Elizabeth Wilke Spencer Man: an example of 17th century VA probate & property law
binky
following case which neatly ties together concepts regarding the
integrity of wills and the position of married women. The case
concerns Elizabeth Spencer, relict of George Spencer of Lancaster Co.,
VA, the same county that was home to Edward and Diana (Skipwith) Dale.
George Spencer was dead by 13 Jun 1691, when his will (WB 8, p. 11)
was recorded. Among others, it named his wife Elizabeth, and
appointed Capt. Richard Newsom as executor. Elizabeth was the widow
of Thomas Wilke, who had died intestate by 11 Nov 1685, when Elizabeth
as Administratrix was mentioned in a court proceeding.
The following accounts are taken from Ruth and Sam Sparacio’s
excellent transcriptions of Lancaster Co. order books, but for
brevity, I’ll just give the dates as they appear in the original
record books.
Elizabeth’s 8 year battle with the estate of George Spencer began on
13 Jan 1691/2 when she appeared in the Lancaster Co. court to answer a
lawsuit filed against her by Capt. Richard Nusum, executor of her late
husband’s will. The court found the:
“saide Nusum, Executor as aforesd., haveing lawfully citted to this
Court the saide Elizabeth to bee present at the proveing of her
Husbands Will (and the same being proved by the oathes of three
wittnesses), it is a good and lawfull proofe and not now to bee
controversed.”
“And further this court are of oppinion that by vertue of the
intermarriage between the saide Spencer and Elizabeth, all the goods
and chattells that were properly the saide Elizabeths before marriage
became rightfully the saide Spencers, And that the instrument made by
the saide Spencer to the saide Elizabeth before the saide Coverture is
not sufficient in Law to barr the saide Spencer from makeing a
Testamt. and Executor. … It is therefore ordered that what Estate did
properly belong to the saide Elizabeth before her intermarriage with
the saide Spencer and now detained by the saide Elizabeth bee
forthwith delivered by the saide Elizabeth Spencer unto the saide
Nusum as Executor to the saide Spencer….”
Evidently Elizabeth Spencer thought she had reached a pre-nuptial
agreement with George Spencer regarding certain property from Wilke’s
estate. The court rejected the agreement, saying that she had no
title to the property because it had been unadministered, so no legal
pre-nuptial agreement existed.
Elizabeth Spencer appealed the court’s judgement to James City, but on
13 Apr 1693, matters had still not been resolved. Robert Brent,
Elizabeth’s attorney, informed the court that his client was always
willing to make a complete inventory of any of George Spencer’s
property in her hands.
On 14 Nov 1694, Elizabeth Spencer was summoned by the Lancaster Co.
sheriff to appear in court and explain why she hadn’t complied with
court orders in her lawsuit with Richard Nusum. Elizabeth exhibited
an inventory of her late husband’s property to the court, but on 14
Mar 1694/5 still hadn’t complied. The court again ordered her to
release the property of her late husband she was withholding.
Narrowly escaping prison (on the grounds that she couldn't comply with
the court order if she was in prison), Elizabeth appealed once more to
James City.
Finally, on 10 Aug 1698 we learn what the suit was about:
“Catherine Scott, a Molattoe Woman Servant to William Man” petitioned
the court for her freedom, and the court ordered the appearance of
William Man. Catherine Scott claimed Elizabeth, then a widow, but now
married to William Man, had sold her to John Beaching for tanning one
thousand hides. Beaching died before Catherine completed her service,
but had planned to marry her; and Catherine said she’d fulfilled her
one year’s service to Beaching. William Man asked to be excused from
the case, saying it was a probate matter of the late George Spencer.
The court rejected his plea, and noted that Catherine Scott wasn’t
part of the inventory of Spencer’s estate. Elizabeth, now wife of
William Man, had detained “severall other Negroes” from Richard Nusum,
executor of George Spencer. A jury trial ensued, and the jury found
Catherine Scott to be free, and ordered Man to release her. Man
appealed to James City.
