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From: "June Bork" <>
Subject: [BURNETT-US] Good Rules and Court Definitions
Date: Fri, 07 Sep 2001 06:35:18 -0700

To the new subscribers:

Good Rules and Court Definitions - Tips I have picked up along the way - I
am always open to corrections - June Bork


1. A man who receives by a will cannot be a witness to it.

2. A nun-cupative will can dispose only of personal property

3. A married woman could not make a will without her husband's consent and
even so, could dispose only of personal property unless there had been a
pre-nuptial agreement.

4. Title to land could be conveyed either by inheritance or deed or
marriage.

5. If a man sells land and there is no record in the Deed Book that he
purchased that land, then he inherited it or his wife inherited the land and
a record of that is in the probate files. Knowing this will help to
discover the identity of the wives.

6. A man did not have to be 21 to buy land, but he did have to be 21 to sell
it. He did not have to own property to vote, but he did have to be a free
man. He had to be 21 to serve on a jury, but he did not have to own
property or to be naturalized.

7. A woman was never a taxable or tithe. If her name appears on a tax list,
it is because she is a widow; she has a male of taxable age in her
household or a slave of taxable age.

8. Quakers used numerical dating and did not take oaths and were not married
in a civil service. A Quaker's last will does not begin with: "In the name
of God, Amen," and there are no marriage bonds for Quakers.

9. There are excellent indexed records for Moravians and Quakers; many
records of both Lutheran and Reformed churches and ministers that have been
translated.

10. All males and females enumerated in the census records prior to 1850 are
not necessarily members of the immediate family; they are merely members of
the household and may not even be related.

11. "Junior" did not necessarily mean "son of," but was a designation for a
younger man of the same name in the same area. A man could be a "junior" at
one period and "senior" at a later period.

12. "Infant" did not mean a babe in arms but someone under legal age.

13. An "orphan" was someone under 21 who had lost his or her father; the
mother might well be living.

14. An illegitimate child almost invariably took the surname of the mother.

15. If a man died in Rowan County, NC and devised his land in Davidson
County to his son, there will not be a record in Davidson County to show the
transmittal of that property.

16. In intestacy, the Court appointed as administrator(s) the widow & relict
[who may have already remarried and may have a different name] and/or
sons(s) who are of legal age. If they relinquish, the largest creditor is
appointed.

17. A posthumous child, even if not mentioned in the will, will share
equally with the other children.

18. Not just anyone can file a caveat to a will - only a person who stands
to inherit from the estate, and only then if he would receive more by the
laws of intestate succession than from the provisions of the will.

19. If no executor is named in the will, the Court appoints an administrator
"cum testamento annexo" to carry out the provisions of the will.

20. According to the laws of intestate succession, the widow receives 1/3rd
of all property, and the remainder goes to the children.

21. The law of primogeniture was legally abolished in 1784 and had to do
only with the estate of an intestate.

22. Normally, the widows of intestates were allotted a year's provision.

23. Until 1868, a husband had a life estate in all real property owned by
his wife at the time of their marriage; this is known as curtesy.

24. Dower rights pertained to the belonging of the husband, whether he owned
it before the marriage or acquired it afterward. Husbands did have
identical rights to property owned by their wives, but when referring to
those rights they are called curtsy rather than dower.

25. Curtesy or Courtesy, Scotch Law. A life-rent given by law to the
surviving husband, of all his wife's heritage of which she died in feft, if
there was a child of the marriage born alive. The child born of the
marriage must be the mother's heir. If she had a child by a former
marriage, who is to succeed to her estate, the husband has no right to the
curtsy while such child is alive; so that the curtesy is due to the husband
rather as father to the heir than as husband to an heiress, comfortable to
the Roman law, which gives to the father the use of what the child succeeds
to by the mother.

26. If an estate was debt-ridden, the personal property was disposed of
first. The widow's 1/3rd was protected and usually 1/3rd for the children
against any claims for debt.

27. An "orphan" over the age of 14 could select his own guardian [as it is
now]; if he were younger, the Court appointed the guardian. If an orphan
were left little estate, he was often apprenticed by the Court to learn a
trade.

28. Watch for a man disposing of more land than you can find him buying.
Did land come to him by death? Did his wife inherit property that he is
selling?

29. Taxable age for white men during the colonial period was 16; during the
Revolutionary War it varied from county to county; after 1784, it was 21.

30. Be very careful about accepting any information on a death certificate
other than the date of death, as the information was given under stress by
someone who may not have a full knowledge of the facts. The same holds true
for obituary notices. Most often, the date of death will vary between a
Bible or birth register, the tombstone and or obituary.

31. Phonetic spelling can be tricky. The clerk wrote down what he HEARD,
i.e., Anne Eliza or Annie Liza, Synderalugh or Cinderella.

32. Watch for occupations being Capitalized as identification following a
name, without a coma. Very few people had three names. John Williams
Carpenter in 1785 was probably John Williams, carpenter. John Henry Taylor
may well have been John Henry, tailor.

