Jade: “Every event has its context”
So a comment came in to the blog this morning that’s simply too good to just sit in the comments section, where oftentimes folks who’ve already read a blog post won’t see it.
Reader Jade was looking at this week’s posts on guardianships.
You may recall the post Monday about the man who was named as guardian for his sister’s children even though his sister was still alive 1 and the post Tuesday about the cases where the mother, or another female relative, might have been named guardian even though the usual legal default was to name a male rather than a female.2
When Jade read them, she realized that there was one key point that was missing in the discussion so far.
So, she noted:
One possibly-neglected feature of a guardianship record is timing. The appointment is a hint that something happened: most likely that a propertied male parent died. But it could be a signal that something was about to happen, such as heirs to an intestate estate could be about to sell land and minor heirs needed to have an adult representative in the transaction. I have also seen a case where a guardian was appointed in order for there to be an accountable party to receive a minor’s portion of his paternal grandfather’s estate distribution.
Every event has its context, which needs to be closely questioned as to possible chain of events.3
Absolutely right.
In general, courts didn’t just step in and name a guardian, any more than it would step in and force a family to probate an estate if nobody ever brought it to the court’s attention. In general, there had to be a specific reason why somebody went to the court and asked it to get involved. There are a whole host of possible triggering events that could have led to the appointment of a guardian long after the event we would usually think of: the death of that propertied parent.
• The mother — or stepmother — may have remarried and her new husband wanted to have her dower land (a life estate of the widow in some portion, usually a third, of her late husband’s lands4) set aside for her use.
• An older sibling may have come of age and petitioned the court to partition the estate so he, or she, could have the benefit of his or her share rather than leaving it in the joint control of all of the heirs.
• Some financial issue in the family may have led the heirs to conclude that they needed to sell some or all of the land or other property, and a guardian would be needed to sign off on behalf of the minors.
• A governmental benefit, like a military pension or entitlement to bounty land, may not have been available until long after a parent’s death, but a minor child’s share of that after-the-fact benefit might still require a guardian.
• And, very commonly, the death that served as the triggering event wasn’t a parent’s death at all. Children were often named as heirs in the wills of grandparents, aunts and uncles, even siblings.
And it’s that same issue of timing that may explain why a guardian wasn’t appointed in a given case. In a 2012 blog post, for example, we reviewed reader Margie Beldin’s McHugh family and a probate in Berkshire County, Massachusetts, where there were no guardianship records. That seemed to be puzzling until the timing was considered: by the time the widow needed the help of the probate court, the children were all of age.5
So timing — what specific event triggered the need for a court to get involved at all — is a critical element.
And I couldn’t agree more with Jade’s final point in her comment: “Every event has its context.”
Whether it’s the context of the law — what the law was at that time and place — or the context of local customs, or even the context of a particular family and its ways, context matters.
That’s why context is given such emphasis in Genealogy Standards, the best practices of our field as adopted by the Board for Certification of Genealogists.6 The standards include one aimed particularly at research:
12. Broad context. When planning research, genealogists consider historical boundaries and their changes, migration patterns and routes, and sources available for potentially relevant times and places. They also consider economic, ethnic, genetic, governmental, historical, legal, linguistic, military, paleographic, religious, social, and other factors that could affect the research plan and scope.7
They also include one to consider when we write our conclusions:
57. Background information. Assembled research results provide sufficient background information for readers to understand both what an information item says and what it means in the context of each source’s place and time and in the context of the written presentation. Background information may include concepts from economics, ethnic studies, genetics, geography, government, history, law, religion, sociology, and other fields.8
Jade is right on the money here, so let’s repeat it one more time.
“Every event has its context.”
SOURCES
Image Open Clip Art Library user rihard.
- Judy G. Russell, “The avuncular guardian,” The Legal Genealogist, posted 2 Mar 2015 (https://www.legalgenealogist.com/blog : accessed 5 Mar 2015). ↩
- Ibid., “The exceptions,” The Legal Genealogist, posted 3 Mar 2015. ↩
- Jade, Comment to “The exceptions,” The Legal Genealogist, posted 5 Mar 2015. ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 393, “dower.” ↩
- Judy G. Russell, “Guardians for the kids,” The Legal Genealogist, posted 1 Mar 2012 (https://www.legalgenealogist.com/blog : accessed 5 Mar 2015). ↩
- Board for Certification of Genealogists, Genealogy Standards (Nashville, Tenn. : Ancestry, 2014). ↩
- Ibid. at 12. ↩
- Ibid. at 34-35. ↩
Good post (as usual) I had seen this in one of my families with a Civil War pension – wondered why the chilren would have needed a guardian – this was a good explanation. Thanks!
