Most
courts in America are courts of record, that is, they
are required by law to keep a record of their proceedings.
Virginia courts are no exception.
County
Court (1619–1902) County
courts were the court of record used by most
Virginians. In 1904, county courts ceased to exist,
and their functions were taken over by the circuit
courts.
County courts were established as the monthly court in
the Great Charter of 1618. The monthly court was
held in different precincts and heard petty civil and criminal cases. It served
two primary functions: (1) it relieved the president and council of part of their
duties as justices, and (2) it brought justice closer to all Virginians.
When the eight original shires were formed in 1634, the monthly court was redesignated
the court of shire, and by 1642 was called the county court. The county
court was required to meet at least six times per year.
The justices, first known as commissioners, were appointed
by the governor; in 1662 they were called justices
of the peace. The court generally included eight to ten justices, with four justices
appointed to the quorum. One member of the quorum in company with three
other justices was sufficient to make up a valid court.
The county court also sat in special terms. These were
well publicized meetings of the court for specific
functions. The orphans' court, begun in 1642, reviewed annual accounts
of orphans' estates and ensured that guardians
did not waste the estates or mistreat the orphans. Apprentices could appeal
to the orphans' court in cases of mistreatment
or failure of masters to live up to their contracts. The court
of claim was a special session for the county's citizens to present
monetary claims against the county before the
levy was laid. Beginning in 1645, the county court also sat as a court of
probate, granting certificates of probate and
administration, ordering inventories and appraisements, and settling
estates.
President
and Council (1607–19) Until
1619, the president and members of the council
heard and decided all civil and criminal cases in Virginia.
Unfortunately, record of their proceedings has not survived.
Once monthly courts were established in 1619, the president
and council began to hear appeals of criminal and civil
decisions made by those courts.
Quarter
Court (1619–61) Starting
in 1619, the president and council, and later
the governor and council, sat as a quarter court in March,
June, September, and December to handle major civil cases,
chancery, and appellate matters. When they met in other
months, they met as the Council. The quarter court was
designated the general court in 1661.
General
Court (1661–1851) This
court had the responsibility of hearing county
court appeals, major civil cases, capital crimes, and
probate matters until 1851. Two other courts were established
during the general court's existence: (1) the high
court of chancery, and (2) district courts. The high
court of chancery took over appellate functions in
county court chancery cases in 1777, and district courts
took over appellate functions in county court common
law cases in 1789.
The judges of the general court also sat on the district
courts. They spent much of their time in the lower
court until 1814, when the general court was made the supreme criminal
tribunal in Virginia. The general court was abolished
by the 1851 state constitution, and its functions were transferred
to the supreme court of appeals.
Supreme
Court of Appeals (1779–present)
Since
the supreme court of appeals was created in 1779,
it has had final jurisdiction in all civil cases. It
has been the state's only court of final appeals since
the general court was abolished in 1851.
High
Court of Chancery (1777–1802) At
its creation in 1777, the high court of chancery
assumed jurisdiction over all chancery cases in the
state. It was abolished in 1802 and replaced by the
superior courts of chancery.
Superior
Courts of Chancery (1802–31) Originally,
there were three chancery districts, with superior
courts of chancery in Staunton, Richmond, and Williamsburg.
Additional districts were added including Wythe
County, Winchester, and Clarksburg in 1812, and Greenbrier
County and Lynchburg in 1814. The Superior Courts of
Chancery were abolished in 1831 and replaced by the
nearest county's circuit superior court of law and
chancery.
District
Courts (1789–1808) In 1789 Virginia was divided into eighteen districts,
each including several counties. Courts were held twice
each year, always in the same location. District courts
were replaced by the superior courts of law in 1808.
The eighteen district courts were held at the courthouses
in Charlottesville, Fredericksburg, Richmond,
Wiliamsburg, Suffolk, Winchester, Staunton, Dumfries, Petersburg,
and possibly others.
Superior
Courts of Law (1808–31)
Created
in 1808, these courts met twice a year in each
county and took over the functions of the district
courts. They were sometimes called circuit courts because
a general court judge rode a circuit throughout his
district to hold these courts. They were replaced in
1831 by the circuit superior courts of law and chancery.
Circuit
Superior Courts of Law and Chancery (1831–51)
These
courts were organized like the superior courts
of law; sessions were held twice a year by a general
court judge who rode a circuit. They assumed the functions
of the superior courts of law and the superior courts
of chancery. The state constitution of 1851 abolished
these courts and replaced them with circuit courts.
Circuit
Courts (1852–present) Courts
were held twice a year in each county, and records
were filed with the county. Originally, there were twenty-one
judges who rode circuits to hold these courts.
