Using County and City Court Records in the Archives at the Library of Virginia - (Research Notes Number 6)

Probate Records | Deeds | Marriages | County Court Order Books 
Guardianship /Fiduciary Books | Availability of Records for Research

Local records are the most basic resources for investigating Virginia's past. Until recent times, Virginia's local records were created and kept by the office of the clerk of court. All records -including probate, land, or court proceedings- were under the control of the clerk. While original city and county records are usually held in local courthouses, the Library of Virginia has microfilm copies of most surviving pre-1865 record books, as well as a growing collection of post-war holdings. 

Probate Records

Wills, inventories, appraisals, estate accounts, and divisions of estates were usually recorded in will books. In the seventeenth century, some counties kept records of all types in volumes called record books or great books. Examples of multi-purpose record books include Goochland County's deed books, which record both wills and deeds; Pittsylvania County's accounts current, which record inventories, appraisals, and estate accounts; and Norfolk County's appraisements and audits, which record both inventories and appraisals.

Surviving will books for Virginia counties are usually indexed by the testator or decedent, but seldom by the legatee or heir. Consolidated indexes to probate records on microfilm are available for most localities. Clayton Torrence's Virginia Wills and Administrations, 1632-1800  indexes early wills, inventories, and administrations. A list of probate records omitted from Torrence's volume (along with corrections) is available.

Researchers must be aware of the laws that caused a record to be created and how legal changes affect the records used. In October 1776, entail was abolished. On 1 January 1786, the English system of primogeniture ceased in Virginia. These two events affected the content of probate records.  Under primogeniture, Virginia wills may not always name the wife or the eldest son of the testator.  Their inheritance of real estate was set by law, the widow receiving her dower, or one-third, for her lifetime and the eldest son, as heir at law, receiving the remaining two-thirds unless otherwise specified in the father's will.  After the Revolutionary War, when Virginia's general inheritance law took effect, all heirs of intestate estates inherited equally.

Individuals with a written will died testate. After the death of an individual, his or her will was brought into court, where two of the subscribing witnesses swore that the document was genuine. After the will was proved, the executor was bonded to carry out his or her duties to settle the estate. The court then ordered the will to be recorded. The executors' bond was also filed with the court. If the witnesses to the will were dead or could not be located, the will was lodged. These lodged wills were not recorded, but were kept by the court and the estate was treated as an intestate estate.

Individuals without a will died intestate. The court appointed an administrator who was bonded and issued an order to appraise the deceased's estate. The court usually appointed four appraisers, any three of whom might serve. They returned an inventory of the decedent's personal property to the court to be recorded. An appraisal listed the personal property and assigned a monetary value to each item. Accounts current are the statements of monies received by and paid out by the executor in settling an estate.

Virginia did not require the filing of estate papers documenting each activity of the executor. The assumption was made that the executor settled the estate as directed by the will and by law, and no records were created if the work was done correctly. Consequently, Virginia has no estate packets or probate packets.  If the executor did not act correctly, the offended party could bring suit in chancery. Such chancery suits often generate a detailed record of the disputed part of an estate's administration.

Deeds

The most commonly recorded deed is a deed of bargain and sale, in which one individual sells property, usually land, but occasionally personal property, to another individual. Such deeds show the names of the grantor and grantee, the residence of both parties, a description of what is being sold, the consideration, the location of the tract of land, the tract's boundaries, and any limitations on the property being sold. The deed was signed by the grantor, and possibly his wife or anyone else having a claim to the property, and by at least two witnesses. Appended to the deed may be a memorandum of livery of seisin, stating that the property has changed hands and that peaceful possession has taken place. On presentation to the court, all forms of deeds were proved and recorded.  If the deed was not witnessed, the grantor acknowledged the deed in open court.

Deeds of lease and release are often found in the Northern Neck and older counties. The lease, for a nominal sum, is followed by the release noting the actual sale price. The lease may predate the release by a day, a week, or even a year. Together the two documents make up a legal deed and should not be confused with a simple lease to rent land.  Deeds of gift are often found transferring property, either real or personal, from one individual to another "for love and affection."  The degree of kinship, if any, between the grantor and grantee is sometimes stated.  Tripartite deeds are mortgages or deeds of trust where one party is indebted to another and transfers or mortgages property to a third party to secure the debt.

Under Virginia law, women were required to relinquish their dower rights to real property being sold. If the wife of the grantor or whoever held the dower claim did not appear to relinquish her right, the court appointed two or more individuals to go to her and inquire privately if she did indeed understand and approve of the sale. Such relinquishments were not always recorded with the deeds. They often were recorded later in the deed books and are sometimes found in other record books. Without such dower relinquishment, the purchaser did not have clear title to the property.

