i. ESTATE SALE: ELIZABETH (DALE) ROGERS, DAUGHTER OF DIANA (SKIPWITH) DALE
A claim is: To make a demand for money, property, or for enforcement of a right provided by law. Under 17th century VA law, the only claim allowed a child against a parent was for a share of the parent’s intestate estate (i.e., if the parent died without leaving a will). Elizabeth Rogers’ “twelve pence in full of all claimes whatsoever” clause was ”estoppel,” a waiver of property rights. Since her father Edward Dale left a will, the claim must be against Diana (Skipwith) Dale, which proves Elizabeth Rogers was her daughter. It’s the same principle as a quit-claim. For Elizabeth Rogers to have a claim against her father, it would have had to be created by her father in writing [see Blackstone Book II, Ch. 19 Sub 394: "But the conveyance or other contract of a feme covert (except by some matter of record) is absolutely void, and not merely voidable; and therefore cannot be affirmed or made good by any subsequent agreement."] There is no “trust” or ”separate estate” on record for Elizabeth Rogers. Unless excluded, her property would become the property of William Rogers. A “FEME COVERT” (MARRIED WOMAN) COULD NOT INCUR DEBT, WRITE A WILL, OR MAKE A CONTRACT. Edward Dale’s problem was with his wife; he used the word “whatsoever” in this clause because he didn’t know what of his property his wife might appropriate.
This statute concerning SETTLEMENT OF INTESTATE ESTATES AND A WIDOW’S DOWER RIGHTS was enacted by the Virginia Assembly in 1673, and in force when Edward Dale penned his will on August 24, 1694:
“An act for establishing the dowers of widdows.
WHEREAS many doubts have arisen concerning the estates of persons dying intestate, and of what parte thereof ought to appertaine to the widdow; for cleareing whereof, Be it enacted by the governour, councell and burgesses of the grand assembly, and the authority thereof, that where persons dye intestate, the widdow shalbe endowed with the third part of the reall estate to bee equally divided as to houseing, ffenced grounds, orchards, woods, and other valuable conveniences, dureing her naturall life, and the third part of the personall estate, if there be but one or two children, but if there be any number of children more, how many soever, in that case the personall estate to be devided amongst the widdow and all the children share and share alike; and in case the husband make a will that he hath in it his power to devise more to his wife then what is above determined, but not lesse.”
[Hening/2:303]
There are three principles here:
(1) A wife of a testator (a husband who left a will) was the only person with a legal claim against his estate (with the obvious exception of creditors).
(2) A husband couldn’t use a will to dodge his legal obligations to his wife: his bequest must at least match the value of what she would have received had he died intestate.
(3) The legal claim of a child against a parent’s estate if the parent died intestate (without a will).
The Statute of Wills enacted in 1540 during the reign of Henry VIII permited testators to leave their property to anyone they chose, without having to observe primogeniture. As Hening 2:43 indicates, the law of England was followed in VA except in minor matters.
In the comments that follow, Sir William Blackstone is referring to wills that have been accepted for probate.
The law didn’t permit a child to sue for a share of a testator’s estate. Blackstone Book II, Ch. 32 Sub 667 observes:
“Hence probably [from Roman law] has arisen that groundless vulgar [common] error, of the necessity of leaving the heir a shilling or some other express legacy, in order to disinherit him effectually: whereas the law of England makes no such constrained suppositions of forgetfulness or insanity; and therefore, though the heir or next of kin be totally omitted, it admits no querela inofficiosi [disobedient complaint], to set aside a testament.” [material in brackets mine]
A will couldn’t be voided if an heir alleged their omission was due to the testator forgetting a bequest, or that the testator was mentally ill.
Blackstone Book I, Ch. 16 Sub 613 states:
“Our law has made no provision to prevent the disinheriting of children by will ….” It was legal under English law to disinherit a child by will.
Lawsuits to obtain a share of an intestate estate were common. Maj. Edward Dale, as administrator of the Harrison estate, was sued several times to pry the heirs’ property from him.
