Probate: Guardianship isn’t about custody


Probate documents are one of the best primary source documents, but they’re also one of the most complicated. Where I see the most confusion, though, is understanding guardianship, especially in Colonial and early Republic probate proceedings.

If you want to dig deeper, I recommend spending some time at “Bob’s Genealogy Filing Cabinet” at genfiles.com, but here’s the quick overview. And actually, I’m going to start with a couple of quotes from that site’s Orphans & Guardians article, which really does a fantastic job of providing historical perspective.

“For most of history an orphan was a fatherless child, irrespective of whether the mother was living.”

“The guardian’s responsibility was focused on the property of the orphan [not] on the orphan himself… the primary purpose of a guardian was to provide for management of the orphan’s estate, and to use that estate for his maintenance and education… Guardianship thus had nothing to do with physical custody. Courts almost always assumed that orphaned children would live with their mother if she was alive and capable of rearing them.”

Honestly, if you can internalize that, then you can stop watching this video. You’ve got the message. Of course, I have a few things to add, along with an example of how to misinterpret guardianship.

First, pay close attention to when the courts assign guardians. Many courts will note in the record that a child was below or above a certain age. For probate proceedings taking place over many years, you can get very accurate estimates of when some of the children were born.

Second, probate was a family affair. When courts assigned guardians, they typically chose close family members to play the role. As an example, I have been struggling for three years with the role of two brothers, Thomas and Joseph Chew as the guardians chosen by Nancy Chew Overman—I can’t figure out how Nancy was related to the two men, and the widely accepted genealogy puts Thomas and Joseph as siblings to a completely different Nancy Chew, which would have made Nancy Overman a fourth or fifth cousin.

Third, realize how different education is today compared to a century ago. In 1919, only 17% of high school students graduated, which was nearly triple the rate of 1900. In 2016, 84% graduated high school.

Go back to the 1800s? High schools didn’t really even exist. Education happened in a one-room school house that ended after the eighth grade.

Go back even further to the colonial era, your education happened on the job, either from your parents or via an apprenticeship.

For example, in colonial Pennsylvania, apprenticeship was such an important educational path that a 1713 law granted the courts the explicit power to place a minor orphan into an apprenticeship or other form of employment upon the request of a guardian.

So… how not to treat guardianship. Here’s an excerpt from a genealogy of the Slough family in Pennsylvania. The story is that a wicked step-father banished his step children from their home and placed them into the care of guardians on nearby farms.

You can already see the problem right there. The author equated guardianship with custody.

What really happened is that when Philip Slough died intestate, his children were all minors, so the court assigned them guardians to protect their financial interests and represent them in court.

I guess some of the older children could have been apprenticed out to nearby farms, but this would have been typical for the period. There’s no mention of apprenticeships in the probate file, though.

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