Where There's A Will There's A Deed

by Harold Henderson | Jul 3, 2012

We know just enough about William Berry's life to want to know more.1 When his father died in 1759, six-year-old William was bound out as an apprentice in Rhode Island. He served four hitches in the Revolutionary War from New York, ending as a prisoner of war on an island in the St. Lawrence River from 1780 to 1784. He married a woman named Ruth and had a stormy relationship with a Baptist church. In the last quarter of the 1700s he fathered seven children who lived to grow up and have children of their own. He did well enough in life to be able to leave them land in his will. And - most importantly for genealogists -- in the will he told them exactly what to do with it when they died.

William made his will in Allegany County, New York, in 1839. He was 85 years old and had outlived two of his children. After bequeathing land to four of the five still living, he specified that when they died, it should pass in equal parts to their offspring. One gets the impression, based on limited evidence, that if anyone had explained to William that this provision was unwise or unenforceable, he would have brushed them aside. He knew what he wanted.

But the family members thwarted his wishes. In doing so they created records that now enable us to identify many more of his grandchildren than we could if either he or they had been less headstrong.

The will names the heirs of the two deceased children -- Anna Potter and William Berry Jr. -- and the heirs of daughter Rachel Palmer, who received money but no land. But who were the heirs of the other four - Thomas, John, Lydia, and Elizabeth? The will does not say, nor does it give the daughters' married names. Thomas and John each received 50 acres in the southeast corner of Lot 11 in the town of Birdsall, halves of a 100-acre parcel William had bought in 1838. Lydia and Elizabeth each received 35 acres adjacent to one another in Lot 4.

The Quest

I went looking for more grandchildren in Belmont, a small town in New York's picturesque "southern tier" snowbelt and the Allegany County seat. It soon became clear that the probate files alone would not answer my question. So I crossed the hall to the county clerk's office, a big well-lighted room full of stand-up sloping desks mounted atop shelves of property records and indexes.

Studying those records was a bit like walking into a party where everybody knows everybody else and assumes you do too. Even though this party was more than 150 years old, enough of the participants were willing to talk so that eventually it all made sense.

Thomas Berry's family

On 3 October 1853, William's son Thomas Berry and his wife Sally sold their inherited 50 acres. Also selling were Stephen W. Berry, Isaac and Mary Ann Sprague, William H. and Olive C. Hackett, Miranda Daboll, and Ruth M. Berry. They all quit-claimed the land to Thomas Green.

The land in question was the land William had bequeathed to Thomas, insisting that he in turn pass it on to his heirs. Not only was this provision unenforceable, it would have left each of Thomas's six children with a mere eight acres of rugged, stony ground. And if Thomas were to sell it, the will's language might scare off a significant number of buyers. The obvious solution was for all of Thomas's children to relinquish their potential claims. So it seems likely that these people were indeed his children and their spouses; that likelihood is enhanced by their absence from the grantee indexes - in other words, they never purchased any part of it.

In the case of this family, two later deeds confirm the supposition. On 10 November 1857, Miranda Saunders (having remarried), Mary Ann Sprague, and Olive C. Hackett sold land "of Thomas Berry" to Ruth M. Berry. The deed named them all as Thomas's heirs. The following January Rhoda M. Green (the wife of Thomas Green) sold her interest in the land to Ruth, and both were named as heirs.

John Berry's family

John's family followed a similar pattern. He and wife Mehitabel sold John's inherited 50 acres -- along with Lewis and Mary Berry, Peter and Permelia Walrath, Mathew and Jerusha Coleman, Stephen and Esther Green, and Alvie Berry. They sold it to Thomas P. Berry, who then joined with Thomas Green and Stephen Berry to sell the entire 100 acres out of the family to Hiram Lee. In this case, no deeds name these people as John's heirs, but why else would they be on the same deed with John and Mehitabel, selling land they had never owned?

