Comments due by Monday 1 December

Today, The Legal Genealogist is asking for our community’s help in speaking out for those who cannot speak for themselves.

This country’s veterans who lie in unmarked graves.

They need our help, and they need it now. We have less than a week to speak out on a federal rule change that is critically needed.


The VA has long had a program that assists in providing headstones or markers for veterans’ graves. It’s called the Memorial Programs Service, and here’s the way it works:

The Department of Veterans Affairs provides headstones and markers for the graves of veterans anywhere in the world and for eligible dependents of veterans buried in national, state veteran or federal cemeteries. Flat bronze, flat granite, flat marble and upright marble types are available to mark the grave of a veteran or dependent in the style consistent with existing monuments at the place of burial. Niche markers also are available to mark columbaria used for the inurnment of cremated remains.

Headstones and markers are inscribed with the name of the deceased, the years of birth and death, and branch of service. Optional items that also may be inscribed at VA expense are: military grade, rank or rate; war service (such as “World War II”); months and days of birth and death; an emblem reflecting one’s beliefs; valor awards received; and the Purple Heart. Additional items may be inscribed at private expense.

When burial is in a national cemetery, military post or state veterans cemetery, the headstone or marker is ordered through the cemetery, which will place it on the grave. Information regarding style, inscription, shipping and placement can be obtained from the cemetery.

When burial occurs in a cemetery other than a national cemetery or a state veterans cemetery, the headstone or marker must be applied for from VA. It is shipped at government expense to the consignee designated on the application. VA, however, does not pay the cost of placing the headstone or marker on the grave.1

Sounds great, doesn’t it? But there’s a hitch.

A problem surfaced back in 2013 when the Veteran’s Administration started enforcing a rule adopted in 2009 that — for the first time — put limits on who was eligible to ask that a headstone or marker be provided. For decades, any family member, in fact anyone who had information about the burial place of a veteran, could ask that a headstone be erected to honor a veteran’s grave. Prior to 2009, there was no rule requiring that the person asking for the stone have any particular relationship to the deceased veteran.

But in 2009 the rule was changed. The current version of the federal rule requires that there be an application for a headstone or marker by “an applicant,” and it defined that as

the decedent’s next-of-kin (NOK), a person authorized in writing by the NOK, or a personal representative authorized in writing by the decedent to apply for a Government-furnished headstone or marker and, in appropriate instances, a new emblem of belief for inscription on a Government-furnished headstone or marker.2

Now think about that for a moment. Think of all the veterans whose graves today may remain unmarked. Veterans of the Revolutionary War. Of the War of 1812. Of the Mexican War. Think, just as one example, of the case outlined by the Ad Hoc Committee to Mark Their Graves:

William Peter Strickland (1809-1884) served as chaplain of the 48th New York Infantry for two years during the Civil War. Strickland, like many Northern Evangelicals, believed that serving the Union was “the most sacred duty of every liberty-loving American citizen.” He is interred in Brooklyn’s Green-Wood Cemetery in an unmarked grave.

An application was made to the Veterans Administration for a headstone for him. That application was rejected because the applicant, the cemetery where he is buried, was not next-of-kin. Chaplain Strickland lies today, 150 years after his service to his country, in an unmarked grave.3

Think of every World War I doughboy or World War II soldier or sailor who lies in an unmarked grave but, today, has no remaining next of kin.

Thinking about those people led me, in June of last year, to join hundreds and thousands of others in an email campaign to then-Secretary of Veterans Affairs Eric Shinseki, asking him to take action to make it easier to mark the graves of our nation’s unsung heroes. It was what made me work through the Mark Their Graves website to join in sending this message to Washington:

Unfortunately, many of our veterans lie in unmarked graves.

Up until the middle of (2012), the Veterans Administration was doing an excellent job of remedying this wrong—through its Headstones and Markers Program.

… However, in mid-2012, when the Veterans Administration’s Memorial Programs Service began applying a regulation that dated from 2009, redefining “applicant” and making it necessary to locate and gain the approval of the veteran’s next of kin, this program, particularly for veterans who served generations ago, has created an impossible and unnecessary burden, in effect shutting this program down.

We protest this action and ask that you limit this new regulation—making it inapplicable to veterans who served more than 62 years ago—so that the veterans who now lie in unmarked graves can have a thankful nation mark where they lie, in tribute to their service.4

Yesterday, we got the first signal that those efforts may have paid off. But we need one more push — and I ask you to join me in commenting on a proposed change in the rules.

