Inheritance Anomalies

Mennonites have practiced Flemish inheritance customs since at least the 1700s, and probably before that; so when an inheritance doesn't follow the pattern, it's a big deal.

My great-great-grandmother Katharina Bergmann #7126 (1834-1916) lost her first husband, Johann Barkmann, in 1879 in Nebraska.  Within a couple years, she re-married to her brother-in-law, Martin Barkmann #3982 (1821-1894), who had also lost a couple wives.  Katharina had 80 acres of land; while Martin was a moderately wealthy man because he owned the land where Jansen, Nebr., was established in 1886.  When they got married, according to Flemish/Mennonite custom, both owned all of their property equally, regardless of who owned it before they were married.

Key Facts - Katharina had surviving children from her first marriage, but Martin had no surviving children or grandchildren from his two marriages.  He did have siblings, however.

In 1892, when Martin was 70 years old, he made a will, which would leave his wife $700 if she survived him and the rest of his estate to his siblings.  I found that will in Martin's probate file at the Jefferson Co., Nebr., courthouse.  Here is the first paragraph of the will:

Will of Martin Barkman, 20 July 1892, Probate file #251, Jefferson County, Nebraska, Clerk of the County Court, Fairbury, Courthouse.

According to Mennonite custom, after he died in 1894, his wife Katharina would keep half of their property (both of "her" 80 acres and "his" land and a substantial amount of money).  The other half would go first to his children by blood while Katharina's children (i.e. his step-children) would get nothing.

But he had no living descendants, so then his siblings would equally divide Martin's half of all their property.  Three of Martin's siblings had already died before Martin died in 1894; but since they had children, these children (Martin's nephews and nieces) would divide their parents' shares.

What actually happened was the following: 
1) Katharina kept "her" 80 acres of land - According to Mennonite custom, Martin's siblings should have gotten half of this since that land was owned jointly and since they were Martin's heirs.  But the will said nothing about what to do with "Katharina's" property.
2)  Katharina got $700 in cash - Again, according to custom, Katharina should have gotten half of "his" cash and other financial assets.
3)  Martin's eight siblings each got a one-eighth share of "his" land and other assets - They should have gotten an eighth share of half of "his" land and other assets.

Everything was done legally because Martin had made a will.  But when he made the will, he was deliberately violating centuries of Mennonite custom.  Clearly, Martin intended to manage their assets separately, even though this violated the Mennonite concept of marriage and property.  I don't know if Katharina agreed with this or not.  I've found unsourced grumbling from "the church" about their marriage not being proper, and I wonder if it was because he did not share his material assets equally with his wife.  Violating custom in this way showed that he did not accept Mennonite teaching on a very important matter.

On another note - one nice thing about his will is that it contained their signatures.

I don't have many, if any, signatures of my great-great-grandmothers; so it is special to have her signature, even if it was from a document that cheated her out of part of her inheritance.

Getting Out of the Doldrums

I've been in the genealogical doldrums lately.  I had an enjoyable time working on my Fast 1776 census project that I summarized here.  I made of lot of progress on other Fast families that so far are not connected to my own, but it also wore me out.  Thus, I haven't posted for quite a while.

I decided the best way to get out of my genealogical doldrums would be to do a fun project that would likely yield some good results.  I haven't researched my Reimer family (maternal grandmother's family), who lived at Jansen, Nebr., so I decided to make a trip to the Jefferson County courthouse.  And it proved to be just what I needed.

Just seeing the beautiful and unique Jefferson County courthouse would be enough to get any person out of the doldrums.

Source:  Wikipedia

I decided to focus on land and probate records because my great-grandfather Heinrich F. Reimer #317342 (1856-1923) had gone from being a simple farmer who owned 120 acres of farmland in 1900 (per 1900 Jefferson County plat map) to a man who gave two quarters of farmland to each of his eight children (2560 acres total) by the time he died in 1923.  Clearly there is an interesting story here.

I also wanted to find the probate for my great-great-grandfather Johann Barkmann #317873 (1827-1879).  He died of typhoid fever in Jefferson County, Nebr., only a year after arriving from Russia.   I knew very little about what he did after he arrived in America, so I thought that his probate file might answer some of those questions.

I'll share the results of my trip in following posts.

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 FamilySearch.org, 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 FamilySearch.org, 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.

Going to the Courthouse - Getting Ready

Most people dread going to the courthouse.  In the worst case, you could be going for a criminal trial.  But even going to pay your property taxes or renew your driver license is no fun.  But genealogists love going to the courthouse because it is a treasure trove of documents.

A random county courthouse from commons.wikimedia.org

My experience will be based on courthouses in Kansas, Oklahoma, and Texas.  I suspect that most states west of the Mississippi are similar, but you should be aware that each state and even each county is different.

Preparation is key - there are lots of records to look at, so you will want to know what you're looking for.  First, have family group sheets ready for all your ancestors who lived there because you'll want to know all the family members and their birth, marriage, and death dates. 

Make sure you know what churches they attended and where they are (or might be) buried.

Check when they were naturalized as those records are often at the county courthouse.

Make a list of ancestors who died while resident in that county (not necessarily the place of death) and be ready to look for the probate of their estates.  Generally people who owned real estate went through probate, and even some people who only had personal property did so as well.

Next, look on the county website to see what records are available electronically.  I once went to the Fort Bend County, Texas, courthouse only to learn when I got there that they charged a dollar a page to print land records in the courthouse but that they could be printed for free if you accessed them online.  Other places charge a dollar a page online but a quarter in the courthouse, so you never know.

Determine as exactly as possible when and where your ancestors lived and owned land - the more precisely you know the location, the less time it will take to find their deed records.  If they were within city limits, try to get the street address.  If they lived in the country in state-land states (most of the states west of the Mississippi), you need the section, township, and range.  Or if you know how many miles they lived from a certain town, you can figure out the section, township, and range from maps at the courthouse.  The courthouse should have maps available to locate their property exactly if you know the address or the legal description.

I have an Excel spreadsheet for each couple where I write the land transactions they were involved in.  This way I don't forget any details, and I don't have to sort through chicken scratches in a notebook when I get home.  I've uploaded the template to Google Drive so that you can download it.

Look at the county website to see which departments have which records.  For instance, in Oklahoma the county clerk has the deed records, but in Kansas they are held by the register of deeds.  Check the department hours and holidays while you are on the website.  And then a day before you leave, give them a call to see if they will be open - if the county judge's funeral is the day you plan to go, your entire trip may be wasted.

In the next post, I will explain how legal descriptions work.

Mennonite Historian Available Online

The September 2016 issue of the Mennonite Historian is now available online, and I have an article in it on using probate records from Saskatchewan.  Take a look.