by Harold Henderson | Sep 4, 2012
Many have their property dealt with in probate proceedings afterwards.
A few make wills.
Why would any genealogist focus exclusively on the rarest part of the process? If we also consult the probate records and understand some terminology, we can often do away with brick walls before they appear.
As genealogy records go, wills are exceptionally attractive. They seem to be that precious rarity, the ancestor speaking to us what must be the truth. But few things about the past are that simple.
Most wills are largely legal boilerplate or long-established custom. Occasionally the rest of the will contains errors, sometimes even a carefully crafted lie. In one well-documented Ohio case, the testator named two nephews as sons and mentioned none of his many other children. 1 Like all sources, wills need to be analyzed and correlated (carefully compared) with other evidence.
And don't forget that the will in the courthouse book is a clerk's copy of the original. The original will may be in the probate case file, also known as the "loose papers." If so, we should compare it to the book copy, as even an official can err in the performance of his or her duties.
Most wills are proven (probated) in a probate court, which can have various other names. But most people died without leaving one.
Fortunatelly that's not the end of the genealogical road. "Intestate" estates - where the deceased made no will - very often go through probate, often administered by a creditor or a relative. Almost everyone who died owning some property had a probate proceeding, especially if he or she owed money. Depending on the laws in effect at the place and time, the amount of property need not be large, and the proceedings may be limited to a few brief notes in the court order book. People with no property didn't have a probate; but how many researchers can be certain that a given ancestor really owned nothing at all?
What can be found in probates? Enough presents to make a genealogist's Christmas (your presents may vary according to the state laws in effect at the time):
Some probate proceedings take years to conclude, and as a result they may contain information about later developments in the family, as heirs died or departed and widows remarried - events that may not be documented elsewhere and obviously could not have been mentioned in the will.
Probates also lend themselves to strategic research. A difficult ancestor may have had an unmarried sibling with no descendants; such a person's will or probate may name and locate siblings, nieces, and nephews.
Probates can lead us to other records. An 1876 partition suit heard in Gibson County, Indiana, Circuit Court involved a 156-acre parcel and three generations of a Thrall-Balentine family I thought I knew. Two unfamiliar individuals participated in the division of the acreage previously held jointly. One turned out to be a creditor of an heir. The other was a woman who had been the second wife of a hitherto unknown son-in-law of the deceased; she inherited the first wife's interest despite being no blood relation. In order to justify the complex division of the acreage, the court produced a written chronology of the sequence of deaths in the family over a quarter-century. Since most of them had lived across the Wabash River in an Illinois county whose courthouse twice suffered record loss, this information was a great find. 3
Probate and property are like twins separated at birth: if you know only one, you're missing more than half of the fun.
"Loose papers" are just that: the various papers first submitted to the court during any proceeding (not just probate - the above-mentioned partition records were created in a different court). Once the case was closed, they were filed away, sometimes later bundled into metal boxes, and perhaps even later microfilmed. This motley assortment of affidavits, letters, bills, bonds, petitions, financial accounts, and notes of indebtedness are often the closest we can get to the world of our ancestors. Some were copied into more accessible court record books in the course of business; few have been indexed. Some may have been destroyed or given to local historical or genealogical societies to manage and preserve.
They can provide clues across time and space (provided the researcher can read them - they can make court clerks' handwriting look easy!). Luke Webster's 1840 probate file in Fulton County, Illinois, contained 76 items, one of which was a copy of a 20 September 1833 note of indebtedness. Co-signed by Luke in Brockport, Monroe County, New York, it promised to repay $500 to another Webster in Salisbury (Merrimack County), New Hampshire. 4 Relationship clues don't come much fatter than that.
And sometimes loose papers harbor an unexpected will, after all. Ezekiel Ambrose died soon after making his will 25 August 1834 in La Porte County, Indiana. For reasons that remain obscure, the will was never recorded and exists only in the loose papers. He bequeathed "my whool and in tire Estate after my Moveable property is sold for cash . . . to My Mother Joannah Ambrows [in] England Cornwall County Red Ruth parish." 5 There is such a parish in Cornwall; he may have felt that he was dying very far from home.
Reading that microfilm last year, I may well have been the first person in more than a century to know Ezekiel's story. Probates have that power. Don't miss out on them.
1 Thomas W. Jones, "The Children of Calvin Snell," National Genealogical Society Quarterly 83 (March 1995): 17-31. Back issues of this journal are available free on line to NGS members.
2 W. W. Thornton and Frank H. Blackledge, The Law & Practice in the Courts of Indiana Relating to the Administration and Settlement of Estates (Cincinnati: W. H. Anderson & Co., 1895), 534-9, Chapter 14, "Estates Under Five Hundred Dollars," Sections 203-6.
3 Gibson County, Indiana, Circuit Court case no. 2459, loose papers, box 455, file 31, Susan Rude et al. vs. Wm. D. Daniels et al., 1876; microfilm, Princeton Public Library reel 100, Family History Library no. 2,033,274.
4 Fulton County, Illinois, Estate Packet no. 2398, Luke Webster, note of indebtedness, Luke Webster to Benjamin Wilcox; Illinois Regional Archives Depository, Western Illinois University, Macomb.
5 La Porte County, Indiana, Estate File No. 7, 1834-1835, Ezekiel Ambrose, loose papers; Estates microfilm no. E1, item 2, County Clerk, La Porte.
Start your free trial today to learn more about your ancestors using our powerful and intuitive search. Cancel any time, no strings attached.