The law didn’t specify a remedy for the widow if she thought her husband cheated her in his will, creating a headache for the courts when a widow appropriated property her husband had bequeathed to someone else. The ensuing legal battles could take years to cycle through the legal system.
In 1705 the Virgina Assembly sought to re-establish order by enacting a law allowing a widow the right to reject the will and sue in a county court to reclaim her dower. At the same time, the Assembly reclassified slaves as real estate. This greatly diminished the value of a widow’s stake in the personal property of her husband.
What happened when someone died intestate and there was no spouse or children?
In March 1661/2, the Virginia Assembly declared, under an act entitled “Administrations to whome to be granted”:
“(a) But in case the decedent dye without widdow [or presumably surviving spouse] or child, then it is enacted that the estate for the better improvement thereof, be by the court sold at an outcry and the purchasers all putting in security and acknowledging judgements for their debts which by the court shalbe assigned to the severall creditors of the decedent and paid according to the priority in law and the surplusage (if any) remayning to be delivered to the next kinsman of the decedent if he appears, and if none prove himselfe such within three years, then the court to give an accompt of the surplusage to the assembly who are to dispose of the same to the use of the countrey (b) allowing to the court or whome they intrust with the management of itt for his reasonable costs and paynes.”
[Hening 2:91]
If a decedent had no children, the estate was first auctioned off by the county and the proceeds used to satisfy any debts. If there was a surplus, the decedent’s next of kin had three years to claim it. The nextof kin didn’t have to be located in the colony. If there was no claim, after three years the surplus reverted (escheated) to the colony.
A father’s verbal promise of property to a child wasn’t legally binding. If a bequest was made as part of a nuncupative (oral) will, common law prescribed the form it was to take, requiring witnesses and the oral will to be reduced to writing within six days. The rules were strict because the format was prone to fraud. Oral wills were only valid when made during a last illness; if the testator recovered, he could alter the will. Oral wills couldn’t follow a written wills, unless the roal will was reduced to writing.
The two quotes above were taken verbatim from The Statutes at Large; Being A Collection Of All The Laws Of Virginia, by William Waller Hening, collected and published in 1808 by an act of the Virginia legislature. This is the official compilation of laws from the first session of the Assembly to until a few years after the Revolution. The 13 volumes cover the period 1619-1792, but the first 3 volumes, covering the years 1619-1710, are of specific interest in the Dale case.
A citation like Hening/2:91 means the law is found on page 91 of the second volume of The Statutes at Large. Each volume has an index to the laws. Google books offers a free index to the personal names in Hening. Social historians use Hening to correctly interpret colonial legal documents; every serious VA genealogist should own it as well.
Blackstone is the most commonly used reference on English common law and statute, and is also available as a free download from Google Books. It is as essential to understanding 17th Virginia law as Hening, and should be part of any genealogist’s library.
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“I give unto my daughter Elizabeth now wife of William Rogers twelve pence in full of all claimes whatsoever.”
These words Edward Dale inserted into his will made August 24, 1694 have puzzled genealogists for decades. One theory is that Edward Dale disliked William Rogers. But was that actually the case?
A thorough search of Lancaster Co. court records for the period 1682-1699 (well after the death of Edward Dale) shows that there was only one lawsuit between Edward Dale and Wiliam Rogers: one dated September 13, 1693 in which the court granted Dale a summary judgement of 600 pounds of tobacco against William Rogers. This is a relatively small amount, worth about 1/3 the annual production of one laborer. There were no lawsuits before or after, so it’s unlikely Edward Dale was concerned about litigation from William Rogers. Had he been, he would have had to settle the matter with William Rogers, not Elizabeth. It was illegal for Rogers to sue Dale’s estate on his wife’s behalf.
