Sir William Blackstone meets Hening’s “Statutes” / The disparate status of single & married women / Virginia Statutes supercede English law (the probate process in 17th century Virginia)
Revised June 6, 2016
I examine this issue in depth in the “ESTATE SALE” page, but it deserves a column of its own because it addresses some common misconceptions.
In using Sir William Blackstone’s Commentaries, I’m giving background on the underpinning of colonial VA law. Blackstone’s Commentaries were the most commonly used in the colonies until well after the Revolution. Abraham Lincoln is known to have studied it. It should be noted that Blackstone’s Commentaries aren’t the only interpretations of English law for the period.
As Marylynn Salmon has noted:
“Diversity in colonial law cannot be explained easily. Obviously there were a number of forces at work in creating the divergent legal codes, some more rational than others. Many stemmed from the concerns of the Puritans and Quakers, who came to America intent on creating more perfect societies than they had known in England. They revised the law as part of their general effort at reform. Other settlers wanted to recreate what was familiar to them, and changed English law only in response to new legal problems, not out of a dissatisfaction with established solutions to the old. Often lawmakers in different colonies faced similar needs to devise new legal forms appropriate to life in America.”
[Salmon, Marylynn. (1986). Women And The Law Of Property In Early America. Chapel Hill and London: The University of North Carolina Press; p. 12.]
According to James Horn:
“They [Virginia’s county courts] also took on the functions of English church, manor, and admiralty courts in considering moral offenses, testamentary business, orphans’ estates, parochial affairs, poor relief, land grants, deeds, shipping, and salvage.
“English laws were the colony’s laws except as modified by local statute. Recalling the many different branches of English law and variations in custom and custom and practice from one region to another, the development of Virginia and Maryland laws can be interpeted as a form of ‘local tradition’ that involved the simplification of English codes and procedures together with the addition of measures designed to meet conditions peculiar to the Chesapeake.”
[Horn, James. (1994). Adapting to a New World English Society in the Seventeenth-Century Chesapeake. Chapel Hill & London: The University of North Carolina Press; pp. 188 & 337.
Virginia statutes superceded English law (as did the laws in other colonies). When a law appears in Hening’s Statutes At Large, that’s the law the colonists followed. Hening’s Statutes At Large is the official catalog of the laws of Virginia, beginning in 1619. A law may have a broader application than the title suggests. Colonial VA county courts were stripped-down affairs compared to the legal machinery in England. The justices in these courts were rarely lawyers, but were usually drawn from the “gentlemen” of the county.
Oliver Cromwell generally left VA to run its own affairs, but the cavalier elite of the colony chafed under the rule of the Protectorate. On 29 May 1660, the monarchy was restored and Charles II declared king, although he was not crowned until 23 Apr 1661. In March 1661/2, the Assembly ordered that all of its acts made during the Protectorate be reviewed for compliance with the restored government (Hening 2:41-44). This didn’t affect the Virginia probate statute quoted below.
Colonial testators (e.g., those leaving a will) were under no obligation to provide for their children. Children couldn’t sue for a share of a testator’s estate, and testators didn’t have to leave children a token legacy. Genealogists shouldn’t assume that when a child was omitted from a will the testator had provided for them in some other way.
The Statute of Wills enacted in 1540 during the reign of Henry VIII permitted testators to leave their property to anyone they chose, without having to observe primogeniture.
Blackstone (Book II, Ch. 32 Sub 675) details the process of probating a will:
“The executor, or the administrator… must prove the will of the deceased: which is done either in common form, which is only upon his own oath before the ordinary *, or his surrogate; or per testes (by witnesses), in more solemn form of law, in case the validity of the will be disputed.”
* An “ordinary” is a judge of the probate court.
Proving a will by witnesses, although not a requirement, was generally followed in the colony of VA. Blackstone’s comments which follow are in reference to wills that have been proved. In VA wills and testaments weren’t considered separate instruments, so the standard phrase was “last will and testament.”
Because the courts didn’t want wills to fail due to lack of excecution , the rules governing who could serve as executor were quite liberal; even “femes covert” and children were specifically given the right to serve as executors. (Blackstone Book II, Ch. 32 Sub 669).
The law didn’t permit a child to sue for a share of a testator’s estate. As 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]
If a will was proved, it was illegal to challenge it. A will couldn’t be set aside, even if an heir alleged their omission from the will was due to the testator’s forgetting to make a bequest or mental illness. [Under common law, persons found to be legally mentally incapacitated (non compos mentis) were prohibited from making a will. The wills of such persons were void. (Book I, Ch. 8 Sub 420-425; Book II, Ch. 32 Sub 656-657.)] The right to inherit under a will was created by the testator.
Of disnheritance of children (Book I, Ch. 16 Sub 613) he states:
“Our law has made no provision to prevent the disinheriting of children by will ….”
