A matter of priority

Estate administration

Reader Erick Montgomery recalled once found a newspaper article that explained that there was a legal order to who would be appointed administrator for an intestate estate in early Virginia.

“I kept the clipping for a long time, but have lost it,” he wrote. “As I recall, according to the column, the order was something like this: widow, father, son, brother, brother-in-law, grandson, greatest creditor… there may have been others, and I may have them out of order.”

12HeningHis questions: “Is this true? What is the authority for this law, if it is indeed a law? Do similar situations apply in other states?”

Yep, sure is, and you’ll find it set out clearly in the Virginia statutes as far back as 1785.

That was a year when the entire probate system of the new Commonwealth of Virginia was revised from the old common law English-based system to a new statutory structure chosen by the new post-Revolutionary War government.

In that revision, Virginia eliminated the common law favoritism shown to oldest sons and changed its system so that — in intestate estates (by definition where there wasn’t a will or wasn’t a valid will1) — all legitimate children would share equally in a parent’s estate and an illegitimate child would share in his or her mother’s estate.2

It was in a companion statute, passed at the same 1785 session of the legislature, that Virginia established its own rules for the priority in which family members and others would be considered for appointment by the court as the estate’s administrator: the person charged with seeing that the estate is properly handled and distributed to the heirs.3

In section XXVI, that statute provided:

The general court, and the several courts, respectively, shall have the like jurisdiction to hear and determine the right of administration of the estates of persons dying intestate, as is herein before mentioned, as to the proof of wills, in respect to the intestate’s place of residence, or death, or where the estate shall lie, and shall grant certificates for obtaining such administration to the representatives who apply for the same, prefering first the husband or wife, and then such others as are next entitled to distribution, or one or more of them, as the court shall judge will best manage and improve the estate.4

And it ended up saying that if no-one else stepped forward to administer the estate, “the court may grant administration to any creditor or creditors who apply for the same, or to any other person the court shall in their discretion think fit.”5

So it’s easy to tell from the statute that the surviving spouse always came first in terms of preference, and a creditor or some other person deemed fit by the court came last… but who were the folks in between? Who were “such others as are next entitled to distribution”?

For that, you have to go back to the first 1785 statute, and its very careful rules as to who would inherit from someone who didn’t leave a will:

II. To his children or their descendants, if any there be:

III. If there be no children nor their descendants, then to his father.

IV. If there be no father, then to his mother, brothers and sisters; and their descendants, or such of them as there be:

V. If there be no mother, nor brother, nor sister, nor their descendants, then the inheritance shall be divided into two moieties, one of which shall go to the paternal, and the other to the maternal kindred, in the following course, that is to say:

VI. First to the grandfather:

VII. If there be no grandfather, then to the grandmother, uncles and aunts on the same side, and their descendants, or such of them as there be:

VIII. If there be no grandmother, uncle nor aunt, nor their descendants, then to the great grandfathers, or great grandfather if there be but one:

IX. If there be no great grandfather, then to the great grandmothers, or great grandmother if there be but one, and the brothers and sisters of the grandfathers and grandmothers, and their descendants, or such of them as there be:

X. And so on in other cases without end; passing to the nearest lineal male ancestors, and for the want of them to the lineal female ancestors in the same degree, and the descendants of such male and female lineal ancestors, or to such of them as there be.6

So the order of priority would be (for a man): widow; son or daughter (or other descendants such as grandson or granddaughter); father; mother; brother or sister (or their descendants such as nephew or niece); grandfather; grandmother; uncle or aunt (or their descendants such as cousins); and “so on … without end.”

This kind of priority system did exist in other states, but each one had its own priority system and the specific statutes in each location at each particular time would have to be consulted to see what law was in effect at the time an estate came into the court system.

Now Erick notes, “If true, it obviously can help in suggesting the relationship of the deceased to whomever is ultimately appointed administrator by the court.”

Yes, but… we need to be careful in drawing conclusions and make sure we follow the whole paper trail. What you’ll find very commonly is that someone high up in the priority chain (the widow, for example) would choose not to serve as administrator and would make a specific request to the court to appoint someone else (a son, a son-in-law, a brother).

As long as no-one else objected, courts routinely granted those requests — so the person appointed might not be in the usual priority chain.

But it is a good clue, it’s worth considering… and it points up, once again, why it’s so important to know the law at the time and in the place of the record we’re using.


SOURCES

  1. See Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 640, “intestate.”
  2. See “An Act Directing the Course of Descents,” Chapter LX, Laws of 1785, in William Waller Hening, Hening’s Statutes at Law, Being a Collection of all the Laws of Virginia from the first session of the Legislature, in the Year 1619, 14 vols. (1819-1823; reprint ed., Charlottesville: Jamestown Foundation, 1969), 12: 138 et seq.
  3. See Black, A Dictionary of Law, 40, “administrator.”
  4. “An act concerning wills; the distribution of intestates estates; and the duty of executors and administrators,” Chapter LXI, Laws of 1785, in Hening 12: 140 et seq. at p. 146.
  5. Ibid., section XXVII.
  6. “An Act Directing the Course of Descents,” Chapter LX, Laws of 1785, in Hening 12: 138.
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6 Responses to A matter of priority

  1. Erick Montgomery says:

    Thanks for finding and sharing the authority for this question, along with the wonderful details. We often find administrators who are appointed for estates, and have no idea how they may be connected to the family, if at all. This at least gives a framework for consideration, and in some cases may lead to the elusive proof that we are looking for!
    Many thanks!
    Erick Montgomery

    • Judy G. Russell says:

      Thanks for the question, Erick — and with a nudge from Barbara Vines Little, check out the additional info in today’s post!

  2. Ahhh, the Statutes at Large of Virginia has answered many a question for me about manumission of slaves, freedmen’s rights, the Negro Code, etc. The Colonial and State Records of North Carolina have proved vital in my research as well. I wish I had noted this succession years ago when I first started my Virginia and North Carolina research! Great post!

    Most of my husband’s free black ancestors did not have a will, although they did own land. I have never seen a wife as an administrator or executrix. It was most often one or more white land owners who lived close-by and were appointed as executors by the Judge of the Court of Pleas and Quarter Sessions. In one instance the executor was an uncle; and I have also seen a sister’s children inherit from an uncle when he had no children of his own. I have also seen on several instances where the widow petitions the court for living expenses of dower to be deducted per annum from the estate.

    • Judy G. Russell says:

      Minor terminology issue: executors are the people named in a will to handle the estate; administrators are those appointed by the court where there isn’t a will (or not a valid will).

  3. Mike Poston says:

    Not only did Virginia influence the inheritance in intestacy, the Northwest Ordinance of 1787 (ratified under the Constititution in 1789)established similar rules of inheritance for most of the western United States until the local legislatures and courts chose to alter them.

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