Except for a few years early in the eighteenth century, slaves in Virginia were considered personal property and consequently were not usually sold by deed.  However, they were often transferred in deeds of gift or were property listed in mortgages and deeds of trust.

Surveys, plats, and processioner's returns are sometimes found in deed books. A plat is a graphic depiction of a survey.  Processioner's records describe the walking and marking of property boundaries. Pre-Revolutionary War processioner's records are found in the church vestry books.

Marriages

Prior to 1853 when the commonwealth began recording vital statistics, Virginia marriage records are found at the county or city level. Beginning in 1661, to be married by license the groom was required to go before the county clerk and give bond with security that there was no lawful reason to prevent the marriage. The license issued then by the clerk was given to the minister who performed the service. Written consent from a parent or guardian was needed for individuals under twenty-one years.

Marriage could also be accomplished "by publication," meaning by the reading of bannsAfter announcing on three consecutive Sundays or holy days the intention of the parties to marry, the minister performed the marriage. Marriages by banns were recorded in the church or parish register. By the time of the Revolutionary War, marriage by banns had fallen into disuse in the Tidewater, but the practice continued in the western counties until 1848, when this form of marriage became illegal.

Until 1780, marriages could be performed only by ministers of the established church, who were required to record the marriages in the parish register, or by ministers of those denominations that had received official tolerance. Very few of these parish registers have survived. Quaker marriages were entered in the records of the Society of Friends. Dissenting ministers were first permitted to perform marriages in 1780.  Ministers' returns were required by law beginning in 1780, so all marriages from that date would be of record in the county court clerk's office.

Very few Virginia marriage records before 1715 survive, and most counties have incomplete marriage records prior to the Revolutionary War. Beginning in 1853, statewide registration of marriages was required (See Research Notes Number 2).   These registers exist for all counties but may be incomplete, especially during the Civil War. The registers list the date of the marriage, the names of both parties, their ages, marital status, places of birth and residence, parents' names, the groom's occupation, and the name of the minister performing the marriage. The county marriage registers are usually indexed by the names of both the groom and the bride.  In addition, there is a statewide Bureau of Vital Statisics marriage index, 1853-1935, available at the Library on microfilm.

Before the disestablishment of the Anglican church in 1786, there was no legal divorce. In some instances, a financial separation between husband and wife was recorded in a deed book. From 1786-1848, divorces were accomplished by legislative petition. After 1848, divorces were recorded in the county or circuit court order books.

County Court Order Books

County court order books or minute books have survived for many Virginia counties. They record all matters brought before the court when it was in session and may contain important information not found anywhere else. Generally minute books contain brief entries, while order books provide synopses of cases in a neater, more organized form. These volumes are sometimes internally indexed; more rarely, there is a comprehensive index.  A wide variety of information is found in order books including: appointments of county and militia officers, records of legal disputes heard before the county court, appointments of guardians, apprenticeship of children by the overseers of the poor, naturalizations, road orders, and registrations of free Negroes.

Guardianship /Fiduciary Books

When an individual acts as a trustee for another, the relationship is described as a fiduciary one. The protection of inherited property (both real and personal) was an important reason for the creation of court records. When minor children survived a parent, a guardian was often appointed to protect the estate for the children.  Appointments of guardians are recorded in the county court order books.  In the index, the guardian appointments may be listed in the name of the orphan, the name of the guardian, or under the general category "orphans."

A guardian was appointed by the court only if there was an estate to protect. At age thirteen, a child was eligible to go into court and choose his own guardian. Poor orphaned children did not have guardians and were bound out to learn a trade. In the colonial period, this was handled by the vestry of each Anglican parish. After disestablishment, the orphans were bound out by the overseers of the poor for the county. Records of apprenticeship are found in the county court order books.

Periodically guardians were required to bring estate accounts into court.  These were often recorded in volumes known as guardians accounts. The estate of a deceased person with minor children required the keeping of records (estate or fiduciary) until it was settled. This occurred when the last minor child married or arrived at legal age. Records of this sort are found in will books, estate account books, and fiduciary or audit books.

Availability of Records for Research

In many cases, the original record books and loose papers (suit papers) have remained in the locality where they were created and are kept in the office of the circuit court clerk. Microfilm copies of extant record books are available at the Library of Virginia from the date of the formation of the county or city to approximately 1865, along with a growing collection of post-Civil War holdings. A Guide to Virginia County and City Records On Microfilm may be found on the Library's Web site.   Microfilm copies are also available through interlibrary loan.


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