Blackstone makes it absolutely clear the law wasn’t sympathetic to a child who challenged a parent’s will, terming such behavior “disobedient,” and the law provided no remedy if a child received nothing. It was legal under English law to disinherit a child by will.
Hening 2:92-93 (March 1661/2) contains the following language which fully supports Blackstone:
“Bee it enacted that all wills and testaments be firme and inviolable, unles the executors or overseers doe refuse to execute the trust reposed in them by the testator in which case the court may appoint others to act according to the will, but if the said will be soe made that noe person will undertake the managing of the estate, or education of the orphants according to the tenor of it, then that estate by appointment of the court shalbe managed according to the rules sett downe for the ordering the estate of persons intestate….”
This was largely a reiteration of an act of 7 Dec 1656, which declared:
“Be it from henceforth enacted, That all wills and testaments be firme and inviolable, but in case the overseers refuse to execute their trust, then the estates disposed of by will to be liable to such rules as are laid down for the management of estates of persons intestate.” (Hening 1:416)
The main difference is that the act of March 1661/2 allowed further procedures to find an executor for the will, and disqualified potential executors who would not see to the education of the orphans as directed by the will. Failure to qualify an executor resulted in the will being administered like an intestate estate; and the probate was consider “Administration with will annexed.”
Blackstone (Book II, Ch. 32 Sub 669) gives the then existing common law regarding “Administration with will annexed”:
“This appointment of an executor is essential to the making of a will: and it may be performed either by express words, or such as strongly imply the same. But if the testator makes his will, without naming any executors, or if he names incapable persons, or if the executors named refuse to act; in any of these cases, the ordinary* must grant administration cum testamento annexo (with the will annexed) to some other person; and then the duty of the administrator, as also when he is constituted only durante minore aetate, etc., of another [e.g., acting on behalf of a minor who was named executor of a will], is very little different from that of an executor. And this was law so early as thr reign of Henry II ….”
Inviolable means “immune to attack,” or “not capable of being violated or infringed.” Once a will was “proved,” and accepted for probate, it couldn’t be overturned. The only exception was if no one would serve as executor; then the estate was declared intestate, and an administrator appointed.
Sturtz, Linda L. (2002). Within Her Power Propertied Women In Colonial Virginia. New York: Routledge.
A most useful book on colonial VA property law is Linda L. Sturtz’s Within Her Power Propertied Women In Colonial Virginia. Within its pages one can find answers to most questions a genealogist would have regarding the various liberties of single and married women in the colony. The footnotes frequently lead to authorities on specific topics only briefly touched upon in the text.
Sturtz, an associate professor of History at Beloit College, uses many of the same records geneaologists use: court orders, wills, lawsuits, letters, manuscripts, and Hening’s Statutes At Large. And some more obscure materials, like family papers, account books, and papers presented at professional meetings. The “Notes” section can serve as a “catalog” of the types of materials currently available to the serious reseacher.
According to Sturtz:
“As long as a woman remained single or widowed, the law deemed her a feme sole, a woman capable of keeping her own earnings, owning property, making contracts, incurring debts, suing or being sued, and writing a will. Once married, her legal situation changed. English common law held that the husband and wife became one person and that ‘the very being or legal existence of the woman is suspended during the marriage.’ A married woman was under both the ‘protection’ and ‘influence’ of her husband. In contrast to the feme sole, a married woman, known as a feme covert, had limited opportunity for legal impact on the world around her and could no longer make contracts, run up debts ‘for anything besides necessaries,’ sue, be sued, or make a will. Indeed, she did not exist as a legal actor independent of her husband.” (p. 20)
According to Blackstone Book I, Ch. 15 Sub 598:
“By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection,and cover, she performs everything; and is therefore called in our law-French a feme covert, foemina viro o-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties and disabilities, that either of them acquire by the marriage.”
In Sub 599 he notes that “all compacts made between husband and wife, when single, are voided by the intermarriage,” and that a “woman … may be attorney for her husband.”
Sub 600 states: “The husband is bound to provide his wife with necessaries by law, as much as himself: and if she contracts debts for them, he is obliged to pay them; but for anything besides necessaries, he is not chargeable.”
Book II, Ch. 32 Sub 659 observes: “But with us a married woman is not only utterly incapable of devising lands, being excepted out of the statute of wills, 34 & 35 Hen. VIII, c. 5 (1542), but also she is incapable of making a testament of chattels, without the license of her husband. For all her personal chattels are absolutely his own; and he may dispose of her chattels real, or shall have them to himself if he survives her….” (Wills and testaments weren’t separate instruments in colonial VA.)
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.”
Quotations from Sir William Blackstone (1723-1780) are taken from:
Blackstone, Sir William; Jones, William Carey, ed. (1915). Commentaries On The Laws Of England. San Francisco: Bancroft-Whitney Company.
This edition can be downloaded from Google Books. Citations in parentheses refer to this edition only.
~ by Jeffrey Thomas Chipman on September 21, 2012.
Posted in Colonial Virginia social & legal history