An automated don’t-reply-to-this email I received yesterday tells us that:

Since 2009, VA has received a number of requests from individuals who did not meet the current definition of applicant for headstones or markers. VA has acknowledged concerns that the current regulatory definition of applicant was too restrictive and resulted in identified Veteran gravesites going unmarked. VA shares the goal to ensure appropriate recognition of Veterans who served the United States and proposes to revise the definition of applicant to ease the restrictive aspects of the definition and allow more individuals to apply for headstones or markers, including memorial headstones or markers.

On October 1, 2014, the National Cemetery Administration (NCA) of the Department of Veterans Affairs (VA) published in the Federal Register, a proposed rule to amend the existing definition of eligible applicants by expanding the types of individuals who may request headstones or markers on behalf of decedents. VA is seeking input from Veterans, family members and other stakeholders regarding a proposed change to its definition of who may apply for a headstone or marker. Those wishing to review and comment on the proposed changes are encouraged to do so by searching for “National Cemetery Administration” or “2900-AO95” at Comments must be received on or before December 1, 2014.5

So… how would the new rule work if adopted? It would expand the definition of eligible applicant for a burial headstone or marker to include the veteran’s “family member, which includes the decedent’s spouse; a child, parent, or sibling of the decedent, whether biological, adopted, or step relation; and any lineal or collateral descendant of the decedent;” and for a memorial headstone or marker to any “member of the decedent’s family, which includes the decedent’s spouse; a child, parent, or sibling of the decedent, whether biological, adopted, or step relation; and any lineal or collateral descendant of the decedent.”6

It would also allow an application to be made by any personal representative, and it defines that to include “individuals who have no familial relationship to the veteran but to whom the responsibility for final disposition of the remains or other related activities have fallen. For example, … groups such as the Missing in America Project have made a significant contribution to finding the unclaimed remains of veterans and ensuring that they are provided with a final resting place. It is a logical step that the same individual who made the burial arrangements should be able to request memorialization as well.”7 And it also allows applications by any congressionally charted Veterans Service Organization — groups like the American Legion, the Disabled American Veterans, the Veterans of Foreign Wars and more.8

It’s not quite as good a rule as it might be; I’d love to see cemeteries, historical societies and genealogical societies included among those who can make application for the markers. But it’s a whole lot better than just the next of kin, and it’s hard to imagine a cemetery or historical or genealogical society worth its salt that couldn’t enlist the local VFW post in seeing to it that a veteran’s grave was properly marked.

So please take a moment over these next few days — comments are due by 1 December — and comment on the proposed rule. Click through to this page at, read the proposal and then click on the blue Comment Now at the upper right hand side (see where the arrow is pointing in the image above).

Tell the VA it’s doing the right thing — that expanding the list of those eligible to apply to mark a veteran’s grave allows us all a better chance to honor the unhonored.

If everyone pitches in here, maybe we can win one this time.


  1. Headstones and Markers,” ( : accessed 25 Nov 2014).
  2. 38 CFR 38.632 (2009).
  3. Mark Their Graves ( accessed 25 Nov 2014).
  4. Petition, Mark Their Graves ( : accessed 25 Nov 2014).
  5. Email, National Cemetery Administration, Department of Veterans Affairs, to Judy G. Russell, 25 Nov 2014.
  6. AO95 – Proposed Rule – Applicants for VA Memorialization Benefits,” Department of Veterans Affairs, ( : accessed 25 Nov 2014).
  7. Ibid.
  8. See “Congressionally-Chartered Veterans Service Organizations (By Date of Charter),” House Committee on Veterans Affairs ( : accessed 25 Nov 2014).
Posted in General | 18 Comments

DNA holiday sale time!

The Legal Genealogist readily admits it.

I am a sucker for a DNA sale.

rewardsYeah, yeah, yeah, so it’s not Sunday and here I am writing about DNA again.

So sue me.

It’s a sale, for pete’s sake.

And not just a sale, but one that actually has some (dare I say it?) fun attached.

Family Tree DNA launches its 2014 Holiday Sale at 10 a.m. Central time today (that’s like about a nanosecond ago if I pushed “publish” at the right moment), and here’s the deal.

First off, there are the usual discounts on the usual tests:

And for new tests, here’s the line-up of prices (good through December 31 (11:59 p.m. Central time) for kits bought and paid for by then):


Regular Price

Sale Price










Y-DNA12 to Y-DNA37



Y-DNA12 to Y-DNA67



Y-DNA12 to Y-DNA111



Y-DNA25 to Y-DNA37



Y-DNA25 to Y-DNA67



Y-DNA25 to Y-DNA111



Y-DNA37 to Y-DNA67



Y-DNA37 to Y-DNA111



Y-DNA67 to Y-DNA111



Family Finder



Big Y



mtDNA Full Sequence



mtDNA+ to Full Sequence



Now those prices are pretty cool. But that’s not the fun part. The fun part is something called Mystery Reward discounts.

