by Mike Fitton
Mike Fitton is a resident of Bracebridge and an honorary member of the MPSGG. He is very knowledgeable on English research and has spoken at many of the club meetings.
You are reading some notes attached to an old document. The notes state that during a Vacancy of the Ordinary, the attached nuncupative was proved by the Commissary. What does this mean? As genealogists, it is surprising how few of us have really made full use of Wills. People who would not hesitate to dig out a census record or a parish register seem to be slightly apprehensive when it comes to Wills. Yet when you think about it, Wills are one of the best sources of knowing who is related to whom, what people’s careers were, and how wealthy they were. Wills are a must for anyone researching prior to civil registration and census. I have researched Wills in England, Barbados, and Ontario for myself, and have done some work on Scottish Wills for a friend, so I can perhaps provide you with few suggestions on how to find them.
Once a person who has made a Will has died, there are three things that can happen to the Will. First, it may simply be kept among family papers or deeds. Where there is no land registry system, this may mean that the researcher will never find it. If you contact the current owner of the land, you may well find an old Will among his title documents. Second, the Will may have been probated, in which case the probate court will have a copy, and you can get a copy. Third, some courts copied Wills into Registers, and so even if the original Will has been lost, you can get a copy from the Register.
The next task is to find out what the proper probate court is. If the system was operated by the Church, as in England to 1858, you need to read about Church organization. Smith & Gardner, Genealogical Research in England and Wales Volume 2, which is available at most genealogical libraries, will tell you what you need to know. Basically, each Anglican Bishop was the Ordinary (probate granting authority) in his diocese. He could delegate the power to his senior managers, the Archdeacons, or to his area sub-managers, the Rural Deans, and the authority was called a commission. In each case, when probate was complete, the documents would be sent to the diocesan central registry. Sometimes, the Bishop appointed one person to do all probates in all or part of the diocese, and this person was called the Commissary as he had a permanent commission. The Commissary ran the Bishop’s central registry. Sometimes, after a Bishop had died, there would be a period of time before his successor was appointed, and this was called a Vacancy. Wills still had to be probated, so a Commissary or some other group such as the Dean and Chapter of the Cathedral would continue to probate during a Vacancy.
If the system was directly colonial, such as in Barbados, the Governor was the Ordinary and not the Bishop. The Governor’s office therefore probated Wills. In Scotland, where the Anglican Church was ousted in 1563 by Presbyterianism, the task of probating Wills was given to special Commissariat Courts, which operated until 1876. In Ontario, the task was given to a law court known as the Surrogate Court, and neither the Governor nor the Bishop was the Ordinary.
Most systems maintained yearly Indexes, sometimes known as Calendars. Indexing was often by first initial only, so that a Myers Will could be indexed before or after a Mason Will. Over the last century, several organizations of genealogists have published indexes, properly alphabetical, of most of the major collections of Wills. Please note that the spellings of names are as given in the Wills, so that you must look up all versions of your surname. Centuries ago, people usually made Wills when they expected to die within hours, a careless practice since very few of us can predict when this might be. There is an advantage to the genealogist in that, in the majority of the cases, death was within days or weeks of the making of the Will, and probate was within about a year afterwards. I have an English Will of which the maker died the same day, and the probate was three weeks later. (Hint - the inventory was often taken within two days of death if you can’t find a burial record). I have another Will made during an epidemic, which the maker survived by 15 years. I have a Barbados Will, which was probated 22 years after the maker’s death. There are no fixed rules.
Most Wills were made in writing, by a legally trained clerk. They were paid by the word, which is why the Wills were so long. A Will written in the handwriting of the maker is rare, and is known as a holograph Will. It was also possible, just before death, to make a verbal Will in front of two witnesses, and this is known as a nuncupative Will. It could be probated later by the witnesses testifying under oath as to what was said. To find a Will in England or Wales, look at Phillimore’s Atlas and Smith & Gardner to determine the Rural Deanery, Archdeaconry, Diocese and Province of the Church where your ancestor lived, and search the printed indexes for all versions of your name in each probate court having jurisdiction. To find a Will in Scotland, determine which Commissariat covered the county in which your ancestor lived, and search the indexes of that court as well as of the central Commissariat in Edinburgh. To find a Will in Barbados, search the Register index for copied Wills, known as RB4, or prior to 1800 the Register index for recopied Wills known as RB6. In addition Sanders has published extracts of all Wills to 1725.
To find a Will in Ontario, search the indexes for the Surrogate Court in the county or district where your ancestor died. Ontario also kept Registers until photocopying became possible, so if the probate file is missing, try the Registers. Indexes are often available on microfilm through the Mormon Church. For example, the indexes of the Prerogative Court of the Province of York and the Exchequer Court of the Diocese of York in England are on microfilm and the Wills and Registers they refer to are also on microfilm. The old document referred to at the start of this article was obviously a verbal Will, probated by the Commissary while the office of Bishop was vacant.
This article first appeared in the April 1996 newsletter, Volume 12 - Number 1