The state constitution of 1902 did not include provisions
for continuing county courts, and circuit courts took
over their functions. The circuit courts are now the
only court of record in Virginia's counties.
Original court records are housed at The Library
of Virginia; pre-1865 records are available on microfilm there
and at the FHL.
While it is always best
to rely upon original documents for research, the condition
of original court records varies considerably: some are
still firmly bound and easy to read, some are faded and crumbling,
some are torn or have missing pages, some have been restored
through lamination, and many have been destroyed or lost.
Because of these circumstances, printed transcripts can
prove invaluable to the researcher who knows their limitations
and uses them wisely.
County Court Order Books
County court order books or minute books have survived for many Virginia counties. They record all matters brought before the court when it was in session and may contain important information not found anywhere else. Generally minute books contain brief entries, while order books provide synopses of cases in a neater, more organized form. These volumes are sometimes internally indexed; more rarely, there is a comprehensive index. A wide variety of information is found in order books including: appointments of county and militia officers, records of legal disputes heard before the county court, appointments of guardians, apprenticeship of children by the overseers of the poor, naturalizations, road orders, and registrations of free Negroes.
Guardianship /Fiduciary Books
When an individual acts as a trustee for another, the relationship is described as a fiduciary one. The protection of inherited property (both real and personal) was an important reason for the creation of court records. When minor children survived a parent, a guardian was often appointed to protect the estate for the children. Appointments of guardians are recorded in the county court order books. In the index, the guardian appointments may be listed in the name of the orphan, the name of the guardian, or under the general category "orphans."
A guardian was appointed by the court only if there was an estate to protect. At age thirteen, a child was eligible to go into court and choose his own guardian. Poor orphaned children did not have guardians and were bound out to learn a trade. In the colonial period, this was handled by the vestry of each Anglican parish. After disestablishment, the orphans were bound out by the overseers of the poor for the county. Records of apprenticeship are found in the county court order books.
Periodically guardians were required to bring estate accounts into court. These were often recorded in volumes known as guardians accounts. The estate of a deceased person with minor children required the keeping of records (estate or fiduciary) until it was settled. This occurred when the last minor child married or arrived at legal age. Records of this sort are found in will books, estate account books, and fiduciary or audit books.
Availability of Records for Research
In many cases, the original record books and loose papers (suit papers) have remained in the locality where they were created and are kept in the office of the circuit court clerk. Microfilm copies of extant record books are available at the Library of Virginia from the date of the formation of the county or city to approximately 1865, along with a growing collection of post-Civil War holdings. A Guide to Virginia County and City Records On Microfilm may be found on the Library's Web site. Microfilm copies are also available through interlibrary loan.
[ Virginia Land, Marriage, and Probate Records, 1639-1850]
In
Virginia, estate records are produced by civil courts on
the county level—in the county and circuit courts—except
in independent cities where probate matters are the responsibility
of the circuit court. Wills, administrations, guardianships,
inventories, appraisals, and settlements are some of the
records related to a person's estate or probate record.
The Common Law of England applied in the colony, as did
the written laws of England. Two important principles were
primogeniture and the right of dower. Primogeniture is the device by which
estates, particularly land, were kept whole. Basically, the
eldest son, by right of birth, inherited all real estate. The right of dower
is an old Common Law principle. Women acquired a dower right in all of their
husbands' real estate at marriage. At his death, the widow had the right to a
portion of the real estate for the remainder of her natural life; the dower was
generally one-third. Widows also had a dower right to their late husbands' personal
property; once again, the dower was generally one-third but might be an equal
division with all of the surviving children. In 1673 the House of Burgesses confirmed
the right of dower. The widow received one-third of her late husband's personal
property if there were one or two children; if there were three or more, she
inherited equally with the children. She also inherited one-third of her late
husband's real estate for life and could not be disinherited.
Probates and administrations could be granted in three
different places. English law specified that the Prerogative
Court of Canterbury had probate jurisdiction in Virginia; Virginia law required
probates and administrations to be granted in the Quarter or General Court; and
after 1645, certificates of probate or administration could be granted in the
county court. Wills, inventories, and appraisals were supposed to be recorded
in both the county and the office of the Secretary of the Colony.
The greatest source of probate records is the county.
All aspects of probate proceedings were generally recorded
in “will books.” Original will books are available
at the county clerk's office or The Library of Virginia; moreover,
most extant will books prior to 1865 have been microfilmed
and are available at The Library of Virginia and the FHL.
Many Virginia counties have “loose papers”
or “chancery court records” on file in metal boxes
at the clerk's office. These often contain additional information
such as affidavits, powers of attorney, letters from individuals
living outside the county, and receipts submitted to the court
in the process of probating an estate. These records are filed
chronologically, have not been filmed, and, in many instances,
are in poor condition, but can be searched at the clerk's office.
