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Who gets the kids?

Reader Margie Beldin’s perplexing probate petition problem had a couple more puzzling prongs,1 one of which had to do with the youngest members of her McHugh household.

The McHugh children in 1880

You’ll recall that Frank McHugh died in Pittsfield, Berkshire County, Massachusetts, in 1879; probate on his estate didn’t start until 1888.

But according to the 1880 census, Frank left not only his widow Bridget but also children, two of whom were were still underage. Of the three McHugh children living at home with their mother in 1880, Henry was only 15 years old, and Honora (called Nora and sometimes spelled Honnora or Hannora) was only 12.2

So, Margie wondered, wouldn’t there be guardianship records for the children?

Short answer: nope. And, in this case, it’s very much because the estate wasn’t probated until 1888-1889.

Here’s the scoop:

The only time the legal system really cared about kids until very modern times was when they were a public nuisance or a public charge, in which case they were locked up or bound out, or when they were entitled to get property, in which case the law stepped in to make sure the kids didn’t trade the property for a hunting dog and no adult stole it from them.

At common law, there were three essential types of guardians: the guardian by nature; the guardian for nurture; and the guardian in socage. The guardian by nature or guardian for nurture had the right to physical custody of a minor child. That was always the father or, if the father died without naming a guardian in his will, then the mother.3 The difference between the two was that the guardianship by nature lasted to age 21 and gave the guardian control over the child’s personal property. Guardianship for nurture lasted to age 14 and didn’t involve property at all.4 The guardian in socage was the one who had custody of a minor’s lands and person.5

In America, the guardian in socage gave way to the guardian by statute — the person “appointed for a child by the deed or last will of the father, and who has the custody both of his person and estate until the attainment of full age.”6 And if nobody was named by the father, the court stepped in with a guardian by appointment of the court, with the same authority.7

Notice that this type of guardianship came into play only when there was an estate involved. If Papa died, and there wasn’t any property involved, then if Mama was able to keep the kids, she simply kept them. If Mama died too, then Gramma or Grampa took them in. Or Aunt Fanny and Uncle Bert. Or a cousin down the road. Or even a neighbor down the road. This was informal, and if the kids got raised, didn’t starve and didn’t run wild, nobody took a second look. Remember: the notion of formal adoption under the law didn’t even start in the United States until the 1850s. 8

Only if there wasn’t anybody willing and able to take the kids did the legal system get involved. That’s when you find orphans being bound out, or handed over to some respectable citizen to be taught a trade.9

But aha! you say. Frank did have property and he didn’t have a will, so his children would have been entitled to share in his property under Massachusetts law.10 So the minor children Henry and Nora should have had a guardian appointed.

Yup. But somebody had to tell the Probate Court about it. And nobody did. Nobody needed to. The kids were fed, Henry and an older sister worked in a mill, Nora went to school. Life continued after Frank’s death and nobody saw any reason to get the courts involved. Bridget didn’t even start the probate process until 188811 and she didn’t get a widow’s allowance until September 1889.12

By 1888, when the probate process began, Henry was of age.13 And by 1889, even Nora was 21.14 No guardian needed for either of them at that point.

And the moral of this story is:

Just because there should be records doesn’t mean there will be.

Darn it.


  1. Okay, so I’m on an alliteration kick. Sue me.
  2. 1880 U.S. census, Berkshire County, Massachusetts, Pittsfield, population schedule, enumeration district (ED) 56, p. 343-D (stamped), 32 (penned), dwelling 243, family 319, Henry and Honora McHugh in Bridget McHugh household; digital image, ( : accessed 29 Feb 2012); citing National Archive microfilm publication T9, roll 531; imaged from FHL microfilm 1,254,521.
  3. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 552-553, “guardian by nature.” Ibid., 553, “guardian for nuture.”
  4. Ibid.
  5. Ibid., 553, “guardian in socage.”
  6. Ibid., “guardian by statute.”
  7. Ibid., 552, “guardian by appointment of the court.”
  8. See “Timeline,” The Adoption History Project ( : accessed 29 Feb 2012).
  9. See e.g. Victor T. Jones, Jr., abstractor, “Apprentice Bonds of Craven County, N.C.: Bonds Dated 1740s to 1760s,” New Bern-Craven County Public Library ( : accessed 29 Feb 2012).)
  10. Acts and Resolves Passed by the General Court of Massachusetts in the Year 1876, chap. 220, sec. 1 (Boston : Wright & Potter, State Printers, 1876), 217; digital images, Google Books ( : accessed 29 Feb 2012).
  11. Berkshire County, Massachusetts, Probate Court Records 149:216, petition for administration, estate of Frank McHugh, 1888; County Courthouse, Pittsfield; FHL microfilm 1,750,283 item 2.
  12. Berkshire Co. Probate Court Records 129:64, order granting allowance, 5 Sep 1889; FHL microfilm 1,750,456 item 3.
  13. He was shown as born March 1864 on the 1900 census. 1900 U.S. census, Berkshire County, Massachusetts, Williamstown, population schedule, enumeration district (ED) 89, sheet 1-B (penned), p. 314-B (stamped), dwelling 22, family 27, Henry McCue, servant, in household of Thomas McMahan; digital image, ( : accessed 29 Feb 2012); citing National Archive microfilm publication T623, roll 633; imaged from FHL microfilm 1,240,633.
  14. She was shown as born August 1867 on the 1900 census. 1900 U.S. census, Berkshire Co., Mass., Pittsfield Ward 6, pop. sched., ED 74, sheet 11-B (penned), p. 138-B (stamped), dwell. 188, fam. 216, Nora Forgea. She died 24 October 1912, and her age at death was recorded as 45 (year of birth 1867). Commonwealth of Massachusetts, death certif. no 358 (stamped), Nora (McHugh) Forgea (1912); digital images, FamilySearch ( : accessed 29 Feb 2012); citing Massachusetts State Archives, “Deaths, 1841-1971,” Massachusetts Division of Vital Statistics, State House, Boston.
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