ASSETS NOT BEQUEATHED TO FIRST SON

[stepmars]

Hi,

Has anyone ever known of circumstances where a family's assets were not bequeathed to the first son?

John Marshall and his wife Helen Mann both died in Edinburgh in 1787. They produced at least 2 sons and a daughter. They both left testaments but the beneficiaries were John's nephew and Helen's niece. Bequeathed assets included houses, household effects, jewellery, cash etc.

This suggests that John and Helen outlived their 3 children and there were no grandchildren. I have reason to believe, however, the elder son was still alive and married with children at the time of their deaths but probably living in Glasgow.

I was wondering if it is likely that the son had been disinherited due perhaps to a falling out within the family? Alternately if he have been out of contact for so long and living in another city could he have been presumed dead?

Are either of these scenarios likely? How would the legal system of that time have dealt with issues such as these?

Thanks,

Steve

[SarahND]

Hi Steve,
In all the testaments I have found where any of the children were not to inherit, it has said so explicitly. Either "because he was an ungrateful son" or "because he has already received his portion" etc. to make sure there were no errors after the person's death. I would think it highly unlikely that the son would have been presumed dead unless the son himself chose to make the parent think so for some reason.

I take it you are sure that the person in Glasgow was, indeed, the son of that John Marshall and Helen Mann? It sounds odd to me, but I await clarification from someone who may know more about this.

All the best,
Sarah

[stepmars]

Hi Sarah,

No, I'm not certain he is the son of John Marshall and Helen Mann.

I am certain they had a son named James in Edinburgh in 1737. I am also certain that they lived in Potterrow, Edinburgh and that John was a shoemaker.

The James Marshall that I'm trying to link them to lived in Stirling (aged 27), then Edinburgh (aged 30), then Glasgow (aged 43) and finally Edinburgh again (aged 57). I'm not certain were he was born but Edinburgh is not unlikely. These locations have been established from baptism records of his children, trade directories listing him as a shoemaker, and subscriptions to various religious texts.

I had previously ruled out a link with John Marshall and Helen Mann but dates, family naming patterns, common occupation with John etc keep bringing me back to the possibility of them being related.

Thanks,

Steve

[emanday]

Hi Steve,

It might be worth considering the possibility that the James Marshall you found could have been the son of one of John's brothers (if any existed).

That might explain the similarity in naming pattern and occupation.

I only suggest this because of a "wrong rellie" situation I got into. Only by discovering the father's siblings names and investigating their offspring, did I finally sort out the mix up.

[AnneM]

Hi Steve

Before 1868 title to heritable property i.e. land and houses passed directly to the person's heir i.e. the eldest son if there was one or if not one the daughters equally between them as heirs portioners. Heritable property could not be disposed of by will.

Then, as now, if a person has a spouse and/or children he or she can only properly freely dispose of one third of his or her moveable estate (known as the 'deid's part'. Both spouses and children have what is known as legal rights. If a spouse and children survive then the spouse is entitled to one third of the moveable estate (jus relictae/i) and the children entitled to one third between them (legitim). If a will leaves less than that amount to the spouse/child it is open to challenge. If there is a spouse only he or she gets one half and if children only they get one half equally between them. I can never remember and the book I've got does not tell me whether the heir, having inherited the heritage, also took a share of the moveables or not. I think that position varied over time.

The upshot of all of this is that it seems to me highly unlikely given the terms of the wills you are looking at that the couple concerned had any surviving children and it may well be that the person who was willed the house was the heir anyway, possibly the eldest son of an elder brother.

Anne

In addition it was very difficult in those days to get someone presumed dead as there was a presumption that any person who was missing lived the extent of a natural life unless circumstances strongly pointed to the contrary view. This would not be unreasonable in times when communications were not as they are now and someone could be out of touch by simply moving a few miles.