Court, Probate and Land Records
The subject of records always attracts the attention of genealogists.. Someone once wrote, “People who live by the sword die by the sword”. Swords do not apply to genealogy but records do and it can be said that genealogists live by records and sometimes think they will die from the lack of records. Records permit us to develop a family lineage and to join heritage organizations. The lack of records results in the plague of genealogy, Deadends. Records become so important that we welcome “Black Sheep”, if they can be proved.
Conversations at any gathering of family searchers, be they amateurs of professionals, always turn to records.
It is interesting to look at some of the causes of insufficient records.
Most searchers take pride in the independent self-sufficient ancestors of past years. However, this spirit is one of the causes of our failure to find records. Some of them were so independent that they had no inclination to file records in courthouses. They had a legal deed to property, and a shot gun to back up the document and stayed out of courthouses. I experienced this with a man who died in Morgan County, Georgia in the 1830s. He owned several tracts of land but never recorded a deed in courthouses. His widow recorded several deeds as she started probate on his estate. Without her efforts we would have far less knowledge of the history of this man.
We visited with a professional searcher at the North Carolina State Archives who had an interesting story on the recording of records. He, and others of his generation, decided to sell the land that had been in his family since a colonial grant. They discovered that there was no record of a transfer of this land to anyone, since the original grant, just the original grant. The lineal heir had always stepped forward and paid the taxes and no conveyance had ever been recorded in the official books. He was busy trying to prove the survivors actually owned the land.
We are aware of vandalism, courthouse fires and irresponsible handling of records. We still comment on the court clerk who carried the completed marriage records home to his wife. She had discovered they made ideal hair rollers, when rolled correctly. The family had five daughters and hair rollers were in constant need. There was a story at the South Carolina archives about a Judge in Charleston who carried fire from the wood heater to his cigars with rolled up records. Stories are common about clerks who disposed of old records to, make storage space for new ones.
It is important to recognize that we, as genealogists, use records for a purpose they were never intended to fulfill. As examples, the first United States Census was for the purpose of seating the proper number of persons in the House of Representatives and those rich military pension applications were created to qualify someone for a pension, not to record the genealogy we are so grateful to find in them.
Likewise, courthouse records were created to fulfill some requirement of laws in existence at the time and not to provide us with proof of family lineage. They were the legal means to convey ownership of land, in the case of deeds; to distribute the assets of deceased persons among their lawful heirs, in the case of probate records; to correct errors, in the case of Equity courts; and to enforce the standards of justice of the times, in the case of other court records.
These records contain a wealth of genealogy information and that is why we use them to prove family lineage. But it is important to recognize their original purpose when they fail to provide the information we seek. Some of them were never designed to preserve the information we seek.
We live in a very complex society today and record is made of virtually everything we do. Contrast this with the society of Colonial and Post Revolutionary War America. Colonial governments were concerned with recording land conveyances, distributing estates among heirs and ensuring that the just debts of the deceased were paid, maintaining primitive roads, regulating ferries and public lodging places, enforcing their interpretation of justice, and collecting taxes. Not much else.
The first permanent European settlement in Colonial America was planted in 1607. The first United States Census was enumerated in 1790. People functioned with some form of society for the 183 years between these dates. The absence of a census in this many years is just indicative of the minimum influence government had on personal life styles. The next 183 years brings the calendar to 1973 and 18 federal census returns were compiled. We have learned to compile records far beyond anything envisioned by our ancestors.
Vital records always give us problems. These are birth, marriage and death records. Surprising to many searchers, these records were complied in Colonial America. But not by governmental agencies. In fact, most states did not require these records be kept until the early 1900s. Some exceptions can be found when genealogical information was recorded in court cases or depositions, but these were important to the case at hand. Vital records in Colonial America were recorded by Church officials.
The Church of England played an active role in Colonial America, particularly in the Southern Colonies. Counties were divide into Parishes and church officials dutifully recorded vital records, regulated morals, set standards of conduct and provided for the poor. Unfortunately, our ancestors were so eager to show their independence from England that they destroyed most of these Books after the Revolutionary War. I have read of celebrations in which the Parish Registries were burned in bon-fires. Searchers feel frustration when they view the few extant registries and realize the size of the loss of some 150 years of records.
The Church and Town Hall records of the Northeast seem to have survived in better fashion than those of the Church of England. Still, they are far from complete.
Quaker Meeting House Minutes also recorded vital records and many of these have survived and have been published. They did not record events for people out of their Faith. The records for New Jersey, Pennsylvania and North Carolina seem to have survived better than those of other areas.
