edward Dale's will & its anomaly
binky
Dale of the County of Lancastr in Rappk River in Virga Gente being of
sound & p’fect memory God bee praised doe make and ordaine this my
last Will & Testamt in manner & forme following ffirst I commend my
soule into the hands of Almighty God my Creator and Reedeemer my body
to the Earth from whence it Came to bee decently interred without any
wine drinking as for such worldly Estate as it is pleased God to
blesse mee wth I dispose of in manner and forme following , Imps if it
shall soe please God that my now wife shall happen to overlive me I
give unto her for her maintenance dureing her life the whole pffit of
my Estate whatsoever some respect being alwaies had to her as an
honest woman a Gentle woman many years my wife and after her decease I
give the plantacon wheron I now live to my two Grand Children Peter
and Joseph Carter to have and to holde to them and their heirs and
assignes forever to bee equally divided betweene them and in Case of
the mortality of either of them before they come to the age of one and
twenty years then the whole to the survivor and in Case of the
mortality of both of them then to my Grand Son Jno Carter Item I give
unto my two Grand sons Peter and Joseph Carter all my instrumts of
husbandry upon or belonging to the sd plantacon Item I give unto my
Grand daughter Elizabeth Carter my best bed and the trunck Item I
give unto my two Grandsons Peter and Joseph Carter and to my two grand
daughters Elizabeth and Katherine Carter all my P’sonall Estate
whatsoever to bee equally devided betweene them and in Case either of
the Girls happen to dpart this life before their day of marriage or
eighteene years of age I give her part to the survivor Item I give to
my Grandson Peter Carter my Negro boy James & to my Grandson Joseph
Carter my molatto boy Robin Item I give unto my daughter Elizabeth
now wife of William Rogers twelve pence in full of all claimes
whatsoever [*] Item It is my desire for the better improveing of my
Estate for the uses aforesaide that my Estate bee continued together
upon the saide plantacon and after my wife bee supplied with
necessaries and the plantacon likewise yearly I give unto my daughter
Katherine Carter and my Granddaughter Elizabeth Carter during her life
the p’ffit of all the Estate whatsoever. Item I doe nominate and
appoint my Grandsone Edward Carter and my daughter Katherine Carter
and my Grandaughter Elizabeth Carter when she arrives to the age of
sixteene yeares of age to bee my Executors In witness whereof I have
hereunto put my hand and seale Dated the day and yeare above written.
Edward Dale ye seale
Signed sealed and published in the presence of
John Chilton p sigr Tho: Carter junr Henery Carter
The above will was proved in in the County Court of Lancaster the 11th
day March 1695 by oaths of John Chilton, Thomas Carter, Junior and
Henry Carter, witnesses in court. Recorded the 17th day following by
John Stretchley, Clerk of the Court.
[*] This is the only non-qualified clause in the will.
It was legal for “femes covert” (like Katherine Carter) and children
(like Elizabeth Carter) to serve as executors of a will (Blackstone
Book II, Ch. 32 Sub 669).
[Price (1992) gives a transcription of Edward Dale's will found in
Lancaster County, VA Inventory and Wills Book 8-C, pp. 55B-56
1690-1709, with inventory following on pp. 57-58. Archaic letters
have been modernized. The inventory was taken 30 Mar 1696 (which
doesn't fall into the double-dating parameter). When I first saw this
inventory, I thought it must be a final inventory exhibited a year
after probate.
But it is the inventory ordered by the Lancaster Co. court on 11 Mar
1695/6. The transcript in Price lists the estate then being worth
10,607 lbs. of tobacco. The only items of value remaining were
livestock, Indian corn, wheat, and a small amount of tobacco. Edward
White owed the estate 81 lbs. of tobacco.
To put this figure of 10,607 lbs. of tobacco into perspective, on
November 12, 1691, Joseph Harrison, son of Daniel Harrison, stated he
received 19,486 lbs. of tobacco as his share of the estate. Daniel
Harrison died intestate, and there were 3 Harrison children, so as a
crude estimate we can place the worth of Daniel Harrison's estate at
some 80,000 lbs. of tobacco, the widow and 3 children dividing the
estate equally. Harrison's estate would have consisted of more than
just personal property, which is what's listed in the Dale inventory.
(Sparacio, Court Orders 1691-1695, p. 3.)
Clearly, Edward Dale's estate had been pillaged before the inventory--
illegal but convenient--and there was nothing left worth fighting
over. The remaining cattle were probably leaning at a 45 degree
angle. In 1696, a widow couldn't reject the will and sue for her
dower, so even though stripping the estate and submitting a phony
inventory was illegal, as a practical matter Diana Dale had no
recourse. Compare this garage sale with the inventory of the wealthy
Edward Blackmore, returned 8 Sep 1738 in Lancaster County, and you'll
see my point.
In the 17th century, everyone had a very big musket, and possession
was 9/10s of the law. Law enforcement consisted of the Sheriff, and
in emergencies. the militia. The "heirs" could slug it out in court
for up to a decade, the defendants employing every delaying tactic
known to litigants of the day. In the end, the courts invariably
ordered the property delivered to the rightful owner--that is, if the
rightful owner was still living (if not, it went to their heirs), and
the property was still in existence.]
There is, in connection with this will, a rather strange deed dated 7
Oct 1687 (Lancaster Co., VA Deeds & Wills 6, pp. 131-132), in which
Edward Dale gave unto his daughter Katherine now wife of Thomas Carter
two slaves:
a Negro boy called James (aged 7) and a Mollato boy called Robin (aged
5), reserving them to his use for his life, and then to Thomas and
Katherine Carter, and after the deaths of Thomas and Katherine, Robin
to go to Dale’s grandson Edward Carter, and James (if I make it out
correctly) to the rest of Katherine’s children. Dale sealed the gift
by putting Thomas Carter possession of James in presence of witnesses,
and by power of attorney to Richard Stephens had the deed recorded on
9 Nov 1687 with the Lancaster County clerk.
This was a difficult document to transcribe, and getting a better copy
directly from the deed book would help. I can find no fault with this
deed. James and Robin were born well after Edward Dale’s marriage to
Diana Skipwith, and she would have had dower interest in them had Dale
died intestate. However, the law didn’t require wives to relinquish
dower in personal property. Husbands were known to dispose of
personal property prior to their demise to avoid a wife gaining
interest in it at his death. For some reason, Dale willed James and
Robin to his grandsons Peter and Joseph Carter–even though he’d
earlier conveyed James and Robin to Thomas Carter on 7 Oct 1687:
To all those to whom this Present Writing shall come I Edward Dale of
the County of Lancastr gent send greeting in our Lord God everlasting
Know ye that I the said Edward Dale have for and in Consideracon of
the Naturall love and affection which I have and owe unto Katherine my
daughter Now wife of Mr Thomas Carter of the said County and her heirs
& assigns for divers other Causes and Consideracons hereunto moving
have given granted and by these presents do give and Confirm unto the
aforsd Thomas Carter one Negro boy called James about Seven years old
and one Molatto boy called Robin about five years old To have and to
hold the said two Boys unto the said Thomas Carter his heirs
Administrs and Assigns forever to ye sole intent and purposes
hereafter mentioned and … that is to say to the use of me the said
Edward Dale during my Naturall life and after my decease to the use of
the said Thomas Carter & Katherine his wife and the life of the
longest living of them and after Both shall decease said Mollotto Boy
Robin to my grandson Edward Carter and the Negro Boy James to ye rest
of my said Daughter Katherine her Children to all share ye Purpose
whatsoever with warrant against all persons whatsoever that shall or
may be By from or under me And I the said Edward Dale have hereby Put
the sd Thomas Carter in possession of these two Boys by delivery of
the said James in Witness Whereof I have hereunto Sett my hand and
Seale Dated this Seventh day of October Ano. Dom 1687
Edward Dale his seal
Sealed and delivered and the sd boy James delivered to the said Thomas
Carter in the presence of –
Edward White
John Gill
Ruth White
Recognitr in Cur Court Lanc Nonet die Novembr Ano Dom 1687 – Recordr
un demino …
Peter James Dep Clk
I do Authorize & Appoint Richard Stephens as my Lawfull Attorney to
Acknowledge this deed for and on my behalf at … of Lancastr as Witness
my hand this 9 day of November 1687
Edward Dale
Test Edward White
Ruth White
Recorded in Cur Court Lanr. Nonet die November Ano Dom 1687
Peter James Deputy Clerk
I’d like the reader to observe one thing about this deed: Although
the reason Edward Dale gifted these slaves was out of affection for
his daughter Katherine, the actual conveyance was made to Thomas
Carter, her husband.
