Last Will and Testament of Francis Henn, signed April 20, 1863

Used via creative commons license; photograph by WilliamJD

I don’t think this can be a 52 Ancestors post because I already wrote about Francis Henn #25 and I think that each of the 52 Ancestors posts is supposed to be about a different ancestor. However, I found this so interesting that I had to post about it even though it will put me even further behind in the challenge.

As I mentioned in the last post I found Francis Henn’s will in the New York, Probate Records, 1629-1971 . Even though it is short, there are several points about it that I found quite interesting. As his will was created on the day of his death, it is likely possible that he knew he was dying and had summoned a lawyer to his side to take down his will. This was not an uncommon occurrence in the 19th century, when even lawyers made house calls (that or he knew the correct legal terminology to use, which is unlikely in a farmer for whom English was a second language).

Index to Wills, Surrogates Court, Oswego County
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Wills are a method of passing on real and personal property to the person of your choosing. I was curious as to why it seemed to have taken nearly seven years to get Francis’ Will probated but in doing some research I discovered that  it wasn’t uncommon for probate to take up to a year, and under certain situations take much longer. It is possible (very possible in this case as we’ll see below) that the two witnesses necessary to prove it, and the ability of the executor to post bond (50% of the value of the estate unless waived in the will), were not available at the earliest possible court date. Moreover, Francis died in the middle of the Civil War; it is also quite possible that Court schedules were disrupted and/or witnesses were off fighting. Luckily, it was not necessary to probate the Will in order to empower the executor/executrix to bury the deceased, to pay or to collect bills, and to otherwise handle the property in the estate pending probate. That probably alleviated some of the problems of a drawn out probate in this case as he named his wife, Phillipina, both as Executrix and (initially) sole heir.

This marks Francis as an exceptional man. For most of history married women could not own or inherit property solely in her own being. Everything she was given was her husband’s in law. A woman did have a dower right to a one-third lifetime interest in the marital property (real or personal) upon the death of her spouse. The lifetime right meant that she could share in the rents or profits from that property but did not give her title in it or give her the right to sell or devise (will to someone else) the property. By law, only males or unmarried women over 18 could devise real property.  Married women could devise real property, even property that was hers before the marriage, ­only with the written permission of her husband. Likewise, if a father gave property outright to a married daughter through inheritance, the daughter’s husband would have ownership of that property and could sell or bequeath it to anyone he chose without his wife’s permission. That is why many 18^th & 19^th Century wills show a father leaving the use of personal property to a daughter for her lifetime, with title to be vested in her children and delivered to them after her death.

In the 19^th Century, that began to change as laws were passed piecemeal, state-by-state, across the country allowing married women to own property in their own right. The earliest comprehensive Married Women’s Property Act was passed in New York State on April 7, 1848. It significantly changed the law regarding property rights granted to married women, allowing them to own and control their own property, whether owned before the marriage, or granted her by gift or inheritance during the marriage by someone other than her than her husband. Even so, in culture and practice, change, albeit legal, was slow. Just because it was now legal, did not mean that it was at all common.

But as shown in his will Francis loved his wife and viewed her as his equal in ability to be responsible for the property, and it showed that he loved and viewed his sons and daughters equally and as equals.

 

Record of Application to Prove Will of Francis Henn
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This first form indicates that Phillipina Henn (#26) appeared in court on 12 October 1871 and applied to have the last Will and Testament of Francis Henn proved. The Surrogate ascertained who all the heirs and next of kin were and required them to appear before him at his office in Sandy Creek NY on 13 November 1871 to attend the probate of the will. On that day no one appeared to oppose the probate of the will. So he proceeded to prove the will in accordance with the law. The will stated as follows:

Last Will and Testament of Francis Henn, signed April 20, 1863
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Transcription, to the best of my ability:

WILL

“In the name of God Amen, I, Francis Henn, of the town of West Monroe in the County of Oswego and state of New York, being a naturalized citizen of sound mind and memory, blessed be almighty God for the same, do make and publish this my last Will and Testament in [__?__] and forever following (what is to say)

First.      I give and devise all of my real property, being the farm whereon I now reside, with the appendences, to my beloved wife, Phillipina, situated, lying, and being in the Town of West Monroe, in the County of Oswego and state of New York being part of lots Nos. 17 and 25, township No. 13 of Scriba’s Patent and bounded as follows, viz..on the North by Andrew Shillinger, on the East by said Shillinger and Morris [__?___], on the South by Francis Beresen and W. Brassard and on the West by said Fr. Berensen and Peter Pettit containing 50 acres of land be the same either more or less. Forever to have and to hold the same for her use and support and maintenance forever. Or to sell and dispose of the same at any time after my decease and live and support herself of the [___?_____], and if she chooses at anytime to alienate or sell the same (after my decease) I hereby authorize her as my executrix to give a good warrantee deed and convey the same in fee simple to the purchaser or purchasers in full and ample manner as I myself could or would do were I living.

