I have been lecturing frequently at various local genealogical societies about using deeds in genealogical research. While I can talk pretty fast, and pack a lot into an hour, some stuff just doesn’t quite fit. Here’s one of them.
Curtesy (kər-tə-see) – “At common law, a husband’s right, upon his wife’s death, to a life estate in the land that his wife owned during their marriage, assuming that a child was born alive to the couple.”1
Not only is the information contained within any given deed regarding kinship useful on its own merit, but it can be even more so in sorting out conflicting evidence in intestate estates. An interesting thing about curtesy is that the child need not be alive at the time of the wife’s death: “It was necessary only that a child had been born alive. The widower’s tenancy by the curtesy in his late wife’s estate ended upon his death, and the heirs of the wife (usually the children) took title.”2
The example below is from Delaware, whose statutes in place at the time concur with these definitions.3
The concept of curtesy (actually introduced, in this case, in Orphans Court proceedings) is crucial to resolving conflicts between, and errors within, documents regarding my Staats family in 18th century Delaware. How did I apply this? For the sake of brevity, I am omitting a large part of the proof argument in order to specifically discuss curtesy. Necessary background information includes: Elijah Staats was born between 1760 and 1765.4 Abraham Harman and Sarah Richardson were married at least some time prior to Abraham’s death in 17815, and that Sarah (Richardson) Harman married David Staats sometime between 1782 and 1783.6
- An 1808 deed from Elijah Staats contains a chain of title stating that the property he was selling descended as follows: Abraham Harman died intestate, leaving three sons: John, Abraham, and Benjamin. This property was divided equally, and John and Abraham sold their shares. Benjamin retained his, and also died intestate. At the time of his death, his brothers John and Abraham were also deceased, “whereupon the above described land descended to his two half brothers to wit, Richard Staats (who is since deceased and without issue) and Elijah Staats above named…”7
- Letitia Richardson, widow of John Richardson, died in 1791 leaving a will. Her will names grandchildren Benjamin Harman, Elijah Staats, and Richardson Staats. At the time of her will, both John and Abraham Harman (mentioned in the deed above) were still living, but are not mentioned in the will.8
- a 17 Jan 1792 petition by Robert Johnston stating John Richardson had four children , including “Sarah who intermarried with David Staats and is since dec’d, leaving issue by the said David three children, to wit, Benjamin, Richardson and Elijah, and the said David Staats her survived, and thereby became tenant by the courtesy of the said Sarah’s undivided fifth part of her said father’s real estate”9
- a 1 Mar 1808 petition by Elijah Staats indicating that one of the children of John Richardson was “Sarah who intermarried with David Staats (the petitioner’s father) and is since dead and has no other issue living than the petitioner…”10
This situation is also an example of the need to conduct an exhaustive search, as looking at any one of these documents individually will not yield the complete story, and will likely lead to an erroneous conclusion. Relying solely on the 1808 deed, we might be tempted to arrange the family this way: Abraham and wife were married and had three kids: John, Abraham, and Benjamin. The wife was then married to someone named Staats and had two kids, Richard and Elijah. And we’d be wrong.
Looking at only the 1792 petition would leave us with the impression that Sarah had three children by David Staats: Benjamin, Richardson, and Elijah. And we’d be wrong.
Looking at the 1808 petition, it is directly stated that the petitioner (Elijah) is a son of David, so it would be REALLY, REALLY tempting to assume it to be so. And we’d be wrong. (Note: a deeper, more detailed exploration of potential fathers for Elijah is contained in a yet-to-be published article, but omitted here).
Careful examination of the above information, viewed in the light of intestate law, and law governing curtesy gives us the following picture of these families.
Abraham Harman was first married to an unknown spouse and had two children by that marriage; John and Abraham. It is clear from other Orphan’s Court proceedings omitted here that John and Abraham are older than Benjamin, who was still a minor in 1798 when a third bond was issued in the Abraham Harman estate (This third bond also implies that David Staats was deceased prior to 1798).11 Additionally, Sarah Richardson’s mother, Letitia, does not name either John or Abraham Harman as grandchildren in her will, suggesting they were not children of Sarah.
Abraham Harman did marry Sarah (Richardson), and had child Benjamin, who IS mentioned in Letitia’s will. Abraham died in 1781. Sarah (RIchardson)(Harman) married David Staats between 1782-1783. For a variety of reasons, some again omitted here, David cannot be the father of Elijah, who was born almost twenty years earlier than David and Sarah’s marriage. This and other evidence12 suggests that Sarah was first married to another Staats man, almost certainly a brother of David Staats, prior to her marriage to Abraham Harman
This is where the concept of curtesy comes in, however. According to the 1792 petition, David clearly did have tenancy by curtesy. Therefore, David Staats and Sarah DID have a child together. That child is almost certainly Richard(son).Obviously, compared with the 1808 deed, the wording of this docket is off, however – David is not the father of all three children. Regardless, that inaccuracy doesn’t affect the ruling here.