If there was no problem with the conveyance, and Dale simply changed
his mind, to avoid any cloud on the title there should be another
document prior to the will nullifying this deed. There isn’t. Given
the litigious nature of the colonists, it was quite an assumption that
Edward Carter wouldn’t sue for possession of Robin. Edward Dale
mentioned no other slaves by name in his will, but they would have
descended to Peter, Joseph, Elizabeth, and Katherine Carter.
You can learn much by leafing through court orders and deed books, and
Lancaster Co., VA Deed Book 9, pp. 51-52 has the answer: Edward
Carter didn’t take it lying down–he had a valid deed, and Edward Dale
couldn’t dispose of Edward Carter’s property in his own will. This
new deed, dated 24 Jun 1703, finds Thomas Carter (Jr.), Henery Carter,
and John Carter–not the original legatees–acknowledging Edward Dale’s
gift to Thomas Carter Sr. and Catherine his wife, and confirming
ownership of Robin to Edward Carter, citing the 7 Oct 1687 deed.
The principle is this: A testator can’t dispose of property that has
been previously legally conveyed. Obviously there was a problem, but
what happened? It has nothing to do with the Rogers per se, since
there is no prior legal conveyance of Robin and/or James to them, or
of Robin and/or James from the Rogers to Edward Dale.
This is the only anomaly in the transmission of Edward Dale’s estate.
For some reason he thought it prudent to pull back the sale, and when
he wrote his will he bequeathed James and Robin again. That was
illegal—and Edward Carter ultimately came into possession of Robin.
James and Robin couldn have been siblings.
In 1705, the Virgnia Assembly declared:
“That from and after the passing of this act, all negro, mullato, and
Indian slaves, in all courts of judicature, and other places, within
this dominion, shall be held, taken, and adjudged, to be real estate
(and not chattels;) and shall descend to the heirs and widows of
persons departing this life, according to the manner and custom of
land of inheritance, held in fee simple.
“That all such slaves shall be liable to the paiment of debts, and may
be taken by execution, for that end, as other chattels or personal
estate may be.
“That no person, selling or alienating any such slave, shall be
obliged to cause such sale or alienation to be recorded, as is
required by law to be done, upon the alienation of other real estate:
But that the said sale or alienation may be made in the same manner as
might be done before the making of this act.
“That it shall and may be lawful, for any person, to sue for, and
recover, any slave, or damage, for the detainer, trover, or conversion
thereof, by action personal, as might have been done if this act had
never been made.”
[Hening/pp. 3:333-334.]
The 1705 legislation meant that although slaves were henceforth
considered real estate (and later reclassified as personal property
again with some modification), the sale would still proceed as a sale
of personal property, as was done before the act.
binky
On 7 Oct 1687, Edward Dale deeded two slaves to Thomas Carter: Robin
and James. After the death of Thomas and Katherine Carter, Robin was
to go to their son Edward Carter, and James was to be “shared” by the
rest of the Carter children.
However, in his will made 24 Aug 1694, Edward Dale bequeathed the same
two slaves to different grandchildren: Peter Carter was to get James,
and Joseph Carter was to get Robin.
Immediately following these bequests is Elizabeth Rogers’ “twelve
pence” clause.
A check of Lancaster Co., VA court orders for 1687-1695 shows there
was no lawsuit concerning James and Robin.
Katherine (Dale) Carter died on 10 May 1703. On 24 Jun 1703, Thomas
Carter (Jr.), Henery Carter, and John Carter were “jointly holden &
indebted to Edward Carter … in ye sume of One hundred pounds sterling”
that they would defend Edward Carter’s possession of Robin, making
reference to the deed dated 7 Oct 1687. Edward Dale’s will was
ignored, along with Peter and Joseph Carter’s claim to James and
Robin.
The slaves mentioned in the deed and the will are the same. And
evidently there’s no intervening conveyance between 7 Oct 1687 and 24
Aug 1694. The original conveyance of 7 Oct 1687 was legal and was
enforced. So what happened?
The difficulty with James and Robin is the only recorded problem with
Edward Dale’s estate. That Elizabeth Rogers’ “twelve pence” waiver in
Edward Dale’s will immediately follows his bequest of James and Robin
to Peter and Joseph Carter is suggestive that her waiver pertained to
them. However, there is no record that William and Elizabeth Rogers
ever had any legal interest in them: there is no deed from anyone
granting James and Robin to the Rogers, and no deed from the Rogers to
anyone else.
By VA law Elizabeth Rogers couldn’t sue the Carters for a share of
Edward Dale’s estate. In 1694 slaves were considered personal
property, and Elizabeth Rogers’ waiver was for personal property. The
only claim allowed a child under VA law was against an intestate
estate; since Edward Dale made a will, the claim must have been
against Diana Dale. It’s possible that Edward Dale was trying to
block James and Robin from coming into the possession of Elizabeth
Rogers through Diana Dale.
While distasteful, these records can be useful to African-American
genealogists. The names of slaves given in records can sometimes
extend a pedigree into the antebellum period and beyond, so some good
comes of it.
binky
By law, in 1694 slaves were personal property. Although they were
alienated via a deed, it wasn’t necessary for wives to formally
relinquish dower in personal property. Transfers of real estate
required a deed, and if the wife had dower interest in the property,
she had to relinquish dower, or the purchaser would have to satisfy
her dower interest.
Elizabeth Rogers’ “twelve pence” clause is a comprehensive waiver, and
would block inheritance of any kind of property through an intestate
estate, although it is not in the form of a quit-claim deed.
In the 17th century, unless a widow had been left real estate by her
husband, or had purchased real estate after his death, ordinarily her
estate would consist of personal property. Pre-nuptial agreements
weren’t available to first time brides in the 17th century, and
there’s no evidence Diana Dale or Elizabeth Rogers had a trust or
separate estate, those instruments being relatively rare.
wjho...@aol.com
Still your interpretation fails in that you use one act that specifically was discussing who would be the guardians of "orphans" and apply that to mean that no child could sue against the will of their parent. While it might be the case that a child could not sue against the estate if their parent left a will, your support of this idea, using the law you cited is unwarranted. That law was not for this situation.
A second problem is that children, meaning minors could not sue at all. So let's assume you mean adult children here. Even if you don't, her husband was not a minor and could certainly sue on her behalf even if she could not. At any rate, any contract can be sued against, and any contract can stand as a primary restraint against anything in a will. A person cannot devise something they do not have the control of. That's a basic tenant and VA did not supercede that in any way. So if you keep insisting on that particular phrasing your argument is never going to succeed.
-----Original Message-----
From: binky <bin...@gmail.com>
To: gen-me...@rootsweb.com
Sent: Fri, Sep 25, 2009 5:21 am
Subject: Re: edward Dale's will & its anomaly
The point of this post is this:
On 7 Oct 1687, Edward Dale deeded two slaves to Thomas Carter: Robin
and James. After the death of Thomas and Katherine Carter, Robin was
to go to their son Edward Carter, and James was to be “shared” by the=0
Arest of the Carter children.
-------------------------------
To unsubscribe from the list, please send an email to GEN-MEDIEV...@rootsweb.com
with the word 'unsubscribe' without the quotes in the subject and the body of
the message
binky
You're advertising your ignorance. I don't know what interpretation
you'e talking about.
VA law didn't allow lawsuits against wills that were approved for
probate. It has nothing to do with guardians of orphans. If an
orphan had cause to sue, their guardian would file the lawsuit.
A testator can't devise property in a will that has already been
legally conveyed. That's the point here. Edward Dale legally
conveyed two slaves, then tried to bequeath them again in his will.
But the original deed held up. Of course in this case, the children
were "adults." So what?
It appears very likely that Elizabeth Rogers' waiver pertained to
James and Robin.
The laws of intestacy give the procedures for distributing the
property of those who died without leaving a will. They use the term
"children." That can refer to an heir of any age. If the children
had not reached the age of emancipation, they would have a guardian.
