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A deadly one, that is…

There is little that warms the cockles of a genealogist’s heart more than a vital record or, at a time when there were no vital records, a record that will take the place of a vital record.

The Grim ReaperTake, for example, the record of a case decided in March 1805, in the Hamilton District of Tennessee. There, the Tennessee Superior Court was called upon to consider the status of the case of Lewis and Lenoir v. Outlaw et al.1

It was a case in equity in which the lawyer for the plaintiffs wanted the case moved forward to trial, and the lawyer for one of the defendants objected “on account of the death of one of the defendants, against whose representatives, it had not been properly revived.”2 In other words, the defense attorney argued, the heirs of the original defendant hadn’t been properly substituted for the deceased man in the case.

There was a lot of discussion in the court’s opinion about how and when and using what technical form the case could be continued, but no disagreement anywhere as to what was needed to notify the court that one of the parties to the case had died.

It was called a suggestion of death.3

Now we all know that a suggestion, in ordinary day-to-day parlance, is less than stating something as a fact. It’s generally understood to be something offered as an hypothesis, or a possibility.4

In the peculiar language of the law, however, a suggestion is much more. It’s a “statement, formally entered on the record, of some fact or circumstance which will materially affect the further proceedings in the cause, or which is necessary to be brought to the knowledge of the court in order to its right disposition of the action, but which, for some reason, cannot be pleaded. Thus, if one of the parties dies after issue and before trial, his death may be suggested on the record.”5

“In its literal sense this word signifies to inform, to insinuate, to instruct, to cause to be remembered, to counsel. In practice it is used to convey the idea of information; as, the defendant suggests the death of one of the plaintiffs.”6

So you’ll see the requirement for a suggestion of death included in the legal rules of many courts that followed the English common law:

• In England itself, a case didn’t end on the death of a party but “such death being suggested on the record the action shall proceed … against the surviving defendant or defendants.”7

• In Canada, whenever a party to an appeal died, “a suggestion may be made of such death…”8

• In New Jersey, a suggestion could be made of the death of either a plaintiff or a defendant.9

• In Missouri, actions didn’t automatically end with a death as long as the record contained a suggestion of such death.10

And for the genealogist… that suggestion of death is the functional equivalent of a death certificate. It may not give an exact date and place of death, but it will sure fix the outer limits of the time within which the death occurred — often the best record that may be found with respect to one of our target individuals.


SOURCES

  1. Lewis and Lenoir v. Outlaw et al., 1 Tenn. 139 (Tenn. Sup. 1805); digital images, Google Books (http://books.google.com : accessed 17 Aug 2015).
  2. Ibid.
  3. See ibid., at 144.
  4. See Merriam-Webster Online Dictionary (http://www.m-w.com : accessed 17 Aug 2015), “suggestion” and “suggest.”
  5. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1135, “suggestion.”
  6. John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union, rev. 6th ed. (1856); HTML reprint, The Constitution Society (http://www.constitution.org/bouv/bouvier.htm : accessed 17 Aug 2015), “suggestion.”
  7. Joseph Chitty, A Collection of Statutes of Practical Utility (London : William Benning, 1828), 2; digital images, Google Books (http://books.google.com : accessed 17 Aug 2015).
  8. §§29-32, 20 Vict. c.5 (1857), in Statutes of the Province of Canada (Toronto: Derbishire & Desbarats, 1857), 16; digital images, Google Books (http://books.google.com : accessed 17 Aug 2015).
  9. §§29-35, “An Act concerning the action of ejectment,” in Revision of the Statutes of New Jersey … 1871 (Trenton : John L. Murphy, printer, 1877), 329-330; digital images, Google Books (http://books.google.com : accessed 17 Aug 2015).
  10. §§3663-3664, Article VIII, “Of the Abatement of Suits and their Revival,” in The Revised Statutes of Missouri… 1879 (Jefferson City: State Printers, 1879), 1: 624; digital images, Google Books (http://books.google.com : accessed 17 Aug 2015).
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