In addition to printed indexes, many early Virginia will
books have been abstracted and published. The Library of Virginia
and the FHL have large collections of these works, and many other libraries
nationwide have some printed will abstracts
Wills, inventories, appraisals, estate accounts, and divisions of estates were usually recorded in will books. In the seventeenth century, some counties kept records of all types in volumes called record books or great books. Examples of multi-purpose record books include Goochland County's deed books, which record both wills and deeds; Pittsylvania County's accounts current, which record inventories, appraisals, and estate accounts; and Norfolk County's appraisements and audits, which record both inventories and appraisals.
Surviving will books for Virginia counties are usually indexed by the testator or decedent, but seldom by the legatee or heir. Consolidated indexes to probate records on microfilm are available for most localities. Clayton Torrence's Virginia Wills and Administrations, 1632-1800 indexes early wills, inventories, and administrations. A list of probate records omitted from Torrence's volume (along with corrections) is available.
Researchers must be aware of the laws that caused a record to be created and how legal changes affect the records used. In October 1776, entail was abolished. On 1 January 1786, the English system of primogeniture ceased in Virginia. These two events affected the content of probate records. Under primogeniture, Virginia wills may not always name the wife or the eldest son of the testator. Their inheritance of real estate was set by law, the widow receiving her dower, or one-third, for her lifetime and the eldest son, as heir at law, receiving the remaining two-thirds unless otherwise specified in the father's will. After the Revolutionary War, when Virginia's general inheritance law took effect, all heirs of intestate estates inherited equally.
Individuals with a written will died testate. After the death of an individual, his or her will was brought into court, where two of the subscribing witnesses swore that the document was genuine. After the will was proved, the executor was bonded to carry out his or her duties to settle the estate. The court then ordered the will to be recorded. The executors' bond was also filed with the court. If the witnesses to the will were dead or could not be located, the will was lodged. These lodged wills were not recorded, but were kept by the court and the estate was treated as an intestate estate.
Individuals without a will died intestate. The court appointed an administrator who was bonded and issued an order to appraise the deceased's estate. The court usually appointed four appraisers, any three of whom might serve. They returned an inventory of the decedent's personal property to the court to be recorded. An appraisal listed the personal property and assigned a monetary value to each item. Accounts current are the statements of monies received by and paid out by the executor in settling an estate.
Virginia did not require the filing of estate papers documenting each activity of the executor. The assumption was made that the executor settled the estate as directed by the will and by law, and no records were created if the work was done correctly. Consequently, Virginia has no estate packets or probate packets. If the executor did not act correctly, the offended party could bring suit in chancery. Such chancery suits often generate a detailed record of the disputed part of an estate's administration.
Even today, few people escape mention in court records at some time during their lives as witnesses, litigants, jurors, appointees to office, or as petition signatories. However, Americans of a few generations ago also expected to attend local court proceedings when they were in session. Arlene H. Eakle, Ph.D. “Research in Court Records”
In The Source: A Guidebook of American Genealogy
American court files mirror U.S. history. Buried away in courthouses and archives everywhere are the dreams and frustrations of millions of citizens. The chances are great that your ancestors have left a detailed record of at least some aspects of their lives in court records.
Most of us don’t think of court records as the rich source of personal history that they are. But America’s English heritage established a tradition of court processes in which the people have a right to participate actively—and we always have. With relative freedom from royal supervision and with court enforcement of religious as well as civil laws, American courts tried many matters that were not subject to court action in other parts of the British empire and that are now considered too minor to warrant criminal action.
When a person dies, every state has laws that provide for public supervision over the estate that is left, whether or not there is a will. The term “probate records” broadly covers all the records produced by these laws, although, strictly speaking, “probate” applies only when there is a will.
Family historians use probate case files far more than any other kind of court record. Probate case files are logical sources because they tend to include so much personal data, and because Americans have depended on the courts to settle their estates since North America was colonized. According to Val Greenwood in his Researcher’s Guide to American Genealogy, “All records which relate to the disposition of an estate after its owner’s death are referred to as probate records. These are many and varied in both content and value, but basically, they fall into two main classes: testate and intestate” (page 255). Probate case files generally provide names, addresses, and biographical data for the deceased, but frequently provide the same information for other relatives named in the papers. Relationships, maiden names of wives, married names of daughters, past residences, and place of origin in a native country are just a few of the details that can be discovered in probate files. And probate files can be found in courthouses and archives across the United States.
When requesting probate information from the county clerk, it is important not to limit yourself by asking for a person’s “will.” The clerk will usually take you at your word and not copy other papers in the probate file that may have equally important information if there is no will.
Even if your ancestor is not mentioned in a probate case, consider all of the other procedures which might have resulted in him or her appearing in court records:
