19th century inheritance
Date: Wed, 20 Mar 1996
From: Michael Gagnon
Subject: Query on 19th century inheritance
Michael Gagnon writes:
I am trying to make sense of the various legal terms regarding inheritance in 19th century Georgia. Can someone direct me to a good journal article or moderately short piece on inheritance? Specifically, from browsing the legal notices of several decades of newspapers, I find I am somewhat unclear about the differences between the terms: guardian, executor and administrator.
From what I have gathered from the legal notices themselves and from other primary documents related to inheritance, these are my definitions/thoughts. If I am incorrect, please feel free to set me straight.
A guardian supervises the inheritance of someone incapable of looking after their own interest. For example, a guardian might be appointed for a minor, a woman, or a lunatic. Where this gets interesting, to me, is when a guardian is appointed to invest a woman's inheritance, when she has a husband, but the husband is not the guardian. The case I have in mind is where a woman either inherits $2000 from her uncle, or is given the money as a wedding present -- I'm a little unsure about the exact circumstances. A local guardian (probably someone with whom the uncle is not familiar) is appointed to invest the money for her, and the guardian buys land adjoining the family's 1830s cotton factory, as an investment. The land remains hers for her entire life and is eventually probated to her children. My question is why would a guardian, other than her husband (whom the uncle introduced to his niece) be appointed? Has this something to do with dower rights? If so, was it legally necessary to keep her property so completely separate from his?
An executor was/is someone who executes a will or an estate. Most frequently executors were the sons of the deceased. At least one interesting case, of my knowledge, had a nephew executing the estate, even though the deceased, who was quite prominent, had several sons in town, who could have filled the job. A major part of the nephew's job as executor was to sell off the out-of-state lands (mainly in Mississippi) of the deceased. Other estates sometimes are executed by the wife as an "Executrix". Why (I hope someone can explain this to me) when guardians are appointed for some women, are other women made the person in charge of settling her husband's estate (which entails making legal notice announcing appointment of the executrix by the inferior court of the county; requiring all creditors and debtors to come forward and make claims or payments - - within 4 months, I believe; putting up for public auction, all the personal and real property of the estate; and finally requesting dismission from the post of executrix)? Since women are somewhat routinely appointed executrix, there does not seem to be a legal restriction on their doing so. Therefore, it seems to me, the case must be that some women may not be capable of doing the finances while others are more (or even exceptionally) capable. The appointment depends on ability and wishes of the various heirs, rather than dependent on gender.
Finally, an Administrator is appointed to oversee an estate that is not immediately wound up. Many times the husband's estate is not completely probated for 20 or 30 years, and a paid administrator or administrix is appointed to run the estate for the benefit of the legatees. This is the most confusing. Why is the estate not immediately settled? Once again, ability rather than notions of gender rule who will be appointed (although the majority of executors and administrators of estates are male, females in these jobs are by no means a curiosity). I know of one very successful business woman in the antebellum period who administered the estate of her 2nd husband for at least 20 years and with no complaints from her stepchildren (at least none I've uncovered). On the other hand, I've also read contemporary newspaper anecdotes in which a child being asked what _he_ wanted to be when he grew up, stated that he wanted to be an administrator because his family had always gone hungry until his father was appointed one and now they live very prosperously. Clearly administrators were not always doing their best for the estates; some seem to be appointed when the deceased died intestate (without a will) and many had no clear connection to the deceased or to those who would inherit the estate.
One last question regarding inheritance: did the real and personal property _always_ have to be auctioned? One can look through the legal notices in every newspaper in antebellum Georgia and see the announcements of an estate, or only part of the property of the estate, being put up for auction at the doors of the court house during the normal hours. Did this only occur in cash-poor estates encumbered with debt. Or did it also occur when family members couldn't agree on how to equitably divide the estate. Or was it simply common practice to "cash-out" an estate, since most were not particularly tied to the land in the first place?