As we look at Vital records, we must not overlook Family Records. Chief among these are Family Bible Records. Regardless of the frontier isolation, many families dutifully entered family events in a Bible. They are treated with full creditability to the written claims when there is no evidence of alteration to the contents by a later generation.
Family traditions are also family records but they are in a different class. These, generally, are oral reports handed down from generation to generation. They gain in creditability when they were converted to a written format by the generation that experienced the event. Many are converted to the written format by a later generation. One must remember that the writer, in these cases, did not experience the event, rather is reporting the memories that may have passed several mouths before reaching the writer. They are nice to have, but creditability must be evaluated.
It is worth noting that there is nothing new in the available records to trace your early American ancestors. We cannot add to the store of records that were complied in 1780, or any early year of our history. However, the thing that is new is the way we access these records. Technology is changing every area of genealogy. We have not reached the point where we can eliminate the need to travel to courthouses, archives and libraries, but we are headed in that direction.
Technology is also leading to a lot of confusion. You will prove your family lineage with records, not the web page where everyone exchanges the same tidbit of information. As an example, you can enroll in numerous records access services, but you must still read the records. Do not pay for Ancestry Census access unless you are willing to read the census records. If your family lived in Franklin County, Georgia, you are not going to have the history of your family until you have read the land and court records of Franklin County, Georgia, or until someone who has read them, who will share the records with you.
Regardless of the infatuation with technology, remember records are the goal. Also remember the words of the speaker of last month. DNA works for him because he has hard copies of his lineage.
We lose records each year. They are on paper. Time, use, vandalism, fires, etc. are real and are ongoing. I have returned to courthouse vaults, in recent years, that I visited in the early and mid ‘80s. The deterioration in the records is visible. I wonder if searchers will have access to primary records in another 50 years.
Technology can help you. We did a program here in 1995. The method to acquire copies of the original Patent and land case files for Homestead Land Grants was outlined. You can still acquire these by traditional mail. But, you can also do it by bringing up the Bureau of Land Management Home Page and print a copy of the original patent free. You can also print a list of all persons of a surname who received Homestead land in any Public Land State, free. You can insert you credit card number and receive, by mail, a copy of the complete land case file.
The land in Public Land States is large. The 13 original colonies and states formed early from them, were involved in Royal Grants and grants from the five or six proprietary’s formed by Crown favorites. All other land in this country came from Public Land states and the Bureau of Land Management has these records.
I should point out that Georgia is an exception to this generalization. They had the Land Lotteries and the state was never a Public Land State.
I want to look at some record groups and note my experience with accessibility in light of technology changes.
I continue to believe the U. S. census records should be the first priority for any beginning searcher. This resource has the potential for providing more information faster than any other resource. This does not mean you will not need other record groups. But, a base of knowledge about your family, possibly back to 1790, may result.
The change in accessibility is dramatic for this group of records. We felt fortunate to have indexes for the years 1790 and 1850 in the early ’80s. Available indexes for the years in between varied with libraries. Soundex for 1880 and 1900 was available at the State Archives, but not in Central Florida. You usually could locate your ancestor in 1850, if you knew him, from the index. Then it was a matter of reading entire counties and guessing where the family may have moved next.
Today you may access Heritage Quest on your library card. The returns for 1840, 1850, 1880 and most of 1930 are not available, but all others are available. You can subscribe to Ancestry and have all records through 1930 available. Personally, I find Heritage Quest more user friendly, but the missing records are a frustration. Given the cost of travel to Orlando and parking costs, the subscription cost for Ancestry is soon recovered, if you use the service.
Vital records were mentioned earlier. Some of these records can be acquired from the L.D.S. Family History Library. I have used their Florida and Alabama records extensively. The Orlando Library has the index for the Birth, marriage and Death records of the Division of Vital Statistics of each state. You also can order indexes for these records from the Family History Library. You submit the appropriate numbers from these indexes on their form and can receive copies of the records for $2, each. The only difference in these and the copies you receive from the State is, they are not certified, have no State Seal affixed.
There is a limitation. The Death records for recent years are not available, must be ordered from the State office. Memory is that certificates up to about 1950 are available.
I searched their Library Catalog for some other states and, while the records for Florida and Alabama are more complete than most, several have made some of their vital records available to the Library. You can access these items from your home computer, but you need to visit the local library for details on ordering certificates.
We expect modern day wills to identify all heirs of the deceased person. Caution is commonly issued to people writing wills that omitted heirs can charge they were accidentally overlooked and legal claims result. Therefore, heirs out of favor are usually recognized with a token legacy or statement to prove they were not overlooked.
