d. ESTATE SALE: ELIZABETH (DALE) ROGERS, DAUGHTER OF DIANA (SKIPWITH) DALE
This clause found in the will of Maj. Edward Dale of Lancaster Co., VA, d. 2 Feb 1695/6, has puzzled genealogists for decades: “I give unto my daughter Elizabeth now wife of William Rogers twelve pence in full of all claimes whatsoever.”
It’s not a waiver of rights to any to any class of property (real or personal). The will contained this language sufficient to cover any remainder of his property: “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.”
It’s a waiver of Elizabeth (Dale) Rogers’ rights under Common Law. It’s not a “rule-out” clause to protect Maj. Edward Dale’s executors against any litigation. If he had died without a will, by law his widow, Diana (Skipwith) Dale, would have been entitled to outright ownership of one fourth of her husband’s personal property, whether she was the mother of any or all of his children. And it’s not a hedge against Edward Dale’s will being set aside due to no one qualifying as an executor: this occurred in cases where the estate was in debt and no one wanted to be executor. In those cases, the court appointed an administrator who was enjoined to follow the will as closely as possible—the estate didn’t become an intestate estate.
Those mentioned in a will aren’t “heirs.” They’re “legatees” or “devisees.” “Legatees” and “devisees” are different legal concepts from “heirs.” “Legatees” and “devisees” are created by the testator. The law did not specify who the “legatees” and “devisees” had to be. To be an “heir” under Common Law is completely different from being a “legatee” or “devisee” under a will. To be an “heir” is to have a legal right to inherit under an intestate estate, which was governed by Common Law. There was no right under Common Law to inherit under a will. The point of the probate reforms instituted during the reign of King Henry VIII was to permit testators to leave their property to whomever they pleased.
A claim is: To make a demand for money, property, or for enforcement of a right provided by law. This clause is a form of “estoppel,” which terminates a claim (like a quit-claim deed). It “stops” the claim. Evidently acceptance of any amount of money was as if the payout had been received, and the claim did not rollover to another claimant.
Until recently, I’d never seen another will with a clause like this, but I found it in the will of Elizabeth (Elliott) Dale proved in London on 8 Feb 1632/3. It was for a claim against the intestate estate of her son Richard. It proves that 17th century wills could serve multiple purposes, and it shows that the term “whatsoever” in Edward Dale’s will doesn’t refer to property at all, but to Elizabeth Rogers’ rights under Common Law. There was no right under Common Law to be a legatee or devisee under a will, but anyone could be a legatee or devisee.
The the term “whatsoever” would have had a definite meaning to people at the time, but it’s not something a modern person unfamiliar with the legal history of England would understand: as Elizabeth (Elliott) Dale’s will below makes clear, the Common Law in England wasn’t exactly the same everywhere in the country (just as there are variations in the law from state to state in the United States). England is an ancient country, and some variations in legal customs had developed in its sections over the centuries. So the term “whatsoever” means “in any Common Law jurisdiction.” Virginia was the most “English” of the colonies, and Virginians attempted to follow Common Law, but they made significant changes to it as were deemed necessary. When you read a reference to Common Law in a book on colonial Virginia law, you need to be aware that Common Law was organic and could vary.
Diana (Skipwith) Dale had an heir of her body, because her estate didn’t devolve to the county or her nephew Sir William Skipwith, Bart., or any other member of her family in England.
This passage in the will of Elizabeth (Elliott) Dale is on the second page, lines 9–12: “I give and bequeath unto James Rudarde and Mary his wife the full some of five hundred pounds of currant money of England in full payment and satisfaccon of all claymes, somes of money part and portion which they or either of them shall or may clayme to part or out of the estate of Richard Dale my late deceased sonne either by the customs of London or otherwise.”
By “the customs of London or otherwise” has the same meaning as “whatsoever” in Edward Dale’s will.
(Click on image to enlarge it.)
If we render this passage into modern English, this is what it means:
“I give and bequeath unto James Rudyard and Mary his wife the full sum of five hundred pounds of current money of England in full payment and satisfaction of all claims, sums of money part and portion which they or either of them shall or may claim to part of or from the estate of Richard Dale my late deceased son, either by the Common Law of London or by the Common Law of any other jurisdiction.”
This kind of language is still in use today:
(This contract is between a company and an employee. If you direct your attention to Line 14, the underlined portion of the text reads: “any claim whatsoever arising under common law.” The purpose of the clause is to release the company from contractual payments if the employee dies before any payments are made or before the end of those payments. In this instance, the employee received periodic payments rather than a lump sum. The heirs of the employee could not make a claim for that money.)
There’s one fundamental difference between the language of the Elizabeth Rogers clause in Edward Dale’s will, and the language in Elizabeth (Elliott) Dale’s will and the employment contract: the Elizabeth Rogers clause has no qualifier. It’s the only clause in Dale’s will without a qualifier.
The only claim a child had under 17th century Common Law was for a share in an intestate estate. Separate estates and trusts required a deed, created by the parent. In order for Elizabeth (Dale) Rogers to have any other “claime” against Edward Dale’s property, Edward Dale would have to create that “claime” himself, which would take the form of a conveyance. But Elizabeth Rogers didn’t have a “separate estate” or “trust” (see below).
