Records of the settlement of estates are sources frequently
used by genealogists. Their value lies in the fact that they often
document relationships, residences, and other life details necessary to
distinguish one individual from another. However sometimes these
records are not easy to use. Difficulties with using these records
generally result from the following:
- Changes in the law over time. What was true in 1850 may not have been
true in 1950 or 1750.
- Frequent differences in the law from one state to another. The law
surrounding probate and inheritance is governed by state statute.
- An unawareness of the precise legal meaning of specific terms. The
law may use a word in a different sense from a layman.
We've discussed probate records before in this column:
- “Trientje's Testate Tidbits,” A discussion of a 1920s
- “Probate - An Introduction”
This week we take a slightly different approach. I recently
came across a book that provided me with a better understanding of
probate in the mid-nineteenth century in Illinois. This contemporary
guide to probate gave me an excellent overview of the probate process.
It actually explained a few records that had
previously never made sense to me.
The book I located was: Elijah M.
Haines, The Probate
Manual, Being a Complete Guide for Executors, Administrators and
Guardians, Under the Laws of Illinois, with Practical Forms,
Chicago, Keen and Lee, 1856.
This guide summarizes state statute, case law, and common
practice, all of which impact records utilized by family historians.
Our discussion this week focuses on Illinois in the 1850s, but
significant parts are applicable to other areas during this same time
period. Researchers are encouraged to learn about records in their
specific locations and times. It is not necessary to read such guides
in order to use these records, but an understanding of the underlying
probate process is very helpful towards putting the materials in
context. Below is a sampling of what I found in the guide:
Who Can Make a Will
A will indicates to whom property should descend upon the
death of the person writing and signing the will. Not just anyone was
legally able to make a will. All persons twenty-one years and older,
and unmarried females eighteen years and older were able to dispose of
their own real and personal property via a last will and testament. All
persons seventeen years and older (except married women) could dispose
of any personal estate by a will and testament. Married women had the
power to dispose of their separate estate, both real and personal.
After the Death
Within thirty days of the testator's death, the will should
be brought before the county court to begin the probate process. In the
1856 Illinois probate guide it is indicated that the executor can bring
the will after this deadline, but that there will be a fine of twenty
dollars per month. It is highly likely that most wills were brought
within the deadline specified.
Where to Probate
“If the testator has a mansion house, or known place of
residence,” his will is to be proved in the county court where that
resident is located. Wills of testators with no place of residence who
bequeath real property should be probated in any county in which the
property is located, typically the county where the bulk of the
property was located.
Who Can Be Executors
A will should name an executor, the person who is charged
with carrying out the terms of the will. According to the 1856 Illinois
probate manual, anyone over seventeen may be named as an executor (and
approved by the court), but if the person is under twenty-one another
person will be appointed by the court to manage the estate until the
executor comes of age. There are other reasons why the executor named
in the will may not be approved by the court, including:
- Being of unsound mind
- Being a married woman (A married woman can be approved as an
executor, provided that her husband and two or more men sign a bond
with sufficient security.)
- Having been convicted of an infamous crime, including (but not
limited to) perjury, robbery, kidnapping, and counterfeiting.
On the flip side, an executor named in a will can also refuse
The executor must post a bond in sufficient security; in the
case of Illinois probates for this time period, the bond must have a
stated value of at least twice the value of the estate. This bond is to
cover any misappropriation of funds by the executor, in which case the
court will bring action against the executor and the securities in
order to recover the money. The will can indicate that the executor not
post a bond, but the court can choose whether or not to honor this
request. There are many reasons why this may be denied, including the
liquidity of the estate and the likelihood of fraud.
If there is sufficient estate to require a probate, an
administrator must be appointed by the court if no will is brought
before the court. The husband must be granted administration on the
goods and chattels of his wife, and, in other cases, the widow or next
of kin (or several of them) have the first right to be administrator of
A creditor may be appointed administrator, but must produce
satisfactory evidence that those with the first right to administrator
the estate (widow and children) have relinquished their first chance at
administration. If the deceased has property in the county and no heirs
or creditors, the county's public administrator can be appointed
administrator of the estate.
The administrator is to post bond with a security double the
value of the estate.
Revoking Letters of Administration
If the administrator becomes insane, becomes a habitual
drunkard, commits an infamous crime, or mismanages the estate, he can
have his letters of administration revoked. The same is true of the
Descent and Allowance to the Widow and Family
The widow is allowed her dower portion and the balance to the
children in equal parts. If there is a widow and no descendants, then
the wife is to get half the real estate and the whole of the personal
estate (the rest to the husband's heirs). The husband of a married
woman with no descendants gets half of any real estate she may own.
Allowance to the Widow
The widow is allowed, in exclusion of creditors, as her sole
and exclusive property:
- Necessary beds, bedsteads, and bedding, for herself and her family
- Necessary household and kitchen furniture
- One spinning wheel
- One loom
- Wearing apparel for herself and her family
- One milk cow and calf for every four persons in the family
- One woman's saddle and bridle
- Fuel for herself and her family for six months
- Other items
The widow may take an equal value of other property or actual
cash. The widow is also allowed one-third of the personal estate, after
the payment of debts.
Inventory and Appraisement
The administrator or executor of the estate shall make out a
complete inventory of all real and personal estate within three months
of his being appointed. Three persons of discretion (not related to the
deceased) shall be appointed as appraisers of the inventory of the
Next week we continue our look at this interesting 1856 guide,
including the discussion of dower.
Michael John Neill is the Course I Coordinator at the
Genealogical Institute of Mid America (GIMA) held annually in
Springfield, Illinois, and is also on the faculty of Carl Sandburg
College in Galesburg, Illinois. Michael is the Web columnist for the
FGS FORUM and is on the editorial board of the Illinois State
Genealogical Society Quarterly. He conducts seminars and lectures
on a wide variety of genealogical and computer topics and contributes
to several genealogical publications, including Ancestry
Magazine and Genealogical Computing. You can e-mail him at email@example.com or
visit his website at www.rootdig.com,
but h e regrets that he is unable to assist with personal research.
Copyright 2004, MyFamily.com.