Second.                I give and bequeath unto my said wife, Phillipina, all household goods or furniture, also all money on hand, money due or to become due either by Notes, Bonds, Contracts or anyother wise, for her use benefit and support. And after her decease I will order and direct that that whatever of the [__?___] of my property shall or may be left, or remain (all her debts, funeral expenses so first being liquidated and paid) that then, the same shall be equally divided among my children, viz – Jenefever, Serena, Dorothea, Andres, Generosa, Josephat, Francis and Josephine, or their heirs in case of either death. Share and Share alike.

Lastly I do hereby constitute and appoint my said wife Phillipina sole executrix of this my last Will and Testament hereby revoking all former wills by me made. In witness whereof I have herewith set my hand and seal this 20^th day of April Anno Domini in One Thousand Eight Hundred and sixty-three (1863) Francis Henn (F.J.)

Signed, sealed, published and declared by the Testator as and for his last Will and Testament in the presence of us who at his request in his presence and  in the presence of each other have subscribed our names as witnesses (___?___) Philip Rea West Monroe Oswego County NY. John Brickhammer West Monroe, Oswego County New York.”

Francis did not give Phillipina a life estate in the property, as I initially thought when I saw that he directed the further devising after her death as well. No, he willed it to her outright, giving her the ability to keep it for her support during her lifetime or to sell it “as I myself could or would do were I living”.  He also gave her “all household goods or furniture, also all money on hand, money due or to become due either by Notes, Bonds, Contracts or anyother wise, for her use, benefit and support.” This is rather remarkable. He does go on to direct how the property should be distributed after Phillipina’s death if any “may be left, or remain (all her debts, funeral expenses so first being liquidated and paid)”, but remember, married women did not have the right or ability to devise or will property in New York except as set forth in that 1848 law, which specifically excluded property gifted by a woman’s husband.

Even at that point, he shows that he is a loving and fair father, and an extraordinary man for that time, who saw his daughters as equal to his sons, “the same shall be equally divided among my children, viz – Jenefever, Serena, Dorothea, Andres, Generosa, Josephat, Francis and Josephine, or their heirs in case of either death. Share and Share alike"; the 1848 law allowing his bequest to his daughters to be their sole property and not automatically that of their husbands. (Edmund had predeceased his father, Francis, with no marriage or children.)

Witness Attestations proving the Will of Francis Henn (the top two affidavitts & writing down the side margin)
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The last form, after the will was set forth, consists of witness statements and may give a hint as to why it took nearly seven years to get the will probated.  It starts out perfectly normally as the first of the witnesses to the signing of the will, Philip Rea, attests that he witnessed the signature of the deceased, who was over 21,  of sound mind, memory, and understanding, and not under any restraint, and competent to devise real estate. However, Philip Rea also attests that the other witness was John Brickhammer, who is now deceased. So they needed to find someone else who had no interest in the will but who could identify Francis Henn’s signature to prove that it was his will.

In that cramped bit of writing in what would have been the white space between form affidavits is the written affidavit of Andrew Shillinger – I believe he is the person the will indicated was Francis’ northern neighbor.  The affidavit, as best as I can read it states as follows:  “Oswego County SS: Andrew Shillinger being duly sworn says that he was acquainted with Francis Henn in his lifetime and with his handwriting and knows the signature to the above described will is his genuine handwriting as he believes and that he was also acquainted with John Brickhammer now deceased and with his handwriting and that his hand name in the said will as a witness is his genuine handwriting as he verily believes.”

With that, the Surrogate, Henry Le Howe declared the will to be properly executed, and recorded, signed, and certified the will in accordance with the provisions of the Revised Statutes, on the 27^th day of November, 1871.

I find it very interesting and inspiring to know that we (my Dad, my aunts, my uncle, my brothers, my cousins & I) come from such a loving forward thinking man. It is so moving to me to realize that my great-great-great-grandfather so valued the women in his life that in a time when women were largely considered, at best, “child-like” in their comprehension, ability, and responsibility, and, at worst, “property”, he saw and treated them as equal to himself and his sons. With this sort of legacy, no wonder my Dad is such a wonderful, remarkable man in his own right.

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"New York, Probate Records, 1629-1971," images, FamilySearch ( https://familysearch.org/pal:/MM9.3.1/TH-1942-24574-23242-84?cc=1920234&wc=9VSS-824:213301201,214361501 : accessed 27 Jul 2014), Oswego > Will index 1816-1915 > image 63 of 153.;  "New York, Probate Records, 1629-1971," images, FamilySearch (https://familysearch.org/pal:/MM9.3.1/TH-1951-24578-33399-10?cc=1920234&wc=9VS7-BZS:213301201,214485401 : accessed 05 Aug 2014), Oswego > Wills 1865-1872 vol J-K > image 522 & 523 of 717; http://www.genfiles.com/articles/wills-intestates-probate/; http://www.genfiles.com/articles/womens-rights/ ; http://www.library.hbs.edu/hc/wes/collections/women_law/; http://www.library.hbs.edu/hc/wes/collections/women_finance_investment/ ; http://en.wikipedia.org/wiki/Married_Women's_Property_Acts_in_the_United_States ; http://www.familytreemagazine.com/Article/probate-records-workbook