The Wills of Our Ancestors: A Guide for Family & Local Historians

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First published in Great Britain in 2012 by

PEN & SWORD FAMILY HISTORY

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Copyright © Stuart A. Raymond, 2012

ISBN 978-1-84884-785-9

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CONTENTS

Dickens on Wills: Affection – or Hatred?

Acknowledgements

Introduction

The Value of Probate Records

The Survival of Wills

The Origin of Wills

Probate Law

Some Limitations and Biases

Reconstructing Historical Communities: a Case Study

Some other Topics for Study

Chapter 1: Who Made Wills? And Why Did They Make Them?

Chapter 2: What Happened after Death? The Process of Probate

Probate Courts

Executors and Administrators

Chapter 3: What Can I Find in a Will?

Personal Documents

Testators

Dates

Religious Clauses

The Process of Inheritance

Signatures, Witnesses and Probate

Goods in Wills

Chapter 4: What Can I Find in a Probate Inventory?

The History of Inventories

Appraisers and their Work

Contents of Inventories

Chapter 5: What Can I Find in Other Probate Records?

Litigation

Act Books

Commissions

Administration Bonds

Probate Accounts

Chapter 6: Where and How Can I Find Probate Records?

Indexes and Catalogues

Prerogative Court Archives: Canterbury and York

Other Probate Courts

Digitization

Search Strategies

Chapter 7: Post-1858 Wills

Chapter 8: Probate Records outside of England and Wales: the Channel Islands, Ireland, the Isle of Man, Scotland

Introduction

Channel Islands

Ireland

Isle of Man

Scotland

Chapter 9: Where Can I Find Other Sources of Probate Information?

Estate Records

Death Duty Registers

Bank of England Will Extracts

Navy Office Wills

Soldiers' Wills

Roman Catholic Wills

The British in India

Other Small Collections

Further Reading

Appendix 1. Summary List of pre-1858 Probate Courts in England and Wales

Appendix 2. Handwriting and Latin

Appendix 3. Some Terms used in Probate Records

Appendix 4. Latin Glossary

Appendix 5. Legislation Affecting Probate

Subject Index

Place Name Index

Personal Name Index

DICKENS ON WILLS AFFECTION – OR HATRED?

We naturally fell into a train of reflection as we walked homewards, upon the curious old records of likings and dislikings; of jealousies and revenges; of affection defying the power of death, and hatred pursued beyond the grave, which these depositories contain; silent but striking tokens, some of them, of excellence of heart, and nobleness of soul; melancholy examples, others, of the worst passions of human nature. How many men, as they lay speechless and helpless on the bed of death would have given worlds but for the strength and power to blot out the silent animosity and bitterness, which now stands registered against them in Doctors' Commons!

Charles Dickens, Sketches by Boz

ACKNOWLEDGEMENTS

I have been contemplating a book on this topic for over twenty years, and I am grateful to my publishers for at long last persuading me to do something about it. Simon Fowler commissioned the book, and has provided much useful input. My thanks are also due to Jeremy Gibson, whose book on Probate jurisdictions proved indispensible for the compilation of my list of probate courts. He read an early draft of my text and provided valuable advice.

I am also indebted to the various owners of copyright who have allowed me to reproduce their illustrations. Their names are noted underneath the illustrations. Crown copyright images are reproduced by courtesy of The National Archives, London, England and findmypast.co.uk.

My primary debt, however, is to the editors of the innumerable editions of published probate records listed below, pp. 110-30, whose work I have drawn on extensively.

INTRODUCTION

The Value of Probate Records

Probate records are invaluable sources of information for family and local historians. Wills in particular enable us to get closer to our ancestors than most other documents. They are usually the only official documents available that were written at the express direction of our ancestors, and may provide a detailed insight into their beliefs, their families, and their material life. Sometimes, our ancestors' personalities shine through. When Sir William Trevanion of St Michael Caerhays (Cornwall) made his will in 1512, the high regard he had for his wife Agnes was made evident in his concern that she should, in due course, share his marble tomb, and have her arms displayed on it, provided that she did not remarry.

