WILLS AND OTHER PROBATE DOCUMENTS

by Geoff Nicholson

If your ancestor left a will then there is a possibility of you having a treasure trove indeed at your fingertips. Before dismissing the possibility, consider that a recent estimate, based on the number of available Wills from our region indicates that some 10% to 12% of all those who could have left a Will in the late 18th and early 19th century actually did so. Even if you think your family were probably in the other 88% to 90%, it is still worth a try!

To leave a valid Will in the period I have mentioned one had to be an adult (over 21: before the Wills Act of 1837 boys of 14 and girls of 12 could leave a Will to dispose of purely personal possessions) and, if a woman, not married. Spinsters and widows could leave Wills but before the Married Women's Property Act of 1882 all the property of a married woman was deemed to belong to her husband anyway and any pre-existing Will became invalid upon a woman's marriage. There were other exceptions, such as slaves, convicted criminals, persons of unsound mind, traitors, suicides, heretics and apostates. An existing Will found upon the death of any such person would not be valid.

The only important date to remember when dealing with Wills is 1858. In that year the existing system of providing Wills was scrapped and what amounts to the modern system of Probate Courts was set up. As it is probably fair to say that the genealogical value of a Will has become much less in modern times (a typical married man's Will, for instance, simply saying that he leaves everything to his wife), I shall concentrate here on the position as it was before 1858.

Under the old system, the business of providing Wills was a matter for Church Courts. Usually it was the Consistory Court of the Bishop of the Diocese which had the job, but complications arose from the need for the Court concerned to have jurisdiction over all places where the property being disposed of might be found. The Church of England is organised into Provinces, each under an Archbishop, and each Province is subdivided into Dioceses, each under a Bishop. If the property was being left in more than one Diocese, but all within the same Province, then the Prerogative Court of the Archbishop will be the one in which the Will should have been proved. If the property fell into more than one Province, then it was the Prerogative Court of the Archbishop of Canterbury which would have to prove the Will. England is divided into two Provinces: York, covering the north of the country and Canterbury covering the south of the country. Hence all those English Dioceses which which lie adjacent to the Diocese of Durham are within the Province of York. This leads to the simplification that whereas almost all local Wills were proved in Durham, most of the rest were proved at York. The situation is complicated, however, by what are known as "Peculiar Jurisdictions" and "Special Jurisdictions". In each of those cases, the person responsible for proving a Will is not the Bishop of the Diocese but some other person, usually some other senior Churchman. In our region we have only two (for all practical purposes one) such cases. That is Hexhamshire, a Special Jurisdiction of the Archbishop of York, and Throckrington, a Peculiar. Any Wills leaving property lying wholly within Hexhamshire, or lying partly within Hexhamshire and partly within the rest of the Diocese of Durham, had to be proved at York. In practice, the handful of Wills emanating from the tiny parish of Throckrington tend to have been proved at York, though it was recorded some 200 years ago that the position with respect to Throckrington was unclear. Hexhamshire consisted of the ancient parishes of Hexham, Allendale and St John Lee, with their various Chapelries, much larger district than what is popularly called "Hexhamshire" today.

Other reasons for having a Will proved at York would be if the property lay across the boundary of the Diocese, such as sometimes happened in Teesdale or in the Alston district of Cumberland (the parish of Alston was part of Durham Diocese but its neighbouring Cumbrian parishes were not) or if there was an interregnum at Durham, (i_e. if Durham Diocese was "between bishops" or "Sede Vacante"), as when there was no Bishop of Durham there could be no Bishop's Court.

Pre-1858 Wills proved at York are now in the Borthwick Institute, St Anthony's Hall, York, which is part of the University of York, and those proved at Durham are now in Durham University Library, Archives and Special Collections. The Archives and Special Collections also hold Wills from the Yorkshire parish of Crayke, which was once a detached part of the Durham Diocese, and from a group of parishes around Northallerton, known as Allertonshire, over which the Bishop of Durham had a Peculiar Jurisdiction.

 As the vast majority of those which anyone researching a Northumberland or Co. Durham will need to consult will have been proved at Durham, it is the situation in Durham University Library which I shall describe. No appointment is needed and access to the Archives and Special Collections, which is signed from the main entrance on Palace Green, is open to all. The Wills and other Probate Documents are all listed in a series of "Alphabet Books", covering periods 1540-1659, 1660­1786, 1787-1832 and 1833-1858. These seem to have been compiled at a very early date, possibly in the early 19th century but possibly contemporary with the end of the period they cover. They list the documents in 26 sections, one for each letter of the alphabet. Within each letter arrangements is chronological, so in the third volume, for instance, one gets all the "A"s for 1878, followed by the "A"s for 1788, up to the "A"s for 1832, followed by the "B"s for 11787 etc.