Because Edward Dale wrote a will which was probated, Elizabeth Rogers had no inherent claim upon his property. Any claim Elizabeth Rogers had against Edward Dale’s estate would have to be created by Edward Dale himself. Elizabeth Rogers didn’t have a separate estate, trust, or jointure. In VA, jointures weren’t available to first time brides until the 18th century. If she had a separate estate or trust created by Edward Dale, there would be a document creating it. If Edward Dale wanted the property back, there would be a document returning that property to him.
As Blackstone Book II, Ch. 19 Sub 394 observes: “But the conveyance or other contract of a feme covert (except by some matter of record) is absolutely void, and not merely voidable; and therefore cannot be affirmed or made good by any subsequent agreement.”
Blackstone Book II, Ch. 20 Sub 400, in a discussion of deeds, defines estoppel as: ” a man shall always be estopped by his own deed, or not permitted to aver or prove anything in contradiction to to what he has once so solemnly and deliberately avowed.” Although the definition is given in the context of a deed, the principle is simple: estoppel prevents someone from later asserting a right. Though “estoppel” is employed in many types of property claims (and Blackstone discusses several classes of debts).
Note Dale didn’t use the qualifying language: ”against my estate.” It’s the only non-specifice clause in his will. The word “whatsoever” is used three times in the will, but in the other two instances, it’s coupled with a reference to his “Estate.” Elizabeth Rogers’ clause is in his will because Dale paid her the twelve pence and it related to the setttlement of his estate. The meaning of Elizabeth Rogers’ “twelve pence” clause is: I [she] accept twelve pence as complete and total payment for any assertion I might have of legal right or title to property.”
A testator couldn’t bequeath someone else’s property–anything conveyed to Elizabeth Rogers by law became the property of William Rogers. A married woman couldn’t relinquish dower without a conveyance–whether she relinquished dower at the time of the eligible conveyance or not.
The legatees of Edward Dale’s will had nothing to fear from a legal challenge to their inheritance from either Humphrey Jones Jr. (Edward Dale’s grandson by his middle daughter Mary), or Elizabeth Rogers.
The “twelve pence” clause prevented Elizabeth Rogers from claiming an interest in property in the future. It references no contemporary claim. Estoppel requires payment of money to be enforceable at law, and the 12 pence supplies that necessity. It was voluntary–provisions of a will don’t take effect until probate, so Elizabeth Rogers could have rejected the twelve pence when Edward Dale’s will was proved and retained her rights.
What claims against property could a child have? By law, only against a share in the intestate estate of a parent (a parent who died without leaving a will). When that happened, someone applied for letters of Administration and the law directed to whom the property was to be distributed.
Edward Dale’s will made it clear he wanted all of his property to go to the Carters, the family of his daughter Katherine.
Widows of planters could and did interfere with the transmission of their husbands’ property. More than one ghost of a departed planter discovered his widow (now ”feme sole”) regarded possession as nine tenths of the law, irrespective of her “life interest”. The probable catalyst for the Elizabeth Rogers clause was the mess Mrs. Hannah Ball made of her husband William Ball’s estate (will probated Nov. 11, 1680). Ball and Dale had served together as burgesses. See section [5] of “A Cavalier Attitude” for a discussion of the Ball fiasco.
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Someone’s legal right to property bequeathed in a will was created by the testator and not by statute. The law gave the testator discretion to create that right; it didn’t create the rights for him. The law enforced a testator’s wishes, if necessary, but it didin’t dictate the content (except for a dictum regarding the minimum bequest to a wife). The notion that someone who wasn’t bequeathed something in a will could assert a right to inherit under that will is false. Since Edward Dale didn’t create an inheritance for Elizabeth Rogers, she couldn’t assert a right to inherit under his will.
It’s doubtful that application of this clause as it’s worded would block inheritance under one will, as it would block acceptance of any bequest from any will in perpetuity. In modern times, the word “heir” is used to signify anyone who inherits, whether by will or administration, but in Blackstone’s era it had a more narrow meaning.
As Blackstone (Book II, Ch. 7 Sub 145) says:
“When word “heir” not necessary–For, 1. It does not extend to devises by will … therefore by a devise to a man forever, or to one and his assigns forever, or to one in fee simple, the devisee hath an estate of inheritance ….”