Other probate documents are also important, and should not be neglected. Inventories list the goods of the deceased; accounts reveal how those goods have been disposed of; administration bonds identify those charged with administering the estates of intestates; the records of disputes in the probate courts provide us with much information about life as seen by the common man. All of these documents give us valuable insights into the daily lives of our ancestors.

Men have been writing wills in England for over a thousand years. They are still being written today. Millions survive, mostly from the mid-fifteenth century onwards, when ecclesiastical probate courts began registering and storing them. They are accompanied by a variety of related documents, such as probate inventories, administration bonds, and executors’ accounts. Much can be learnt from these documents. For the family historian, they provide invaluable evidence for family relationships. The local historian can find in them much of the information required to reconstruct past communities.

Probate records can be found in many different record offices, both local and national, throughout England and Wales. This book will focus primarily on English and Welsh probate records dating from the medieval era to 1857. In that year, the ecclesiastical probate system was abolished, and a completely new structure was created. Some guidance will be given on using post-1857 wills, and on the probate records of other jurisdictions within the British Isles. Most of the examples given are taken from the published collections of probate records listed below, pp. 110–30.

The Survival of Wills

It has been calculated that the number of wills proved in English probate courts rose from an average of under five hundred per annum before 1500, to perhaps 5,000 or 6,000 per annum at the end of the seventeenth century. Not all of these documents survive. The ravages of fire, water, dirt, mice, and other predators have taken their toll. Many have been lost or destroyed. The canons of 1604 claimed that archdeaconry and peculiar courts had been much more inefficient than the higher courts, as many had ‘no known nor certain registrars nor public place to keep their records in’. Act books frequently record the grant of probate for wills which are lost. For example, most Archdeaconry of Cornwall wills for the sixteenth century have disappeared. Grants of probate for the missing wills were recorded in the Archdeaconry's act books, so we know what was once available. Only a handful of pre-1660 inventories for Herefordshire survived the destruction wrought in the diocesan archives during the Civil War. In Durham, testamentary documents were especially favoured for lighting pipes! Many probate records for Devon were destroyed in the Exeter Blitz. Fortunately, many of the destroyed wills had been transcribed before they were destroyed, and others had been indexed. The Devon Wills Project http://genuki.cs.ncl.ac.uk/DEV/DevonWillsProject is currently compiling an index to all surviving wills for the county, including copies.

The ravages of mice: a damaged account. (Courtesy of Todd Grey)

The destruction of Devon wills was exceptional; the only other comparable loss of probate records occurred when the Irish Public Record Office was blown up in 1922. Some wills survive for the great majority of British probate courts, although holdings are not necessarily as complete as they should be. The will registers of the Prerogative Court of Canterbury (PCC) are particularly extensive; no fewer than 1,016,197 wills can be found on Documents Online www.nationalarchives.gov.uk/documentsonline, dating from 1384 to 1858. Other probate documents have not fared as well. Inventories for Essex, for example, are scarce. Probate accounts only survive for a small proportion of decedents.

Various different probate systems operated in the British Isles; most of this book deals with the English and Welsh system. The other British jurisdictions – the Channel Islands, Ireland, the Isle of Man, and Scotland – are discussed in Chapter 8.

The Origin of Wills

Originally, wills were spoken in the presence of witnesses, rather than written. The custom of writing them down began in the Anglo-Saxon period. Fewer than 100 wills from this period now survive (edited in Dorothy Whitelock's Anglo-Saxon wills, Cambridge University Press, 1930), although there were probably many more. The prime motivation for making these written wills was religious in character. The church encouraged giving to pious causes, preferably during life, but also in the form of bequests. Written wills gave greater security for the fulfilment of such bequests.

Gradually, the church became more interested in ensuring that pious bequests were enforced. That interest was reinforced when William the Conqueror decided to withdraw ‘spiritual’ pleas from the secular courts. Pious bequests became subject to ecclesiastical jurisdiction. Over the next two centuries, separate ecclesiastical courts were gradually established. They operated under canon law, which was binding on the clergy, but could be challenged by laymen under common law. The jurisdiction of bishops over pious bequests was gradually extended until they exercised jurisdiction over all bequests of chattels. By the thirteenth century, the church courts were requiring executors to prove testaments before them. Magna Carta (1225) granted supervision of intestate estates to the church, and a statute of 1357 required administrators of intestate estates to apply for grants of administration. Nevertheless, ecclesiastical powers were limited. The only sanctions their courts could impose to ensure the proper administration of estates, and the payment of legacies, were the humiliating imposition of public penance, and the more serious excommunication. Imprisonment or the sentence of death could only be imposed by lay courts.

