I do hereby give and bequeath

Having read entirely too many wills during my brief stint as a paralegal working in an oil and gas related law firm, I've wondered about wills and who had what rights in Colonial America. I have read some of the wills of our family's ancestors and thought about writing a post about them ,but I never saved any of the reproductions. Until now.

Fortunately, John Choate, who may have testified at a with trial in colonial Massachusetts, made out a will in 1691, and a reproduction is attached to his entry in Family Search. 

He begins by stating that he is sick in body but of sound mind, kind of a standard opening for a will. I have noticed several wills in which the writer noted that he was in poor health -- and I say "he" because so far I have only read wills by men, not uncommon because married women had limited rights to property that pretty much obviated the need to make a will. The reference to the writer's health seems to indicate that poor health provides the impetus for making the will. A master's thesis on wills in the Virginia Colony notes that the majority of wills produced in Rockford and York counties during the colonial period noted the testator's failing health. An article in the Yale Law Review indicates this was the general practice in Massachusetts as well.

He continues, "IMPRIMUS. I bequeath my soul to God by the merits of Christ and my body unto a decent burial ..." This again appears frequently in the really old wills I've seen. I ran across similar wording in more modern wills, but not often. Usually a "decent burial" involves services in a Christian church and is left to the estate's executors to plan and carry out. Sometimes the writer will specify that he has given his executors instructions separately, and they are to carry out his wishes. 

Many wills then move into the disposition of debts, which are to paid from the estate, as are the costs of the funeral, fairly common even today. John's will does not do that. Instead he begins listing who gets what, beginning with his eldest, John Jr. He gives what would seem to be the bulk of his estate to John Jr., also pretty common for the time, though nowadays property often passes first to the wife -- again, this is still a man's world -- and then in equal shares to his children should he survive his wife. 

For one of the properties, John specifically mentions that the land belongs to John Jr. and his heirs forever. In Virginia, this language was a form of entail -- remember the premise of Downton Abbey. If you haven't seen the series, the problem is that Downton can only pass to male heirs, and the current lord of the manor has none. This would seem to be the case with this one piece of property being left to John Jr.

John Sr. then leaves the rest of his property to his other sons in varying proportions -- one son, Benjamin, is to receive three acres of the land bequeathed to his brother Samuel and four acres of the land designated for his brother Joseph. If Ben dies before his brothers, the land reverts to the respective brothers. If Ben and Joe die, the lands go to whichever heirs are still alive. Eyes crossing yet?

To his married daughter, he left 60 pounds, and though the wording is awkward, he seems to indicate she's already received the money. Now, the key thing here is that at the time, married women were not allowed to own property on their own. 

Whenever property is left to a married woman, it comes in the form of a life estate, allowing her to live on the property until her death, usually with the male heirs being charged with providing for their mother's financial welfare. On her death the property passes to the male heirs as specified by the testator. 

Another daughter receives 60 pounds -- which she seems not to have already received. He appoints his wife as the executor of his will, leaving whatever money, possessions, and "debts and demands" that are left over. Debts and demands is legal terminology that allowed her to request claimants to come and presents their claims and gives her the right to challenge any of the claims. 

None of this is unusual. Among the ancestor wills I've read and remember the terms of, the boys get all the property, and the women little else. Remember that much of the wealth for these settlers lay in the land. But by the time the colonies became the United States, much of the inheritance law was reformed, giving women greater property rights and the rights to dispose of that property as they saw fit. 

Image: A portion of George Washington's will. Retrieved from the Colonial Williamsburg website. Site copyright presumed to belong to the Colonial Williamsburg Foundation.