The curious case of the curator

The language of the law. Part Latin, part Anglo-Saxon, all confusing.

The orders both appear on the very first page of Letters of Administration Book A of Volusia County, Florida. Both are captioned “In the Matter of the Estate of Philemon Wilhite deceased.” And they tell the tale of a curious quirk of the law there.

On the 16th of November 1875, Judge C. B. Buckner of the Volusia County Court appointed Joseph Underhill “to be Curator of the Estate of … Philemon Wilhite deceased.”1 Underhill was a 45-year-old farmer, born either in Florida or Georgia.2

Just about four months later, on 6 March 1876, the same judge named Hezekiah Osteen “to be Administrator of the goods & chattels and effects of the said Philemon Wilhite deceased.”3 Osteen was the county sheriff and a farmer, age 50, born either in Florida or Georgia.4

It turns out that “Philemon Willhite was born in North Carolina in 1806. He spent much of his life in Union Parish, Louisiana, and moved to Florida a few years” before his death.5 He was still living in Union Parish in 1870, a 64-year-old retailer of dry goods with what appeared to be a young family.6 So he certainly hadn’t been in Volusia County, on Florida’s Atlantic Coast, very long before he died.

Now if a curator had been appointed in Louisiana as the result of Wilhite’s death in Florida, this wouldn’t be a curious matter at all. For it’s the civil law that was and is followed in Louisiana,7 and the role of curator is well-established in the civil law.

The civil-law curator is “a person who is appointed to take care of anything for another … In Louisiana, a person appointed to take care of the estate of an absentee.”8 So it wouldn’t be surprising to have a curator appointed in Louisiana, to handle any of Wilhite’s property or estate there since he would have been … um… absent in Florida.

But although Florida does have some vestiges of civil law from its early days as a Spanish colony,9 nothing in that early law explains the Florida concept of a curator. And the common law of Florida — its judicial opinions and court cases — don’t give any clues either.

It’s Florida’s statutes of the day that provide the answer.

It seems that Florida was concerned that in some cases it might take time to appoint an administrator for the estate of someone who died without a will — presumably in a will an executor would be named so the concern wasn’t the same there — and so, by statute, provided that:

When any person shall die intestate, the County Court, whenever it is necessary, and upon the application of any person, shall appoint a curator to take charge of the estates of the deceased person until letters of administration are granted …10

In short, it was a stopgap measure designed to protect property while the court was figuring out who was entitled — and qualified — to serve as administrator of the estate. Florida retains the same legal concept and even the same terminology today.11 And at least one other state — Kentucky — has the same type of curator by statute.12 Elsewhere the term may be used for a guardian of the property of someone who’s incompetent.

One case of a curious curator… solved.


 
SOURCES

  1. Volusia County, Florida, Letters of Administration Book A : 1, Order Appointing Curator, 16 Nov 1875; County Judge’s Court, DeLand; digital images, “Florida, Probate Records, 1784-1990,” FamilySearch (https://www.familysearch.org: accessed 2 Jan).
  2. 1870 U.S. census, Volusia County, Florida, population schedule, p. 745 (stamped), dwelling 385, family 312, Joseph Underhill; digital image, Ancestry.com (http://www.ancestry.com : accessed 2 Jan 2013); citing National Archive microfilm publication M593, roll 133; imaged from FHL microfilm 545632. And see 1880 U.S. census, Volusia County, Florida, Volusia & Clifton Precincts, population schedule, enumeration district (ED) 150, p. 377-C (stamped), dwelling 49, family 54, Joseph Underhill; digital image, Ancestry.com (http://www.ancestry.com : accessed 2 Jan 2013); citing National Archive microfilm publication T9, roll 132; imaged from FHL microfilm 1254132.
  3. Volusia Co., Fla., Letters of Administration Book A : 1, Order Appointing Administrator, 6 Mar 1876.
  4. Ibid. See also 1870 U.S. census, Volusia Co., Fla., pop. sched., p. 748 (stamped), dwell. 455, fam. 368, Hezekiah Osteen. And see 1880 U.S. census, Volusia Co., Fla., 7th Precinct, pop. sched., ED 152, p. 413-B (stamped), dwell./fam. 232, H.E. Osteen.
  5. “Death and Obit Notices from the Southern Christian Advocate 1867-1878,” Issue of May 19, 1875, online transcription, Georgia GenWeb (http://www.gagenweb.org/ : accessed 2 Jan 2013).
  6. 1870 U.S. census, Union Parish, Louisiana, population schedule, p. 109(B) (stamped), dwelling/family 153, Philemon Wilhite; digital image, Ancestry.com (http://www.ancestry.com : accessed 2 Jan 2013); citing National Archive microfilm publication M593, roll 534; imaged from FHL microfilm 552033.
  7. Claire Mire Betagg, “Civil Law Concepts and Genealogy: Learning from the French Model,” “National Genealogical Society Quarterly” 95 (September 2007): 184.
  8. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 309, “curator.”
  9. See History of Florida Law, Florida Supreme Court (http://www.floridasupremecourt.org : accessed 2 Jan 2013).
  10. Florida Statutes (1872), Chapter III, § 20, in Allen H. Bush, ed., A Digest of the Statute Law of Florida of a General and Public Character: In Force Up to the First Day of January, 1872 (Tallahassee, Fla. : Charles H. Walton, State Printer, 1882), 69-70; digital images, Google Books (http://books.google.com : accessed 2 Jan 2013).
  11. See Fla. Stat. § 733.501(1): “When it is necessary, the court may appoint a curator after formal notice to the person apparently entitled to letters of administration. The curator may be authorized to perform any duty or function of a personal representative. If there is great danger that any of the decedent’s property is likely to be wasted, destroyed, or removed beyond the jurisdiction of the court and if the appointment of a curator would be delayed by giving notice, the court may appoint a curator without giving notice.”
  12. See Ky. Rev. Stat. 395.410: “During the contest about the probate of a will, or when the court for any valid cause is delayed in granting letters testamentary or administration, it may appoint a curator to collect and preserve the estate of the decedent until probate of the will is granted, or until the cause for which the order was made is removed.”
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