Much of American probate is based on the English Common Law, and expanded by Acts of Parliament passed before the American colonies revolted against the British Government. Knowing the difference between the will and the testament can be especially helpful in interpreting the genealogical evidence they provide.
Wills: before 1540, the will covered only real estate–land and attached buildings– ownership of which came from the Crown. It included rentals, leases, and uses. Distribution and ownership came from English Common Law. The testator was bound to obey. Devising land was limited: primogeniture (inherited by first son) and entail (landed estate descended undivided). A number of legal fictions were created to bypass these restrictions and the Crown had to determine by inquisition, every time a landowner died, by what right the owner held his land, how much land the owner held, and who was the next heir? If there was no heir, the property escheated to the Crown.
Testaments: before 1540, the testament covered personal estate–furniture, clothing, crops, debts and money due, chattels (human and animal). Distribution and ownership derived from Roman Law which considered personal property gifts of God. These could be given by the testator to please himself. Testaments evolved during the 13thc, including such chattels as leaseholds and copyholds because these are granted not inherited. These property chattels were subject to local custom however. Early testaments were as much concerned with the salvation of souls as they were with the transfer of property to heirs. Boys aged 14 and more and girls aged 12 and older could make a testament/will until 1 Jan 1838. An 1837 Act required that all testators be age 21.
Church Law and Custom: Estates were distributed by giving a legal spouse 1/3, legitimate children 1/3, and the remainder granted to the Church. The Church also held the probate jurisdiction until 1858–maintaining courts and records. Between 1653-1660, all wills were probated by the Prerogative Court of Canterbury, acting as a civil not a church court. And there is evidence that some estates were deliberately not filed until after the Restoration.
Statute of Wills, Act of 1540: Parliament merged wills and testaments together. The testator could now devise all of his freehold land and 2/3 of holdings by military service.
Changes in the probate laws occurred from time to time. For example, inventories were required to be attached to wills and administrations from 1529 through 1750. Inventories may be found before 1529. Nuncaptive wills–wishes of the deceased expressed orally–were certified shortly after the death of the testator and signed by witnesses who were present as the will was dictated. Also called a Memorandum. Spoken wills are largely illegal today except for soldiers on the battlefield and sailors at sea.
See the informative article by Ken Smallbone, “The Last Will and Testament, Parts I and II,” Hampshire Family Historian 38 (June 2011). Mr. Smallbone includes many details significant to your genealogy along with his list of sources, including the religious changes that took place in England after 1540. The above paragraphs are a short summary only–so you can see the importance of understanding law and custom that underlie the records you might otherwise take for granted.
How does English law apply to your American genealogy?
- The English Common Law was formally adopted by most of the American colonies in their own law codes.
- The probate Acts of Parliament also applied in the American colonies until each sovereign state drafted and passed their own constitutions and law codes. Those elements each new state preserved in their own laws had to meet the requirements of the new federal United States Constitution which they became a part of. These laws will also preserve some the local customs, “time out of mind,” that were common in their colony at the time of the American Revolution.
Your favorite genealogist, Arlene Eakle http://arleneeakle.com
PS Check out my Home Page for new content being added and old content being updated. Check every day. My webmaster, Kathryn is busy at work adding some important new stuff–at least we think you will find it helpful.