For most of history an orphan was a fatherless child, irrespective of whether the mother was living. A child living with his mother and stepfather was an orphan in the eyes of the courts and the law. Indeed, translations of the Bible tell us that this is the historic norm.1 In some languages, in fact, the term is specifically restricted to children without fathers. More practically, in a society in which women had few rights there were no special laws respecting children who had lost their mothers. All the laws and early legal texts discussing orphans specifically limited themselves to fatherless children.
The modern sense of the word – a child who has lost or been abandoned by both parents – did not become widely accepted until the early 20th century. Genealogists are mainly concerned with references to orphans which appear in guardian or probate records; in records of that type the loss of a father was sufficient to label a child as an orphan past the turn of the last century.
The guardian’s responsibility was focused on the property of the orphan than on the orphan himself. Since orphans were the natural heirs to a father’s personal estate and (potentially) to his land, the primary purpose of a guardian was to provide for management of the orphan’s estate, and to use that estate for his maintenance and education. If the father died intestate, his orphans inherited his personal property in equal shares (less the widow’s third) and the eldest son (or the daughters equally if no sons) inherited his land. If the father died testate, his orphans inherited real and personal property as specified by the will, with any unspecified property distributed according to the succession law. Unless some other provision was made in the will, the widow had only a lifetime interest in land, not a title, and a one-third interest in the personal property. The orphans, however young, were immediately titled in their inherited land and in their share of personal property.
Orphans without inherited estates generally had no need of permanent guardians. If parental approval or the assistance of an adult were needed, it would be provided ad litem by a temporary guardian appointed for the purpose or by the local court itself.
All colonies had some form of Orphans Court, whose responsibilities were to supervise the guardian’s management of orphan’s estates, oversee the rental or management of orphan-owned real estate, appoint or remove guardians, and oversee apprenticeships.
Guardianship versus Custody
Guardianship thus had nothing to do with physical custody. Courts almost always assumed that orphaned children would live with their mother if she was alive and capable of rearing them. If the mother was dead or unable to support her children, orphans lived with relations or friends who would take them in. If there was no one willing to take them, and particularly if they had no estates or means of support, they were bound out as apprentices by the court. 2 (Guardians could also bind their charges as apprentices with approval of the court.) Children aged 14 or more could, of course, apprentice themselves and enjoy some choice in the trade to be learned and the choice of master. The master to whom they were apprenticed became responsible for food, shelter, clothing, and taxes as well as for the child’s formal education.
The Guardian’s Role in the Orphan’s Estate
The guardian’s primary role was management and preservation of the inherited property until the child reached majority and could manage it themselves. The Virginia statute of 1643 put it succinctly: “…guardians and overseers of all orphants shall carefully keep and preserve such estates as shall be comitted to their trust either by order of court or otherwise…” 3
At the child’s majority, the guardian was obligated to hand over the estate and obtain a release from the child as well as a release from his own bond. Household goods and similar personal property were to be delivered intact or at their value in money as determined by the appraisal of the estate. Livestock was to be delivered ‘in kind” – that is, not necessarily the same animals but in animals of the same number and condition.4 Slaves were treated as a special case, being delivered either in kind or in value, at the judgment of the guardian and with the court’s approval.5 Courts required the guardian to post a bond for their performance of this obligation, in an amount at least equal to the value of the estate (for the justices themselves were personally liable to the orphan if the bond proved insufficient.) That is why only wealthy men accepted guardianships of wealthy orphans. Guardians were required to provide an annual accounting of the estate’s income and expenses, and could be replaced by the court if found derelict.
It should be noted that guardians could be at considerable financial risk, for they were personally liable for loss of the child’s property. (That was the purpose of the guardian bond.)
If the orphan owned land, the guardian was obligated not only to preserve its value, but also to employ it to the orphan’s benefit. The guardian might employ a tenant or rent it out, though the term could not extend beyond the majority of the orphan. The guardian could sell the child’s property if he could convince the court that it was in the child’s best interest. Guardians also represented the orphan in legal matters, including debt suits.