It must be remembered that Wills (etc.) are arranged in accordance with the year they were proved, not the year they were written. While it is true that many people left it to the last minute to make their Will, and had to send for the Curate to write it down when they were on there death-bed, or else were persuaded by him at that time that making a Will would be a good idea, some did so many years before they died. Perhaps they had been very ill and had thought they were about to die but made an unexpected recovery!

In some cases an address is given in the indexes but before about 1760 addresses are few. All one gets is the name of the testator (before the 1730s this will be in Latin) and a reference, such as T20, A45, etc. Where the reference begins with a "T" the document is a Will (Testamentum), but where it begins with an "A" the document is an Administration Bond (Admon). An Admon is the record of what happened when someone died intestate. Someone, usually the next of kin, had to be given the power to administer the estate according to the Law of Intestacy, and someone else had to be found to act as Bondsman (to guarantee the payment of the penalty imposed should the estate be maladministered, or not be administered within one year of the Admon). In practice there are often three parties to the Admon, and the precise relationship of the next-of-kin, who may be the only one who is actually a relative, will be mentioned in the document. Admons are therefore usually of much less value to a researcher than is an actual Will.

Similarly there are Tuition Bonds, with references beginning with "Tu". These are to provide for the up­bringing and education of children who have been orphaned by a recent death. In the Alphabet Book indexes such children are often described as "Liberi", rather than being given their actual Christian names.

At their best, Wills can be marvellous. It is possible to find a Will where the testator leaves something to a wide range of his relatives, carefully specifying exactly what the recipients' relationship to him is, and mentioning the address and occupation of each of them. Something of the character of the testator can sometimes come across, especially if you are lucky enough to find a nuncupative Will, that is one which was only spoken by the testator, in front of witnesses, who then had to make a statement about what exactly

had been said. In such cases what one gets in the records is the statement, of affidavit, of the witnesses, usually ending with "And we testify that A B spake all these words when he was lying on his death bed".

In general, the older a Will is the better it is from a family historian's point of view. In Tudor days and up to the mid-17th century it seems to have been the fashion to mention almost all one's relatives, plus a whole host of friends and colleagues, most of whom would be left with just a small token, but it would be something to say they had "been remembered in the Will".

The general form of an old Will is that it begins with a statement by the testator in which he assures everyone that although "weak and crazed in body" he is yet "of sound mind, memory and understanding, thanks be to Almighty God". There then follows a statement of religious belief, as becomes one who expects to meet his maker in a very short while. When it comes to disposing of his possessions the first to go, following the same religious theme, is always the testator's soul, which he will leave to "Almighty God who gave it", and then his body, which he will often specify should be buried in the churchyard of a certain parish. If that is not his home parish it will almost certainly be the one in which he was born, and where his ancestors lived and contemporary relatives would still be living - a good clue!

After all those preliminaries, the main part of the Will comes almost as a throw-away or an afterthought: "And for such worldly goods as it hath pleased Almighty God of his goodness to bless me with, I do dispose of them as followeth". Even then the first money to be mentioned is often some small stud to be distributed to the poor at the testator's funeral. That is one way of ensuring a good turn-out! Sometimes sums are left to the poor, the church or for charitable purposes, in some other parish and this provides another clue as to where the testator's family may have originated. Many testators begin the main part of their wills by naming three "friends", whom they appoint as trustees, especially if the heirs are minors. The trustees are not necessarily relatives, but they may possibly be. Typically they will be the testator's solicitor or attorney, some other genuine "friend" and a relative. Of course, there do not have to be three trustees. There can be two or more than three, but three is quite common.

At the end of the Will the testator will appoint executor(s), declare it to be his last Will and Testament and will revoke all other Wills made previously. He will than sign it or make his mark and there will be the signatures, or marks, of two or more witness. Surprise is sometimes expressed when people realise that one or more of the witnesses is a beneficiary of the Will, something which is illegal now, but which was quite acceptable in the period we are dealing with. Finally there is usually some sort of Probate statement, in which an official of the Bishop's Consistory Court records that one of the witnesses came into court (in the person of his affidavit or of his attorney, not necessarily personally) and swore as to the true execution of the Will (i.e. that it really was signed by the by the testator and that he knew what he was doing at the time), and one of the executors also came into court (with the previous meaning) and was sworn truly to administer the Will. A statement then follows to the effect that the total value of the estate does not exceed some particular round some of money.