A child (who could be of any age) had only one legal claim against a
parent: a share of an intestate estate. If the child was emancipated,
then they didn't require a guardian to receive their share of the
estate; if they were a minor, they did. Have you ever looked at court
orders of a VA county?
To sue against a contract you have to have grounds to sue. So what?
My interpretation of this case is correct, and the facts aren't going
to change.
You're an idiot. After insisting in post after post that English law
superceded VA law, you did a 180 and now you're trying out some other
baloney to save face. As far as I know, nobody gives a damn about
your opinion on anything. Your casuistry isn't impressive, and I'll
no longer respond to your posts. Feel free to beat your chest; but
bear in mind, potential clients are viewing your posts, and if they
find out you're full of crap, you've got a problem. Right?
Do you actually get clients off this message board? What do you
charge for your services?
binky
> were "adults." So what?
Born in 1671, Edward Carter was th oldest child of Thomas and
Kathering (Dale) Carter, so he was 16 in 1687 when this deed was
executed. The others, who were supposed to "share' James, were of
course younger. By the terms of the deed, Robin was to become
Edward's after the deaths of Thomas and Katherine Carter, and likewise
James was to go to the others. If any of the children were minors
when that happened, they'd have guardians. If there were grounds to
sue, the guardians would file the lawsuit.
I don't appreciate your deliberate attempt to muddy the waters here.
I hope potential clients are observing your behavior, and make the
appropriate decision about whether to hire you. I don't know where
you got the term "primary restraint," but you're definitely in need of
it.
binky
“An act for establishing the dowers of widdows.
WHEREAS many doubts have arisen concerning the estates of persons
dying intestate, and of what parte thereof ought to appertaine to the
widdow; for cleareing whereof, Be it enacted by the governour,
councell and burgesses of the grand assembly, and the authority
thereof, that where persons dye intestate, the widdow shalbe endowed
with the third part of the reall estate to bee equally divided as to
houseing, ffenced grounds, orchards, woods, and other valuable
conveniences, dureing her naturall life, and the third part of the
personall estate, if there be but one or two children, but if there be
any number of children more, how many soever, in that case the
personall estate to be devided amongst the widdow and all the children
share and share alike; and in case the husband make a will that he
hath in it his power to devise more to his wife then what is above
determined, but not lesse.”
[Hening/2:303]
"Hening/2:303" means the law is found in Hening's Statutes, Vol. 2, p.
303.
The term "children" in the law means the offspring of any age of a
parent who has died without leaving a will. If the child was under
14, the court would appoint a guardian for them. If they were over 14,
but below the age of emancipation, they could choose their own
guardian. If a child with a guardian had grounds to sue, regardless
of whether it concerned a share of an intestate estate, or any other
legal matter, the guardian would file the lawsuit on behalf of the
child. So while a minor cannot themselves sue, their guardians could
sue, and one will find in books of colonial court orders many
instances of guardians suing on behalf of minors.
I think Will's tactic when he's been embarassed is to throw mud at the
wall and see if any of it sticks. There are excellent books on
colonial VA, but apparently he doesn't want to read any of them.
"Lacking knowledge" can be remedied by learning; but "ignorance"
cannot, because the ignorant person doesn't know that he lacks
knowledge.
binky
The age of emancipation was 21.
According to Blackstone Book I, Ch. 17 sub 630:
"An infant cannot be sued but under the protection, and joining the
name, of his guardian ... but he may sue either by his guardian,
or ... his next friend who is not his guardian."
________________________________________________
The probate act in Hening 2:92-93 was actually largely a reiteration
of an act in 1:416, dated 7 Dec 1656, which stated:
"Be it henceforth enacted, That all wills and testaments be firme and
inviolable, but in case the excecutors or overseers refuse to execute
their trust, then the estates disposed of by will to be liable to such
rules as are laid down for the management of estates of persons
intestate."
The main difference between the two acts is that the latter act
contained further procedures to find an executor for the will.
binky
(in both the 1656 & 1661/1 laws): "Concerning orphans estates" meant
the law making wills "firme and inviolable" only applied when there
were orphans. So he's claiming that because Katherine Carter and
Elizabeth Rogers were adults when Edward Dale wrote his will, that the
will could be challenged.
His point was so stupid I could barely undertstand it. That the laws
declaring "all wills and testaments be firme and inviolable" was made
in the context of rermarks about the estates of orphans doesn't mean
it only applied when there were orphans. It simply meant that in
order to protect orphans, all wills would be "firme and inviolable."
That evidently was the reasoning behind the law. Anyone with an
understanding of VA county courts, and the people who usually served
as justices will grasp the fact they weren't set up to handle a barage
of lawsuits from people who didn't like a parent's will.
One thing VA county courts didn't want were indigent families that
they'd have to support out of public funds. This is why, although
women per se had few rights in the 17th century, the laws regarding a
woman's dower rights were so strong. So you'll find laws on various
things scattered through Hening on various topics, and they give a
clue on what prompted the Assembly to pass laws.
binky
from "infant," but there is a difference:
Anyone under 21 years of age was considered to be an "infant,"
although infants at certain ages could perform certain legal funtions,
depending upon gender. An "orphan" was an "infant" who had lost their
father, whether the mother was living or not. An "orphan" gained the
right to choose their own guardian at age 14.
If you go through Hening, you'll see there was great concern about
protecting "orphans" from predations upon their property, so that's
undoubtedly the reason the law was enacted. VA counties didn't want
families thrown upon their mercy for support; they just didn't have
the resources, although it did happen at times.
binky
topic.
James Horn says:
"The most important conclusion to be drawn from a comparison of
material possessions in the two societies [England and the Chesapeake]
is the great poverty experienced by the majority of Chesapeake
planters. Even the very poor householders in England enjoyed living
standards comparable in many respects to those of middling wealth
groups along the Bay. To put it another way, only planters worth more
than one hundred pounds (fewer than 30 percent of householders) had
living standards that would have been accounted quite common in
England.... [I]n the early Chesapeake ... dwellings were not expected
to last more than twenty to twenty-five years, and one or two rooms
served a multiplicity of functions." (Horn, "Adapting To A New
World," pp. 328-329)
This gives an idea of the conditions 17th century VA had to deal
with. On this list, we're often talking about people who were of the
"gentry" class, forgetting that most colonists weren't of that class.
Some poor relief was handled by the church, and some of it by the
county, but neither wanted to handle it at all--it was a drag on the
economy.
This is one reason why the VA Assembly in some instances departed from
English practice: the two societies weren't the same. VA wasn't
under any obligation to observe English law, but the colonists did the
best they could. Horn is saying that the "middle class" in the
Chesapeake lived about as well as the very poor in England. So you
can see why the colony had to be so tough in dower and probate
matters--they wanted people to take care of themselves and their
families.
binky
point:
"In a difference depending at this Court betweene Capt. RICHARD NUSUM,
Executor of GEORGE SPENCER, (deced), Plt. and ELIZABETH SPENCER, Wido:
& Relicteof the said GEORGE SPENCER,& deliberately considered; this
Court are of oppinion that the said NUSUM, executor as aforesd.,
having 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 Witnesses), it is a good and lawfull
proofe and not now to be controversed." 13 Jan 1691, in Sparacio,
"Lancaster County, Virginia Order Book Abstracts 1691-1695," p. 10.
This is an interesting case because it illustrates several
principles. The court ruled that when Elizabeth married George
Spencer, "all the goods and chattells that were properly the saide
Elizabeths before marriage became rightfully the said Spencers."
Evidently Spencer had drawn up some bogus "pre-nup." Spencer reneged
on his promise and devised the property in his will anyway. The court
found the "pre-nup" insufficeint to over-ride coverture, and they
ordered Elizabeth, who had refused to turn over the property to Nusum,
to deliver that property to him as the executor of George Spencer.
Elizabeth posted security and appealed to Jamestown; the case was to
be heard by the Lt. Governor and Council; evidently the issue to be
determined was whether her "pre-nup" was good, but based upon the
ruling here, her prospects can't have been very good.
This should settle the matter.
binky
about:
Elizabeth Spencer (who married secondly William Man) was claiming
certain slaves were her own property, and refused to hand them over to
Richard Nusum, executor of George Spencer, her deceased husband.
