Probate records: Part Two

Alicia Crane WilliamsPart One appears here. 

The parts of a will

Identification of testator: The first sentence will state the testator’s name, residence, and occupation. There is usually a comment about being old and weak, but of sound mind – for those who might argue otherwise [and later in this example we will see some arguments about just that], plus general religious sentiments appropriate to the time. In the case of our example of the will of John Dickson:[1]

“In the name of God Amen; I John Dickson of Cambridge in the County of Middlesex within the Province of the Massachusetts Bay in New England yeoman being aged and infirm in Body but of Sound mind and memory, blessed be God for it, calling to mind the mortality of my body….” and so forth.

Payment of debts and costs

In the fourth paragraph is the sentence about paying off all debts and expenses out of the estate before the bequests are distributed.

Bequests

John, who was a widower, directs that the remaining estate, after expenses, is to:

“be equally divided to and among my Six Children namely William, John, Edward, Jane, Elizabeth and Margery or their heirs, except my Said Son William who shall have two shares or a double Portion of the same.”

Then, more specifically:

To William, John, and Edward and their heirs, “all of my real estate whatsoever and wheresoever, to be equally divided between them (except my said son William who shall have two Shares…) on Condition [within] the space of three years next after my decease [they] well and truly pay unto each of their said Sisters or their heirs the Sum of one hundred and forty Pounds in Current lawful money within this Province or in Bills of publick Credit on the same, in the manner and Proportion I have hereinafter ordered and appointed.”

William, because he was receiving a double share, was to pay each sister annually over the three years £23.6s.8d., and John and Edward were to each pay £11.13s.4d. to each sister.

Executors

The last paragraph appoints his three sons as executors of the will.

Date and signature

The date on which the will was signed and John’s signature.

Witnesses

It was the responsibility of the witnesses to affirm that it was, indeed, John himself who signed the paper, and that he really was of sound mind when he did it.

Probate

After the testator’s death the will is presented to the Judge of Probate, the executors and witnesses give their oaths to its accuracy, and . . . if there are no impediments, the judge accepts it for probate. The date of probate is important, as it may be the earliest “died before” date available if no actual death record is found (although sometimes the inventory is taken before the probate). In this case, the date of probate is 6 June 1737.

Okay, all simple and straight forward, right?

Well, not in this particular case. In the next section we will see that before the will was accepted for probate, some of the heirs petitioned the court to have it overthrown.

Continued here.

Note

[1] Note that the Case number is #6263, not #6264 as given in Part 1 of this series (although the link is correct), and that there are only 12 images, not 28 as stated – another reason why you should not hire me to do your taxes.

Alicia Crane Williams

About Alicia Crane Williams

Alicia is the lead genealogist on the new NEHGS study project, Early New England Families, 1641-1700. Prior to joining the NEHGS staff, she compiled and edited numerous important genealogical publications including The Mayflower Descendant, the Alden Family Five Generations project, and the Harlow Family : Descendants of Sgt. William Harlow (1624/5-1691) of Plymouth, Massachusetts. Alicia has served as Historian of the Massachusetts Society of Mayflower Descendants, Assistant Historian General at the General Society of Mayflower Descendants, and as Genealogist of the Alden Kindred of America. She earned a bachelor’s degree from the University of Connecticut and a master’s degree in History from Northeastern University. In October 2016, Alicia was elected a Fellow of the American Society of Genealogists.

11 thoughts on “Probate records: Part Two

  1. Thank you, Alicia, I enjoyed this especially after having just yesterday read what might almost be viewed as a sermon in one ancestor’s introduction to his will.
    Also, I’m quite interested in your research on early residents of Cambridge, Mass. My husband’s furthest back verified ancestor is Francis Whitmore, b. 1625; who remained in Cambridge/Lexington all his life. I’m looking for facts to link or to dispel the rumor that he might be son of John Whitmore, b. 1589, who immigrated from somewhere in England to Mass., then moved on to Wethersfield, Conn. and finally Stamford, Conn. where he was killed by Indians (therefore, left no will to his heirs.) If you could direct me to any information about this, I would jump for joy.

