Wednesday, December 19, 2007

A Will Isn't The Final Record

It is exciting when we find a will for an ancestor. As a will signifies the end of a life, this means we have found all that can be found about his heirs, the disposition of his estate and now we can move on to another area of research - right? Do you hear a "But" coming? You’re right.

It has been estimated that less than 1/4 of Kentuckians left a will. I’ve never tried to determine if that figure is true or not, but it would not surprise me if it were true. I do know that having an ancestor who left a will is a good thing, but it is not the end of the story and should not signal an end to research on that person.

Don’t count on all children being named in a will. Maybe the decedent conveyed property to one or more of his children at the time they married. Since they had already received a share of his estate, the children might not be listed in the will. Checking the deed books for a transfer of property to a child or children prior to the parent’s death is a smart thing to do.

What if there was a parent-child agreement whereby the child would care for the parent in exchange for a sum of money or property. Maybe the agreement wasn’t recorded until after the death of the parent. Checking the deed books for such an agreement after the death of the parent is another smart thing to do.

What if one or more of the children contested the will, perhaps believing that the parent was incompetent at the time the will was written? What happened then? When a person died testate (left a will), the will was produced in county court and proven by the oaths of the subscribing witnesses to be the last will and testament of the decedent. At that time, if someone objected to the will, the county court might appoint a curator to conserve the estate until the controversy over the will was resolved. If the controversy was not easily resolved, the case was transferred to circuit court, where testimony from interested parties would be taken before a decision was made about the validity of the will. The circuit court case files usually contain details about the decedent and his family. But that is not the only place to learn things not found in the will.

The county court minutes may contain information found nowhere else. Be sure to read the minutes in the county court order books in the county clerk’s office from the date the will was presented in court until the estate was settled and recorded. In Kentucky, it was not unusual for a nuncupative will, sometimes called a "death bed will," to be recorded only in the county court minutes. These nuncupative wills are wonderful in that they often give the date of death and will tell who was present at the time of death.

Also, testimony about a will and the witnesses, some of whom may have died or moved away, may be given in the county court minutes. George W. Bond, who "being about to go to the war in which the United States is now engaged in Mexico, as a Volunteer Soldier," wrote his will 29 September 1847. The will was produced in court 1 January 1849 and additional testimony was given on 15 January 1849 in Caldwell County Court Order Book G, page 346:

"A writing purporting to be the last will and testament of George Bond was produced in open Court, and proved by the oath of Livingston Lindsay, one of the Subscribing witnesses thereto, who also said that according to his present recollection, he enquired of decedent as to his age, who said, as well as witness now remembers, that he, decedent, was 18 years of age, and he further States, that John T. Robertson, a subscribing witness to said will, signed the will ... and that said Robertson is now out of the state as he understands."

William Y. Harris, in whose possession the will was lodged for safe keeping, stated that in a conversation with the decedent shortly before his death, the decedent told him that he wanted his will recorded, although he wished the idea to prevail among his brothers that he had no will. Apparently, Bond anticipated problems with his older brothers.

James C. Weller, F.W. Urey and E.G. Campbell were called to testify regarding the handwriting of John T. Robertson. Each one stated the signature was in the handwriting of Robertson. The will could finally be recorded and George S. Massey, administrator with will annexed, was appointed to settle the estate.

So, just because there is a will don’t neglect checking other places for additional information. Places to check include the county court minutes, deed books, executor and administrator bond books as well as the inventory/sale bill/settlement books. If there are original settlement papers in the county, be sure to check them too.

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