Are probate records typically only for males?

Question

I'm looking at the probate record of Samuel Bangs, who died in 1786 (Or thereabouts) in Dutchess County, New York. I'm noticing that his wife, Thankful, was still alive, and there are mention of several grandchildren that I didn't know existed. What I'm trying to figure out is if there is another probate record of some kind for Thankful (Bangs), which might include some additional detail about these extra grandchildren. I've never been able to find a wife's probate record after her husband passed away. I'm wondering if that's because I'm looking in the wrong place, or was it just common to not have such records for the wife when her husband already had one?

Answer 1

Yes, in the Unites States in the eighteenth century you will tend to find more probate records for males than females. In his study, "Underregistration and Bias in Probate Records: An Analysis of Data From Eighteenth Century Hingham, Massachusetts", Daniel Scott Smith determined that less than 6% of women and 36% of men left wills. Similarly, inventories for 42% of men exist, while only 4% for women.

The reason why you find more probate records for men than women is because in the eighteenth century there were laws that restricted married women from owning property. This is really the same reasoning as why poor people less typically left wills - because they owned little.

Throughout the nineteenth century, more rights were given to women, but exactly when varies by state. For instance, the New York Married Women's Property Act was passed in 1848, which allowed women to retain ownership of property after marriage (it did not become her husband's property). After this time you will tend to see an increase in the rate of female representation in records to do with property ownership, probate records included, simply because more women could own property.

This being said, do not rule out that a women may leave a will in the eighteenth century. Widows and spinsters commonly left a will (if they owned property they could bequeath in a will). You are just less likely to find one for them than a man.

In your particular case, while Thankful Bangs was left half of her husband's estate, he also made provisions as to what should happen after her marriage or death:

I furthermore positively order that after Marriage or decease of my said beloved Wife Thankful that all the Use Income and Improvements of the one half of my Estate Real & Personal which she is to possess and enjoy during her natural Life or Widowhood to be equally divided among all my Surviving heirs in just Proportion to the above mentioned distribution of my Estate

Therefore, as the distribution of Thankful's property during widowhood is described under the terms of her husband's will, there is no need for a further grant of probate on her death. This may be one explanation as to why you are unable to find a probate record for her.

Answer 2

Here are some resources to supplement the answer already given.

In The Hidden Half of the Family, Christina K. Schaefer gives the following timeline for New York Probate laws (I've excerpted the relevant part from her larger timeline):

• 1771 private examinations and the practice of requiring a signature on a deed are enforced
• 1774 the intestacy law is changed from the right of primogeniture, to giving a widow one-third of her husband's personal estate; no provision is made for real estate
• 1786 in instestacy, both sons and daughters inherit equal shares of real property
• 1848 real and personal property owned by a woman at the time of her marriage "shall continue her sole and separate property free from the disposal or debts of her husband as if she were a single female."
• 1849 "any married female may ... convey and devise real and personal property, and any interest on estate therein, and the rents, issues, and profits theorof in same manner and with like effect as if she were unmarried..."

Since the women were not able to "convey and devise real and personal property" until the property acts in the 1840s, there may not be records about what happened to their property in records that are labeled probate records. However, if a widow had dower rights in a piece of real estate, she may have been required to file quitclaim deeds or otherwise sign off on the transfer of the land before it could be sold. You might be able to find evidence of the transfers in deeds, court minute books, or probate records of men who were closely connected with the female members of the family.

The New York State Library and Archives is in the middle of a website re-design, but here is the link to their Probate Record Pathfinder. (If the link goes stale, try pasting the link into the Internet Archive's Wayback Machine).

The crucial date for the flowchart is whether the probate occurred before or after 1787:

Before the establishment of the New York State Surrogate’s Court system in 1787, jurisdiction over probate matters was exercised by the colonial Prerogative Court and its successor, the State Court of Probates. These were centralized courts with jurisdiction in probate matters that extended to all of New York. The State Archives holds records of the Prerogative Court for the period 1665-1783. The Court of Probates was established in 1778, with jurisdiction over areas of the state not occupied by the British, and continued to function (with limited jurisdiction following establishment of the Surrogate’s Court System) until 1823.

Records about the heirs of Samuel Bangs in New York State are likely to be after 1787, so they would be found in the Surrogate's Court at the county level.

The information in the Probate Record Pathfinder is especially useful because it discusses the different types of records that might be generated during the probate process. Some of these records might be overlooked, such as records of estate tax.

---

The Dutchess County website has added a new search portal, Ancient Document Search, which allows users to search for and view digital images of early Dutchess County court records. There are 12,000 pages of eighteenth-century legal documents.

Drawn from the Dutchess County Ancient Documents Collection, these records comprise the oldest surviving manuscripts from the Dutchess County Court of Common Pleas and General Sessions, which began operation in 1721. These documents detail daily life in Dutchess County as seen through both civil and criminal cases that came before the judges and justices of the peace. These documents were digitally imaged with support from the New York State Archives Local Government Records Management Improvement Fund Grant.

(Thanks to Family Roots Publishing's Free Genealogy Newsline #308 for the pointer to this resource.)