Other evidence connects them. In 1850 Thomas P. Berry's household included apparent young niece Louisa "Wallrath." The Walraths lived near Lewis Berry and old William's former associates Philip McHenry and Daniel Hadsall. In 1865 Alvy lived near the aged John and Mehitabel. In 1900 the aged Lewis and his second wife Abby lived in the household of their nephew, Alvy's son Lewis P. Berry.

The story of Thomas and John's families and property is not as neat as this telling makes it sound. For one thing, the land was not consistently described: William bequeathed 50 acres to each son (described only as lying "in the south east corner"); John's family appeared to be selling the entire 100 acres (its boundaries carefully described); and Thomas's family referred to "one equal and undivided half" of the 100 acres. Even more confusing, John's family transactions (including the sale to Hiram Lee) took place in 1852, before Thomas's family had done anything! In essence Thomas's family appears to have been ratifying a deal that had already been struck the year before.

These oddities suggest that the recorded deeds do not give the whole picture. I suspect that the two families came to a decision to do this some time after William died. Exactly when and how it was done didn't particularly matter to them or to the ultimate purchaser. They were bound by family ties, not making arm's-length deals with strangers.

Elizabeth Parks's family

In 1830 a household headed by Isaac Parks was near William Berry's; in 1840 an Elizabeth "Parker" lived near Lydia Hungerford, Philip McHenry, and John Berry. She was very likely the Elizabeth in William's will. In any event, in 1844 Elizabeth Parks and eight others sold 35 acres described as "part of the farm owned by William Berry late of Town of Almond Deceased on Great Lot Number thirty one Subdivision Lot Number four..." The others were William and Esther "Blevin," William B. and Sally Ann Parks, Clark and Elsey Monroe, Ruth E. Parks, and Isaac I. Parks. They quit-claimed their rights in the land to Daniel Hadsall.

Lydia Hungerford's family

It seems likely that the Lydia Hungerford who lived near Elizabeth "Parker" in 1840 was the Lydia named in William's will, and that she died before 1850. On 12 February 1850 a 35-acre parcel described as bordering Elizabeth Parks and Philip McHenry was sold to Daniel Hadsall. The sellers were Simeon C. Hungerford, Lewis and Martha Sumner, John and Eliza Ann Swartwout, and Margaret Emily Hungerford. In an earlier deed, Stephen D. Hungerford had sold his rights to five acres of such a lot to Simeon. In a later deed, Reuben Hungerford sold his rights to five acres of such a lot to Lawrence I. Dey, another close neighbor and associate of the family.

Once again, a group of people not on record as owning the land consolidated it and sold it out of the family. Their records give Lydia a married name and a flock of children.

Again, the records are not complete and seem out of sequence, with Reuben's sale coming late. The deeds in this case account for only 30 of the 35 acres; nor is there a record of Dey selling his rights to Hadsall. The overall pattern is similar, as are the ties among the sellers. In 1870 and 1880 Simeon's household was enumerated near that of Margaret Emily and her husband Lyman Trask; in 1850 Margaret had been living in the Sumners' household.

Pattern recognition

In the absence of direct statements of heirship, affiliated people quit-claiming land they are not on record as having purchased may well be heirs. In the case of these Berry families, the land descriptions and acreages match William's will, and the evidence offers no alternative theory to account for these sales and their irregularities. Property, probate, and census records work together to identify descendants.

William Berry's 1839 will named seven children and ten grandchildren. Once the pattern is recognized, deeds made over the following years make it possible to name twenty-three more grandchildren.




1 - Each piece of information in this article is cited to sources in Harold Henderson, "William Berry (1753-1839) and His Children and Grandchildren in Massachusetts and New York," part 1 of 2, American Ancestors Journal, third annual supplement to The New England Historical and Genealogical Register 165 (October 2011): 368-78, covering William and his children Rachel, William Jr., and Thomas. The remaining four children and their known children will be documented in 166 (October 2012). Thanks to editor Henry Hoff for his work in shaping it for publication.


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