Every week between now and the end of the year, every customer is going to get an icon on the myFTDNA dashboard. Click on the icon, and you go to the rewards page to find out how much the additional discount is that you can add on top of the sale prices in the chart you see above here.

The Mystery Reward will be anything from a specific dollar amount good against any test (or combination of tests) to a product-specific discount (think a really really cheap Family Finder test, for example). The total dollar award could be as much as $100. You can use your reward for your own test — or share it with a friend.

And if you’ve already bought a Big Y test, you’ll get another coupon good for $50 off another Big Y test. And yes, you can share that with a friend too.

Now that’s a DNA sale…

And The Legal Genealogist can’t resist a DNA sale…

Posted in DNA | 9 Comments

When the testate estate isn’t

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

Another Battles match

The Legal Genealogist has said it before and will (I devoutly hope) say it again and again:

I love cousins.

I especially love cousins who are willing to donate just that little bit of themselves that allows an analysis of their DNA against the rest of the family’s DNA.

Because every so often, the results say just what you hope they’ll say.

Case in point: my gawdawful Battles family.


This family is one that I’ve fought with for years. In large part, it’s because of what is at least a single and (more likely) a double out-of-wedlock situation. In a county where the courthouse burned. Twice.

I’ve written before about my third great grandmother, Margaret Battles, who married Daniel Shew sometime before 1849, most likely in Cherokee County, Alabama. There’s no record of their marriage; the Cherokee County courthouse burned twice, in 1882 and 1895.1 They had one child, William, by the 1850 census2 and two more — Gilford and my second great grandmother Martha Louise — by 1860, when Margaret appeared as head of household on the Cherokee County census, apparently a widow.3

We were pretty sure of Margaret’s maiden name, but, with those courthouse fires, documentary proof is hard to come by. We do have oral history passed down to Margaret’s great granddaughter, my grandmother;4 and the death certificate of her son William.5

We could add to that the fact that there was only one Battles family in Cherokee County, Alabama, at any time that could have included Margaret, and that’s the family of William Battles, who was enumerated in Cherokee County in 1840,6 1850,7 1860,8 and 1870.9

In the last few months, we’ve added some amazing bits and pieces, most particularly the fantastic DNA results of a cousin, Jack, who descends from a George Battles, whom we have long believed to be Margaret’s brother, and whose DNA results so strongly match everyone in my family that he should match that it leaves no doubt about George and Margaret being siblings.10

But even with that we have been up against one final question: who was the mother of the many Battles children? You see, William was married twice. His first marriage, to Kiziah Wright, resulted in a messy suit she brought against him for divorce that was finally dismissed in 1829, apparently when Kiziah died.11 His second wife was Ann Jacobs. They were married on Christmas Day 1829, and showed up on the 1830 census with — count ‘em — five children.12

So… how to prove whether Kiziah or Ann was the mother?

We needed a documented direct female-line descendant of Ann.

And a California man named Michael has stepped into that gap. He descends in an unbroken female line from Julia Battles, the middle of three female children enumerated with William and Ann in the 1850 census.

His mitochondrial DNA results will give us the final answer we need: if he matches me and my maternal cousin who’s tested, then we know that Ann was the mother of both Julia and Margaret. If he doesn’t match us, then the older children may well have been Kiziah’s children and not Ann’s.

And … sigh … no, those results aren’t in yet. My fingernail marks from climbing the walls are evidence of that.



But his autosomal results came in this week.

You can see from the chart above that we really really really needed Michael to match Jack and Thelma. At that level, he should be a third cousin once removed to both of them. The odds of a match at that level are good, but not guaranteed.

All I could do was cross my fingers that he shared enough DNA in common with these cousins to show up as a match.

And he does.

He shares 54cM of autosomal DNA with Jack, longest block 24cM, estimated relationship range second to fourth cousin. And he shares 40 cM of DNA with Thelma, longest block 18cM, estimated relationship range third to fifth cousin.

Family Tree DNA still reports, as to the mitochondrial results, that “This test is currently on order and matching will be possible when results come back.”