There's no record that James City took any of the appeals. Suits to
James City were often recorded in "Hening's Statutes."
It all came to an end on 11 Oct 1699 when William Man applied for
administration of Elizabeth’s estate.
Slaves, being personal property in VA until the reform of 1705, were
often more valuable than the land they worked. Before 1705, although
the law directed that a husband couldn’t leave his wife less in his
will than what she would have had if he died intestate, a wife had no
legal remedy against a parsimonious husband. This resulted in bitter
wives hijacking a portion of their deceased husband’s estate, often
slaves; and the resulting lawsuits could take years to cycle through
the courts.
There’s no mention of the ultimate fate of Catherine Scott.
Renia
>
> Evidently Elizabeth Spencer thought she had reached a pre-nuptial
> agreement with George Spencer regarding certain property from Wilke�s
> estate. The court rejected the agreement, saying that she had no
> title to the property because it had been unadministered, so no legal
> pre-nuptial agreement existed.
The marriage contract was the "pre-nuptual agreement". Presumably
Elizabeth Spencer's father did not draw up a marriage contract, so her
estate became that of her husband and could be devised by him in his
will. Without knowing more details, it sounds like Richard Nusam took
his part as executor of George Spencer's will, so how does that make
Spencer's estate "unadministered"? If Elizabeth rejected her part as
co-executor that would make probate more complex to the point where
Nusam demanded "the saide Elizabeth to bee present at the proveing of
her Husbands Will".
binky
the proof of a will is to challenge a will. The law was that all
proved wills were "firme and inviolable."
However, in this case, there was an added element: At the time, widows
were permitted to make pre-nuptial agreements with succeeding
husbands. Unfortunately for Elizabeth, the court rejected her pre-
nuptial agreement. The grounds for the rejection are difficult to
follow. It appears that, Thomas Wilke having died intestate, the
property Elizabeth was trying to shelter wasn't property that could
legally be subject to a pre-nuptial agreement, so the agreement was
void and Spencer could bequeath "her" property in his will.
If readers don't understand that in 17th century VA, all wills were
"firme and inviolable," they should direct their questions to the VA
Bar Association at:
Every lawyer in VA knows "Hening's Statutes."
binky
Get someone to explain it to you. The property in question was an
unadministrated part of Thomas Wilke's estate, not Spencer's. Nusum
didn't demand that Elizabeth be present at the proving of Spencer's
will--the court said she had been present, that the will was lawfully
proved, and couldn't be challenged. Get it?
Elizabeth was adminstratrix of Wilke. She didn't reject that
position--the court rejected her "pre-nup" because it said the
property involved couldn't be the subject of a "pre-nup." Therefore,
because Elizabeth was "feme covert," that property became Spencer's,
and he could do with it as he pleased.
binky
found that George Spencer's will had been lawfully proved, and that
proof could no longer be disputed.
It also found that the agreement Spencer had made with Elizabeth prior
to her marriage to Spencer was void; and therefore, she had no cause
to detain property Spencer had legally bequeathed in his will.
binky
that she could not now challenge that proof; and she was ordered to
comply with the terms of the will, her "pre-nup" being held to be void.
Renia
What was the phrase used which declared her "pre-nup" to be void?
binky
Elizabeth before the saide Coverture is not sufficient in Law to barr
the saide Spencer from makeing a
Testamt. and Executor. … It is therefore ordered that what Estate did
properly belong to the saide Elizabeth before her intermarriage with
the saide Spencer and now detained by the saide Elizabeth bee
forthwith delivered by the saide Elizabeth Spencer unto the saide
Nusum as Executor to the saide Spencer….”
Gee, Will, I think it was these words. Talk to the VA Bar yet?
binky
First time brides weren't allowed pre-nups until the 18th century in
VA. See, Elizabeth had been married to Wilke before she married
Spencer. It's hard to tell exactly why the pre-nup was voided, but it
may have been that when Elizabeth made the inventory of Wilke's
estate, she had concealed some of Wilke's property from the court, as
a reference is made to unadministered property.
