Always go for the original

In yesterday’s blog post, The Legal Genealogist focused on analyzing the contextual clues in a probate record to determine whether the particular item — in this case, a last will and testament — was the original or a clerk’s copy.

And the context clearly showed it had to be the clerk’s copy.¹

And, sure as night follows day, in come two comments that could have been anticipated.

One came from my friend and fellow southern states researcher Erick Montgomery who suggested it would be worth noting how important it is to get the originals if they do exist.

Boy oh boy do I agree with that one — and the examples Erick sent along make the point perfectly.

In August of 1843, Hezekiah Turner executed his last will and testament in Smith County, Tennessee. He died shortly thereafter, and the will was duly recorded by the clerk in the will book after being presented for probate in the October term of the Smith County Court.²

Fortunately, the original will still exists today, at the Smith County Archives, and it’s also been digitized.³ This then is the source of our will book source.

Now… in both documents, Hezekiah Turner is recorded in the seventh item talking about his four children. But here’s how one name reads, with the clerk’s copy on the top and the original will on the bottom:

Uh… we have a problem here, don’t we?

This one is actually fairly minor. Chances are pretty good we’d eventually find Ann if we set off looking for Amy, especially since both the original and the will book are digitized and readily available online. And we might even give the clerk some slack, since he might have been writing the name as Any or Anny.

But a second example Erick sent along is going to be a much bigger problem.

You can find Thomas Taylor’s 1836 will recorded in the Sumner County, Tennessee, will books. It’s a very legible copy, and the names of his children unmistakable: John Taylor; Polly Taylor; James Taylor; Elizabeth Flowers; Annie Taylor; Pleasant Taylor; Jonathan Taylor; David Taylor; and William Taylor.⁴

But Erick found the original, on microfilm only so not digitized, in the Sumner County Archives in Gallatin. And the original — the source of our will book source — poses a much bigger problem. The sixth child named in the original isn’t Pleasant Taylor at all. The name in the original, again legible and unmistakable: Jarratt Taylor.⁵

Ooooops.

Even worse, as Erick notes, there was a Pleasant Taylor in that county at that time…

Makes you wonder how many trees on Ancestry list Pleasant as a son of this Thomas… and don’t list Jarratt.

A mistake we wouldn’t make if we’d found and examined the source of our source.

Which brings up the other comment that came in — actually a question, from reader Jean Tilbert, who wanted to know what happened to the original wills after the clerk recorded them. And, of course, the only possible answer is: it depends!

Generally speaking, in many jurisdictions, the will books are likely to be the only copies that survive to today. Original wills may have been kept for a time, but not permanently once the probate ended. Or, once recorded, the original may have been returned or given to the executor or administrator for his use, or may have been needed by the lawyer for the estate.

In other words, finding any originals that may exist may not be easy. Some possibilities to check:

• Is there a separate set of records for original wills, either still at the courthouse or at an archival repository at some level? Check local, regional and state archives, and don’t forget that some records may have been given to genealogical or historical societies in the area when the courthouse needed space.

• Are there record sets in that county called probate case files or estate papers or anything similar that suggests that the actual documents from a probate still exist in that county? If so, that’s a great place to look.

• Was there any sort of court challenge involving the will or the estate? Often the original will had to be entered into evidence in the court case, and can be found in that set of case files.

• Is there any archival collection of the private papers of the testator or the testator’s family? How about the papers of the lawyer for the estate? Check the archives for those — and don’t forget local private archival repositories. ArchiveGrid is a great way to find out what archives may exist in the area.

Finding that original may not be easy, no…

But, as Erick’s examples make clear, finding the source of our source can really pay off big time in our research.

Cite/link to this post: Judy G. Russell, “The source of the source,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 4 Feb 2022).

SOURCES