Will of Edward Dale (d. 2 Feb 1695/6) & its anomaly / how “femes covert” and children may serve as executors of a will / Dale and Carter’s matching deed & the principle of ownership in colonial VA
“In the Name of God Amen the twenty fourth day of Augt 1694 I Edward Dale of the County of Lancastr in Rappk River in Virga Gente being of sound & p’fect memory God bee praised doe make and ordaine this my last Will & Testamt in manner & forme following ffirst I commend my soule into the hands of Almighty God my Creator and Reedeemer my body to the Earth from whence it Came to bee decently interred without any wine drinking as for such worldly Estate as it is pleased God to blesse mee wth I dispose of in manner and forme following , Imps if it shall soe please God that my now wife shall happen to overlive me I give unto her for her maintenance dureing her life the whole pffit of my Estate whatsoever some respect being alwaies had to her as an honest woman a Gentle woman many years my wife and after her decease I give the plantacon wheron I now live to my two Grand Children Peter and Joseph Carter to have and to holde to them and their heirs and assignes forever to bee equally divided betweene them and in Case of the mortality of either of them before they come to the age of one and twenty years then the whole to the survivor and in Case of the mortality of both of them then to my Grand Son Jno Carter Item I give unto my two Grand sons Peter and Joseph Carter all my instrumts of husbandry upon or belonging to the sd plantacon Item I give unto my Grand daughter Elizabeth Carter my best bed and the trunck Item I give unto my two Grandsons Peter and Joseph Carter and to my two grand daughters Elizabeth and Katherine Carter all my P’sonall Estate whatsoever to bee equally devided betweene them and in Case either of the Girls happen to dpart this life before their day of marriage or eighteene years of age I give her part to the survivor Item I give to my Grandson Peter Carter my Negro boy James & to my Grandson Joseph Carter my molatto boy Robin Item I give unto my daughter Elizabeth now wife of William Rogers twelve pence in full of all claimes whatsoever [*] Item It is my desire for the better improveing of my Estate for the uses aforesaide that my Estate bee continued together upon the saide plantacon and after my wife bee supplied with necessaries and the plantacon likewise yearly I give unto my daughter Katherine Carter and my Granddaughter Elizabeth Carter during her life the p’ffit of all the Estate whatsoever. Item I doe nominate and appoint my Grandsone Edward Carter and my daughter Katherine Carter and my Grandaughter Elizabeth Carter when she arrives to the age of sixteene yeares of age to bee my Executors In witness whereof I have hereunto put my hand and seale Dated the day and yeare above written. Edward Dale ye seale
Signed sealed and published in the presence of
John Chilton p sigr Tho: Carter junr Henery Carter
The above will was proved in in the County Court of Lancaster the 11th day March 1695 by oaths of John Chilton, Thomas Carter, Junior and Henry Carter, witnesses in court. Recorded the 17th day following by John Stretchley, Clerk of the Court.”
[*] This is the only non-qualified clause in the will. “Twelve pence” was a common token amount in the colonial era.
It was legal for “femes covert” (like Katherine Carter) and children (like Elizabeth Carter) to serve as executors of a will (Blackstone Book II, Ch. 32 Sub 669).
[Price (1992) gives a transcription of Edward Dale's will found in Lancaster County, VA Inventory and Wills Book 8-C, pp. 55B-56 1690-1709, with inventory following on pp. 57-58. Archaic letters have been modernized. The inventory was taken 30 Mar 1696 (which doesn't fall into the double-dating parameter). When I first saw this inventory, I thought it must be a final inventory exhibited a year after probate.
But it is the inventory ordered by the Lancaster Co. court on 11 Mar 1695/6. The transcript in Price lists the estate then being worth 10,607 lbs. of tobacco. The only items of value remaining were livestock, Indian corn, wheat, and a small amount of tobacco. Edward White owed the estate 81 lbs. of tobacco.