In any event, this clause couldn’t be used to nullify a conveyance because you couldn’t nullify a legal conveyance in a will. It was legal, with the consent of the parties, to move some property around via a will, as in: Party A agrees to accept Property X in exchange for Property Y, and Property Y will be granted to Party B. But there we’re dealing with the specific property which had been conveyed, not a blanket nullification. (For what happened when a testator attempted to negate a conveyance, see the Post: “Will of Edward Dale (d. 2 Feb 1695/6) & its anomaly, etc.“)
If Elizabeth Rogers had had a trust established by Edward Dale, and Edward Dale wished to bequeath that property to someone else, this is how the language in his will would have been framed: “For the 12 cows and calves which I previously placed into trust with Mr. Smith for my daughter Elizabeth Rogers, she now agrees to accept 12 pence, and I bequeath the 12 cows and calves unto my grandson Edward Carter.”
Further, this clause wouldn’t block inheritance under a will, because, as is seen below, those inheriting under a will weren’t “heirs.”
What was Edward Dale’s motive in constructing the “twelve pence” clause? He feared that his wife Diana would, as some widows were wont to do, appropriate some of his property destined for the Carters. And further, his excecutor Katherine Carter exhibited in court a fraudulent inventory of his property. Behind the facade of Colonial Williamsburg are real people, and some of them had few scruples. What we have in Edward Dale is an individual who engaged in sharp practice.
The only right under law of children against the estate of a parent was for the legally prescribed share of an intestate estate. Had Diana (Skipwith) Dale not had an heir of her body, her estate would have handled by the county court and the next of kin determined, as was the law of the Colony of Virginia given in Hening 2:91 (see below). At the time of her death, Diana (Skipwith) Dale had a nephew, William Skipwith, living in the colony in an adjacent county to Lancaster Co. In these cases the government appointed the administrator, and gave next of kin 3 years to submit a claim. However, William Skipwith was not necessarily the next of kin: the law decreed that the first in line as next of kin be a relative of the whole blood, so any of Diana’s siblings still living would be her heirs before any nephew or niece. Heirs were determined by consanguinity. The county courts would handle the probate of these estates to in order to eliminate fraud.
As proved by the Lancaster Co. court orders, no one ever applied for administration or to be qualified as executor of her estate. Since Elizabeth (Dale) Rogers was the youngest daughter of Edward Dale, we know that she must be the daughter of Diana (Skipwith) Dale. Katherine (Dale) Carter has been eliminated as a daughter of Diana (Skipwith) Dale. It’s very probable that Mary (Dale) Harrison Jones, Edward Dale’s middle daughter, wasn’t her daughter, either.
Why did Elizabeth (Dale) Rogers agree to this clause? I think she and her husband William Rogers wanted to take possession of the plantation Edward Dale had previously deeded to them. It was a 500 acre tract of land, but under the terms of the deed, they were not to receive it until Edward and Diana Dale were deceased. However, they took possession of it about 8 months after her father wrote her will, while both Edward and Diana Dale were alive. Note that motivation for her acceptance of the 12 pence has nothing to do with its function.
The quotes below 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, and Blackstone. Hening is the official compilation of laws from the first session of the Assembly to until a few years after the Revolution. 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. Social historians frequently use Hening to correctly interpret colonial legal documents; every serious VA genealogist should have it. Blackstone is the most commonly used reference on English common law and statute. It is as essential to understanding 17th Virginia law as Hening, and should be part of any genealogist’s library.
Blackstone Book II, Ch. 19 Sub 394 states: “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.”
“Matter of record” meant it had to be written down. 17th century VA lawmakers didn’t want an Anna Nicole Smith-type courtroom battle.
Sturtz (2002) identifies three instruments by which a married woman could hold property of her own:
a. Jointure. (prenuptial agreement). “[It] enabled married woman [sic] to establish a separate estate to be held independently from her husband’s control prior or during marriage. The couple could agree to a ‘jointure’—a settlement made before the wedding in which the bride gave up her right to claim dower in her husband’s estate when he died in return for accepting instead the property designated in the document. This still did not give her active control over the property during the marriage. When Ralph Wormley of York County agreed in 1645 to a jointure establishing a trust for widow Agatha Stubbings … he retained a life right to control the six slaves, various cattle, and extensive linens and pewter included in the agreement for his own ‘use benefit and behoofe.’”