There was another important limitation on the powers of both testators and ecclesiastics. The medieval Crown's claims as feudal overlord prevented bequests of landed property (realty), except in the case of some burgage tenures. Jurisdiction over the descent of land remained with the secular courts, even though the latter came to recognize the ecclesiastically-approved executor as the deceased's personal representative. Ecclesiastics only had jurisdiction over moveable goods, not over realty. Strictly speaking, they could only prove the testament, which bequeathed moveable goods. With a few exceptions, wills devising realty could not be made before the law was changed in the early sixteenth century.

The Statute of Wills of 1540, for the first time, allowed realty to be devised by will. Once this legislation was passed, the will and testament were usually merged in one document. The term ‘will’ came to be used as shorthand for the joint ‘will and testament’, although ecclesiastical jurisdiction was still limited to moveable property. Matters relating to the inheritance of real property continued to be subject to the jurisdiction of equity and common law courts.

The church was well-placed to supervise the processes of will-making and probate. In medieval Lincoln Diocese, Canon Foster has described the parish priest as ‘the first and principal witness’ of most wills. The making of the will was regarded as part of preparation for death. Assistance in that process was a major function of the priest. It was the pastoral duty of the clergy to visit when their parishioners were sick and dying. In the medieval period, they were sometimes the only local people able to write. It was natural to call upon them to act as scribes of wills, and then to ensure that bequests were properly carried out.

The growth of literacy following the Reformation meant that the clergy had to share their duties as scribes with others. There were an increasing number of people able to act as scribes. In Reading (Berkshire), there were eleven professional scrivenors active between 1660 and 1699. However, the Book of Common Prayer, which even today is still in use in some Anglican parishes, continued to expect that the clergy should admonish the sick to make their wills. The rubric required clergy to frequently put men ‘in remembrance to take order for the settling of their temporal estates, whilst they are in health’.

Ecclesiastical jurisdiction over probate in England and Wales remained in force until January 1858, when it was transferred to the secular Court of Probate. Most wills proved before then must be sought amongst ecclesiastical archives. In other jurisdictions, the date at which secular courts took over probate varied. The Scottish Commissary Courts were secular from 1560, but the Ecclesiastical Court of the Bailiwick of Guernsey exercises ecclesiastical probate jurisdiction to this day.

The English secular courts have, however, always exercised jurisdiction over some matters related to probate. Landed property descended by primogeniture, or by manorial custom, and was subject to equity courts such as Chancery. It could be devised by will, but not bequeathed by testament. By the sixteenth century, wills and testaments had been merged in England and Wales, but the legal distinction remained. Similarly, debts owed to and by testators were matters for the common law. Executors and administrators could sue and be sued for debt in King's Bench and other common law courts.

Probate Law

The law affecting probate was complex, and occupied much space in legal text books of the seventeenth and eighteenth centuries. Surviving probate records reflect this reality. They were written for legal purposes, not for historians. They aimed to comply with the requirements of the law. The law did not require the comprehensiveness that historians would like, and probate records do not always include the information that would give a fully rounded picture of a decedent's wealth or the descent of property. The standard format used by both wills and inventories hides the fact that some matters could not be subjected to probate in the ecclesiastical courts. These documents are not necessarily as comprehensive as they may seem.

Legally, a valid will required three elements. It had to be dated, to name an executor and to be signed by the testator in the presence of witnesses. In 1529, a number of statutory obligations were laid on testators. They were expected to ensure that their debts were paid, that their wives and children were provided for, and that some charitable provisions were made from their estate. The study of probate records is, at least in part, the study of how these provisions were carried out.

Swinburne's Treatise of Testaments – a leading textbook for sixteenth and seventeenth-century lawyers. This is the fourth edition.