Here Blackstone was speaking of real property; recipients of chattels, or personal property were “legatees,” but in colonial VA wills and testaments weren’t separate instruments, and terms became blurred. Any person could be a legatee, unless they were certain types of criminals.
Diana Dale’s lack of a written will may be due to two causes:
(a) There was no practical need for it;
(b) The inventory of Dale’s estate returned 30 Mar 1696 listed almost nothing of value.
The reason the Carters stripped Edward Dale’s estate prior to the inventory might have been to prevent the widow from willing property not part of the inventory. Had she done so, they could argue it wasn’t part of the estate.
The “life-interest” Edward Dale bequeathed to his wife terminated upon her death and couldn’t be passed to her heir. The revenues could be assigned by her to someone for the duration of her life. However, income earned from the “life-interest” became her property with which she could do as she pleased, including devising them in a will or forming part of intestate estate.
Diana (Skipwith) Dale died on 31 Jul 1696 without leaving a will or intestate estate. What happened to Diana Dale’s property after she died? No one ever applied for administration on her estate. It wasn’t obligatory to report a death to the county court. If the heirs were amenable, and the deceased owned no property requiring a conveyance to legally alienate (such as real estate or certain types of chattels), it was acceptable to simply distribute their property.
Elizabeth (Dale) Rogers has long been thought to be the daughter of Diana (Skipwith) Dale for chronological reasons. The legal age to choose one’s own guardian was 14 in VA.
“On 11 August 1714 Elizabeth Banks informed the Court that ‘her dec’d brother Mr. William Rogers dyed and left two small children which she is doubtful will not have asuitable education.’ 65 The Court ordered that Lazarus Conway and William Rogers show cause why Elizabeth Banks should not have the education of one of these children, who are identified as Joseph and George Rogers.”
[Hudson, Carlton Lee. "Ellen Rogers, Wife Of George Heale of Lancaster County, Virginia." The Virginia Genealogist, Vol. 11, No. 1, Whole No. 41, January-March, 1967, p. 28; citation is to Lancaster Co., Va., Order Book 1713-21, p. 62.]
On the page entitled “The Form of Solemnization of Matrimony,” the Thomas Carter prayer book records the following: “With this Book pr Rv. Mr Jno: Shepperd on Wednesday ye 4th Day of May 1670 — was Mard. Mr Thomas Carter of Barford in ye County of Lancaster in Virga. & Katharine Dale ye eldest Daughter of Mr Edw: Dale of ye same County–” (It’s curious that Thomas Carter, who capped his prayer book “epitaph” of Edward Dale by celebrating the high social status of Diana Skipwith, omits naming her as the mother of his wife in his own marriage entry.)
As all three Dale sisters were living on May 4, 1670, it proves Mary Dale (d. ca. 1683), wife of Daniel Harrison and Humphrey Jones, was younger than Katherine. Edward Dale sought no such “twelve pence” waiver from the guardian of his grandson Humphrey Jones Jr., the only known child of Mary, which proves Mary (Dale) Harrison Jones wasn’t the daughter of Diana (Skipwith) Dale. If she was, Humphrey Jones Jr. would have been entitled to his mother’s share of an intestate estate formed of Diana’s property. This also refutes the claim that Katherine (Dale) Carter was a daughter of Diana (Skipwith) Dale.
There have been two genelaogies written about Elizabeth (Dale) Rogers:
Dorman, John Frederick. (1967). The Farish Family of Virginia And Its Forebears. Richmond, Virginia: Ben Robertson Miller and Archibald G. Robertson.
Price, Jay Berry; Hollingsworth, Harry, ed. (1992). The Price, Blakemore, Hamblen, Skipwith And Allied Lines Descendants Of English, French, Spanish And Italian Kings And Sureties Of The Magna Charta, A.D. 534-1992. Knoxville, Tennessee: Tennessee Valey Publishing.