Oh, please


  1. FamilySearch Research Wiki (, “Cherokee County, Alabama: Record Loss,” rev. 18 Nov 2014.
  2. 1850 U.S. census, Cherokee County, Alabama, population schedule, 27th District, p. 136 (back) (stamped), dwelling 1055, family 1055, Danl Shew household; digital image, ( : accessed 22 Nov 2014); citing National Archive microfilm publication M432, roll 3.
  3. 1860 U.S. census, Cherokee County, Alabama, population schedule, p. 315 (stamped), dwelling 829, family 829, Margaret Shoe household; digital image, ( : accessed 22 Nov 2014); citing National Archive microfilm publication M653, roll 5.
  4. Interview with Opal Robertson Cottrell (Kents Store, VA), by granddaughter Bobette Richardson, 1980s; copy of notes privately held by Judy G. Russell.
  5. Texas Department of Health, death certificate no. 10077 (1927), W.W. Shew (10 Mar 1927); Bureau of Vital Statistics, Austin.
  6. 1840 U.S. census, Cherokee County, Alabama, population schedule, p. 116 (stamped), line 17, Wm Battles household; digital image, ( : accessed 22 Mar 2014); citing National Archive microfilm publication M704, roll 3.
  7. 1850 U.S. census, Cherokee Co., Ala., pop. sched., 27th Dist., p. 136 (stamped), dwell. 1052, fam. 1052, Wm Battles household.
  8. 1860 U.S. census, Cherokee Co., Ala., pop. sched., p. 314-315 (stamped), dwell./fam. 825, Wm Battles household.
  9. 1870 U.S. census, Cherokee Co., Ala., pop. sched., Leesburg P.O., p. 268(B) (stamped), dwell. 26, fam. 25, W Battles household.
  10. See Judy G. Russell, “On with the Battles,” The Legal Genealogist, posted 13 April 2014 ( : accessed 22 Nov 2014).
  11. Transcription, Records of the Blount County Circuit Court, 1824-1829; Circuit Court Clerk’s Office, Oneonta, Ala.; transcribed by Bobbie Ferguson; copy provided to J. Russell and held in files.
  12. 1830 U.S. census, St. Clair County, Alabama, p. 252 (stamped), line 24, William Battles 2nd household; digital image, ( : accessed 22 Mar 2014); citing National Archive microfilm publication M19, roll 4.
Posted in DNA, My family | 12 Comments

Not 143 years ago today

It ain’t necessarily so
It ain’t necessarily so
The t’ings dat yo’ li’ble
To read in de Bible,
It ain’t necessarily so.

– Ira Gershwin, “It Ain’t Necessarily So

There is a Family Bible owned for many years, generations even, by a branch of my Baker family, and it carefully records the death of the oldest member of that branch of the family.

Josias.Bible“Josias Baker departed this life November 22nd 1871.”1

Now maybe we’d have some trouble accepting all of the birth information in the Bible as … well… gospel truth. After all, the entries report, among others, Josias’ birth in 1787 — nearly 60 years before that particular Bible was published. And all the births, up to the last reported in 1834, are in the same handwriting.2

But the deaths… those are different. At least four separate hands involved in those entries. They sure look like at least the later ones would be contemporaneous with the events.

So we’d certainly be justified in accepting today as the 143rd anniversary of Josias’s death, wouldn’t we?

After all, it’s exactly the kind of record that people did keep, at the time, of important events in family history, and they’d certainly record it correctly.



To quote Ira Gershwin, “It ain’t necessarily so.”

You see, Josias Baker left a will when he died, and that will was submitted to the Ellis County, Texas, District Court to be admitted to probate there.

And it was admitted to probate in the Fall Term.

Of 1870.3 Not 1871.

And his son-in-law Josiah Porter carefully told the court, there on the 7th of December 1870, that Josias had died on the 20th of November. Not the 22nd.

Even with something as ordinarily reliable as a Family Bible…


The t’ings dat yo’ li’ble
To read in de Bible,
It ain’t necessarily so.


  1. Baker Family Bible, 1787-1878; The Holy Bible (Philadelphia : Jesper Harding, printer, 1846); Bible Records Collection; Dallas Public Library, Dallas, Texas. The Bible was owned by a daughter of Josias and Nancy (Parks) Baker, Barsheba Matilda (Baker) Strong Porter. Mrs. Porter’s great granddaughter, Louise (Rosser) Garrett of Richardson, Texas, inherited the Bible after the death of Clara (Price) Rosser, her mother and Mrs. Porter’s granddaughter. Mrs. Garrett donated the Bible, along with other family Bibles, to the Dallas Public Library c1985.
  2. Ibid., Births column.
  3. Ellis Co., Texas, District Court, probate case no. 330, “Jonas” Baker (1870), application for letters of administration, filed 7 Dec 1870; FHL microfilm 1673847.
Posted in Methodology, My family | 10 Comments

Historical laws in one place

In anticipation of tomorrow’s Genealogy and the Law day — the annual seminar of the Genealogical Society of Bergen County in Mahwah — The Legal Genealogist has been poking around the old law books again.

This time, New Jersey’s old law books.

You see, in some respects, New Jersey researchers have it tough.