Does this explanation work with the extensive chain of title in the deed? Yes. Elijah and Richardson would still be half brothers of Benjamin Harman, even if they are half-brothers to each other.
How does the concept of curtesy affect the O.C. statement that David was Elijah’s father? Elijah is inheriting the former property of John Richardson through his mother. Who his father was is irrelevant to the proceedings, since under the laws of curtesy, he is inheriting through his mother, not his father. David was Elijah’s step-father (and most likely, his uncle, too). Any number of scenarios allow for the record to be recorded as it was, but ultimately, the ruling was correct and what was expected, so who would have cause to question wording in a docket book they likely never saw? I mean besides us genealogists, of course!
Having waded through all that, you can imagine why I can’t fit that into a lecture very conveniently (although I do summarize the family groups – the deed is my example of chain of title). Again,a large part of the article has been omitted here, so if you are looking for holes in the blog post, you may very well find some! My intent here is simply to introduce the term to folks who may not have heard it, and show an example of how knowing and applying the law to your research can make a fuzzy picture at least a little bit less fuzzy
If you would do me the courtesy of leaving me your thoughts on curtesy and my example of its use, I will perform a virtual curtsy in appreciation.
- Bryan A. Garner, editor, Black’s Law Dictionary, 8th edition, (St. Paul, MN: Thomson/West, 2004), 411. [↩]
- Val D. Greenwood, The Researcher’s Guide to American Genealogy, (Baltimore, MD: Genealogical Pub. Co., 2000), p. 485. [↩]
- Delaware, Laws of the State of Delaware, from the Second Day of January, One Thousand Eight Hundred and Twenty Seven, to the Sixteenth Day of February One Thousand Eight Hundred an Twenty Nine,” (Dover, 1829), 77; digital images, Google Books (http://books.google.com/books?id=Ax5FAAAAYAAJ&pg=PA1#v=onepage&q&f=false: accessed 20 Nov 2011); “If the intestate leave a husband, who shall have had by said intestate during their marriage issue born alive, whether such issue have lived or died, such husband shall hold all such lands, tenements or hereditaments for the term of his life, as tenant by the curtesy.” [↩]
- Elijah’s age is consistently reported in the 1810-1840 censuses, and by calculation is 1760-1765. 1810 U.S. census, Fayette, Pennsylvania, Luzerne Twp, p. 964 1/2, line 28, Elijah Stotts; digital images, Ancestry.com (http://www.ancestry.com : accessed 15 Nov 2009); citing National Archives and Records Administration microfilm M252, roll 54. 1820 U.S. census, Harrison, Ohio population schedule, Freeport Twp., p. 91, line 6, Elijah Staats; digital images, Ancestry.com (http://www.ancestry.com : accessed 28 Sep 2011); citing National Archives and Records Administration microfilm M33, roll M33_93. 1830 U.S. census, Harrison, OH, Freeport Twp, p. 226, line 13, Elijah Statts; digital images, Ancestry.com (http://www.ancestry.com : accessed 31 Jan 2009); citing National Archives and Records Administration microfilm M19, roll 133. 1840 U.S. census, Monroe, OH, Union Twp, p. 83, line 25, “Elijah Stales”; digital images, Ancestry.com (http://www.ancestry.com : accessed 31 Jan 2009); citing National Archives and Records Administration microfilm M704, roll 416. [↩]
- New Castle, Delaware, Probate Files, RG 2454.001, Abraham Harman (1781-1788), administrator’s bond for Sarah Harman (1781); DPA film no. 191, Delaware Public Archives, Dover. [↩]
- ibid, administrator’s bond for David Staats (1788). [↩]
- New Castle County, Delaware, Deed Books, H3:227, Elijah Staats to Lydia Smith, 10 Aug 1808. [↩]
- New Castle, Delaware, Probate Files, will of Letitia Richardson (1791), Delaware Public Archives. [↩]
- New Castle County, Delaware, Orphan’s Court Docket Books G:290, petition of Robert Johnson (1792); FHL microfilm 006,547. [↩]
- New Castle County, Delaware, Orphan’s Court Docket Books J:546, petition of Elijah Staats (1808); FHL microfilm 006,548. [↩]
- New Castle, Delaware, Probate Files, Abraham Harman (1781-1788), administrator’s bond for Robert Johnson, 30 May 1798. [↩]
- Other evidence primarily involves the estate transactions of Jacob Staats Senior. [↩]