Southern California Genealogical Society
SCGS RESEARCH ASSISTANCE - Articles

Techniques and Tips: In Praise of Probate
By Jean Chapman Snow

William Babbitt, my great-great-great-grandfather, wrote in his will, “First I will and bequeath to my eight daughters...” Then he named his daughters, but confused me totally by skipping from “the fourth, Betsey” to “the sixth, Polly” (my great-great-grandmother), ending with daughter number nine, Louisa. Huh? Who’s the fifth? Were there eight or nine daughters?

Transcribing wills is slow work as handwriting is often cramped and difficult to read. When the original was copied into those immense books you find in courthouses, words and phrases may have been omitted completely or interlined in even more minute writing. So deciphering wills is a challenge.

However, a paragraph later, I found the missing daughter. “I also will that my fifth daughter Sally have a suitable maintenance out of my estate whenever she shall need it, the expense to be equally divided & paid by my four sons hereinafter named.”

Ah. Was Sally handicapped in some way and her father thus ensured her lifetime care? Until I’d found and transcribed this will, I’d only been able to guess that great-great-grandmother Polly Robinson was a Babbitt. In the 1865 census, living with Charles and Polly Robinson, was a “sister-in-law,” Sally Babbitt. Now I had additional proof of how valuable wills and their probates are.

Probate

What is it? Probate, says Black's Law Dictionary, given me by my daughter-the-lawyer, means 1: to admit a will to proof, 2: to administer a decedent’s estate. Probate first “proves” the will, i.e., decides if it is valid by re-calling its witnesses to attest that they signed, witnessed the testator sign, and that he or she was “of sound and disposing mind and memory, of full age and not under restraint and capable of devising real and personal estate.”

Then the will is recorded, says Arlene Eakle in The Source, Revised Edition.1 “The probate process transfers the legal responsibility for payment of taxes, care and custody of dependent family members, liquidation of debts, and transfer of property title to heirs from the deceased to an executor...”

She also notes that probate records are the most valuable of the genealogical materials we have, yet the most complicated, filled with pitfalls for the unwary. Though laws vary from state to state and from one period to another, an estate must be settled.

Your first question might be, “Can it tell me when the individual died?” Some probate records include the date of death, but most do not. The first date you find may be the date of the admission of the will to probate, usually between thirty and ninety days after the death of the testator.

Steps from Will to Probate

When the deceased has written a will, an executor (or executrix if a woman) must petition the court for “Letters Testamentary” and permission to enter the will for Probate. When it is accepted as valid, the executor must follow all legal steps until the estate is settled. Sometimes, if there’s much property, appraisers unrelated to the deceased are named. If you are lucky, you may find their inventory.

If the deceased dies “Intestate”–without a will–someone must petition the court to become “Administrator.” It’s the same job, same process as an executor’s, the title only differing. Infrequently a will may be ruled invalid by the court for other reasons, then falling into the Intestate category.

Perhaps Grandpa didn’t own much, maybe only a watch he wanted to give his eldest son, so he didn’t bother to write a will. Even then, you may find a probate file since there were and are specific laws for the support of the widow and any underage children.

Wills and probates, then, may give you clues to follow up, information you haven’t found elsewhere–where had that son or daughter moved?–or even lead you to family members you didn’t know existed.

Three Legatees

My great-great-grandfather, Zenas Chapman, lived in the Town (In New York, Town is what Township is in other states), and County of Otsego, New York. He named his second wife Penelope as sole executrix. No heirs were named in the will, but they were in the probate. Among them were three married women I didn’t recognize! I knew his other living children named therein, children from both first and second marriages. But these three women were total strangers.

If they were granddaughters, who were their parents? I knew all Zenas’ children and their children for generations. I’m descended from Penelope, whom he married in 1812, but I have a 1794 Chapman Bible in which are the records of his first marriage and the children of that marriage.

The last child of this first marriage was one Katherine, born April 29, 1803. Sometime between that date and the 1812 second marriage, Zenas’ first wife had died. I’d never found any other record of mother or daughter in this small village, so I’d presumed that both might have died at or shortly after the birth of Katherine.

Thus I had no idea how those married women, Emeline Bliss, Lucy Fay and Mary Veber, were related to Zenas. I placed queries on RootsWeb boards and lists to no avail.

Twenty years later, on a trip to Cooperstown in Otsego, I discovered pedigrees for all three women when I searched the library’s vertical file. They were daughters of a Catherine Chapman Rider whose birthplace was given as in the nearby Town of Exeter. Sigh.

Since all my Chapmans lived in the Town of Otsego, this Catherine must have belonged to that unrelated Chapman line I kept bumping into, one which also lived in Otsego County. Dead end. But that morning at 2:30 a.m. my brain awoke me, insisting that I take another look at this data.

Catherine Chapman Rider’s birth date was April 29, 1803. Katherine Chapman’s birth date was April 29, 1803! Only the birthplace differed. So my Katherine had not died, but grown up, changed the spelling of her name, married, had three daughters. Someone, when she died, perhaps a neighbor as often happens, gave the wrong birth place. Zenas was in fact that trio’s grandfather. The full tale is in 500 Brickwall Solutions (Toronto, Moorshead Magazines, Ltd, 2003).

