The will and the Orphans Court
Waltz will, 1782 Maryland
…It is my Will and Desire that my two Sons John & Frederick Waltz be carried to the Orphans Court at a proper Time and be bound to such Trades as they may respectively chuse …
So, he asks: “Can you tell me what is meant by that? I thought the Orphans Court just dealt with Wills and Estates, I didn’t think they’d help with career counselling. … And am I right to assume these sons were not of age when their father died?”
Okay, let’s first get everybody straight on the Orphans Court, because not all states had them. As Black points out, they were predominant in Delaware, Maryland, New Jersey, and Pennsylvania.1 You’re right that it was a court that dealt with wills and estate — probate matters, as these sorts of issues are called — but that’s not all they did. In addition, these were courts “having jurisdiction of the estates and persons of orphans.”2
In Maryland, the court was created by the Legislature in 1777 to replace the Commissary General, the colonial officer with authority over estates.3 The statute provided that “an orphans court, and a register of wills, under the control of said court, should be appointed in every county” and that the orphans court “proceed according to the laws now in force, or hereafter to be in force, for the administration of justice in testamentary affairs, granting administrations, recovery of legacies, securing filial portions, and distribution of intestate estates; and shall have the same power, authority and jurisdiction, within their several counties, which the commissary-general heretofore by law had and exercised within this state.”4
The court continues today as both “the state’s probate court” and the court with “jurisdiction over guardianships of minors.”5
Okay… so why did that court have anything to do with John and Frederick Waltz? Their father had died, yes, but their mother Charity was still alive; she was the executrix of Rhinehart’s estate.6 Ah, but the word “orphan” in 18th century America didn’t mean a child without any living parent. It meant, most particularly, a child whose father had died.7
Historically, Maryland law provided as early as 1681 that any orphan whose own estate could not support him and whose relatives would not do so was to be “bound Apprentice to some Handicrafte Trade or other person att the discreccon of the County Court, untill one & Twenty yeares of age.”8
In 1704, the law provided that “Orphans shall be maintained and Educated by the interest of their Estate and increase of their Stock, which if too small, such Orphan shall be put Apprentice to some Handicraft Trade, till the age of 21 years.”9
In 1715, the law was amended to provide that
the said orphan shall be maintained and educated by the Interest of their Estate, and the Increase of their Stocks, so far forth as their said Interest and Increase will extend unto. But if the Estate be so small that the Interest or Increase thereof will not extend to a free Education and Maintainance of such Orphans, then such Orphans shall be bound Apprentices to Mariners, or some Handycraft Trade, or other Person, at the Discretion of the County Courts, until they arrive to the Age of Twenty-One Years; except some kinsman or Relation, or some other charitable person will maintain and educate them for the Increase of the small Estate they have, without any Diminution of the Principal…
That every Male Orphan shall be of full Age, … at the Age of Twenty-one Years, and not before (and) every Female Orphan shall be accounted of full Age …, at the Age of Sixteen Years, or Day of Marriage, which shall first happen.10
An explained in Rhinehart’s will, all of his real estate was jointly owned with Charity and was to go to her heirs after their deaths. This likely meant this was land Charity had brought into the marriage. In his will, he left whatever interest he had to Charity.
Because none of Rhinehart’s children received real estate, the court wasn’t required to name a guardian for any property of his minor children; under common law, Charity would be the guardian for nurture of the minors — meaning she’d have the right to keep and raise them unless Rhinehart’s will said otherwise.11
Here, Rhinehart did say otherwise: he wanted the two youngest boys to learn a trade. So he directed that they “be carried to the Orphans Court at a proper Time and be bound to such Trades as they may respectively chuse…”12 That meant he wanted them to be apprenticed: “bound in due form of law to a master, to learn from him his art, trade, or business, and to serve him during the time of his apprenticeship.”13
And yes, most likely they were minors at the time Rhinehart wrote his will. By age 21, as the statute said, they would be of full age and, at that point, they couldn’t be compelled to be apprenticed. So the notion of them being “carried” to court wouldn’t make sense if they were adults.
In any case, I’d bet it’d sure be interesting to see what the records of the Frederick County Orphans Court say about the Waltz boys in the years after Rhinehart’s death!