Curiously awaiting replies.
Michael Gagnon
Atlanta, Georgia
mgagnon@emory.edu
michael.gagnon@hts.gatech.edu
Date: Thu, 21 Mar 1996
From: David Herr
Subject: 19th Century inherit.
Sarah Salter writes:
Guardians, executors and administrators are all appointed by a court to be fiduciaries - taking care of the property (perhaps also person) of another under the supervision of the court.
"Guardians" are named by the court having jurisdiction to administer either the property of a minor, etc., or the "person" of the minor, etc., or both.
Terms are "guardian" "Guardian of the person" "guardian of the property"
A testamentary guardian is one named in a will ("testament") when the court agrees to grant the guardian position to that person. Otherwise, the court may name any petitioner who is deemed satisfactory by the court.
An administrator is named to handle the estate of a decedent when there is no executor named in a will offered for probate naming an executor to do the job. Sometimes there is a will, but the person named had predeceased or otherwise can't serve. In that case the fiduciary is the "administrator c.t.a." (with will annexed, in Latin). Otherwise, the decedent died intestate.
An executor is a person named in a will that is probated to handle the estate of the decedent. (gather assets, pay debts & taxes, distribute to legatees, file inventories and accounts with the court)
Many estates, even today, take years to settle.
Under common law, legatees take title as co-tenants to estate property rather than have the fiduciary sell it to divide the proceeds. A sale would take place only when debts needed to be paid. There is a set procedure for what gets paid out of what (realty, personalty; monetary bequests, specific bequests, residuary) specific to each state.
Date: Tue, 26 Mar 1996
From: Thomas D. Russell
Subject: Inheritance - 2 responses
cross posted from h-law
I address the dictionary query here, then, in the last part of my query, I comment on auctions and inheritance. The last part, I warn you, is an advertisement for my own work.
Warren Billings has already suggested that Mr. Gagnon consult Bouvier's Dictionary, which is a fine suggestion. If that proves difficult, then Black's Law Dictionary, which any law library will have, should also be of substantial help. For definitions of relatively common terms such as guardian, executor, and administrator, Black's is certainly sufficient to get the general idea. (It's also very handy for the translation of Latin phrases.) For a better sense of how the terms might have been used in the 19th century, though, Billings is absolutely right that Bouvier is better than Black's.
As for the specific terms: Gagnon has the right idea about executor/trixes. This person is selected by the testator to execute the will. For administrators/trixes, Gagnon is a bit off track. The term administrator is for the person who handles the estate of an intestate, that is, someone who has not written a will. The probate court appoints someone to do what the executor would do if the person who died had taken the time to write a will and name someone as executor. An executor is actually a type of administrator. As for guardians, the important point is that married women lacked the legal capacity to manage property and make contracts, so guardians (or trustees) did it for them.
But the real reason that I responded to this post was because of my interest in the following query:
<<--One last question regarding inheritance: did the real and personal property _always_ have to be auctioned? One can look through the legal notices in every newspaper in antebellum Georgia and see the announcements of an estate, or only part of the property of the estate, being put up for auction at the doors of the court house during the normal hours. Did this only occur in cash-poor estates encumbered with debt. Or did it also occur when family members couldn't agree on how to equitably divide the estate. Or was it simply common practice to "cash-out" an estate, since most were not particularly tied to the land in the first place?-->>
"Always" is too strong here, but the answer is that in the absence of a will, auctions were the usual course of business. The most important variables were the number of people who would share in the proceeds of the estate (both heirs and creditors) and also whether the estate was sufficient to meet all the decedent's debts. If the debts outweighed the estate, then everything would be auctioned off, the slaves, the land, the personal property, everything. If there were just a few heirs who could all agree on a division of the estate, then they divide the estate without selling it. But if one held out, then that person could force a sale, which would be by auction.