Renia
> And that the instrument made by the saide Spencer to the saide
> Elizabeth before the saide Coverture is not sufficient in Law to barr
> the saide Spencer from makeing a
> properly belong to the saide Elizabeth before her intermarriage with
> the saide Spencer and now detained by the saide Elizabeth bee
> forthwith delivered by the saide Elizabeth Spencer unto the saide
>
> Gee, Will, I think it was these words. Talk to the VA Bar yet?
and
binky wrote:
> And that the instrument made by the saide Spencer to the saide
> Elizabeth before the saide Coverture is not sufficient in Law to barr
> the saide Spencer from makeing a
> Testamt. and Executor. � It is therefore ordered that what Estate did
> properly belong to the saide Elizabeth before her intermarriage with
> the saide Spencer and now detained by the saide Elizabeth bee
> forthwith delivered by the saide Elizabeth Spencer unto the saide
> Nusum as Executor to the saide Spencer�.�
>
> Gee, Will, I think it was these words. Talk to the VA Bar yet?
You may be confusing the more recent "pre-nuptual agreement" with the
more ancient marriage contract, a formal and legal document, usually
written up by the bride's father's lawyer to protect her interests.
These were long and wordy documents which specified what the husband
could have and what the new wife could keep in the event of the
husband's death.
binky
I think you're trying to confuse the issue.
Here's what Linda L. Sturtz has to say on the subject:
"The degree of autonomy provided to women in prenuptial agreements
varied enormously. A few York County women entered into contracts to
maintain control of their property from previous marriages... [The law
easn't limited to York Co.; Sturtz just uses soem examples there.] By
the eightennth century, prenuptial agreements defined property holding
for first time brides as wellas for remarrying widows." (Within Her
Power, pp.24 & 34)
I'm not interested in a debate about ancient marriage contracts--in
VA, prenuptial agreements weren't allowed for first time brides until,
as Sturtz notes, the 18th century. The purpose of pre-nups for widows
was to prevent a subsequent husband from effectively disiheriting
children from a previous marriage by taking control of their property.
I've read your comments on a number of threads. While in your case
some of the attacks about your personal life have been over the top,
nonetheless you display an inability to grasp what's happening. I
don't know how old you are, but you might want to look into that.
Vickie Elam White
husband. Her maiden name is not known to me, although she may have been
a Moseley. Her husbands were as follows:
1. Thomas Stephens m. bef Nov 1654
2. Capt. Raleigh Travers m. 17 Nov 1654-1656
3. Robert Beckingham m. 11 May 1670-14 Dec 1670
4. Thomas Wilkes m. 09 Mar 1675/6-13 Sep 1676
5. George Spencer m. 08 Feb 1687/8 - June 1691
6. William Mann m. 14 Mar 1694/5-04 Feb 1695/6
Vickie Elam White
Renia
The term I should have used was Marriage Settlement. This is defined as:
An arrangement usually made before marriage, and in consideration of it,
whereby a jointure is secured to the wife, and portions to the children,
in the event of the husband's death.
This is not a recent thing but a medieval one which lasted well into the
19th century. Its use would have transferred to the New World in the
17th century. Whether it was changed, superseded, updated or otherwise
at variant with the laws of England, I have no knowledge. But nor, I
suspect, have you.
Renia
What a track record! She must have been an excitable lady and worn them
all out.
binky
"prenuptial agreement." Since women's property law in colonial VA is
her specialty, and she's a professor of history, I'll think I'll go
with Sturtz.
And Vickie--can you explain how Robert Beckingham made his will on 20
Jan 1675, when you say he was dead by 14 Dec 1670? Got some things
mixed up there?
vew...@nycap.rr.com
Vickie Elam White
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