Although the Garden State began as one of the original colonies and has a rich and deep history, it too has suffered records loss. As in, just as a few examples, the 1790, 1800, 1810 and 1820 United States census records for New Jersey, all of which are missing in action.1

NJSL.lawHowever, as if to make up in part for that sort of records loss, what New Jersey researchers have as a plus are the legal resources of the New Jersey State Library, which has gathered together in one place all of the online resources for New Jersey’s historical laws.

A Garden State researcher should start out at the entry page for New Jersey Historical Laws, Constitutions and Charters at the New Jersey State Library website. And from there… oh, from there… well, the choices make a law geek like me drool.

Here’s an overview of the goodies you can find:

New Jersey Charters and Treaties, starting with the 1664 Grant to Berkeley and Carteret and 1664 Concessions and Agreements of the Proprietors and going through to the 1756 treaty between New Jersey and the Indians.

New Jersey Colonial Ordinances, ranging from a 1704 catalog of fees to a 1728 Ordinance for Establishing the Remedies for Abuses in the Practice of the Law.

New Jersey Constitutions — all three that New Jersey has had: 1776; 1844; and 1947. But more than just the text of the Constitutions, there are reports of the constitutional conventions, journals of proceedings and more.

• The Historical Compilations collection pulls together all of the compiled statutes from colonial times, ranging from an index of colonial laws from 1663, the laws and ordinances of New Netherland and New Jersey’s Provincial Statutes up to the modern New Jersey Statutes, for which an online link is not available.2 Most of the law codes are available in digitized versions through Rutgers University or one of the online services like Google Books, HathiTrust or Internet Archive.

New Jersey Session Laws are available online starting with the statutes of 1776 and continuing right up to today. Most of the resources are offered by Rutgers University; modern session law information is from the New Jersey Legislature.

• For court cases, the Reporters collection, reports of court decisions published in the New Jersey Law Reports series, volumes 1-96, 1816 to 1922, the New Jersey Equity Reports series, volumes 1-91, 1836-1920, and the Atlantic Reporter regional case reports, volumes 1-116, 1885-1922.

• You can also find historical information about New Jersey’s lawyers and judges in the New Jersey Lawyers’ Diary and Bar Directory collection from 1904 through 1916 and the New Jersey State Bar Association Yearbook collection, spanning the years from 1900 through 1921.

And even that extensive list isn’t everything the site has to offer! There are treatises and a legislative manual and Journals and Minutes of the Legislature… and… abd…

So go ahead, go poke around.

Good things await you in those musty old books…


  1. FamilySearch Research Wiki (, “New Jersey,” rev. 4 Nov 2014.
  2. Current New Jersey statutes are available at the New Jersey Legislature website.
Posted in Constitutions, Court Cases, Resources, Statutes | 2 Comments

The good, the bad and the ugly

So yesterday was the rollout of the changes in matching systems for folks who’ve had DNA tests at AncestryDNA. And, as usual, there’s good news and bad news in the changes. Enough to warrant breaking with The Legal Genealogist‘s usual Sunday-for-DNA rule to comment today.

Let’s start by remembering what we’re dealing with here. The AncestryDNA test is an autosomal DNA test. It looks at the kind of DNA that you inherit equally from both of your parents: you get 22 autosomes1 (plus one gender-determinative chromosome) from your father and 22 autosomes (plus one gender-determinative chromosome) from your mother, for a total of 23 pairs of chromosomes. So this is a test that works across genders to locate relatives — cousins — from all parts of your family tree.2

Good: Fewer, Better Matches

The good news, of course, is the big change in the matching algorithm that deletes a very large number of people from all of our match lists who really aren’t related to us genetically at all.

This means that our numbers of matches have gone down — my own results, as you can see here, dropped like a rock: more than two-third of my matches dropped off my list, from roughly 13,000 matches down to about 3,850.


But at the same time, the quality of our matches has gone up.

AncestryDNA’s new matching system begins with a better, deeper, more accurate analysis of the data that helps define who is and who really isn’t genetically related.

One part of the new analysis is through the identification of some parts of our genetic code that really don’t mean anything at all. Some pieces of DNA that we once thought meant we were genetic cousins we now understand just mean we’re all human, or all Scandinavian, or all African. By taking those pieces out of the matching system, AncestryDNA will eliminate many of the false positives.

The other big part of the new analysis is in the way AncestryDNA looks at the bits and pieces of our genetic code that we use for genetic genealogy testing. Since it doesn’t look at all of our DNA, but only parts of it, autosomal DNA testing relies on making some educated guesses about the parts of it the test itself doesn’t look at.

In a way, it’s like reading a book with only some of the words showing up on the page; the analysis system has to guess at what the missing words are. The better the guesses are, the better the results are. So part of the new system is a better way of thinking about what the missing words are likely to be — and in what language. If I’m 100% European, for example, the system shouldn’t conclude that the missing DNA words are in an Asian language.

