The double portion

The clues in old New York

So The Legal Genealogist had a great time last time with a very attentive group of genealogists at the Connetquot (New York) Public Library, talking about the legal rights of widows and orphans and the records they left behind.

There really isn’t anything that’s better about the whole experience than getting great questions that stretch what you know, and make you learn more.

Raising stacks of golden coins isolated on white background.And one of those questions last night came from a woman who was puzzled by an estate document she found in a packet of loose papers in New York.

Like so many of our ancestors, hers had not left a will, so the estate was divided up according to what the law at the time provided.

And this particular estate document — a distribution order dated in the early 1700s — gave 100 pounds to each of four named persons who all appeared to be children of the deceased, but 200 pounds to a fifth.

And so, the descendant wondered, what might that tell us about this family?

Great question, because that tells us quite a bit about this family. It tells us not just that this person left five children, but it also gives us a bit of evidence of birth order: that one of them was the oldest son.

Because, at that time, in New York, the law provided for what was called a double portion:

After payment of their debts the surplus was to be equally divided between the widow and children, viz. : one-third to the widow and the other two-thirds amongst the children, provided the eldest son should have a double portion, and where there were no sons the daughters should inherit as coparceners, and if any of the children happen to die before it come to age his portion was to be divided among the surviving children.1

Exactly when New York abolished the double portion isn’t clear — there’s a disagreement among the authorities over when New York followed the double portion rule and when it gave all real property to the oldest son (the rule of primogeniture)2 — though everyone agrees that favorite treatment of any one child was gone from New York law entirely by the statute of 23 February 1786.3

New York wasn’t the only place where this rule was ever followed. The concept of the oldest son getting a double portion comes right out of Mosaic law and is usually traced to Deuteronomy 21:17.4 In the Jewish tradition, this right extended only to the firstborn son; an oldest surviving son who wasn’t the firstborn wouldn’t get a double portion.5

It was followed in Massachusetts, where early law gave the eldest son “a double portion” of “the whole estate reall, and personall.”6 This was also the law for a time in early Connecticut, Delaware and Pennsylvania.7

So whenever you see a court order in an estate where there wasn’t a will and one person is getting exactly twice as much as everybody else, stop and think and then check the law. It’s likely to be the result of a double portion rule — and that’s a clue to who the oldest son was in that family.


SOURCES

  1. Robert Ludlow Fowler, Decedent Estate Law of the State of New York, … (New York : Voorhis & Co., 1911), 443; digital images, Google Books (http://books.google.com : accessed 16 Apr 2014). See also Lawrence M. Friedman, A History of American Law, Rev. Ed. (New York : Simon & Schuster, 1985), 66.
  2. Compare Fowler and Friedman, above, with Edward Eggleston, “Social Conditions in the Colonies,” 28 Century Illustrated Magazine 848-871 (May-October 1884); ; digital images, Google Books (http://books.google.com : accessed 16 Apr 2014).
  3. See John C. Spencer, editor, Alexis de Tocqueville’s American Institutions and their Influence (New York: A.S. Barnes & Co., 1851), 453; digital images, Google Books (http://books.google.com : accessed 16 Apr 2014).
  4. “But he shall acknowledge … the firstborn, by giving him a double portion of all that he hath: for he is the beginning of his strength; the right of the firstborn is his.” Deuteronomy 21:17, The Official King James Bible Online (http://www.kingjamesbibleonline.org/ : accessed 16 Apr 2014).
  5. See “Primogeniture,Jewish Encyclopedia (http://www.jewishencyclopedia.com/ : accessed 16 Apr 2014).
  6. See Hugh Seymour Tremenheere, The Constitution of the United States Compared with Our Own (London : John Murray, 1854), 12; digital images, Google Books (http://books.google.com : accessed 16 Apr 2014).
  7. Ibid., 14.
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