Elizabeth was, for the day, an assertive sort of woman, making several
appeals to Jamestown. The whole drama ended abruptly when on 11 Oct
1699, William Man applied for administration on her estate.
One imagines Elizabeth standing before the court of heaven, inquiring
as to the address of her ex-husband George Spencer, in order to lay a
summons upon him.
WJho...@aol.com
bin...@gmail.com writes:
> You're advertising your ignorance. I don't know what interpretation
> you'e talking about.
>
> VA law didn't allow lawsuits against wills that were approved for
> probate. It has nothing to do with guardians of orphans. If an
> orphan had cause to sue, their guardian would file the lawsuit.
>
> A testator can't devise property in a will that has already been
> legally conveyed. That's the point here. Edward Dale legally
> conveyed two slaves, then tried to bequeath them again in his will.
> But the original deed held up. Of course in this case, the children
> were "adults." So what?
>
> It appears very likely that Elizabeth Rogers' waiver pertained to
> James and Robin.
>
> The laws of intestacy give the procedures for distributing the
> property of those who died without leaving a will. They use the term
> "children." That can refer to an heir of any age. If the children
> had not reached the age of emancipation, they would have a guardian.
>
> A child (who could be of any age) had only one legal claim against a
> parent: a share of an intestate estate. If the child was emancipated,
> then they didn't require a guardian to receive their share of the
> estate; if they were a minor, they did. Have you ever looked at court
> orders of a VA county?
>
> To sue against a contract you have to have grounds to sue. So what?
>
> My interpretation of this case is correct, and the facts aren't going
> to change.
>
> You're an idiot. After insisting in post after post that English law
> superceded VA law, you did a 180 and now you're trying out some other
> baloney to save face. As far as I know, nobody gives a damn about
> your opinion on anything. Your casuistry isn't impressive, and I'll
> no longer respond to your posts. Feel free to beat your chest; but
> bear in mind, potential clients are viewing your posts, and if they
> find out you're full of crap, you've got a problem. Right?
>
> Do you actually get clients off this message board? What do you
> charge for your services?>>
>
---------------------
The "interpretation" where you deliberately left off the most important
clause in the law you kept citing. That is specifically stated that it was
regarding orphans. The law had nothing whatsoever to do with making wills
inviolate. It had to do with appointing guardians for orphans. That you cannot
understand that simple point, makes the rest of your argument based upon
that law... moot.
Secondly I never insisted that English law superceded Virginian law. So
again you present an argument easy for you to defeat, because you refuse to
recognize that the actual argument negates much of what you stated previously.
What has been stated repeatedly to you, is that the Virginians, just like
all colonies of English origin began with the Common Law and built upon it,
or replaced parts of it with other laws. However, they did not create the
entirely of the Common Law over again, from nothing.
I'm glad that you won't respond to my posts any longer. Let's see if you
can start now by shutting your big fat ignorant yap for one or two days. It
should be fairly clear by now, that nobody cares about your long-winded
babbling about nonsense to prove a truly insignificant point about one of your
hobby horses. Go write a paper, get it published by a reputable journal,
than perhaps you can gather an audience around your brilliant legal monographs.
Understand this point clearly my dear, who seem to think somehow you're
degrading or slandering or denigrating me in any way. None of my clients, give
a rat's ass what you think of me. In fact every one of them has told me
that you are the biggest blustering idiot in the entire cosmos, bar none.
(Smacks lips, rolls eyes, mugs for the camera.) So understand that clearly now.
Meanwhile here's a chill pill for you and your friends
http://knol.google.com/k/will-johnson/chairpotato-presents-all-twilight-zone
/4hmquk6fx4gu/20
Have a nice day you sack of cat poop :)
Will
WJho...@aol.com
bin...@gmail.com writes:
> His point was so stupid I could barely undertstand it. That the laws
> declaring "all wills and testaments be firme and inviolable" was made
> in the context of rermarks about the estates of orphans doesn't mean
> it only applied when there were orphans. It simply meant that in
> order to protect orphans, all wills would be "firme and inviolable."
> That evidently was the reasoning behind the law. Anyone with an
> understanding of VA county courts, and the people who usually served
> as justices will grasp the fact they weren't set up to handle a barage
> of lawsuits from people who didn't like a parent's will.>>
----------------
Sorry but that interpretation has no evidence.
This law was designed specifically to address those issues regarding the
court's attempt to override the executors and guardians specified in a will.
And that is all it's about. It's not about all things. It certainly is not
about declaring, that in all cases a will could not be challenged. That is
a utterly silly position. After this law was enacted many wills were still
being challenged.
You're are taking, out of context, one phrase in one law, and trying to
apply it universally (in Virginia). You have presented exactly zero evidence,
that this law was ever even one time applied in the manner in which you're
claiming.
Therefore your entire argument is .... all the choir sings... moot.
Moot! Moooooooooooooooooooooo
Will
WJho...@aol.com
bin...@gmail.com writes:
> This should settle the matter.>>
Settle what? It proves that wills *could* be contested. So much for
"inviolable".
Did they address it per that law? No, they stated that she was there at
the proving and *at that time* did not bring this up. It's typical even
today, for one side to claim that you had a time at which you could bring up a
point and because you didn't at that time, you lost your chance.
That's hardly a Virginia interpretation of things, its pretty common.
That she had a right apparently to appeal it, sort of destroys your entire
basis doesn't it? Yes it does.
binky
YOU don't understand the law. I supplied an actual court case, which
you conveniently ignored. The Lancaster Co. court clearly said the
will had been proved, and could not now be "controversed," which means
couldn't be challenged. Got it?
The REASON the law was changed was to protect orphans. Don't you
understand that? The law then proceeds to discuss procedures for
handling the estates of orphans.
There was a lot of poverty in VA, and the courts didn't want widows
and children left destitute, so they didn't allow wills to be
challenged after they had been proved. Can you see why? Your
position is absurd--what if a testator had 3 children: two were
minors, and one was 22. According to you, the two minors couldn't
challenge the will, but the one over 21 could. What protection did
the two minors have if the child aged 22 could challenge the will in
court? Don't you see how stupid that is?
It wa s a strpped down thing in VA. I don't care who you ask, they
will tell you the same thing. I've never seen a 17th century VA will
overturned after it had been admitted for probate; that is, after it
had been proved, but knock yourself out---produce one! There have
been cases where the court had to decide which of a testator's wills
would be admitted to probate, but after that, the law is clear--the
will could no longer be challenged.
You are a second-rate genealogist, desperately trying to salvage
something out of your own incompetence. You're not going to get
MichaelAnne off the hook with cheap theatrics. Your opinion matters
to no one except yourself. If you have any clients at all, I'd be
amazed. Your problem is you have a large ego, and you lost. For some
reason, you think you shouldn't. I've given you a boot in the pants
and you can't take it, can you? For you genealogy isn't a search for
truth, but a bragging point in your impoversished mind. I feel sorry
for you.
binky
Your other comments continue to display an ignorance of the law. The
law was changed from the version in 1656 to expand the search for
executors of wills, so that wills wouldn't fail due to lack of
execution.
What you don't comprehend is that A WILL ISN'T A WILL UNTIL IT'S
ACCEPTED FOR PROBATE! The law allowed executors of wills to perform
certain functions before the will was proved, but the will still had
to be proved in court for the legatees to have actual title to their
legacies. Understand? Once a will was proved in court it was
"inviolable;" that is, it couldn't be challenged. Which is exactly
what that Lancaster co. court case said.
If you have any friends on this board (other than Leo), which I doubt,
they'll tell you it's a lost cause. You don't understand the law--
what happened is that you got taken in by Colin Withers, and now
you're trying to save face, instead of seeking the truth. And that
shows me that you'll inject emotion over reason into a research
assignment, and that's bad.
So come on, big shot--let's see some examples.
binky
never once wavered from its position that George Spencer's will was
valid, and that his widow had to comply with its provisions. She
continued to appeal, but the court never changed its position. In
fact, the sheriff hauled her into court, and the only reason she
wasn't put in jail was that her ex-husband's executor said it would be
difficult for her to comply with the orders of the court if she was in
jail.