Emphasizing the right missing words means the people who show up on our lists as matches will be better matches. More accurate. More likely to really be our cousins.

And people we didn’t match before, but who are our real cousins, will show up on our match lists… like a Cottrell cousin of mine who wasn’t on my old list and is on my new one.

Now before people get all bent out of shape about the matches that have disappeared… they haven’t completely disappeared. At least not yet. You can access the old list this way:

1. Go to your DNA Home Page.
2. Under your name, find the word Settings with the gear icon, and click on that.
3. On the right hand side of the settings page, under Actions, there’s a link to “Download v1 DNA Matches” that says we can: “Download a list of your previous “v1″ matching results (available for a limited time).”

We don’t know how long that’ll be there, so if you have earlier matches you want to preserve, download that old match list. It comes in a CSV file format and preserves all of the prior information: if it had a shaky leaf hint, for example, there will be a YES in the HINT column, and if you created a note to yourself about the match, what you noted is reproduced in the NOTE column.

Good and Bad: DNA Circles

The next big change to the matching system is the inclusion of DNA Circles. Think of them as shaky leaf hints on steroids. And they are both good news and bad news all wrapped up in one.

What the circles do is group people who have tested based on their DNA and on their online family trees. Everyone included in a circle will be a DNA match to at least one other person in the circle and everyone in the circle will have a direct line path to some shared person in their family trees. Here, for example, is my DNA Circle for my third great grandfather Martin Baker:


(And please… please, people… respect the privacy of others who have tested. DO NOT go reproducing information without the permission of others who have tested. It’s really easy to black out names and blur photos so you’re not putting information into blog posts or other public places without permission!)

The good part of the DNA Circle grouping is that I don’t have to hunt through every one of my matches to see who else has tested who also lists Martin as an ancestor. This will do it for me. We can now all communicate with each other and share research to see what information one of us might have that the others don’t.

The bad part of the DNA Circle grouping is that not everybody who’s tested with AncestryDNA will show up in your DNA Circles even if you are a DNA match and your trees match. To have this feature at all, you have to be a paying Ancestry subscriber. None of the free accounts will see this. And you have to have a public family tree. Folks with private trees can’t be included.

How deep the family tree data is will affect whether a match lands in a circle too: if the family tree data is fairly complete and the matching algorithm can limit the chances that the match is really in a different line of your family tree, the match is more likely to show up in a circle than if the data is less complete. There’s a lot of information about the circle system and how it works in a white paper that Ancestry subscribers who are in a circle can access (click on the question mark icon when you’re in the DNA Circles area then choose DNA Circles White Paper); at some point, we hope AncestryDNA will make it available to others as well.

And of course it’s still a bad part of this whole thing that we’re forced to deal with someone else’s analysis of what our data really means instead of getting useful tools for comparing the data ourselves.

The Ugly: Misunderstanding DNA Circles

It’s that last point above — that we still have to rely on what someone else is saying about our DNA and our matches — that creates the really ugly part of this change: it’s got a very serious potential to reinforce some very very bad genealogy. And no matter how many times responsible genealogists warn and even AncestryDNA itself warns that DNA Circles do not prove descent from the person identified as the possible common ancestor, people still already believe these circles are proof.

Read through the comments posted yesterday on Facebook and Google+. “I now see who the common ancestor is!” is a common type of comment.

No. No, no, no, no. A thousand times, no.

All we’re seeing is that we are cousins, yes, and that we have somebody that we share in our online family trees. What it does not do is prove that we’re all descended from that person. We could be cousins in an entirely different line — our family tree data could simply be dead wrong.

The whole DNA Circles concept depends in large measure on the accuracy of online Ancestry family trees. And how many times have we all seen major problems with these trees? Someone begins by posting a very complete — but entirely erroneous — line in a family tree, and 10 other people copy it in their own family trees.

Even today, on Ancestry, there are dozens of family trees identifying Samuel Baker and Eleanor Winslow of Massachusetts as the parents of William Baker of Virginia, and Alexander Baker of Boston as Samuel’s father. Um… nope. YDNA testing has definitively disproved that whole notion… but the trees that say it persist and even multiply.

Now if enough descendants get DNA tested and they persist in identifying the wrong people as William’s parents, guess what? We’re going to get a DNA Circle eventually that suggests that they really were William’s parents. And the people who want to believe that they were William’s parents are going to say that the fact that they’re in a DNA Circle with everyone else who claims descent from these same people proves it.

It’s hard enough to convince people to give up cherished notions of common ancestors when the facts don’t support the family stories. But when people are grouped into circles who are in fact related by DNA, getting them to understand that how they’re related may be in an entirely different way, through entirely different ancestors, that the circles are just hints, well… let’s just say I’m not looking forward to this.

