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When the testate estate isn’t

Genealogists worth their salt know that an estate can be testate or intestate.

Testate, meaning an estate where the person who has died “has made a will; one who dies leaving a will.”1

Intestate, meaning an estate where the person who has died does so “(w)ithout making a will. A person is said to die intestate when he dies without making a will, or dies without leaving anything to testify what his wishes were with respect to the disposal of his property after his death.”2

Last Will and Testament document with quill pen and handwritingAnd then there’s the kind of case encountered by reader Sandy Rumble, who located a will, written in German in 1808, proven and probated in Berks County, Pennsylvania, in 1816.

“In January 1817, the EXECUTOR goes back into court and says intestate situation and requests an inquest to divvy up a property not mentioned in the will,” she wrote. “Did the EXECUTOR do this because the 20 acre property wasn’t mentioned in the will? How can an estate be both (testate and intestate)?”

The answers: yes, that’s exactly why the executor did what the executor did, and an estate could be both testate and intestate, most commonly, exactly the way Sandy bumped into here.

The definition of intestate given in Black’s Law Dictionary goes right on to note the exact situation Sandy ran into:

Besides the strict meaning of the word as above given, there is also a sense in which intestacy may be partial; that is, where a man leaves a will which does not dispose of his whole estate, he is said to “die intestate” as to the property so omitted.3

Now prior to the Revolutionary War, not mentioning real estate in some parts of the country might not have been all that important. In some areas, land was passed by the rule of primogeniture — all the real estate not mentioned in the will automatically went to the oldest son.4 And in some areas, land might have been restricted to particular heirs by what was called a fee tail5 or entail.6

But those restrictions went out with, or shortly after, the Revolution, and the typical practice in the early 1800s would have been to mention everything in the will. And, human beings being what human beings are, things got left out. In Sandy’s case, the will was written eight years before the testator died. A lot can happen in eight years: land gets bought, land gets sold, maybe even a tract was inherited from someone else.

So this sort of thing — leaving some parcel or property out of the will — rendered this estate partially testate (for everything that was mentioned in the will) and partially intestate (for everything the testator owned when he died that wasn’t mentioned in the will).

And it’s this sort of thing that was the reason why lawyers started adding what’s called the residuary clause to wills. You’ve seen it; it’s the paragraph that includes language something along the lines of: “All the rest, residue and remainder of my estate, wheresoever situated, I leave to the Russell Home for Wayward Cats.” With a clause like that inserted into the will, there shouldn’t be anything ever that’s considered to be omitted from the will and, so, with a clause like that estates stopped being so commonly partially intestate.

But there was another reason why an estate might be partially testate that wouldn’t be cured by a residuary clause. That happened when some portion of the will wasn’t legally valid.

Consider the case of a 20-year-old husband and father in, say, 1800 Virginia. He gets sick, calls in the clerk and dictates a will, has it properly witnessed, and in it leaves all of his land and his personal property to his children. Under the law of Virginia in effect at that time, that will was only partially valid. A 20-year-old could, by law, have a valid will for personal property.7 But to leave a valid will for real property, that man had to be 21 years old.8

In that case, the will would be probated and given full effect for the man’s personal property. As to that, the estate would be testate. But it wasn’t valid for his real property. As to that, the estate would be intestate.

In either case — with an omission or with some invalid portion — you can have and you will see in the records a testate intestacy. Yes, there’s a will — but it’s not enough to handle everything in this estate.


  1. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1166, “testate.”
  2. Ibid., 640, “intestate.”
  3. Ibid.
  4. Ibid., 937, primogeniture.
  5. Ibid., 482, fee-tail (“an estate of Inheritance given to a man and the heirs of his body, or limited to certain classes of particular heirs”).
  6. Ibid., 422, entail (land that was “abridged or limited to the issue, or certain classes of issue, instead of descending to all the heirs”).
  7. §4, Chapter LXI, Laws of 1785, in William Waller Hening, compiler, The Statutes at Large, Being a Collection of all the Laws of Virginia from the first session of the Legislature, in the Year 1619, vol. 12 (Richmond: George Cochran, printer, 1823), 141; digital images, Google Books ( : accessed 23 Nov 2014).
  8. Ibid., §1, at 140.
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