You're looking at things from a modern perspective. Think Andy of
Mayberry rather than modern Richmond, Va.
binky
get into the big time, but you're not a big time kind of guy--you are,
as they put it in the vernacular, small time. Are you trying to take
over the RD series after Roberts gives us a break and ceases his
scirbblings? Your standards of evidence probably aren't any better,
so you'd be a natural choice, but you just don't have the connections,
man. Don't you see that? Puffery and bravado ain't going to cut it--
they want gentility, and the Mary Miller Briggs problem doesn't help.
You're just not their type, Will. You'll never play their game and
win--can't you see that? Everybody else does.
WJho...@aol.com
bin...@gmail.com writes:
--------------------------------
Interesting. You give me several good avenues to pursue. I could actually
try to contact some of the celebrity I write-up and kiss-up to try to get
something out of them! Is Roberts about to retire? Maybe I'll get a few
boxloads of documents one day and a brief note, who knows! I can always dream.
Thank you for considering me a natural to follow in the footsteps of such
an illustrious person.
Who wants gentility? What's your evidence that published genealogist are
gentile? Gentle? Gentlemanly?
Actually not everyone sees that I can't win. There's one elderly woman in
Albequerque who thinks I'm the cat's meow!
Will
WJho...@aol.com
bin...@gmail.com writes:
---------------------------
Hey lying liar pants on fire.
You said you weren't going to respond anymore!
Can't resist can you? You have to keep thumping that drum even when you're
not only completely wrong, but utterly ignorant! And on top of that you
can't follow a simple argument.
The *reason* that the court held that the issue could not be "controversed"
had nothing at all to do with the will you keep trying to cite. Can you
see that? Or are you still willfully ignorant. The common law provision that
there is a certain time in which to make your challenge, and if you allow
the time to pass you can no longer challenge is not probate-specific. Do you
understand this extremely simple concept? Or do you want to issue forth
another nine hundred postings challenging it.
The court held, that if the widow had wanted to challenge the will, the
time to do so, was when it was being proven. SINCE she did not, at that time,
make her challenge, her right to do so, had now passed. That has nothing
whatsoever to do with the law to protect orphans from having alternate
guardians/executors/custodians appointed. Nothing. At all. Not one thing. :)~~~~
The law was not changed to protect orphans. The law was made to protect
orphans. We probably agree on that. But that law did not subvert all probate
law regarding will challenges as you seem to want to make it. It was
specific to a certain minute detail.
You are wrong if you think I ever stated that if there were three children,
two of them minors, that only the adult child could make a challenge. Any
heir could make a challenge, the minors would challenge through their
guardian or next friend. Which is what I stated about two or four thousand posts
ago. Married minor females would challenge through their husband. Another
silly straw man argument, because you refuse to face the actual situation as
it really was, since this would negate the basis of your legal silliness.
I'm not going to produce a will that was overturned in 17th century
Virginia. YOU produce any will where a court upheld the lack of ability to
challenge it based upon your stated law. You claim this law prevented challenges.
Then produce a case where this law was actually cited. You cannot.
Because their aren't any.
Go ahead and feel sorry for me. Perhaps some weeping saint in heaven will
take pity on me and give me a heart. I doubt it. But it's worth a try.
Meanwhile, let me send you a mirror, so you can look at the guy who has posted
five thousand messages about the same topic, and still no one on this list,
cares or even responds to anything you say. Who is that guy? It's you!
Oh my gosh! You silly bugger you. Go on!
Will Johnson
binky
I think you've confused "indulgence" with "contesting." Although
Elizabeth and even her second hubby huffed about appealing to James
City, there's no evidence the cases were heard, and if they were, she
didn't win, because in 1698 she was exactly where she started. People
say the darnedest things when they're in court. Yeah, I think Andy of
Mayberry is more apropos.
So look--it's what? 4 or 5 pm out in CA? Here's what you do. Take
the missus (if you have one) and go see a flick or something, you
know--get out of the house, away from the goddamn computer and all
those subscription services you're enrolled in. If you're not on a 12-
step program, have a few belts, a few laughs. You'll feel better in
the morning.
After a good night's rest, you can start to get those examples I asked
for. You know, to support your position. Or--you can leave me and my
family alone, and let this thread roll into the archives.
What's it going to be?
binky
admitted to probate because you can't find one. The concept you're
citing doesn't exist in VA. the time to challenge a will was when it
was presented to be proved in court. If the court accepted the will
as proved, it could no longer be challenged. That's reality.
The law was amended in 1661/2 so that the search for executors of
wills could be expanded. They didn't want wills to fail because they
couldn't find an executor. That's it.
You don't seem to grasp the truth here--the reason the law was made
(if you want to put it that way) was to protect orphans, and it
applied to ALL wills. In the Lancaster Co. case, Elizabeth Spencer DID
challenge the will but the court told her her "pre-nup" was worthless,
that the will had been proved according to law, and could not be
challenged. Get it?
You don't really know the background of the case. Elizabeth Spencer
had been married to Thomas Wilke. When she married George Spencer,
she alleged he had made some promises regarding property she felt was
hers, but she failed to get a "jointure" that would hold up in court.
Spencer reneged on those promises, and that was the genesis of those
lawsuits.On 10 Jun 1691, probate was granted on Spencer's will. The
time to challenge ANY will was when it was being proved.
I'm not going to split hairs with you--that's one of your favorite
tactics to muddy the waters and try to make the lurkers think you're
sharp. Whether the law was "changed" or "made' 'll leave up to your
schoolboy imagination--the point is that THAT is the law the colonists
followed.
You seem to think there were two probate laws--one that said that
wills involving orphans can't be challenged (I gather you're conceding
that it couldn't be challenged after being proved), and one for
everyone else.
That's where you're wrong--you've made an unwarrranted assumption, and
the law doesn't say that. What the Assembly did was in order to
protect orphans, and see that they got their property, the VA Assembly
decided to make ALL wills "inviolable." That means every will. You'd
better read the law again. You're dead wrong on this.
Any will could be challenged during the process of proving it, but
once accepted for probate, it could no longer be challenged. The
Lancaster Co. court case fully supports that.
Instead of arguing with me, you should check this out yourself and
you'll find I'm right.
binky
how the first paragraph of the law in Hening Vol. 2, pp. 92-93 reads:
"Concerning Orphants.
Concerning Orphants estates Bee it enacted that all wills and
testaments be firme and inviolable, unles the executors doe refuse to
execute the trust reposed in them by the testator in which case the
court may appoint others to act accordingly to the will, but if the
said will be soe made that noe person will undertake the managing of
the estate, or education of the orphants according to the tenor of it,
then that estate by appointment of the court shalbe managed according
to the rules set downe for ordering the estate of persons intestate,
as followeth;"
It then goes into various duties regading orphans, etc, which is just
standard stuff for intestate estates where there are minors.
What Will doesn't seem to understand is that the VA Assembly in order
to protect orphans made ALL wills inviolable. It doesn't say just
wills involving orphans are inviolable. It's if no person will
undertake managing of the estate OR education of orphans, not AND of
orphans. VA code was streamlined. They felt it in order to protect
orphans, it was easier just to make all wills "inviolable," and Will's
having a problem with that concept.
So rather than argue with me, he should check it out himself, and
he'll see I'm right.
Hopefully Will will be gone by morning, but if he isn't, I'll be happy
to hang in there with him, but he doesn't understand the law.
binky
which a will can fail execution:
(a) If the executor named in the will refuses to serve, and no one can
be found to manage the estate,
or
(b) If no one can be found willing to undertake education of the
orphans according to the terms of the will. Presumably someone could
agree to manage the estate, but refuse to see to the education of the
orphans (that wasn't uncommon, as lawsuits will attest).
In both cases, the estate will become an intestate estate, and
administrators appointed by the court.
That's it.
WJho...@aol.com
bin...@gmail.com writes:
> After a good night's rest, you can start to get those examples I asked
> for. You know, to support your position. Or--you can leave me and my
> family alone, and let this thread roll into the archives.>>
Yes maybe you could trot out again your "harrassment" claim. "You and your
family" were trotted out for public consumption here by who was it again?
I just can't think... wait... oh I've got it... by YOU.
Amazing how when your argument is pointed out to be weak, you start
thrashing around for anything you can find to hang onto in the tidal wave of
despair. Poor thing.