Good. Bad. And ugly.

Get used to it.


  1. “An autosome is any of the numbered chromosomes, as opposed to the sex chromosomes. Humans have 22 pairs of autosomes and one pair of sex chromosomes (the X and Y).” Glossary, Genetics Home Reference, U.S. National Library of Medicine ( : accessed 19 Nov 2014), “autosome.”
  2. See generally Judy G. Russell, “Autosomal DNA testing,” National Genealogical Society Magazine, October-December 2011, 38-43.
Posted in DNA | 56 Comments

It’s a Sir Walter Scott kind of day for The Legal Genealogist:

BREATHES there the man with soul so dead,
Who never to himself hath said,
  ’This is my own, my native land!’
Whose heart hath ne’er within him burn’d
As home his footsteps he hath turn’d
  From wandering on a foreign strand?

It’s been a long nearly-two-weeks-on-the-road road trip.

vector - hiker on the trip, isolated on backgroundFrom the Genealogical Research Institute of Virginia 10 days ago, with a side trip to the Library of Virginia for research, to the North Carolina Genealogical Society this past weekend, with a side trip to the North Carolina State Archives for research, to the Mount Vernon Genealogical Society yesterday, with side trips to Mount Vernon itself and to NARA College Park for research…

Today I turn my footsteps home.

It has been a wonderful road trip. I’m so very grateful to all three of these organizations for including me in their programs. Getting a chance to visit with old friends and meet new ones and to talk to people whose passion for genealogy is as great as my own is just terrific.

But today I turn my footsteps home.

I got to spend time with family on this trip: my mother’s youngest sister, some of my cousins. I even got to meet a cousin on this trip: Jim Poole of South Carolina is a cousin in my Pettypool line and we had a chance to sit and talk and get to know each other after the NCGS annual meeting.

But today I turn my footsteps home.

I picked up some neat details, even some on my own family, in my research on this trip. Some record types I hadn’t had a chance to use before. And a Virginia deed dovetailing with a North Carolina deed partitioning land of an ancestor after his death that adds confirmation to the identity of one daughter from whom I descend.

But today I turn my footsteps home.

Catch you later.

After five or six hours on the road… and an hour of two of cuddling with a pair of cats.

Posted in General | 3 Comments

What exactly is a marriage bond?

Time and again, whenever a marriage bond is referenced, the question comes up.

What happens if the two people named in the marriage bond don’t get married? Isn’t there some kind of court action or record that happens then?

These were the questions asked again this past Saturday at the North Carolina Genealogical Society’s fall seminar, where The Legal Genealogist was privileged to be the presenter in a series of discussions of the law and genealogy.

Mrr.BondAnd underlying these question is an understandable, but mistaken, notion as to just what a marriage bond was.

It seems, doesn’t it, as though a marriage bond should be evidence of an intention to marry — a reflection of an official “engagement.” A man who had proposed to a woman went to the courthouse with a bondsman, and posted a bond indicating his intention to marry the woman.


Um… not exactly.

I mean, yeah, okay, sure it’s true that you wouldn’t have gone and signed a marriage bond if you didn’t intend to get married, but simply “reflecting an engagement” or “indicating an intention to marry” is about as far from the real purpose of a marriage bond as it’s possible to get.

Remember that, for the longest time, the way folks got married was that marriage banns1 were read from the pulpit or posted at the door of the local church. Usually, banns were read on three consecutive Sundays or posted for three weeks.

For example, in North Carolina, as of 1715, couples had to have “the Banns of Matrimony published Three times by the Clerks at the usual place of celebrating Divine Service.”2 In neighboring Virginia, a 1705 statute required “thrice publication of the banns according as the rubric in the common prayer book prescribes.”3

That notice that two people were going to marry had one purpose and one purpose only: to make sure folks knew there was a wedding in the offing so that they had a chance to come forward and object if there was some legal reason why the marriage couldn’t take place.4 In general, that meant one (or both) of the couple was too young, one (or both) of them was already married, or the law prohibited the marriage because they were too closely related.5

When folks married without banns, however, particularly when they married some distance away from where they were known, there wasn’t the same opportunity in advance to have folks “speak up or forever hold their peace.” The bond then stepped into the breach.

What that bond actually was, then, was a form of guarantee that there wasn’t any legal bar to the marriage. Enforcing the guarantee was a pledge by the groom and a bondsman — usually a relative — to pay a sum of money, usually to the Governor of the State (or colony if earlier, or to the Crown if in Canada6), if and only if it actually turned out that there was some reason the marriage wasn’t legal.