In the case of intestate estates, the legal heirs are recognized and the estate is distributed according to laws of the state.
Inheritance in Colonial times was influenced by a different set of laws. Our legal system evolved from English Law, with some exceptions in states such as Louisiana. Originally, all land, under English law, belonged to the Crown. Citizens held land when it was granted them by the Crown and under circumstances set by the Crown. Crown favorites did not have the right to convey land to anyone, only to the “Heir At law” and at the death of the landholder. The heir at law was the eldest son or the eldest son of the eldest son. In the absence of a legitimate heir at law, the land reverted to the crown and was re-granted to another court favorite.
The good part about English law is that there has been a steady move towards a more civil and equitable system throughout history. Perhaps we continue to have some inequities but they are not as severe as they were in 1400 or in 1800. The system of Primogeniture and Entail that governed inheritance has progressed similarly.
The heir at law was frequently omitted from old wills. He received his share of land, as specified in current laws, regardless of the wording in the will. It was not necessary to create a paper trail. Other heirs may have been mentioned if they were to receive items such as money or personal items. Originally, other heirs never received land. The system evolved as the years passed. Eventually, other sons could receive land, but never more than the heir at law. In many of these cases, the heir at law was never mentioned in the will, his share was guaranteed by law. Record was not necessary.
The right to distribute land among all heirs had a restriction. It applied to land owned at the time the will was written. Land purchased later was treated as a separate estate and it was probated as an intestate estate. All of the land went to the heir at law. This led many persons to delay writing a will until a terminal illness was at hand. This is the origin of so many “Death Bed Wills” in the Colonial period.
The changes in inheritance laws results in some confusion. David Lock died, interstate, in North Carolina in the post Revolutionary War era. his land was divided among his sons, because daughters were not eligible for land inheritance. One of his sons died five years later, intestate and with out issue. His land was divide among all of his brothers and sisters, because the law had changed to permit females to share in the inheritance of land.
The point I am trying to make here is that laws, in existence at any give time, may be responsible for what you find and do not find in probate records. You may find many examples of the progressive changes in laws affecting inheritance.
I have said that land records have provided me with more proof of family lineage than any other resource. I continue to hold that opinion. Some ask, “how can deeds do this?” Deeds of the Colonial period were far different from deeds of today.
When you buy land today, you most probably will buy Title Insurance to protect your claim to the land. Prior to Title Insurance being common, we had an abstract of Title. An abstract is a bulky folder containing the history of the land in question. This was carried to an attorney and he rendered an opinion as to the possibility of any hidden, or unknown, claims against the land and brought the abstract up to date. When we go back to the Colonial era, deeds provided the only protection for the buyer.
Most deeds of that era had a clause that read similar to the following, “I hereby bind myself, my heirs, executors and administrators to warrant and forever defend the said premises to (name of grantee) and his heirs and assigns against all claims”. This binder was usually accompanied by a chain of title to the property. This usually identified the original owner and followed the conveyance of the property to the current owner. In effect a chain of title was a miniature abstract.
A South Carolina deed serves as an example of this. Peter Nance sold a tract of land to Peter Noland in 1793, Chester County. Everyone with research on this Noland Family knows there was no Peter Noland in South Carolina in 1793. But, the fact that this deed said there was has caused unbelievable confusion and debate. A complete search of Noland land records in Chester resolves the problem. Sampson Noland sold a tract of land 10 months after Peter Noland bought this tract from Peter Nance. The legal description in the deed by Sampson is identical to the legal in the deed where Peter purchased the land. A chain of title in the deed where Sampson sold the land said it was originally granted to Thomas Roden, who sold to Peter Nance, who devised the land to his son Richard Nance, Richard sold the land to Peter Nance, who sold it to Sampson Noland, who was now selling the tract. The name of Peter Noland in the deed of 1793 was a scribe’s error!
In this manner, deeds of earlier times provide a lot of genealogical information.
We continue to find the heirs of a deceased person in deeds. This is most common when the estate was not sufficient to result in a probate case. Many deeds report the sale of property of a deceased person by the heirs and no estate records can be found. As an example, my great grandfather, Henry Nowling, died with a 10 acre tract of land as his only possession. His heirs sold the land several years later by all of them signing the deed of sale. There is no estate record but the deed identifies the heirs and the record states these are the only heirs.
We could cite multiple examples of all of these records and their use. This would only serve to extend the hours. The point is, think of records, that is how you will prove your lineage. The method of accessing them is your choice. Certainly technology is changing that.
J. R. Peacock
1330 11th Street
Clermont, FL 34711-2815
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