But anyway I'm glad I could help you see the light.
WJho...@aol.com
bin...@gmail.com writes:
> the time to challenge a will was when it
> was presented to be proved in court. If the court accepted the will
> as proved, it could no longer be challenged. That's reality.>>
But you see, I agree that the court *held* this. I just don't agree that
this was *based* on that law you keep wanting to cite :)
And since it was not, this is not a case that you can use as evidence in
your extreme claim that wills could not be challenged.
WJho...@aol.com
bin...@gmail.com writes:
> You don't seem to grasp the truth here--the reason the law was made
> (if you want to put it that way) was to protect orphans, and it
> applied to ALL wills.>>
Wrong. The law applied to all ORPHANS I agree. That it applied to all
WILLS is a false claim with no evidence.
The law was specific to how, when and why the court would appoint or stop
the appointment of any prospective guardian, etc. That is why it was made,
and it affected no other aspect of any other type of anything whatsoever :)
Again.
WJho...@aol.com
bin...@gmail.com writes:
> What Will doesn't seem to understand is that the VA Assembly in order
> to protect orphans made ALL wills inviolable. It doesn't say just
> wills involving orphans are inviolable.>>
Sorry but "Concerning Orphans Estates." is pretty clear langage that this
law was made about ... orphans... estates....
That you seem to think that any phrase in any law, applies universally to
all laws, is really a bizarre approach to the interpretation of law.
"Concerning the county fair. We declare that Detroit is in Michigan.
Therefore Michigan laws will apply to Detroit."
Oh see!! The legislature was obviously placing detroit in michigan because
it had never been in michigan previously !! This proves my contention that
at one point Detroit was in Pennsylvania!
Silly. Without substance. Next caller!
WJho...@aol.com
bin...@gmail.com writes:
> In both cases, the estate will become an intestate estate, and
> administrators appointed by the court.>>
It doesn't *become* an intestate estate.
What occurs is that the court appoints an administrator "with the will
annexed". They use the same *rules* as an intestate estate, but it's not an
intestate estate.
There is a difference.
binky
You don't understand this law. What it's saying is this:
ALL wills are firm and inviolable. A will can fail in two ways:
(a) If no one will serve as an executor, i.e., manage the estate
or
(b) If there are orphans, no one will see to their education.
Why would (b) happen? Because many estates were so poor there was no
money to educate the orphans. The law didn't allow someone to serve
as executor, but not see to the education of the orphans as directed
by the will. If the estate was poor, no executor wanted to serve.
Just because somebody made a will doesn't mean that after the debts
were paid, there was anything left.
You're confused because this law was enacted to protect orphans. The
Assembly just made ALL wills inviolable, and in its view, that took
care of the problem. You want the law to say: "All wills involving
orphans are firme and inviolable," but that's not what it says. Just
because the law was enacted to protect orphans doesn't mean orphans
were the only class of people affected. Do you understand?
You have a very narrow and literal view of the law. Check it out.
binky
downe for the ordering the estate of persons intestate"--that's
exactly what the law says. Once again you're slinging BS. The will
is annexed simply because it was part of the probate proceeding. As
far as the court was concerned, the estate was now treated as an
intestate estate. Technically there's a difference, but functionally,
there was no difference, so you're little exercise in casuistry got
you nowhere. It's obvious you're out of your depth here.
You just can't get it through your head that a law made to protect
orphans affected ALL wills. That's an assumption, and an unwarranted
assumption.
WJho...@aol.com
bin...@gmail.com writes:
> You don't understand this law. What it's saying is this:
>
> ALL wills are firm and inviolable. A will can fail in two ways:
>
> (a) If no one will serve as an executor, i.e., manage the estate
>
> or
>
> (b) If there are orphans, no one will see to their education.>>
No that isn't what it's saying.
What it's saying is this In the case of orphans estates, the executors
appointed in the will shall be held primary and the only way those executors can
be overridden is... and then it spells out how.
This law does not apply to all wills.
WJho...@aol.com
bin...@gmail.com writes:
On your first point, I don't think we really disagree, except that the
estate was treated as intestate is not exactly correct. You have to consider
that there were also cases where the will was completely set aside (ignored).
That is not the same thing as "with the will annexed" where the
administrator makes an attempt to follow the requirements as set forth in the will,
with the court's approval of any changes, etc. And again that's not the same
thing as intestate, where the wishes of the testator do not even come into
account whatsoever.
On the second point, I agree that there are assumptions being made. You
are assuming that a will dedicated to a particular point in the guardianship
of minor heirs and the custodianship of their estates would apply to all
wills. That is an unwarranted assumption.
WJho...@aol.com
WJho...@aol.com writes:
> On the second point, I agree that there are assumptions being made. You
> are assuming that a will dedicated to a particular point in the
> guardianship
> of minor heirs and the custodianship of their estates would apply to all
> wills. That is an unwarranted assumption.>>
-----------
Recte: For "will dedicated" read "LAW dedicated"
Will
binky
You're dodging the issue. Guardians of orphans had certain
responsibilities under the law and they were expected to fulfill those
obligations. So what?
What this law is actually saying is that a will isn't a will unless
someone will execute it, and gives two conditions under which it may
be set aside:
(a) If no one will undertake management of the estate
OR
(b) If there are orphans, no one will see to their education as
directed by the will.
In the process of protecting orphans, the VA Assembluy declared ALL
wills "inviolable."
It doesn't read (a) AND (b).
The issue in the law is about no one wanting to serve as executor of a
will--"in which case the court may appoint others to act according to
the will."
Your interpretation of this law is incorrect. Without executors a
will cannot be probated. The note on the sidebar says this:
"Ex'ors refusing to qualify, adm'n with the will annexed may be
granted. But if no person will execute the will, then the estate to
be managed as in case of intestates." That appies to ALL wills. It
means nobody wanted to execute the will, so the court will appoint an
administrator and the estate will be handled as if it's an intestate
estate.
What is wrong with you?
It's just that in order to protect orphans, the Assembly decided to
make ALL wills inviolable. Administration with the will annexed
simply means the estate will be probated as if it's an intestate
estate. Your assertion that the executor remains and is only
overridden under certain conditions is directly contradicted. The law
just lays down conditions the adminstrator must meet in dealing with
orphans when the estate is treated as an intestate estate.
You're not going to get around it. I guess you're trying to get the
last word in here, as if that will somehow make your argument.
binky
That this law only applies to provisions for orphans. Technically,
the will isn't set aside, and the executor remains. If the executor
won't take care of the orphans, that part of the will regarding
orphans is treated as if it's an intestate estate, the executor is
overidden, and an administrator takes care of the orphans.
Here's what Blackstone Book II, Ch. 32 Sub 669 has to say:
"This appointment of an executor is essential to the makeing of a
will: and it may be peformed either by express words, or such as
strongly imply the same. But if the testator makes his will, without
naming any executors, or if he names incapable persons, or if the
executors named refuse to act; in any of these cases, the ordinary
must grant administration "cum testamento annexo" (with the will
annexed) to some other person; and then the duty of the administrator,
as also when he is constututed only "durante minore aetate" etc., of
another, is very diffeent from that of an executor. And this was law
so early as the reign of Henry II...."
binky
read "is very little different from that of an executor."
[DURANTE MINORE AETATE - During the minority.
During his minority, an infant can enter into no contract, except
those for his benefit. If he should be appointed an executor,
administration of the estate will be granted, "durante minore aetate,"
to another person.
In other words, if an infant (someone under 21) is appointed as an
executor, until he reaches 21, adminstration will be granted to
someone else.]
What the law made 1661/2 regarding wills is saying that ALL wills will
be "inviolable" unless no executor will serve. It then gives two
conditions under which the testator's estate will be handled as if
it's an intestate estate:
1. If no one will serve as executor.
2. An executor refuses to see to the education of the orphans as
directed in the will.
binky
ALL wills are deemed "firme" and "inviolable" unless (a) if no one
will serve as executor, or (b) if no one will see to the education of
orphans as directed in the will (someone might agree to serve as an
executor, but not undertake education of the orphans; the law didn't
allow that). In those instances, "administration with will annexed"
was granted; and this is just following common law, as BlackstoneBook
II, Ch. 32 Sub 669 indicates.
