Saturday, November 26, 2016

Going to the Courthouse - Probate Records

The second area I like to research in a courthouse is the probate records.  Probate is the legal process of settling the affairs of a deceased person.  Probate isn't usually mandatory, but it does provide the approval of a court and law on the decisions made by the heirs in dealing with the assets and liabilities of the deceased and gives legal protection to those decision-makers.  So if someone did not own real estate or financial assets such as stocks and bonds, his heirs may not have felt the time and expense of probate were justified.  Nonetheless, there are probate records for most deceased ancestors.

Mennonite Inheritance Traditions.  Mennonites had very strong and clear beliefs about inheritance, which were based on I Peter 3:7:  "Husbands, in the same way be considerate as you live with your wives, and treat them with respect as the weaker partner and as heirs with you of the gracious gift of life, so that nothing will hinder your prayers." (NIV)  Since husbands and wives were joint heirs of the gift of new life in Christ, the Mennonites believed that they should share equally in the inheritance of mere material possessions.  They had followed this rule in Poland and Prussia; and when they moved to Russia, they had negotiated a special exemption so that they could continue to regulate their own inheritance matters.  There a Waisenamt (orphans' office) in each colony regulated inheritance matters.  In Canada, the Mennonites set up Waisenamter in Manitoba, but not in other provinces.  But in the United States, they were not able to do so, so they followed state inheritance laws or made wills.  Only in the 20th century did it become common for US Mennonites to prepare wills.  So many of our ancestors died intestate, i.e. without a will.

The Mennonite tradition dictated that the surviving spouse, if any, should inherit one half of all the property and that the children of the deceased spouse should divide the remaining part.  So children from a deceased spouse's previous marriage(s) and of the current marriage would inherit, but children of a surviving spouse's previous marriage(s) would not.  As an exception, if the wife had acquired real estate before the marriage in her own right, it would go only to her children.  Mennonites practiced impartible inheritance, so the farms were not divided into smaller tracts.  Instead a family auction was held and the winning bidder owed the other heirs for their share of the winning bid.  Often the winning bidder could not pay the full amount immediately; so in Russia and Canada, the Waisenamt would ensure that payments were made to the other family members annually.  Unfortunately the other heirs were left with no farm land of their own and only an annual payment of their share.  This practice of impartible inheritance was one of the main drivers of the frequent migrations to new places to find cheap farm land for young families.

Watch for any deviation from this inheritance pattern.  In particular, English common law, on which both US and Canadian inheritance laws are based, only gave a surviving wife a one-third life interest (not even complete, or fee simple, ownership) in the estate.  This was a serious deviation from Mennonite beliefs, so when it happened it indicated either that the deceased husband was not aware of the need to make a will or that the family had only a tenuous connection with the Mennonite community left.

Where to Look for Records.  Another question is in which county (or state) probate records might be filed.  Usually the probate is done in the county where someone was resident when he died, which be might different than the county in which he died.  If someone owns property in another county, there may be a small file in that county showing the final disposition of property, but it is usually not the main probate file.  For instance, my maternal grandmother died in McPherson County, Kansas, in the nursing home, but she had lived for seven decades in Meade County, Kansas, and all her real estate was in Meade County.  The probate was done in McPherson County because that is where she was resident when she died.  There were some probate records in Meade County, though, because her land had to be taken care of.  However, my paternal grandmother died in Washita County, Oklahoma, in the nursing home; but she owned real estate in Texas County, Oklahoma.  But her probate was done entirely in Texas County, Oklahoma.  So it's worth checking for probate records both where the person was resident when he died and where he owned real estate.

Probate records are usually held by the Clerk of the District Court, but sometimes there may be a separate family or probate court.  You will need to look in an index for your ancestor's name to get a file number, and then you request that file.  Old records may be bound in books or on microfilm.  If you have to search without an index, probate cases are usually ordered by the date when the case was opened, which may be from a few weeks to a few years after a person's death.

Which Records to Copy.  The case file may be voluminous, so you usually don't want to copy the whole thing.  Here are the items that I like to copy:

a)  Appointment of the Executor or Administrator.  It's interesting to see which person is appointed, whether other people refused, or whether there was a legal fight over the appointment - all of these things can tell you a lot about family dynamics.  (In discussions of probate, there is usually a lot made of whether a person died testate [with a will], in which case an executor is appointed, or intestate [without a valid will], in which case an administrator is appointed, but this need not concern us here.)
Extract from Appointment of Cornelius K. Siemens Administrator, Gerhard Siemens probate file, probate case 154, Surrogate Court, Moose Jaw Judicial District, Saskatchewan.  Accessed at, database Saskatchewan, Probate Estate Files, 1887-1931, 9 Jun 2014.
 b)  Bond - In general an executor or administrator must put up a bond, commensurate with the size of the estate, as a guarantee that he will properly handle his responsibilities.  Usually, a will contains a provision that the executor need not put up a bond.  But there is no such provision to exempt the administrator of an intestate estate - since most Mennonites died intestate, the relative size of the bond can tell you a lot about the wealth of the deceased.  For example, when my great-great-grandmother Katharina Fast #51804 (1814-1890) died in Nebraska, the bond for her administrators was only $200, while the bonds for most other estates at that time in that county were $3000-6000.  This is a strong indication that she did not leave a large estate.
Extract from Administrator's bond for Henry Penner, Estate of Franz Penner and Catharine Penner, 28 February 1891, Case #247, Page 494, County Court files, York County, Nebraska, Courthouse, York.  Accessed on LDS film #2168519.

c) Will - Usually the only place you will find someone's will is in the probate file because family rarely keep a copy of a probated will.
Extract from Will of David D. Fast, 15 August 1967, Texas County, Oklahoma, Probate Records, Clerk of District Court, Courthouse, Guymon.

d)  Estate Inventory - There should be a listing of all the assets and liabilities owned by the estate, including valuations.  This can tell you about the socioeconomic status of the deceased and what kind of business or employment he had.  Sometimes an inventory has great detail and other times it is quite simple.
Extract from Estate inventory, C. K. Siemens probate, case no. 1466, filed 1950, Meade County, Kansas, Clerk of District Court, Courthouse, Meade.

e)  Determination of Descent - This should give you a list of all a person's children.  Take note if there are any documents relating to disputes about whether or not a person is an heir.  Note that in the list below the wife got only a one-third share (not one-half).  I think this happened because my great-grandfather had only recently moved from Manitoba, where there were Waisenamter, to Saskatchewan, where there were not; so he had not thought to make a will.
Determination of descent, Gerhard Siemens probate file, probate case 154, Surrogate Court, Moose Jaw Judicial District, Saskatchewan.  Accessed at, database Saskatchewan, Probate Estate Files, 1887-1931, 9 Jun 2014.

f)  Final Determination - This will be the document that shows how assets are divided among the heirs.  Take note if anyone doesn't get his expected share or if particular pieces of property goes to a particular person (instead of an equal share of money).
Extract from Final Account of Executors of Elizabeth Fast Estate, 5 November 1983, Texas County, Oklahoma, Probate Records, Clerk of District Court, Courthouse, Guymon.

Of course, keep an eye out for other documents of importance.  Also, note when the case was opened and when it was closed - this can tell you about the legal and business acumen of the executor and the complexity of the estate.

By now you should have learned a lot about the socioeconomic status of your ancestor and about the dynamics of his family.

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