33. Many times there are no commas separating a list of names of children in
a will and you may have either ten daughters with single names or five
daughters with double names or a mixture. There were very few punctuation
marks in the ancient records - no periods or commas.

34. If a man left underage children, you should expect to find a guardian
being appointed and the children being referred to as "orphans" although
their mother may still be living and be appointed their guardian. If she
has remarried, her new husband is often appointed guardian of the minor
children.

35. Spelling can be very confusing, i.e., "hairs purchaced waggins at Estate
sail."

36. When checking an index, say the surname and envision every possible
spelling. Jo Linn eventually identified her husband's ancestor Lewis Redwine
as having been Ludwig Rheitweil

37. Some names were shortened through usage. Mr. Reed Pickler had
difficulty with his line until he realized the surname of the immigrant
ancestor was Blankenpickler.

38. In examining a Bible record, see if the handwriting is all the same. If
it is, all entries were probably made at the time of the latest entry; if
entries were made at the time the event occurred, they are more apt to be
accurate.

39. In NC, the marriage act of 1741 forbade "the abominable mixture" between
white men and women and Indians, Negroes, Mustees and Mulattoes or any
person of mixed blood.

40. Words denoting relationship, such as "in-law" and "step," often had
different meanings from what they have today. "Nephew" sometimes meant
grandson or grandchild, such as "to my nephew Rebecca Hayes." "Brother"
could be also brother-in-law or brother in Christ or a minister.

41. Non-jurors or non-swearers were people who refused or failed to take the
oath of allegiance, i.e., Loyalists or Tories. Many when faced with the
possible confiscation of their property, embraced the Revolutionary cause,
and some became super patriots.

42. Inventories and estate sales reveal much about the occupation and status
of the deceased and often suggest other records that might be searched.

43. Analyze the naming patterns in the generations you have constructed as a
possible clue for a given name of an earlier male or the maiden name of a
wife. For example, the widow Hartwell Drake almost certainly had a mother
whose maiden name was Hartwell.

44. Often a later child was given the same name as one who had died earlier.

45. If there is no marriage bond for a 2nd marriage, look for an age-gap
between children to try to determine when the first wife died.

46. One hundred years ago, middle names were more prominent in some families
more so than others. When families continually gave a first name of John or
William or Thomas, etc., a middle name was added to tell which John came
from which family. Nick names such as Jack/Jackson/Jonathan, etc., were
also used to distinguish one John from the other. The same applies to
Mary/Polly; Hannah/Nancy/Anna; Frances/Fanny; Elizabeth/Eliza/Betty/Beth,
etc.

oooooOooooo

An ongoing list of COURT TERMS -
Some of the terms I have run across in ancient court records
acknowledge - ack. (see "proved") = "acknowledged" in land transactions.
The usual procedure in a legal transfer of land was that the seller, after
deeding over the land, go before the county court and under oath, publicly
acknowledge the transfer. If married, the wife may appear also and be
examined privately (privily) to determine if she agrees with the transfer of
the land and to relinquish her dower rights to the property. If she does
not do this in court, commissioners are appointed to visit her and examine
her as to the transfer. In deed records, and abstracts of land transfers,
there often is a note entered by the Clerk similar to this: "Ack: 23 May
1750." This means the seller, (grantor of the deed) and his wife, if any,
personally appeared before the court or did so by proxy.

detinue = an action brought to recover in Specie of personal chattles from
one who acquired possession of them legally, but retains it without right
together with damages for the detention.

ejectment (Latin: Ejectione firmae - see de ejectione firmae) -
A writ or action of trespass to obtain the return of lands or tenements to a
lessee for a term of years that had been ousted by the lessor or by a
reversioner, remainderman or stranger. The lessee was then entitled to a
writ of ejectment to recover, at first, damages for the trespass only, but
later the term itself, or the remainder of it, with damages; A writ then of
ejectione firmae, or action of trespass in ejectment, lieth, where lands or
tenements are let for a term of years; and afterwards, the lessor,
reversioner, remainder-man, or any stranger, doth eject or oust the lessee
of his term. In this case he shall have his writ of ejection, to call the
defendant to answer for entering on the lands so demised to the plaintiff
for a term that is not yet expired, and ejecting him. By this writ the
plaintiff shall recover back his term or the remainder of it with damages
(William Blackston, Commentaries on the Laws of England 199, 1768).

enfeoff- enfeoffment-infeoffment-feoffment = At common law, the act or
process of transferring possession and ownership of an estate in land; the
instrument or deed by which one obtains such property or estate; to invest
with an estate held in fee simple.

enseal - place a seal upon or to sign

et al = "and others"

ex parte = Upon or from one side only; Ex parte hearing (Law) that which
is had or taken by one side or party in the absence of the other.

fee simple = ownership of land with unrestricted rights of disposition;
"forever" an estate of inheritance in fee simple

impariance = is a conference between attorneys, etc.

indefeasible = of a claim or right that cannot be defeated, revoked, or
lost; cannot be undone or made void.

indefensible = meaning not capable of being defended or maintained,
vindicated or justified; a bad cause is indefensible

indenture = Indentures were originally duplicates, laid together and
indented, so that the two papers or parchments corresponded to each other.
But indenting has gradually become a mere form and is often neglected while
the writings or counterparts retain the name of Indentures.

intestate = died without last will and Testament.

