A Tradition of Inheritance Messes

My Barkmann ancestors had a tradition of inheritance messes.  As far as I can tell, they never got burned by it legally, but it sure creates headaches for the genealogist who is trying to figure out what they did with their land and other assets.  I'll share what I've learned about one of those messes, that of my great-great-grandfather Johann Barkmann's #317873 (1827-1879) inheritance.

Johann and his wife Katharina immigrated from Russia to Jefferson County, Nebr., in July 1878.  In January 1879, he bought eighty acres of land from the Burlington and Missouri River Railroad Co.; so he was a landowner when he died.

Warranty Deed, Burlington and Missouri River Railroad Co. to Johann Barkmann, 8 January 1879, Fairbury, Nebraska, Deed Book W:275, Register of Deeds, Courthouse, Fairbury.

Then in October 1879, he died of typhoid fever at the young age of 52, according to the 1880 census mortality schedule.

John Barkman decedent, US Census 1880, Mortality Schedule, Nebraska, Jefferson County, Cub Creek Precinct, p. 1, line 5.  Accessed online at Ancestry.com on 3 June 2014.

 

As best I can tell, he died intestate; and he left a widow, Katharina Bergmann, and six children.  (I searched the index of probate files in Jefferson County and didn't find his name.  And I looked in the box where the probate file should have been and didn't find it.  And I found a couple deeds in 1886 where the "heirs of Johann Barkmann" sold land, which would seem to indicate that no probate had been done by then.)

In Nebraska at this time, inheritance laws followed English common law principles, which decreed that a widow had a one-third life estate in her deceased husband's land, known as dower rights.  (I found the Consolidated Statutes of Nebraska, 1893 chapter 12, section 1123-1, p. 361 on Google Books as my source for early Nebraska inheritance law.)  A "life estate" means that she didn't own the land but that she could use it as long as she lived.  And her life estate was only in one third of the land.  So she could have used 26 2/3 acres (1/3 of the total of 80 acres) until she died.

Now the mess begins.  Twenty-five days after her husband died, Katharina Barkmann purchased eighty acres of land that adjoined the tract that her husband had purchased.  No doubt, she used money from her husband's estate to purchase the land - but the money belonged to their children, NOT to her under Nebraska law (section 1124).  Very likely, her husband had arranged the sale before he died, and she completed it.  But legally the money was not hers, and her right of dower only gave her the right to use the income from 1/3 of the land and the interest from 1/3 of the money.  The land that she (illegally) bought technically belonged to her children.

Seven years passed after Johann's death.  Then in 1886, the Chicago, Kansas, and Nebraska Railroad Co., a subsidiary of what was popularly known as the Rock Island Railroad, wanted to build a line through the tract of land that was still showing in the land registry as belonging to Johann Barkmann.  Only he wasn't around any more to sell them a right-of-way.  So on 25 August 1886, the railroad purchased a right-of-way for $125 from his six surviving children, who were listed in the deed as his heirs.  The only problem was that his widow Katharina still had dower rights in that land, and she wasn't named in the deed as relinquishing those rights.  Since she never pursued her rights, it didn't matter.

Here is deed of the right-of-way to the railroad:

Warranty Deed, Martin & Elizabeth Barkmann, Katharina & Henry Reimer, Anna & Jacob Reimer, Agnetha & Claas Friesen, Maria & John Bartel, and Franz Kroeker guardian of Elizabeth Barkmann to Chicago, Kansas, and Nebraska Railroad Company, 24 August 1886, Fairbury, Nebraska, Deed Book 8:271, Register of Deeds, Courthouse, Fairbury.

 

But this must have alerted Johann's children to the problem because the next day, 26 August, they prepared a deed in which five of them sold their undivided 5/6 interest in the land to the husband of one of Johann's daughters, Klaas R. Friesen, for $1.  Again, they ignored the dower rights of their mother to a 1/3 life estate in the land; and again she never pursued her rights; so it didn't matter.

Why did they do this?  I think they were following Mennonite inheritance principles and creating documents after the fact to try to make the decisions follow Nebraska state law.  Remember that his wife Katharina purchased eighty acres using money from the estate shortly after he died.  According to Mennonite custom, the wife should get half the property.  Since she used money from the estate, in effect, she wound up with half of the land.

Mennonite custom dictated that the children should also get half of the land.  The other half of the land, the eighty acres that Johann owned when he died, went to his six children, which also followed Mennonite custom.  Most likely, Klaas R. Friesen, the husband of one daughter, had purchased the interests of the other five children soon after father Johann had died and was farming it.  But they didn't do any paperwork to make this official.  Only in 1886, when the railroad wanted to buy a right-of-way, did they realize that they needed to register a deed in the courthouse.  So they sold the right-of-way to the railroad and then filed a deed with a nominal price of a dollar to transfer the land legally to the husband of one of the daughters.

In the end, justice was served according to Mennonite customs because both the wife and the children got half each.  And they made it (more or less) legal under Nebraska law.  But what a mess!  And it could have been even worse if the widow Katharina had pursued her legal right of dower under Nebraska law.