{"id":1020,"date":"2013-02-02T12:45:15","date_gmt":"2013-02-02T19:45:15","guid":{"rendered":"http:\/\/www.arleneeakle.com\/wordpress\/?p=1020"},"modified":"2013-02-02T12:45:15","modified_gmt":"2013-02-02T19:45:15","slug":"wills-vs-testaments-what-is-the-difference","status":"publish","type":"post","link":"https:\/\/www.arleneeakle.com\/wordpress\/2013\/02\/02\/wills-vs-testaments-what-is-the-difference\/","title":{"rendered":"Wills vs Testaments–What is the difference?"},"content":{"rendered":"

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.\u00a0 Knowing the difference between the will<\/strong> and the testament<\/strong> can be especially helpful in interpreting the genealogical evidence they\u00a0 provide.<\/p>\n

Wills:<\/strong>\u00a0 before 1540, the will covered only real estate–land and attached buildings– ownership of which came from the Crown.\u00a0 It included rentals, leases, and uses.\u00a0 Distribution and ownership came from English Common Law.<\/span>\u00a0 The testator was bound to obey.\u00a0 Devising land was limited:\u00a0 primogeniture (inherited by first son) and entail\u00a0 (landed estate descended undivided).\u00a0 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?\u00a0 If there was no heir, the property escheated to the Crown.<\/p>\n

Testaments:<\/strong>\u00a0 before 1540, the testament covered personal estate–furniture, clothing, crops, debts and money due, chattels (human and animal).\u00a0 Distribution and ownership derived from Roman Law<\/span> which considered personal property gifts of God.\u00a0 These could be given by the testator to please himself.\u00a0 Testaments evolved during the 13thc, including such chattels as leaseholds and copyholds because these are granted not inherited<\/em>.\u00a0 These property chattels were subject to local custom however.\u00a0 Early testaments were as much concerned with the salvation of souls as they were with the transfer of property to heirs.\u00a0 Boys aged 14 and more and girls aged 12 and older could make a testament\/will until 1 Jan 1838.\u00a0 An 1837 Act required that all testators be age 21.<\/p>\n

Church Law and Custom:<\/strong>\u00a0 Estates were distributed by giving a legal spouse 1\/3, legitimate children 1\/3, and the remainder granted to the Church.\u00a0 The Church also held the probate jurisdiction until 1858<\/span>–maintaining courts and records.\u00a0 Between 1653-1660, all wills were probated by the Prerogative Court of Canterbury, acting as a civil<\/em> not a church court.\u00a0 And there is evidence that some estates were deliberately not filed until after the Restoration.<\/p>\n

Statute of Wills, Act of 1540:<\/strong>\u00a0 Parliament merged wills and testaments together.\u00a0 The testator could now devise all of\u00a0 his freehold land and 2\/3 of holdings by military service.<\/p>\n

Changes in the probate laws<\/strong> occurred from time to time.\u00a0 For example, inventories were required to be attached to wills and administrations from 1529 through 1750. Inventories may be found before 1529.\u00a0 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.\u00a0 Also called a Memorandum.\u00a0 <\/em>Spoken wills are largely illegal today except for soldiers on the battlefield and sailors at sea.<\/p>\n

See the informative article by Ken Smallbone, “The Last Will and Testament, Parts I and II,” Hampshire Family Historian<\/strong> <\/em>38 (June 2011).\u00a0 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.\u00a0 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.<\/p>\n

How does English law apply to your American genealogy?<\/strong><\/p>\n

    \n
  1. The English Common Law was formally adopted by most of the American colonies in their own law codes.<\/li>\n
  2. The probate Acts of Parliament also applied in the American colonies until each sovereign state drafted and passed their own constitutions and law codes.\u00a0 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.\u00a0 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.<\/li>\n<\/ol>\n

    Your favorite genealogist, Arlene Eakle\u00a0\u00a0 http:\/\/arleneeakle.com<\/a><\/p>\n

    PS Check out my Home Page<\/strong><\/a> for new content being added and old content being updated.\u00a0 Check every day. My webmaster, Kathryn is busy at work adding some important new stuff–at least we think you will find it helpful.<\/p>\n","protected":false},"excerpt":{"rendered":"

    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.\u00a0 Knowing the difference between the will and the testament can be especially helpful … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[],"class_list":["post-1020","post","type-post","status-publish","format-standard","hentry","category-blog"],"_links":{"self":[{"href":"https:\/\/www.arleneeakle.com\/wordpress\/wp-json\/wp\/v2\/posts\/1020"}],"collection":[{"href":"https:\/\/www.arleneeakle.com\/wordpress\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.arleneeakle.com\/wordpress\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.arleneeakle.com\/wordpress\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.arleneeakle.com\/wordpress\/wp-json\/wp\/v2\/comments?post=1020"}],"version-history":[{"count":1,"href":"https:\/\/www.arleneeakle.com\/wordpress\/wp-json\/wp\/v2\/posts\/1020\/revisions"}],"predecessor-version":[{"id":1021,"href":"https:\/\/www.arleneeakle.com\/wordpress\/wp-json\/wp\/v2\/posts\/1020\/revisions\/1021"}],"wp:attachment":[{"href":"https:\/\/www.arleneeakle.com\/wordpress\/wp-json\/wp\/v2\/media?parent=1020"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.arleneeakle.com\/wordpress\/wp-json\/wp\/v2\/categories?post=1020"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.arleneeakle.com\/wordpress\/wp-json\/wp\/v2\/tags?post=1020"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}