Another type of Probate document which can provide a tremendous amount of detailed information, though not usually much in the way of genealogical detail, is a Probate Inventory. Such Inventories are common up to the early 18th century, after which they tended to drop out of use. The first thing to look for in an Inventory is the heading, which begins by stating the obvious - whose Inventory it is. The name of the deceased will usually be followed by a word describing his status or occupation - "yeoman', "gentleman", "carpenter" etc. It is often instructive to compare that with what the deceased actually called himself in his Will. Many a self-styled "gentleman" has been put in his place as a yeoman by the inventory-takers, and so on down the social scale. The inventory-takers were usually about three men, who were "indifferently chosen", to use the old phrase which often crops up. They were supposed to be neighbours of the deceased who were in a similar line of business or of similar social standing, so that they would have a good appreciation of the possessions of the deceased and of their value.

Everything of any reasonable value is listed, and its worth noted. For a typical farmer, say, after the usual beginning of "His purse and apparel", would come his farm stock - animals, including horses for draught and for riding, with all the animals given their names as used at the time (a good dictionary will be found useful in that respect), plus ploughs, carts, etc, stacks of hay or corn in the stack yard and, according to the season, "crops growing in the ground". A tradesman would similarly have his stock-in-trade, raw materials and tools valued. Then the household furniture would be valued. If the house was a large one it may well have been classed according to which room it was to be found in, thus giving a list of the rooms in the house, and, from their names, what each was used for: "the front chamber", "the side chamber", "the brew-house", "the buttery", "the cellar" etc, and the author has even seen one which refers to "a little room adjoining the house".

After all these tangible assets there comes the less tangible ones - money loaned out of interest, or deposited in a Bank, Bonds, Leases, with the number of years yet to run specified, and debts. Debts owed to the deceased are mentioned, though some may be classed as "desperate" (i.e. unlikely to be paid), as are debts owing by the deceased (especially if any of them were owed to one of the inventory-taker!). All in all, then, a Probate Inventory can give us a glimpse of a person in the setting of his house and business, in a way that no other document can.

Some wills have been published. The Surtees Society have published four volumes of abstracts of Durham Wills (i.e. the wording has been simplified to cut out a lot of conventional and legalistic verbiage and leave only the "meat" of the Will), but they extend only to the year 1601 and those in the first two of those volumes are written in entirely in latin, which most of us would find rather difficult to read. They have also published a few volumes of Wills from York and other places.

The Surtees Society have also published a volume of Darlington Wills 1600-1625, in which every Will from Darlington in that period is printed down to the last last full stop and comma, and articles are included on, for example, the Books mentioned in the various Wills and Inventories. It is possible, through those Wills, all from the one town, to get a very good idea of the business life of the town at the time.

 Abstracts of all pre-1858 Wills for the parish of Kirkhaugh in Northumberland were published in three volumes of the fourth series of the Archaeologia, the annual publication of the Society of Antiquaries of Newcastle upon Tyne. They had been abstracted by the J V Harrison in an attempt to shed light on the period for which the parish registers were destroyed by fire.

 The NDFHS has published five volumes of "Personal Names in Wills Proved at Durham", covering in all 1787 to 1803. These volumes cover only Wills (i.e. no other Probate documents), and the abstracts have been further simplified to include only names, relationships, addresses and occupations, with no details being given of who was left what. The author wishes to acknowledge the help he has obtained from the introductory articles in those volumes.

 The NDFHS has also published, on microfiche, a list of Durham Diocese Wills proved at York, compiled by the late Dr K Mitchell. As explained above, most of these are from Hexhamshire or nearby, but there are others elsewhere, including a number from the northern bank of the River Tees.

 The NDFHS has published articles on various aspects of Wills in several of its journals, and some of them can now be read on the Society's web-site.

 How can we easily discover a particular ancestor left a Will? It is not necessary to go to Durham University Library, as the Alphabet Books have been microfilmed and there are copies in both Durham County Record Office and in the Morpeth Records Centre of the Northumberland County Record Office. In the latter place there are also microfilms of the actual Wills (some years) or of the Probate Act Books, into which copies of each Will proved was written (again, some years only.)