Blackstone is saying that an executor is required for a will; and that
(1) if a testator names no executor, (2) if the executors are
incapable of executing the will (due to illness, etc.), or (3) if the
executors refuse to execute the will; then the estate is treated as an
intestate estate with the will annexed. The administrator, whether as
the appointed administrator, or acting as an administrator in lieu of
a minor who was appointed an executor of a will, acts as a quasi-
executor.
That's the way it was.
binky
1. It's declaring all wills inviolable, unless it fails execution and
cannot be proved. As Blackstone observes, "an executor is essential
to makeing a will."
2. It's adding another condition under which a will may be handled as
an intestate estate; e.g., if no one will undertake education of the
orphans. The incapacity of an executor, or naming no executor, is
implied in the statement "if no person will execute the will."
You're not going to get out of this one, Will. I'm sure the gears in
your Rube Goldberg mind are turning, and you'll come up with some
other stupid theory.
binky
2, pp.92-93) did two things:
It reiterated the 1656 law which declared all wills firm and
inviolable;
And it added to existing common law regarding "Administration with
will annexed" that a will could fail execution if no one would see the
orphans were educated according to the terms of the will.
The colonists had the right to make changes to English law when
necessary; and in this case did just that. VA wasn't England; many
people were quite poor, and due to the high rates of mortality in the
colony (VA was considered one of the least healthy colonies), problems
with orphans were very common.
WJho...@aol.com
This law was "regarding orphans estates".
If this law were "Regarding Wills" that would be different wouldn't it?
Why call it "Regarding orphans estates" if it's supposed to apply to all
wills?
Sorry you lose again.
binky
You're an idiot. The VA Assembly declared reiterated all wills to be
"inviolable" and then added another condition under which a will could
fail to existing common law on "Administration with will annexed."
You didn't properly research your position. That all wills were
declared "inviolable" in a law having a preface regarding orphans
doesn't mean all the law only applied in the case of orphans. It's
possible for a law to be in an act, and yet affect others beyond what
the preface to the act indicates. You seem to think that if an act
has a preface, that the law therein can't apply in other cases.
That's crap. In other words, just because a law has a preface doesn't
mean it only applies in instances pertaining to the preface.
You built your whole theory around that, and tried to argue was that
in this instance, the executor of the will would remain "primary," but
a guardian would override the executor as far as the clauses in the
will regarding orphans was concerned--that's complete rubbish.
Mortality was higher in VA than in the northern colonies, and that
meant there were a lot of orphans.
Your tactic is just to launch a flurry of arguments and see if any of
them survive. You have nothing to lose.
binky
The law contained in an act cannot affect anyone beyond what the title
of the act indicates.
All of his other absurd notions went up in smoke, so this is his last
fallback position. It's ridiculous. The title of an act is the title
of an act. Titles of acts are not the law itself. The law itself
begins with the words, "Bee it enacted...."
I admit I've had a diffilcult time understanding what Will means by
his mutterings, because it's always some off-the-wall interpretation
he tosses out ot see if it sticks--and it never does.
binky
law within the act only to what the title indicates, has no supoort in
Blackstone.
In my edition, the footnote to sec. 3 Sub 113 simply says that "The
method of citing these acts of Parliament is various." They can be
titled after the place where the Parliament sat when the law was
enacted; or from their subject; or from their initial words.
However, these are merely methods of citing the act. Nothing in this
section supports Will's argument.
The actual law begins with the words "Be it enacted."
Hopefully, we've finally put an end to Will's specious arguments.
WJho...@aol.com
Peppering every response with insults only communicates to your audience
that you are desperately clutching at straws.
I've heard that if you eat a banana it can help diarrhea.
Flooding the list with hundreds of silly postings doesn't suddenly make you
brilliant.
binky
upon its application, and that's not true. The fact that there were/
are various methods of titling an act proves it isn't true. Laws can
be titled in various ways, and their contents can affect more people
than the title indicates. The bottom line is that the title of an act
in reality is just a citation, or way of locating it in the corpus of
law. There's no legal requirement that in a law titled by its subject
the title has to desctribe the whole of the law in the statute.
The only thing that changed in the probate act of 14 Mar 1661/2, was
that the Assembly added another condition under which an executor
could fail to qualify; e.g., not being willing to undertake the
education of orphans according to the terms of the will. This
modified existing common law regarding "Administration with will
annexed." Perfectly legal.
There's no support at all for your argument. Everybody reading this
board knows you're only clinging to your stupid opinions in a vain
attempt to salvage what you think is your reputation--the fact is, you
didn't have one to begin with, so there's nothing to protect.
I don't want to insult you, but you're way out of your depth. You had
an incorrect understanding, and now you've been shown to be wrong once
more. Grow up. You know, I could just let you babble, every now and
then revive the thread by calling you an idiot, and that way always
have the last word. You know? What's going to happen when you slip
up, and don't inject some more of your idiocy? Everyone will think
I'm right, Will. 'Cause I had the last word.
binky
The title of a statute is just a citation--it has no legal force. The
title of a law doesn't limit the application of a law. Next time you
favor us with one of your crackpot suggestions, why don't you try
basing it on some real research?
WJho...@aol.com
bin...@gmail.com writes:
> You are trying to argue that the title of a statute is a constraint
> upon its application, and that's not true. >>
-----------------
No. I am stating that the titling of that act should indicate to any
reader what the author of that title believed the act was for.
If your *authority* himself is stating that this is for orphans estates,
then you should understand that this is law.... for orphans estates. Unless
you believe the author that you are claiming is the expert in this, you are
also claiming is incompetent.
You can't have your cake and eat it too. Either this "ultimate authority"
is competent to decide what titles to use, or they themselves don't
understand the laws they are purporting to give. The title they chose is indicative
that they knew that this law did not change the law on the execution or
probate of wills at all. That is was specifically for the exact purpose cited
regarding orphans estates, and nothing more.
binky
a title indicates. A title is a citation; a title may be more or less
descriptive of the content of the law, but does not limit its
application; and is not the law itself.
Mortality rates in colonial VA were higher than in the northern
colonies, and the problem of orphans was a serious concern for
parishes and the county courts. The Assembly decided to make ALL
wills "inviolable" so that orphans would be assured of obtaining their
inheritance. The law of 14 Mar 1661/2 added to existing common law
another condition under which a will would fail to be proved: if no
one would undertake to see that orphans were educated by the terms of
the will.
Your problem is you are making an assumption: that the title of this
law means only what YOU think it means. Had the language about wills
only applied to orphans, the law would have read: "all wills and
testaments involving orphans shall be firme and inviolable." As the
Elizabeth Spencer case clearly shows, in 17th century VA, once a will
was proved it could not be challenged.
I think you'd better have a talk with an attorney--you'll find there's
no support for your opinion.
binky
The court ruled that she had been present in court at the proving of
the will, and that the "proof" of the will was valid and therefore the
will couldn't be challenged.
However, Elizabeth had been married previously to Thomas Wilke.
Widows were allowed pre-nuptial agreements in the 17th century.
Apparently George Spencer had made some agreement with Elizabeth
regarding her "own" property; the court rejected the agreement, and
ruled that her property by the law of coverture belonged to George
Spencer, and after his decease became part of his estate; Elizabeth
refused to turn over the disputed property, hence the lawsuit between
George Spencer's executor and Elizabeth.
Elizabeth appealed to James City the court's ruling that her agreement
with Spencer was invalid; she didn't win, and at her death the
original ruling of the court stood.
The Lancaster Co. court based its ruling thusly:
That when a man marries a woman who is an executor or administratrix,
the property *unadministered* becomes the property of the new husband;
and *unadministered* property cannot be allocated to a pre-nuptial
agreement. In other words, Elizabeth didn't have title to the
property to begin with, so Spencer couldn't create a pre-nuptial
agreement based on that property. That property was absobed by
Spencer and became his own, which he legally disposed of in his will.
Richard Nusum sued Elizabeth on that premise and won.
I don't think Will is ever going to get it, so I see no point in
continuing this thread. In 17th century VA, wills, once proved could
not be challenged.
binky
My advice to Will Johnson, and any others who are having difficulty
with this material, is to speak to an attorney. The attorney will
tell them that the contents of a statute are the law, not the law's
title, and that the application of the law isn't limited by the law's
title. Certain members of this newsgroup may know an attorney who can
explain it to them better than I can, so I see no point in arguing
with Will Johnson further.