SOURCES
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 858, “Orphans Court.” ↩
- John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union, rev. 6th ed. (1856); HTML reprint, The Constitution Society (http://www.constitution.org/bouv/bouvier.htm : accessed 18 Apr 2012), “Orphans’ Court.” ↩
- Commissary General, Archives of Maryland 415: 85, Land Office and Prerogative Court Records of Colonial Maryland, in Archives of Maryland Online (http://www.msa.md.gov/ : accessed 18 Apr 2012) ↩
- Ibid., An Act to establish orphans courts in the several counties of this state, Archives of Maryland 203: 160, Hanson’s Laws of Maryland 1763-1784. ↩
- Baltimore County Orphans’ Court Judge Theresa Lawler, “Orphans’ Court: What is it and what does it do?”, Maryland Courts Online (http://www.courts.state.md.us : accessed 18 Apr 2012). ↩
- Women in Maryland had been entitled to serve as executrix under a will or administrator of an intestate since at least as early as 1638. Act for the Succession to Goods, Archives of Maryland 1: 64, Proceedings and Acts of the General Assembly January 1637/8-September 1664, in Archives of Maryland Online (http://www.msa.md.gov/ : accessed 18 Apr 2012). ↩
- Black, A Dictionary of Law, 857, “orphan.” ↩
- Ibid., An act for the better Admstracon of Justice in probate of Wills, granting Admstracons Recovery of Legacys & secureing filiall porcons, Archives of Maryland 7: 195, Proceedings and Acts of the General Assembly, October 1678-November 1683. ↩
- Ibid., Wills and Administration, § VI, Archives of Maryland 193: 83, An Abridgement of the Laws in Force and Use in Her Majesty’s Plantations: 1704. ↩
- Ibid., An Act for the better Administration of Justice in Testamentary Affairs, granting Administrations, Recovery of Legacies, securing Filial Portions, and Distribution of Intestates Estates, Archives of Maryland 75: 240, Bacon’s Laws of Maryland ↩
- See generally “Guardians for the Kids?”, The Legal Genealogist, posted 1 Mar 2012. ↩
- Frederick County, Maryland, Will Records, Liber G.M., No. 1: 282-283, Rhinehart Waltz (1782); digital images, FamilySearch (https://www.familysearch.org: accessed 18 Apr 2012). ↩
- Black, A Dictionary of Law, 82, “apprentice.” See also ibid., 83, “apprenticeship” (“A contract by which one person, usually a minor, called the “apprentice,” is bound to another person, called the “master,” to serve him during a prescribed term of years in his art, trade, or business, in consideration of being instructed by the master in such art or trade, and (commonly) of receiving his support and maintenance from the master during such term”). ↩
When I was beginning in genealogy I was given my 4x great grandfather’s account book from 1830, and inside it were the New Hampshire adoption papers giving my 4x great grandmother custody of her own daughter after her husband’s death. This was how I learned early that women didn’t automatically earn custody of their own children.
The law varied from state to state, for certain, and custody (or guardianship) of the person was very different from custody (or guardianship) of the property. Usually it wasn’t an issue unless there was land, but even that varied from state to state.
For some reason I hadn’t realized that a minor was legally considered/labelled an Orphan if the FATHER died… I’ll have to go back to a few question marks I have by their mothers’ death dates. Such a great question, and definitely a great answer, Judy. Thanks.
Yep, it’s the way the meanings of words differ then-to-now that can really trip us up, Celia. The first time I ran across the word “orphan” in a record of a family member in NC, I was as surprised as you are (“but his mother was alive! how could he be an orphan???”).
As an Archivist I have first hand knowledge of the incredible information that can be gleaned from Probate Records. Well, actually ANY court record can have a plethora of identifying information. The biggest challenge is in how these documents are processed, stored, indexed and made available to the public.
When Census records are available, I suggest looking at the neighbors of your ancestor. Then, when searching in court records for your ancestor also search for the neighbor’s name. Too often the court record index only includes the person of interest, but there can be many others noted in the case. Yes, this is a form of more in-depth research, but having the ability to place someone in a certain place and time is really what it’s all about, right?
Absolutely right, Laura! And court records of all kinds aren’t just just helpful in putting them at a place and time but even more in understanding why they did what they did!