military strength, the Norman invaders under William the Conqueror established primogeniture (Latin: first born), whereby all lands must descend to the eldest son.

This principle was not suited to the American colonies. Land here was unlimited, and not the basis for military service. The economy was agricultural; wealth was mainly in land. To deprive younger sons of rights in their late father’s land would create a large class of unemployed paupers. So from the first, New England established partible inheritance, meaning that a dead parent’s land might be divided. All sons and daughters shared equally, except the eldest son received a double portion in accordance with Biblical law (Deut. 21:17). This double share continued in Massachusetts until 1789 when the law was changed so that he shared equally.

Similar conditions prevailed in Pennsylvania. Elsewhere primogeniture was law at first, but abolished: Georgia 1777, North Carolina 1784, Virginia 1785, New York 1786, Maryland 1786, South Carolina 1791.

THE WILL
In America, adults have always had the right to make a will. The maker is the testator (testatrix, f.). One who dies leaving a will is said to have died testate. Land (real estate, realty) is devised. Movable property (personal property, personalty, chattel) is bequeathed. Under a will, a devise is a gift of land and a bequest or legacy is a gift of personalty.

The testator is unrestricted (but see below, dower). He may ignore his family completely and give all his property (estate) to charity or a stranger. The will is usually in writing, prepared by someone versed in such things. If it is entirely in the handwriting of the testator, it is a holographic will. If it is only spoken, it is a nuncupative will. Each colony had laws governing wills. Each state now has such laws, which must be carefully followed. Failure to do so will make the will invalid. Usually a will must be acknowledged as such by the testator before two witnesses and signed by all three in each other’s presence.

After the testator’s death, the will must be legally established or proven to be what it is, and that it is the last one the testator made. This is done by the witnesses in a court of law, usually called a probate court (Latin: probare, to prove), also in some states called the surrogate’s, orphans’, ordinary’s, or prefect’s court. If the will is legally correct, it is admitted to probate. If not, it is disallowed and things are the same as though the testator had made no will. If accepted, the court appoints a person called the executor (executrix, f.) who may be named in the will to carry out its provisions. The court issues papers, called letters testamentary, which give the executor the necessary legal powers to carry out the provisions of the will and settle the estate.

INTESTACY
If a person leaves no will, he is said to have died intestate. But his property must still be disposed of. Laws governing its disposal are called the laws of intestacy. Usually someone close to the deceased appears before the probate court and testifies that the deceased left no will. The court then appoints someone, called the administrator (administratrix, f.), to settle the estate, granting letters of administration for the purpose. The laws of intestacy now strictly apply. Each colony had its own laws, as does each state today, all different. Generally they are aimed at preserving the family, the spouse getting a large share, with the remainder divided among the children or grandchildren.

SETTLING THE ESTATE
Whether the estate is testate or intestate, on first being brought to court it is given a case number for court record purposes. The executor or administrator then proceeds with his duties, both following similar procedures. Each gives a bond for faithful performance of his duties, though an executor may be exempted by the will. The property of the deceased must be precisely determined and valued by an inventory and appraisal. A year’s living allowance may be set aside for the widow. All money due the deceased must be collected and all his debts paid. Funeral expenses, court and legal costs, administrator’s or executor’s fees, taxes, are paid from the estate assets. The remainder, if any, is then distributed in accordance with the will or the laws of intestacy.

Land which has been willed receives special treatment. It passes at the instant of death to the person to whom it is devised. Lacking a will or a devisee, it is administered with the other assets of the estate. In either case, change of ownership from the deceased to heirs should be certified from the probate court to the recorder of deeds.

The executor or administrator must keep careful records of all his actions. He may be required to make progress reports to the probate court. When all is completed, he makes his final return to court and if it is in order he is discharged and the bond cancelled. He deposits his papers with the court. These are then placed in a folder bearing the case number and filed or stored. This is the case file.

Today the executor or administrator usually never appears in court, all details being handled by his lawyer. The witnesses to a will, however, must personally appear to prove it.

DOWER AND CURTESY
The laws of inheritance, seeking to preserve the family, have long given special consideration to the widow. In early times, by common law, she was entitled to a life interest in one-third of her late husband’s lands and outright possession of one-third of his personalty. This is called dower. It took precedence over a will, making it impossible for a husband to disinherit his wife except for unfaithfulness on her part. Similarly, a widower had an interest in the property of his late wife, called curtesy. This was less prevalent than dower. Both dower and curtesy have now been replaced by similar provisions of the inheritance laws. Under these laws, a surviving spouse may elect to inherit under a will or under law, whichever may be more advantageous.

NON-PROBATE
The law does not require that an estate must be probated. In intestacy, however, there is no other way for land to pass from the deceased to others. In earlier days, if the estate was all in money or chattels, it could be distributed by the owner during his last illness. Today, inheritance taxes make probate a necessity except in poverty.