WJho...@aol.com
bin...@gmail.com writes:
> I don't think Will is ever going to get it, so I see no point in
> continuing this thread.>>
And the crowd goes wild!
We can only hope that this time it's a true statement.
By the way your interpretation of this law, and also this case is still
flawed :)
WJho...@aol.com
bin...@gmail.com writes:
> My advice to Will Johnson, and any others who are having difficulty
> with this material, is to speak to an attorney. The attorney will
> tell them that the contents of a statute are the law, not the law's
> title, and that the application of the law isn't limited by the law's
> title. Certain members of this newsgroup may know an attorney who can
> explain it to them better than I can, so I see no point in arguing
> with Will Johnson further.>>
>
Oh no we couldn't speak to an attorney, because any attorney who gives
statements contrary to you, you'll simply say, "Oh they aren't versed in the law
of 17th century Virginia..."
So we're not falling for that old trick!
binky
You know that the title of a statute doesn't limit its scope. Talk to
a lawyer--I'm not afraid of contrary statements. If there are any,
feel free to post them right here. So everyone can see them. OK?
I'm calling your bluff. Put up or shut up.
binky
This is a very serious matter. You are alleging that the probate law
of 14 Mar 1661/2 only applies in cases where there are orphans,
because of the title of the statute. You're implying that all other
wills may be challenged after probate; therefore, Elizabeth (Dale)
Rogers (as an adult, whether on her own behalf, or her husband William
Rogers acting for her), according to you, did have a claim against the
estate of her father, Edward Dale.
I think that's a fair characterization of your argument.
Your problem is that the title of a law doesn't limit its scope as you
claim. So I'm calling you out. You've mislead the readers of this
newsgroup, and you should set the matter straight. And I'm asking
that you do it now, so that this confusion you've created doesn't
continue. If you're just full of crap and don't know what you're
talking about (as is evident), it's a serious breach of ethics. You
do want the people who are considering hiring you to understand that,
even though you're not a member of any umbrella organization, you
still uphold standards of conduct for genealogists, right?
binky
Board for Certification of Genealogists "Code of Ethics and Conduct."
Even though Will Johnson isn't a member of BCG, I'm asking him
voluntarily to cite a source for his contention that:
"the title of a statute limits the scope of the statute."
If he can't, I expect him to correct the mistaken impression he's left
with this newsgroup. I think that's fair.
______________________________________________________________
Code of Ethics and Conduct
Each individual certified by BCG signs the following pledge:
As a practicing genealogist, mindful of responsibilities to the
public, to the genealogical consumer, and to scholarship, I hereby
pledge
To strive for the highest level of truth and accuracy in all phases of
my work;
To act honorably toward other genealogists and toward the field as a
whole;
To adhere to the Board for Certification of Genealogists' Standards of
Conduct;
(and, if engaged in research for others)
To act in my client's best interests; and
To protect my client's privacy.
To protect the public
I will not publish or publicize as fact anything I know to be false,
doubtful, or unproven; nor will I be a party, directly or indirectly,
to such action by others.
I will identify my sources for all information and cite only those I
have personally used.
I will quote sources precisely, avoiding any alterations that I do not
clearly identify as editorial interpretations.
I will present the purpose, practice, scope, and possibilities of
genealogical research within a realistic framework.
I will delineate my abilities, publications, and/or fees in a true and
realistic fashion.
To protect the consumer (client or colleague)
I will keep confidential any personal or genealogical information
given to me, unless I receive written consent to the contrary.
I will reveal to the consumer any personal or financial interests that
might compromise my professional obligations.
I will undertake paid research commissions only after a clear
agreement as to scope and fee.
I will, to the best of my abilities, address my research to the issue
raised by the consumer and report to that question.
I will seek from the consumer all prior information and documentation
related to the research and will not knowingly repeat the work, as
billable hours, without explanation as to good cause.
I will furnish only facts I can substantiate with adequate
documentation; and I will not withhold any data necessary for the
consumer's purpose.
If the research question involves analysis of data in order to
establish a genealogical relationship or identity, I will report that
the conclusions are based on the weight of the available evidence and
that absolute proof of genealogical relationships is usually not
possible.
If I cannot resolve a research problem within the limitations of time
or budget established by contract, I will explain the reasons why.
If other feasible avenues are available, I will suggest them; but I
will not misrepresent the possibilities of additional research.
I will return any advance payment that exceeds the hours and expenses
incurred.
I will not publish or circulate research or reports to which the
consumer has a proprietary right, without prior written consent of the
consumer; I will observe these rights, whether my report was made
directly to the consumer or to an employer or agent.
To protect the profession
I will act, speak, and write in a manner I believe to be in the best
interests of the profession and scholarship of genealogy.
I will participate in exposing genealogical fraud; but I will not
otherwise knowingly injure or attempt to injure the reputation,
prospects, or practice of another genealogist.
I will not attempt to supplant another genealogist already employed by
a client or agency. I will substitute for another researcher only with
specific, written consent of and instructions provided by the client
or agency.
I will not represent as my own the work of another. This includes
works that are copyrighted, in the public domain, or unpublished. This
pledge includes reports, lecture materials, audio/visual tapes,
compiled records, and authored essays.
I will not reproduce for public dissemination, in an oral or written
fashion, the work of another genealogist, writer, or lecturer without
that person's written consent. In citing another's work, I will give
proper credit.
binky
You see, I researched Will's contention that a law was limited to the
subject of its title, and discovered from the 17th century backward,
there's no law on that topic at all. There were a number of
practices, and the English settled on citing law by regnal year, but
it wasn't obligatory.
So right now, Will's trying to figure out a way out of this. In post
after post, he's insisted that the application of a law is limited to
the subject of its title, and by now he's probably been told that
isn't true, and he doesn't know what to do. He's not enough of a man
to admit he's wrong, so he's hoping, like he ususally does when he
sticks his foot in his mouth, that it will all go away.
He's going to be disappointed.
binky
that they're going to lose, they just make it up. Will Johnson never
had any source to back up his contention that the *subject in the
title of a law limits the application of that law to that subject*.
But he wanted people to think that's true. It's not right, but the
truth is, Will doesn't belong to any umbrella organization that
requires members to observe a code of ethics. As a practical matter,
nothing can be done about it. In this case, he hasn't been hired to
do anything, he hasn't received any money for his comments here, so
there's no course of action against Will at all. It's not fraud. He
hasn't committed any infraction of the law. I want people to
understand that.
"soc.genealogy.medieval" is an unmoderated message board. People can
say pretty much anything they want, and unless they're using the board
for criminal purposes, the FTC isn't going to get involved. The board
can be read with several newsreaders.
But this kind of behavior reflects on all of the pros on the board--
and some of the pros probably don't deserve it, but it's difficult to
know if you're dealing with somebody with integrity, or whether
they're dealing from the bottom of the deck. The truth is, you're on
your own if you deal with someone on this message board.
Most of the pros aren't full-time genealogists, they're just
moonlighting, picking up a commission here and there. But some are--
and if I was them, I'd avoid this board like the bubonic plague. And
most pros do.
binky
talked to an attorney. So what did they say?
wjho...@aol.com
Yes that might be one way to mis-read it.
But your "authority" is telling you that that way is wrong.
This law was specifically formed to combat abuses in how guardians of orphans were determined.
And that's all it's addressing.? This law was not formed to re-write probate law again, already settled.?
I thought you were done discussing this with me because I'm a complete idiot?
Will--
OR
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wjho...@aol.com
They said I could only have you committed if you were a danger to yourself or others.
I think they meant a physical danger though...
-----Original Message-----
From: binky <bin...@gmail.com>
To: gen-me...@rootsweb.com
Sent: Tue, Sep 29, 2009 4:57 am
Subject: Re: edward Dale's will & its anomaly
Will! Where'd you go? You were going to get back to me after you
talked to an attorney. So what did they say?
binky
I'm not goimg to take the bait.
Here's the URL for the Virginia Bar Association:
Here's a toll free number for their Lawyer Referral Service:
The VBA will direct you to an attorney who will answer your question,
probably for free. Anyone else can do it, too.
Check it out, Will.