Re: Question about leaving property to minors in Col. Virginia


In the Colonial period, when a parent or grandparent left property
to a minor heir in a will, was it necessary to state in any way in
that will that the heir was a minor?

I know that if a minor needed to dispose of property, a guardian
would be required, but what about just OWNING property? And would
it make a difference whether the property owned were real or
personal property?

Why do I ask?

John HAMMOCK died before Feb 1781 in Lunenburg Co., VA. In 1779, he
wrote his will leaving various property:

--land to his sons William and John (mentioning another son Hugh)

--support for brother William during his life

--"bed and furniture" each to granddaughter Milly HAMMOCK, son
John, and son Hugh

--"rest of my estate of land to my loving wife during her natural
life or widowhood and at her death or marriage I give it to be
equally divided between all my children and granddaughter Milly
Hammack to them and their heirs forever"

In trying to establish a birthdate for Milly HAMMOCK, some family
members believe that this will proves that Milly was already of
legal age, since there is not mention of her being a minor, no
reference to "when she comes of age," and no mention of a guardian
to protect her interest.

Is this a valid assumption?

"Ron Head" <ronhead@xxxxxxxxxxx>


I don't believe it is a valid assumption. The testator of a will
didn't need to mention that someone he was leaving property to was a
minor or appoint a guardian in order for the bequest to be valid.
The law is intended to protect minors, and it would be repugnant to
that intent if a minor could be disinherited because technical will
drafting rules were not followed.

My understanding is that as long as a child's father was alive, he
was the guardian unless a guardian was formally appointed by the
court. (You do sometimes see minors who inherited property having
guardians appointed even though their fathers were still alive).

A guardian appointed by a father for his children in his will is
called a "testamentary guardian", but one is not required to appoint
a testamentary guardian for minor children, and my impression (based
on practice in NJ) is that they were appointed much less often than
they were appointed.

As long as a child's father was alive, he was the guardian unless a
guardian was formally appointed by the court. But generally
guardians were appointed for fatherless children. Sometimes the
guardian was a guardian "in socage", who became guardian in
accordance with the common law, rather than a court appointment, and
who served until the minor was 14. The law gave preference to
maternal uncles serving as guardians in socage. Courts could also
appoint guardians for minors under 14. At the age of 14, a minor
could select his/her own guardian, subject to court approval.

Blackstone's chapter on Guardian & Ward (written between 1765 &1769)
is here:
http://tinyurl.com/odole
It is very helpful.

This site has some excellent Virginia oriented articles discussing
various legal topics of interest to genealogists, including
guardianship.
http://tinyurl.com/r36cg

Jerry

Ukes <duke_of_diddly@xxxxxxxxxxx>
.

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