“Although a widow as feme sole possessed some control over property, she lost this power once she entered a new marriage, leaving her a window of opportunity before remarriage to assert control over her property.” “By the eighteenth century, prenuptial agreements defined property holding for first-time brides as well as remarrying widows.” (pp. 21 & 34)
Prenuptial agreements weren’t available to first-time brides when Diana Skipwith married Edward Dale and Elizabeth Dale married William Rogers, so this doesn’t apply to them.
b. Separate estates. “Another way to leave property to a daughter without a prenuptial agreement was to give a gift or legacy to a daughter, but to place restrictions on it to ensure that it stayed in their daughter’s possession and descended to the original donor’s grandchildren. From the daughter’s perspective, this functioned in effectively the same way that prenuptial agreements did. Parents thereby mitigated the son-in-laws power by skipping his generation when distributing wealth. The daughter still had mere possession of the property, unable to sell or give it away…. The wording of some of these gifts and legacies, bluntly stating that no current or future husband of the daughter could control that property, make clear the parents’ desires. For example, in 1659, William Thomas granted a cow and the increase to his daughter-in-law, Jane Hillier, to be for ‘Jane and her heirs only’ but specifically excluded her husband John Hillier from ownership.” (p. 28)
c. Trusts. “In contrast to the prenuptial agreements that accorded women direct control of property during marriage, some trusts provided a way to maintain property in a woman’s possession without necessarily giving her active management of it. A bride or her husband established a trust by making a contract with a third party, usually one of the bride’s male relatives and arranged for that third party to hold the designated property for the bride herself. In a 1680 arrangement, Rebecca Travers granted eight slaves and their descendants, substantial numbers of livestock, silver and other household goods to two men to watch over. These two men were to be passive holders of the slaves and property, possessing it only for the use of Travers or whomever she gave it to in her own will or in writing under her own hand and seal.” (p. 26)
Edward Dale didn’t create a separate estate or trust for Elizabeth (Dale) Rogers.
This statute, SETTLEMENT OF INTESTATE ESTATES AND A WIDOW’S DOWER RIGHTS, enacted by the Virginia Assembly in 1673, was in force when Edward Dale penned his will on 24 Aug 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.”
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. In the comments that follow, Sir William Blackstone is referring to wills that have been accepted for probate.
The law didn’t guarantee a child 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.
But 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.”
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. At the time of her demise, Diana (Skipwith) Dale’s nephew William Skipwith was residing in Middlesex Co.
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.
“I give unto my daughter Elizabeth now wife of William Rogers twelve pence in full of all claimes whatsoever.”
One interpretation of Edward Dale’s words 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—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. And neither Edward Dale, or anyone else, ever granted property to Elizabeth Rogers to be held independently of her husband (i.e., a “separate estate.”
To repeat 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.”
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. “Estoppel” is employed in many types of property claims, and it can appear in a will.
Dale didn’t use the qualifying language: “against my estate.” It’s the only non-specific 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. The meaning of Elizabeth Rogers’ “twelve pence” clause is: “I accept twelve pence as complete and total payment for any assertion I might have of legal right under Common Law.” Acceptance of the “twelve pence” (a common amount) made the agreement binding.
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.
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 and would enforce a testator’s wishes, if necessary. It didn’t dictate the content of a will (except as 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.
Elizabeth Roger’s “twelve pence” clause wouldn’t block inheritance under a will. Had this been so, she would have been unable to inherit from her own husband, who died in 1714.
In modern times, the word “heir” is casually 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 ….”
In other words, a person inheriting under a will isn’t an “heir,” because the author of the will creates the “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 the terms “devisees” and “legatees” became blurred, with those inheriting under a will being generally referred to as “legatees.” Any person could be a legatee, unless they were certain types of criminals.
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. The income earned from the “life-interest” became her property with which she could do as she pleased, including bequeathing it in a will or forming part of intestate estate.
Diana Dale died on 31 Jul 1696 without leaving a will or intestate estate. Why didn’t she leave a will? The Carters had stripped the estate of everything of value except for a few head of cattle. The Carters didn’t want any disputed property—if it isn’t there, it can’t be disputed.
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, as this passage indicates:
[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.]
The legal age to choose one’s own guardian in 17th century VA was 14. Joseph and George Rogers weren’t old enough to choose their own guardians on 11 Aug 1714; therefore they were born after 11 Aug 1700. The term “small children” means children not old enough to choose their own guardian.
What was an education in 17th century VA? For boys, instruction for two years with the ability to read and write. For girls, the ability to read the Bible and lessons in housewifery sufficed. Instruction could begin as early as 5 years old, although many started learning in their teens. The trend was toward teaching older children, lest they forget what they had learned. Concern for the education of orphans was common.
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–” (Oddly, Thomas Carter, who capped his prayer book “epitaph” of Edward Dale by celebrating the high social status of Diana Skipwith, omits naming her 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. Mary’s second husband Humphrey Jones was deceased by 8 Nov 1684 when the Middlesex Co., VA court qualified Randolph and Mary Seager as executors of his will. That Edward Dale sought no such “twelve pence” waiver from the guardian of his grandson Humphrey Jones Jr., Mary’s only known child (Middlesex Co., VA Deed Book 2, p. 177), 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.
Edward Dale’s will is one of the strangest documents I’ve ever seen. He bequeathed nothing to his wife beyond the obligatory life interest, nothing to his grandson Humprey Jones, Jr., and except for twelve pence and the plantation he’d already conveyed to her, nothing to his daughter Elizabeth Rogers. For these, he left no tokens of affection.
There have been two genealogies written about the descendants of 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.