I have written about court-ordered and court-supervised sales, with a special interest in the sales of slaves. I have argued in 68 Chicago-Kent Law Review 1241 (1993) that courts conducted one-half of all slave sales in antebellum South Carolina. For more, you can see my 1993 Stanford dissertation. One of my goals is to reorient our view of slave auctions, so that we think of the modal sale as occurring on the steps of courthouses. That's the point of a piece that I have in a forthcoming issue of the Cardozo Law Review. Finally, I am right now working on a piece in which I present my argument that the rate of family separations was 2-3 times higher when courts conducted the sales than at commercial sales.
Thomas D. Russell
Visiting Professor
University of California, Hastings College of the Law
Assistant Professor of Law and History
The University of Texas Thomas.Russell@mail.utexas.edu
(yes, this is still the right address)
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From: Herb Johnson
Dr. Gagnon,
Most of your questions concerning the property of married women will be solved by reading the appropriate section in Blackstone's Commentaries. Briefly, when a woman married she lost her legal identity as a person; she could not manage her own property, she could not execute a will, she could not commence or defend a law suit, etc. Consequently a married woman who inherited property might be made subject to guardianship by a court administereing the assets. On the other hand a widowed woman, as yet unmarried, could be made the executrix of her husband's estate. Executors amd executrices are individuals named in the will of the deceased; if no executor/trix is named, the court will appoint an administrator c.t.a (cum testamento annexo) to administer. If either an executor/trix or an administrator c.t.a. dies, an administrator d.b.n. (de bonis non) will be appointed to complete the task.
Black's Law Dictionary will help you with definitions; Thomas E. Atkinson, Law of Wills, 2nd ed. West Publishing Company, 1953, is still helpful. For histori cal information on the administration of estates, you might want to check Willoiam Nelson, Lex Testamentaria, various editions, 1714-1728, Sir Geoffrety The Law of Devises (ca. 1792), and John Godolphin, The Orphan's Legacy (ca. 1701). At present Georgia's probate system is unusual in several respects, but my suspicion is that it would follow English church court practice even in the 19th century; South Carolina's probate procedure was just changed from the old ecclesiastical court system within the past decade.
If I can be of further help don't hesitate to telephone or get back to me by E- mail or letter. Good luck.
Herbert A. Johnson
University of South Carolina School of Law
Columbia, S.C. 29208
(803) 777-4155
FAX (803) 777-2368
Date: Wed, 27 Mar 1996
From: Jocelyn Miner
Subject: Inheritance
[cross posted from H-Law]
Jocelyn Miner writes:
<<--Therefore, it seems to me, the case must be that some women may not be capable of doing the finances while others are more (or even exceptionally) capable. The appointment depends on ability and wishes of the various heirs, rather than dependent on gender.-->>
As always, people's capabilities vary. And undoubtedly capability was not the _only_ (or even major) criterion for filling an office then any more than it is now. But I digress...
According to Suzanne Lebsock in _The Free Women of Petersburg_, the appointment of a wife as executor of a husband's estate (after 1830) had a positive correlation with the wealth of the testator -- and it was he who chose the executor, not the heirs. Lebsock found that a different pattern prevailed before 1830, when "men were most willing to place women in positions of authority when the stakes were small....[W]hen there was enough property to make its management a source of considerable source of power in the family and perhaps beyond it as well, the wife was ordinarily left on the sidelines." (39) She suggests that a change in VIrginia law in 1824-5 which stipulated that a widow's powers as executor be extinguished on her remarriage allowed wealthy men the comforting knowledge that their estate would not find its way into another man's pocket. _Free Women of Petersburg_ is a study of only one community, and one in Virginia (not Georgia), at that. But I recommend it to you highly, Michael, as background for looking for the answers to your questions, or maybe even for reformulating your questions. The middle four chapters (2-5) would be the most helpful. As I read your query, you seem to be interested in more than just the definitions of legal terms. I found the book to be entertaining as well as informative, always a plus!
Jocelyn Miner
jjminer@sfsu.edu
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