Jural = pertaining to positive rights & obligations

L.S. = (after a signature) = On recorded deeds and on originals written
after the actual use of seals passed out of fashion, the seal became a
flowery circle enclosing the words "Seal" or "Locus Sigilii," that is, the
place of the seal, abbreviated L.S. Blocks Law Dictionary gives this
meaning: "For some period in history seals were required to consist of wax
affixed to the parchment or paper on which the terms of the instrument were
written. This was required to have an identifiable impression made upon
it. Usually this was made by the signet ring. In time when ordinary
people, who did not have signet rings, learned to read and write, it was to
be expected that substitutes for the traditional seal would be accepted by
the law. Thus, today it would be generally accurate to say that a seal may
consist of wax, a gummed wafer, an impression on the paper, the word seal,'
the letters L.S.' (locus sigilli) or even a pen scratch."

Livery and Seizen = a practice between the seller and buyer of a piece of
land. They met on the property and in the presence of witnesses declare the
contents on which livery is to be made. This was a ceremonial act by which
the seller delivers (livery) a clod, or twig or some other piece of turf or
branch from some plant growing on the property and this transfer is
accompanied with words much like the following: "I deliver these to you in
the name of seizen of all the lands and tenements contained in this deed."
It was a formalized ritual probably called for by the purchaser who may have
had something to gain by having several witnesses to the event. These
matters concern a vocabulary no longer used, and made manifest that which is
now reduced to words on paper.

mocon = motion

NS = New Style Dating - see Calendar change
OS = Old Style Dating - see Calendar change
CALENDAR CHANGE
England and all territories governed by her used the Julian Calendar until
1751, often referred to as Old Style or O.S. Under that system, the new
year began on 25 March, while all of March was recognized as the first
month. Thus, where numbers were used instead of month names, one has to
calculate the month: i.e., 3-11-1680 meant May 11, 1680. The 7th month
meant September. Since the Gregorian Calendar, or New Style [N.S.] began
its year on January 1st, some writers employed a system of double-dating
years for the dates which fell into January, February, or March such as
1731/2. Double-dating occurs only for dates within the first three months
of the year and does not exist after 1752 when the Gregorian Calendar was
adopted by England and her territories. Prior to 1752, it is perfectly
possible to find a will dated October first and probated January third of
the same numerically numbered year. It is possible to find a woman marrying
with a birth date of 3 January 1750. The problem occurs only prior to 1752
in connection with the first three months of the year and with the use of
numbered months. One watches for it particularly in dealing with Quaker
records where the months are invariably numbered.

Path = The term "Path" can be a road or path from one place to the other or
a horse racing track, the sport of gentlemen.
A Rowling (Rolling) Path = is a path where the tobacco casks were rolled to
the docks to load on ships; tobacco was the main commodity shipped to Great
Britain, etc.

Pocoson = a reclaimed marsh land

Proved = If the seller cannot appear in court personally, the deed document
was witnessed by several individuals who signed on behalf of the purchaser.
A note by the Court Clerk: "Proved: 20 Oct 1791" means the witnesses
appeared before the court and certified the veracity of the transfer. Use
of the term "before the court" could signify appearance before one of its
Justices and be at a time outside the time of the usual quarter sessions..
The court, finding the transfer of the property to be in proper order,
orders the Clerk to record a copy of the deed in the County Deed Book. In
cases where it is known that the grantor is to appear before the court and
acknowledge the deed, it would not be necessary for witnesses.


Replevin Bond = meaning the recovery by a person of goods claimed to be his,
on his promise to test the matter in Court & give the goods up again if
defeated

reversioner or remainder - see ejectment

S.S. = Latin for "scilicit" used in making up a jurat. The 25 March 1755
date is actually 1755/56, the valuation having been made in January 1755,
necessarily preceding that court session. Black's Law Dictionary gives
meaning of "SCILICET" = (sil-o-set or sit). [fr. Latn scire licet "that you
may know"] That is to say; namely; Videlicet. Like videlicet, this word is
used in pleadings and other instruments to introduce a more particular
statement of matters previously mentioned in general terms. It has never
been quite as common, however, as videlicet - Abbr. sc.; scil.;
(erroneously) ss.].

Scire Facias = Latin for "that you cause to know, in law." A writ founded
on a record requiring the person against whom it was issued to appear & show
cause why the record should not be enforced or nulled

seize - to put in legal possession or assign ownership to another

yeoman = "of the most respected class; a freeholder; a man free born; A
Yeoman in England is considered as next in order to the gentry.




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• [BURNETT-US] Good Rules and Court Definitions by "June Bork" <>