Finding Wills and Probates

Where do you find wills and probates? Usually at the county or town level, with the county clerk. As it varies from state to state, search the index books first. Ancestry’s Redbook will give you specific information for your state. Check our library’s How-To section for Ancestry’s Redbook, American State, County and Town Sources, Revised Edition2.

Search www.familysearch.org for state-specific Family History Library Research Guides. They tell you what is available on microfilm. Also try the Family Search website for films of indexes as well as the wills and probates themselves. Be sure to check under state as well as county for probate, especially for the early years of a state. Remember county borders changed a lot.

Internet Resources

There are many state or individual county web sites with information about wills and probates, and addresses for the county courthouse and clerk. You may also find instructions for ordering documents.

If you can afford a trip there, it’s easier, of course. Though I’ve never had enough time, I find it exciting to search those wonderful huge old books of indexes and wills. Copies there may be cheaper than obtaining them long-distance, but the cost of the trip also hits the pocketbook.

Sampubco

W. David Samuelson’s company, located at www.sampubco.com, has a searchable database of more than 300,000 wills (as well as indexes to guardianship and other records in New York State). Go to his website, find your state and county and search for familiar names.

You may order photocopies of wills from him online. They certainly cost far less than a trip (especially if you live on the opposite coast!) His copies are excellent laser quality. I described my own experience of ordering a SAMPUBCO will in my Jan/Feb 2002 column.

Here are his offerings as of April 2005, to which he adds more every week or so:

Wills from 2 counties in Alabama; 22 counties in Georgia; 16 in Idaho; 12 in Kansas; 1 county each for Maryland, Massachusetts, Iowa, Oregon, Rhode Island and Tennessee; 5 counties in Virginia; 7 in Wisconsin; 12 in Kansas and Missouri; 13 in North Carolina and Ohio; 16 in Idaho; 18 counties in Pennsylvania; and in New York, all counties but the Bronx, Erie and Putnam, though some are still in progress.

Finding an Heir

Before the estate can be settled, all the heirs or legatees (family, blood relations) and any beneficiaries (friends, not family, though the terms are often interchangeable) must be located and notified.

I’ve mentioned my Dad’s older brother Stuart (Francis Stuart Chapman, whom family called Stuart). Family tales say he ran away from home at sixteen and wanted to take Dad with him, though Dad was only nine. Their mother had died three years earlier, and Grandpa married a widow with two girls. Stuart, evidently unhappy with his acquired family, went “South” to North Carolina or Georgia and married.

First, I found Stuart had not run away at sixteen, for the 1905 Tweeny census shows him, age 21, still in the same village where the family lived, though he did board elsewhere. Later, in Ancestry’s 1910 census I found an unmarried Stuart F. Chapman, about the right age, born in NY, parents born in NY, boarding in Leaksville, NC. Was this my Uncle Stuart? Maybe, but I had no proof. I found Leaksville on the Internet and discovered it had once been called Spray. Odd name!

Later the 1920 census appeared with a Frank S. Chapman, about the right age, in Winston-Salem, North Carolina, boarding with a family. No wife. My uncle?

Finally the 1930 census appeared with a Francis S. Chapman, age still a bit off, still in Winston-Salem, still no wife. Using a www.RootsWeb.com county message board, I inquired. A kind woman replied that she’d found a Francis S. Chapman in a CD of deaths for that county who had died December 24, 1956. I sent for the death certificate which cost (still can’t believe it!) only 50¢.

This was Uncle Stuart. Correct birth date, never married, Social Security #19-12-3990. His application is unavailable online, I guess because being unmarried, he had nobody to report his death. Perhaps snailmail and a check will work (I think it’s because my middle name is Stuart that I’m so anxious to find as much as I can about him.) Still I couldn’t be sure about that Stuart F. in Leaksville, though he was a likely candidate. Probate to the rescue!

Two years ago, researching my Stuart family line in upstate New York, I found the 1915 probate for Dad’s and Stuart’s unmarried great-aunt, Emily Stuart. She’d left them a bit of money, so Stuart had to be located.

My first thrill was seeing Dad’s familiar handwriting in this fat probate. My second thrill was reading what Dad wrote the lawyers who were searching for Stuart – that the family had last seen him about two years earlier, but hadn’t heard from him since. “Perhaps,” Dad’s letter continued, “if you try Spray, NC, (Bingo!) you might get in touch with him–he made his home there about three years ago...”

Huzzah! Three cheers for wills and probates!

1. The Source, Revised Edition, Loretto Dennis Szucs and Sandra Hargreaves Luebking, Editors, Salt Lake City, Ancestry, 1997 (SCGS Call Number 929.1 HTB/RESOURC/ ARCHIVAL/USE, p 202).

2. Alice Eicholz, Editor, Ancestry, Salt Lake City, 1992 (SCGS Call Number 929.1 HTB/SOURCES)


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