Meaning of heir at law in 1798 Virginia

+2 votes
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There has been a decades long controversy regarding whether Shelton Crosthwaite was James William Crosthwaite's brother or oldest son.  His 1781 will mentioned three unnamed children.  His will was proved in Jan 1787, not naming the children.  However, they were named in a 1798 lawsuit by a creditor.  A book listed it this way:

Jacob Powers and Ann, his wife, relict of William Crosthwait deceased; Shelton Crosthwait, heir at law of the said William, deceased; Thomas Crosthwait, William Crosthwait, Perry Crosthwait, and Ann Bourn Crosthwait, children of the said William Crosthwait, deceased, by Shelton Crosthwait their Guardian - suit against George Divers, administrator of William Crosthwait , deceased.

The punctuation shows four children listed, "Thomas Crosthwait, William Crosthwait, Perry Crosthwait, and Ann Bourn Crosthwait, children of the said William Crosthwait."  However, I tracked down the original and there is no punctuation; link (bottom).

So an important question is what is an 'heir at law' in 1798 Virginia?  Nowadays it applies when a person dies intestate, not the case here.  Primogeniture was apparently eliminated in Virginia in 1785.  I request informed opinions as to whether the lawsuit language includes or excludes Shelton as a son.

WikiTree profile: William Crosthwait
in Genealogy Help by Kerry Larson G2G6 Pilot (159k points)

According to Bob's Genealogy Filing Cabinet, primogeniture was no longer in effect in VA on 1 Jan 1787, only 10 days before his will was proved.

Will says his "estate to be divided into four equal parts and to be equally divided between my wife and aforesaid three children."

Most Virginia Chancery suits are now online, so you might be able to find the actual court record. I would also suggest that since Shelton was guardian of the others, it would mean they were minors and so county records should have the record of him being appointed guardian.

I should add the comment made by the publishers of the Chrosthwait Chronicle which says, "He is known to have had a brother named Shelton Crosthwait, incorrectly interpreted by some to have been his son."Link  I haven't been able to get most of the editions to see if they explained their reasoning.

A Thomas Crosthwait died in 1815 and mentioned in his will his beloved brother Shelton Crosthwaite - Ancestry link, free link.  So another monkey wrench is that after William died and Ann was paying the taxes, Thomas Crosthwait was a male over the age of 21 living in the household in 1787 - link.  That Thomas began appearing on tax records on his own in 1789 - link.  If he is the son Thomas, he would be older than the apprenticed Shelton and Thomas would be the guardian.  It's just another thing I'm trying to resolve, if brothers Thomas and Shelton are younger brothers of William, or his sons, or the Thomas living there in 1787 was some other related Thomas Crosthwaite.  Uggh.

The suit indicates that Thomas, the son, was underage in 1798, if Shelton, his brother, was his guardian. So the earlier one in 1787 must be an earlier generation.

To close this out:

3 Answers

+2 votes

This may be helpful:

"Primogeniture developed elaborate rules for identifying the heir-at-law in the absence of children. If there were children, the heir-at-law was the eldest son (or, if dead, his heir-at-law). In the absence of a son, the daughters jointly inherited as heirs-at-law. After 1540, the testator (maker of the will) could bequeath land, but lands not mentioned in the will were treated as intestate and went to the heir-at-law. The major exception was entailed lands, meaning lands bequeathed by an ancestor to a person and that person's lineal descendants. The legal entailing phrase was 'to X and the heirs of his or her body lawfully begotten.' (The phrase 'to his heirs and assigns forever' is not an entail.) Such land entailed to X could not be bequeathed by will so long as it remained entailed, because entailed lands went to the heir-at-law. " 

https://wiki.rootsweb.com/wiki/index.php/English_Law_in_American_Land_Research

I am of the opinion that Shelton is more likely the eldest child of William, not a brother. 

by Todd Murray G2G6 (7.4k points)

Thanks for the reference.  According to this web page (citing a source I haven't seen), primogeniture ended in Virginia in 1785.  So if there was no primogeniture after that, what did heir at law mean?  Could it apply to an adult male relative if all the children are minors?

Edit:  And in this case, all the children inherited, not just the oldest male.

From the article I cited, it is clear that heir at law in eighteenth century Virginia means what one would imagine it generally does today. Whether the term was applied appropriately in the style of the lawsuit by the plaintiff could be an open question. Whether the will, drafted when primogeniture was the law, would be followed after primogeniture was no longer the law, could be open for debate. The cold, dead hand dictating what would occur with its estate has always been preferred over what the law would dictate absent such direction. Having the entire probate file and the entire lawsuit should help answer this question to a level of satisfaction for both sides of the issue.
+1 vote
“Heir at law” meant the same in 1787 as later - the heir of a person who died intestate, but I think in this case it referred to the fact that Shelton was the guardian of the three children and thus was treated by the court as if he was the heir.  He had to be at least twenty-one to be a guardian, so if he was named a guardian in 1787 he was born no later than 1766.  There is no record of a sixteen-year-old William being married (it was extremely rare for an underage man to marry at that time) or fathering a child, so that seems unlikely.    

A different interpretation would be that he was in fact the oldest son of William and Ann, born shortly after their marriage, and was the only one of the children who was over twenty-one in 1798.  Still a misuse of “heir at law” but maybe fits the facts better.  Finding a guardian record would be the key!
by Kathie Forbes G2G6 Pilot (362k points)
edited by Kathie Forbes
Thanks Kathie.  That really is the question; would an adult non-child relative holding the assets until the children become of age be called an heir at law?  I am on the hunt for guardian records.
+2 votes

Another document that provides some constraints:

Albemarle Co. Deeds, vol. 10, p. 1, Deed of Apprenticeship for Shelton Crosthwaite dated 10 Sep 1789, in which Shelton is described as "an orphan child" (unfortunately does not specify his parentage) and is bound to 7 years of apprenticeship.

This indicates that Shelton was not an adult in 1789 (or 1787) and thus cannot have been appointed guardian upon William's death, but must have been appointed guardian later (presumably upon the end of his apprenticeship in 1796).

by Anonymous Geschwind G2G6 Mach 8 (81.9k points)
He had to be at least fourteen to apprentice himself, so that would suggest that he was born in 1775, was 14 in 1789, and turned 21 in 1796.  That would also suggest that William and Ann were married earlier than 1777.
C-H, that's a fantastic find.  Thank you so much for taking your time to track it down.

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