This is intended as an introduction to the separate article on Primogeniture and Succession.
Land inherited by will
I might mention here that there is a historical distinction between a will (meaning an instrument that devised land), and a testament (meaning an instrument that bequeathed personal property). Wills are very useful to genealogists because they are typically explicit regarding relationships to the testator and the disposition of the testator’s land.
But inheritance of land other than by will can be an equally valuable tool once we understand the laws that governed inheritance of real property. Those laws can be roughly divided into two categories — primogeniture and multigeniture.
Land inherited other than by will
Inheritance laws governed the disposition of land in four circumstances:
- Land of persons who died intestate
- Land which was ignored or otherwise not specifically devised by a will
- Land acquired after the the last will was written
- Land owned by deceased minors — minor children could inherit land but, although minors of a certain age could bequeath personal property, only persons aged 21 or more could devise real property by will.
English inheritance practices
In most of England primogeniture governed the transfer of land titles. The effect was normally to transfer tracts of land intact from one generation to the next by favoring a single individual. While we tend to think of this as meaning “the eldest son inherits”, it is much more complicated and often much more genealogically useful. The rules of primogeniture as explained by Sir William Blackstone are treated in a separate article.
In Kent and in some parts of the Empire a type of multigeniture was practiced, called gavelkind which divided land equally among sons. We refer to this kind of arrangement as partible (meaning that land was divided, or partitioned, among heirs) as opposed to the impartibility of primogeniture.
Adoption by the American Colonies
The southern colonies, as well as New York and Rhode Island, embraced primogeniture. After the Revolution, every state replaced the practice by some form of multigeniture that divided land among all the children, and usually the widow as well. These new inheritance laws replaced primogeniture over a roughly twenty year period:
1777 – Georgia
1784 – North Carolina
1784 – Virginia
1786 – Maryland
1786 – New York
1791 – South Carolina
1798 – Rhode Island1
Prior to these dates the rules of primogeniture applied to inheritance of land.
The northern colonies — the New England colonies, Connecticut, New Jersey, Delaware, and Pennsylvania — adopted various forms of multigeniture. Typically, land was divided among the children with the eldest son receiving a double share.
After the Revolution, the southern states adpted a system of distribution which was similar for both real property and personal property. The new statutes were generally similar to one another, with the major change being that the intestate’s land was shared among all his children. Georgia passed its law in 1777. The Virginia law, passed in 1784, is treated below. North Carolina initially enacted a law in 1784 which divided land equally among the sons, or among the daughters if there were no sons. This was amended in 1795 to give equal shares to both sons and daughters, as in the other states. South Carolina passed a similar law in 1791, providing that the children would share equally regardless of gender. Note that in each case, the notion that grandchildren would retain and represent their deceased parent’s interest was retained.
Virginia’s 1784 act, to be effective 1 January 1787, is representative. It defined the line of succession for real property, either for an intestate or for land not distributed in a will, as follows:
- The children of the deceased in equal shares. (If a child was deceased, his or her own children inherited their parent’s share.)
- If the deceased had no children, then his father inherited.
- If his father was dead, then his mother, brothers and sisters inherited in equal shares. (If a sibling was deceased, his or her children equally divided their parent’s share.)
- If the deceased had no issue, no living parents, no siblings, and no descendants of siblings, then the inheritance was distributed to grandparents, aunts, and uncles in a similar sequence. The first step was to divide it in half with one half distributed to his paternal line and the other half to his maternal line. These shares went to his respective grandfathers, or his aunts and uncles (or their descendants) in a similar order. (See the original act for the details of these situations, as well as for those situations involving fractional bloodlines.)
In summary, the major change in the south after the Revolution was that the children shared equally, regardless of age or gender. Note also that the father, rather than a sibling, was the first contingent heir. The deceased’s widow remained outside the line of succession for real property, receiving only her dower interest.
- Except for a brief period in 1718-1728 [↩]