To put this figure of 10,607 lbs. of tobacco into perspective, on November 12, 1691, Joseph Harrison, son of Daniel Harrison, stated he received 19,486 lbs. of tobacco as his share of the estate. Daniel Harrison died intestate, and there were 3 Harrison children, so as a crude estimate we can place the worth of Daniel Harrison's estate at some 80,000 lbs. of tobacco, the widow and 3 children dividing the estate equally. Harrison's estate would have consisted of more than just personal property, which is what's listed in the Dale inventory. (Sparacio, Court Orders 1691-1695, p. 3.)
Clearly, Edward Dale's estate had been pillaged before the inventory--illegal but convenient--and there was nothing left worth fighting over. The remaining cattle were probably leaning at a 45 degree angle. In 1696, a widow couldn't reject the will and sue for her dower, so even though stripping the estate and submitting a phony inventory was illegal, as a practical matter Diana Dale had no recourse. Compare this garage sale with the inventory of the wealthy Edward Blackmore, returned 8 Sep 1738 in Lancaster County, and you'll see my point.
In the 17th century, everyone had a very big musket, and possession was 9/10s of the law. Law enforcement consisted of the Sheriff, and in emergencies. the militia. The "heirs" could slug it out in court for up to a decade, the defendants employing every delaying tactic known to litigants of the day. In the end, the courts invariably ordered the property delivered to the rightful owner--that is, if the rightful owner was still living (if not, it went to their heirs), and the property was still in existence.]
There is, in connection with this will, a rather strange deed dated 7 Oct 1687 (Lancaster Co., VA Deeds & Wills 6, pp. 131-132), in which Edward Dale gave unto his daughter Katherine now wife of Thomas Carter two slaves:
a Negro boy called James (aged 7) and a Mollato boy called Robin (aged 5), reserving them to his use for his life, and then to Thomas and Katherine Carter, and after the deaths of Thomas and Katherine, Robin to go to Dale’s grandson Edward Carter, and James (if I make it out correctly) to the rest of Katherine’s children. Dale sealed the gift by putting Thomas Carter possession of James in presence of witnesses, and by power of attorney to Richard Stephens had the deed recorded on 9 Nov 1687 with the Lancaster County clerk.
This was a difficult document to transcribe, and getting a better copy directly from the deed book would help. I can find no fault with this deed. James and Robin were born well after Edward Dale’s marriage to Diana Skipwith, and she would have had dower interest in them had Dale died intestate. However, the law didn’t require wives to relinquish dower in personal property. Husbands were known to dispose of personal property prior to their demise to avoid a wife gaining interest in it at his death. For some reason, Dale willed James and Robin to his grandsons Peter and Joseph Carter–even though he’d earlier conveyed James and Robin to Thomas Carter on 7 Oct 1687:
“To all those to whom this Present Writing shall come I Edward Dale of the County of Lancastr gent send greeting in our Lord God everlasting Know ye that I the said Edward Dale have for and in Consideracon of the Naturall love and affection which I have and owe unto Katherine my daughter Now wife of Mr Thomas Carter of the said County and her heirs & assigns for divers other Causes and Consideracons hereunto moving have given granted and by these presents do give and Confirm unto the aforsd Thomas Carter one Negro boy called James about Seven years old and one Molatto boy called Robin about five years old To have and to hold the said two Boys unto the said Thomas Carter his heirs Administrs and Assigns forever to ye sole intent and purposes hereafter mentioned and … that is to say to the use of me the said Edward Dale during my Naturall life and after my decease to the use of the said Thomas Carter & Katherine his wife and the life of the longest living of them and after Both shall decease said Mollotto Boy Robin to my grandson Edward Carter and the Negro Boy James to ye rest of my said Daughter Katherine her Children to all share ye Purpose whatsoever with warrant against all persons whatsoever that shall or may be By from or under me And I the said Edward Dale have hereby Put the sd Thomas Carter in possession of these two Boys by delivery of the said James in Witness Whereof I have hereunto Sett my hand and Seale Dated this Seventh day of October Ano. Dom 1687
Edward Dale his seal
Sealed and delivered and the sd boy James delivered to the said Thomas Carter in the presence of –
Edward White
John Gill
Ruth White
Recognitr in Cur Court Lanc Nonet die Novembr Ano Dom 1687 – Recordr un demino …
Peter James Dep Clk
I do Authorize & Appoint Richard Stephens as my Lawfull Attorney to Acknowledge this deed for and on my behalf at … of Lancastr as Witness my hand this 9 day of November 1687
Edward Dale
Test Edward White
Ruth White
Recorded in Cur Court Lanr. Nonet die November Ano Dom 1687
Peter James Deputy Clerk”
I’d like the reader to observe one thing about this deed: Although the reason Edward Dale gifted these slaves was out of affection for his daughter Katherine, the actual conveyance was made to Thomas Carter, her husband.
