A suggestion of death

The issue of death seems to The Legal Genealogist to be pretty much a black and white issue.

Either you’re dead or you’re not.

But the way that can be referenced in a legal document can be … well … downright odd, and perhaps a bit confusing.

I’ve written about this odd reference before,1 but it came up again yesterday in a reader question, so let’s revisit it.

Grim reaper

The way it came up before was in a court 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.2

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.”3 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.4

And it was used the same way in the reader’s record yesterday — another Tennessee case that was annotated “plff death suggested.”

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.5

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.”6

“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.”7

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.”8

• In Canada, whenever a party to an appeal died, “a suggestion may be made of such death…”9

• In New Jersey, a suggestion could be made of the death of either a plaintiff or a defendant.10

• In Missouri, actions didn’t automatically end with a death as long as the record contained a suggestion of such death.11

Now… that’s what it means legally. But the implications genealogically are pretty cool.

Think about it: that suggestion of death is the functional equivalent of a death certificate, and in so many cases (like Tennessee in 1805), it’s being handed to us at a time when there were no required records of a death.

No, it generally won’t give us an exact date of death and rarely if ever mentions the place of death. But it sure does fix the outer limits of the time within which the death occurred — and that may well be the best record that exists for that particular death in that time and place.

So keep tabs on those suggested deaths… it’s an odd way of saying it, but as proof of death it may not get any better.


Cite/link to this post: Judy G. Russell, “That legal demise,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 13 May 2019).

SOURCES

  1. Judy G. Russell, “Just a suggestion,” The Legal Genealogist, posted 18 Aug 2015 (https://www.legalgenealogist.com/blog : accessed 13 May 2019).
  2. Lewis and Lenoir v. Outlaw et al., 1 Tenn. 139 (Tenn. Sup. 1805); digital images, Google Books (https://books.google.com : accessed 13 May 2019).
  3. Ibid.
  4. See ibid., at 144.
  5. See Merriam-Webster Online Dictionary (https://www.merriam-webster.com/dictionary/ : accessed 13 May 2019), “suggestion” and “suggest.”
  6. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1135, “suggestion.”
  7. John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States, rev. 6th ed. (Philadelphia : Childs & Peterson, 1856), 557, “suggestion.”
  8. Joseph Chitty, A Collection of Statutes of Practical Utility (London : William Benning, 1828), 2; digital images, Google Books (https://books.google.com : accessed 13 May 2019).
  9. §§29-32, 20 Vict. c.5 (1857), in Statutes of the Province of Canada (Toronto: Derbishire & Desbarats, 1857), 16; digital images, Google Books (https://books.google.com : accessed 13 May 2019).
  10. §§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 (https://books.google.com : accessed 13 May 2019).
  11. §§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 (https://books.google.com : accessed 13 May 2019).
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