    1. Hi Linda, Have you looked at the sources given by Torrey in his “New England Marriages Prior to 1700.” If not, check the database on americanancestors.org for Francis Whitmore.

  2. I found one in Otsego Co., NY at the county seat at Cooperstown I thought might be an ancestor of mine, turned out he isn’t but with the same name. Anyway it was so interesting, 21 pages of handwritten testimony, with witnesses to testify about Testator. Then heard from witnesses to testify about the competency of the original witnesses, the funniest thing I ever read.

  3. This will be a great series on wills. I have learned a lot about early wills during my research including some terms that were new to me, for example: “mossuage, or messuage,” which I believe would be a dwelling house or tenement, probably not owned by the testator, but leased.

    I also believe that the order in which children were named can be mostly reliable about their births – eldest to youngest, sons first, followed by daughters. At least it could be a good possibility to follow. We wish all wills listed children by name, or the relationship of an heir to the testator, but alas, it is not always the case. And don’t forget the witnesses, or individuals named in estate inventories; they can also be useful.

    I look forward to more on this subject. Thanks.

    1. Carole,

      A messuage was the “home farm” lot containing the house, barn, outbuildings and the land it stood on. In old England, the farmer would lease the farm. In New England most farmers owned their property — it was one of the benefits of getting out of England.
      Yes, the strict practice was to list children in birth order, often males first and females separately. The order also followed in accounts and deeds relating to the probate. Pecking order.

  4. I am enjoying this a great deal, Alicia. Probate records fascinate me, a window into the hidden relationships of human beings. Family squabbles over wills are certainly not new. I am learning a lot about interpreting wills and probate records for genealogical purposes, but maybe too some things that will help ease the administration of my own will! I have to admit, though, that I am sorely tempted to write it in the sometimes tortuous language of some of these old wills, just to torment my descendants.

    1. Annie, there are a lot of twists and turns that have been thought up over the years. One is to withhold all of the estate until the youngest child reaches a certain age — I know of one instance when that was 35, making the oldest child 55!

  5. My ancestor was not listed among the children or beneficiaries in his father’s will probated in 1863, even though my ancestor was alive and well and serving with the Union army at the time. I don’t quite know what explanation there might be for the omission.

    1. Kathleen, I am a day late in responding, but perhaps you will see this. That omission must be confusing and maybe a little hurtful. So here are a few thoughts on why it may have happened.

      (1) Are you looking at the original probated will in the courthouse, or a copy? It is too easy for a copyist to misread or misspell a name, or to simply neglect to copy a name altogether. Do names in the will match names in a census or land records?

      (2) Was it a nuncupative (oral) will, spoken by a dying father too ill to write his wishes himself, so dictating to someone who is attempting to write everything down? Was it dated within a few days of the death? If your ancestor was absent in the extreme circumstances, perhaps he was overlooked? Omissions like that should be caught during the probate process, so it is important to look at the probated original.

      (3) Could the father have thought your ancestor had died during the war? Had the soldier recently fought in a large battle, or been a prisoner, or missing?

      (4) Could there have been an estrangement between father and son? Perhaps the father objected to your ancestor´s participation in the war?

      (5) Perhaps the father had already given your ancestor his share of the family resources. Was he an older son, already having received land or funds from his father, setting up his own household before going off to service? Perhaps the father only listed younger heirs that had not left the parental home with their shares. Usually that is noted in a will, but there may have been an omission.

      (6) Are you absolutely sure your ancestor was the son of the author of that will? Not some man of the same or similar name living nearby? Does the 1860 Federal Census list other families of similar names in the area? (I have occasionally thought I had broken through a brick wall, but a will or pertinent dates have shown this was not the right connection.)

      Good luck in your research!

      1. Candy: Thank you so much. Several of those items listed are possibilities that I will research further. My g-grandfather was a firebrand abolitionist and his father I think not so much. Plus g-grandfather was the youngest child by about many years and yes the will was a copy. Again thank you for your generosity in taking time to help me with this puzzle. Kathleen

Leave a Reply