Our thanks to Jade for the comment!!
A guardian might be appointed to grant permission for a minor to get married.
Yep, that’s another good reason — but generally if the mother was alive, she could give permission. A male guardian wasn’t usually required for this.
Unless the mother was opposed to the marriage, which was the case in 1730 in Lancaster County, VA when a love-struck and under-age woman named Ann Mitchell wanted to marry Thomas Williams. Ann wanted her cousin William Bailey to be her guardian in order to effect the marriage bond. Her widowed mother Margaret went to court and tried to stop it, but she was overruled. The marriage took place anyway.
And people wonder why we read court records for fun… where else are you gonna find a story like that? Great find!
Oops. I forgot the “context” of the blog.
I posted a comment about my grtgrandfather having a guardian at age 5. Perhaps it would be helpful to point out his guardian was his uncle Oden Hayes, who was also the Clerk of Court in Bellefontaine, Logan Co, Ohio, 1870. In looking in the indexes under his name were many instances of his becoming a guardian to unrelated persons. So perhaps a way to look for a guardianship is to check out the Clerk of Court records in a certain time period for your person.
Or the local banker or lawyer or other educated person in the community. Very common.
Another context and law of the time example: Civil War veteran dies, leaving minor children. Their mother is appointed their guardian for purposes of the pension. The mother remarries and, since they are living in a state whose law is that a married woman cannot be the guardian of minor children, the new stepfather now becomes their guardian. Fortunately the pension file explained all the changes as they occurred along the way!
The pensions were a major reason for guardianships, Julia — from every war. Those plus bounty lands.
Yes, indeed. Timing matters. It is also a very good indication that the widow was about to get re-married. I have to admit The Legal Genealogist has left me scratching my head with her original post, because there are so many exceptions to the “rule” that a guardianship was only made involving property that I was left stuttering nothing but, well, “but, but, but…..”
Dig down into almost every exception and it will come down to property, Craig. Even that consent to the marriage? It determines who’s going to control the new wife’s property.
Indeed. In this case Ann had been bequeathed a slave named Kate by her father’s will, a cow and calf and bed. The land was disposed of to other children. Your original article left me with the impression that guardianship’s involved only land. But would a mother really object to a marriage based on this? I think it was more personal, and the law did require a minor to have the consent of a parent or guardian. Since momma wasn’t going along with this, she got her cousin to do it for her. Now another question of course is…how long did this guardianship survive after she was legally married. Might be the topic of another article. This is an EXCELLENT topic to discuss.
Property in the slaveholding states always included slaves — and in many cases the slaves were the most valuable assets of the estate. Scratch a guardianship, and it’s going to come up eventually with a matter of property.
Once a ward married, the guardianship was extinguished, and the property came under control of the new husband. Since the marriage took place after death of the woman’s father, there probably was no feature in the will devising to her and the heirs of her body exclusively, as seen in some testaments where the parent wanted a husband to have no part of the inheritance. I have not seen such a prospective
feature in a will, but do not rule out the possibility that such a provision might exist somewhere.
As a matter of fact, until The Legal Genealogist turned over my apple cart, I had been operation more or less along the lines of what Bob Baird had written about this in his “Bob’s Genealogy Filing Cabinet” series at http://www.genfiles.com/articles/orphans-guardians/
I hope The Legal Genealogist will forgive me for posting a somewhat contrarian view of the matter.
I don’t see anything contrarian about this, Craig. The site you cite to says, and I agree: “The guardian’s responsibility was focused on the property of the orphan than on the orphan himself. … Orphans without inherited estates generally had no need of permanent guardians.”
I don’t either, though I am hung-up on what is probably my misreading of your first article in that a guardianship only involved real property. I need to get my head back around this subject.
Yep, the term “real property” isn’t there at all, just “property” — which could include personal property, cash, slaves, land, etc.
Luv it! another quotable quote:
Will add this to:
“Without Proof, there is no truth”
“F.A.N. Club” by E. S. Mills
and now
“Every event has its context” by Jade via The Legal Genealogist
Works for me!!
While wills of non-parental relatives, devising to minors, can be wonderful, such a child may also be an heir to an intestate estate. The relationships could be buried in hundreds of pages in a case file, albeit with luck more briefly set out in an order- or minute-book record.