If there was no problem with the conveyance, and Dale simply changed his mind, to avoid any cloud on the title there should be another document prior to the will nullifying this deed. There isn’t. Given the litigious nature of the colonists, it was quite an assumption that Edward Carter wouldn’t sue for possession of Robin. Edward Dale mentioned no other slaves by name in his will, but they would have descended to Peter, Joseph, Elizabeth, and Katherine Carter.
You can learn much by leafing through court orders and deed books, and Lancaster Co., VA Deed Book 9, pp. 51-52 has the answer: Edward Carter didn’t take it lying down–he had a valid deed, and Edward Dale couldn’t dispose of Edward Carter’s property in his own will. This new deed, dated 24 Jun 1703, finds Thomas Carter (Jr.), Henery Carter, and John Carter–not the original legatees–acknowledging Edward Dale’s gift to Thomas Carter Sr. and Catherine his wife, and confirming ownership of Robin to Edward Carter, citing the 7 Oct 1687 deed.
A testator can’t dispose of property that has been previously legally conveyed. Obviously there was a problem, but what happened?
This is the only anomaly in the transmission of Edward Dale’s estate. It’s possible Elizabeth Rogers’ “twelve pence” clause related to these slaves, although she couldn’t have had a direct interest in them. Evidently Edward Dale thought it prudent to pull back the sale, and when he wrote his will he bequeathed James and Robin again. That was illegal—and ultimately Edward Carter was confirmed in his possession of Robin, but he had to bind 3 of his brothers in a pact not to challenge his ownership.
Whatever the prior history of James and Robin, it may have been Diana Dale considered them hers. James and Robin were separated by only two years and might have been siblings, and perhaps one reason for this deed was that their mother was dead. Of course, this is a theory, but it’s clear William and Elizabeth Rogers had no direct interest in James and Robin. Had they been part of a trust or separate estate for Elizabeth, Edward Dale would have had to address that when he made the conveyance to the Carters on 7 Oct 1687.
In 1705, the Virgnia Assembly declared:
“That from and after the passing of this act, all negro, mullato, and Indian slaves, in all courts of judicature, and other places, within this dominion, shall be held, taken, and adjudged, to be real estate (and not chattels;) and shall descend to the heirs and widows of persons departing this life, according to the manner and custom of land of inheritance, held in fee simple.
“That all such slaves shall be liable to the paiment of debts, and may be taken by execution, for that end, as other chattels or personal estate may be.
“That no person, selling or alienating any such slave, shall be obliged to cause such sale or alienation to be recorded, as is required by law to be done, upon the alienation of other real estate: But that the said sale or alienation may be made in the same manner as might be done before the making of this act.
“That it shall and may be lawful, for any person, to sue for, and recover, any slave, or damage, for the detainer, trover, or conversion thereof, by action personal, as might have been done if this act had never been made.”
[Hening/pp. 3:333-334.]
The 1705 legislation meant that although slaves were henceforth considered real estate (and later reclassified as personal property again with some modification), the sale would still proceed as a sale of personal property, as was done before the act.