Guardians were also responsible for arranging for and financing the education of the orphan. The same 1643 statute, which remained essentially unchanged for two centuries, required the guardian “to educate and instruct them according to their best endeavors in Christian religion and in rudiments of learning and to provide for them necessaries according to the competence of their estates…” As a practical matter, this meant using the profits of the estate to pay for the child’s maintenance and education. The guardian, being obligated to eventually deliver the entire estate, could use only its increase for this purpose and not the principal except by dispensation of the county court. Since the products of livestock (such as milk or wool) and their increase, along with rentals of land or slaves, typically provided the means, the child’s living conditions and education were largely dependent on the size and composition of his estate.
Rights of Orphans
It should be pointed out that orphans retained the same rights as other minors. For instance, a male could make a will disposing of his personal estate at 14, and a female at 12. (Real property could not be devised until they reached majority, thus the land of a deceased orphan fell to his or her heir under the common law unless otherwise provided for in the father’s will.) When the child reached the age of 14, they had the right to change or choose their own guardian. At 14 they also had the right to apprentice themselves.
Not all Orphans had Guardians
Orphans with no estates, or trivial ones, rarely had guardians, for there was no property to preserve. Unless their mother or a relative could support them, the responsibility for their maintenance and education fell to the public. The mechanism for fulfilling this obligation was a court-ordered apprenticeship until the child reached majority. The master, in effect, filled the remaining portion of the guardian’s role, being responsible for his apprentice’s maintenance, education, and taxes. Children too young to be apprenticed, and who were not maintained by relatives or friends, were typically supported by the parish.
If a child had no court-appointed guardian, their mothers acted in the role for other purposes, such as giving consent for marriage.
Preferences in Guardian Appointments
Some children had their guardians determined by their father before his death. A father could appoint a guardian for his minor children in his will, although it is relatively unusual to find a will that explicitly does so. (A will could also eliminate the need for a guardian by declaring a minor child to be “free”, an even rarer occurrence.) On the other hand, many wills make the implicit assumption that the mother would act as the guardian by leaving a life estate to the widow, with possession to the child at majority. In effect, this made the mother the guardian by eliminating, or at least reducing, the need for a separate financial overseer of the child’s interest. The courts in Virginia clearly preferred this arrangement, for it was very rare for a mother to be called to give an accounting of a child’s estate.
The remarriage of the mother changed things, because coverture limited the mother’s legal ability to protect property. Virginia courts considered that remarried mothers were unable to protect their children’s property from stepfathers, and usually stepped in to appoint a replacement guardian when the orphans had property at risk. Courts almost never appointed the stepfather for fear that the obvious conflict of interest made them untrustworthy property managers. Courts tended to appoint neighbors (who could keep an eye on the property) or relatives who had no interest themselves in the child’s property. Of course, the person chosen also had to be willing and able to post the bond and assume the financial responsibility.
Once children reached the age of 14, they had the right to choose their own guardian. Teenagers probably haven’t changed much over the centuries, so their choices of older siblings, uncles, and responsible family friends was typical.
Blackstone devotes an entire chapter to the subject of guardianship, covering several details not addressed above. See Sir William Blackstone’s Commentaries on the Laws of England (1765-1769), Book I, Chapter 17: “Of Guardian and Ward”.
Several of the earliest laws of Virginia dealt with orphans, their guardians, and estates. See William Waller Hening, Statutes at Large…, 1:261 (1643), 1:269-70 (1642), 1:416-7 (1656), 1: 443 (1657), 2:93-6 (1662), and 2:295-6 (1672). Largely restated in the legislature’s consolidations of 1705 [Hening 3:pp375], these statutes remained essentially unchanged through the end of the 18th century.
- For example, Lamentations 5:3 was translated thusly: We are orphans and fatherless and our mothers are widows. [↩]
- The vestries of colonial Virginia had the responsibility to support the poor, aged, and insane who had no means to support themselves and no one willing to take them in. The vestries collected taxes for that purpose, separate from civil taxes by the county. The vestry usually required that poor children be removed from their roles by apprenticeships. [↩]
- Hening I, p261. [↩]
- Offspring of inherited livestock were treated as income to the child’s estate. If a child was given a cow, the guardian had to deliver a cow of similar value when the child reached 21. [↩]
- This is one reason that wills invariably bequeath slaves by name. It is also why wills usually make clear what is intended with regard to children of slaves. [↩]