The bond shown here, for example, for the marriage of my fourth great grandparents in Wilkes County, North Carolina, in 1816, was a promise by the groom Boston Shew and his brother Simon to pay the Governor of North Carolina five hundred pounds, but it provided that it was “Void on condition that there be no just cause to Obstruct Boston Shew — Intermarriage with Elizabeth Brewer.”7

The use of marriage bonds was common, particularly in southern and mid-Atlantic states, well into the 19th century,8 when most jurisdictions started relying on what the couple said in a written application for a marriage license.

And the laws about those… well… we’ll get to those some other day…

Note: Information in this post was originally included in a January 2012 blog post, The ties that bond.

  1. “Public announcement especially in church of a proposed marriage; plural of bann, from Middle English bane, ban proclamation, ban.” Merriam-Webster Online Dictionary ( : accessed 16 Nov 2014.)
  2. North Carolina Laws of 1715, chapter 8, in William Saunders, compiler, Colonial Records of North Carolina, Vol. 2 (Raleigh, N.C. : P.M. Hale, State Printer, 1886), 212-213; online version, Colonial and State Records of North Carolina, Documenting the American South (, University of North Carolina, Chapel Hill.
  3. Virginia Laws of 1705, chapter XLVIII, in William Waller Hening, compiler, Hening’s Statutes at Law, Being a Collection of all the Laws of Virginia from the first session of the Legislature, in the Year 1619, vol. 3 (Philadelphia: Thomas DeSilver, printer, 1823), 441; digital images, HathiTrust Digital Library ( : accessed 16 Nov 2014).
  4. See generally Susan Scouras, “Early Marriage Laws in Virginia/West Virginia,” West Virginia Archives & History News, vol. 5, no. 4 (June 2004), 1-3.
  5. Maryland by statute required marriages to follow the Church of England Table of Marriages, drawn up in 1560, that said when relatives were too closely related. Chapter 12, Laws of 1694; Maryland State Archives, Acts of the General Assembly Hitherto Unprinted 1694-1698, 1711-1729, vol. 38: 1; Archives of Maryland Online ( : accessed 16 Nov 2014). For that table, see F. M. Lancaster, “Forbidden Marriage Laws of the United Kingdom,” Genetic and Quantitative Aspects of Genealogy ( : accessed 16 Nov 2014.)
  6. See “Marriage Bonds, 1779-1858 – Upper & Lower Canada,” Library and Archives Canada ( : accessed 16 Nov 2014).
  7. Wilkes County, North Carolina, Marriage Bond, 1816, Boston Shew to Elizabeth Brewer; North Carolina State Archives, Raleigh.
  8. FamilySearch Research Wiki (, “United States Marriage Records,” rev. 18 July 2014.
Posted in Legal definitions, Statutes | 14 Comments

Losing another cousin

Susan Hodges Payne Cosner Demitry.

13 July 1954. 15 November 2014.


What can I begin to say about those years?

How do I begin to say goodbye?

How do I begin to describe the twinkling eyes, the bright smile, the contagious laugh, the love of home and family that so marked her years on this earth?

How do I begin to recount the many kindnesses she did for so many people? Just as one example, how she — then a breast cancer survivor — took the second shift and came and stayed with me after my own breast cancer surgery when my sister had to get back to her family and job.

How do I begin to come to terms with the loss of someone who is so much a part of my own history?

Daughter of my mother’s sister. My first cousin. And, as in so many families, among the first and best and closest of childhood friends — and childhood foes.

Just close enough in age to be a frequent playmate — and co-conspirator in all the trouble kids can get into.

Just far enough apart in age to be frequently at each other’s throats: “but Mom, she’s too young to…” on my side; “but Mom, she won’t let me…” on hers.

We played together. We picked blackberries together. We gathered in tomatoes from our grandmother’s garden together. We closed ranks against cousins younger or older, as the winds of change blew.

And we fought together. Oh, how we fought. We fought about who got the last piece of cinnamon toast on a summer morning. Or who got to sit by the window on the car ride. Or whose bouquet of fresh-picked wildflowers (and weeds) was better. Or anything else that happened to present itself at any given moment in time as a source of competition or annoyance.

We grew apart at times in our lives. And we grew together as time went on and all the things that seemed to have divided us when we were younger were revealed as so much less important in the long run than all the things that brought us together.

The joys we shared over the years. The pains we shared. The cares, the concerns, the laughter, the tears.

Our battles with cancer, which I so far have won and which, yesterday, she lost.

Right down to our shared maternal H3g mitochondrial DNA, our family — our love for this big bold brash group of people we call kin — is what we shared most of all.

And that big bold brash group of people is smaller today.

Less bold.

Less brash.

And much diminished.

Rest in peace, dear cousin.

You are so very much loved… and will be so very much missed.

Posted in My family | 54 Comments