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Have you tried Wills? If not, then maybe you should - a fascinating source of information, and if you are lucky, an immensely informative one.

Of course, not everyone took the trouble to make a Will for you to find. Many had nothing to leave! Even today, a majority of people die without having put down in writing what is to happen to their possessions when they are dead. And in times past, an even larger majority failed to do so. But if your ancestor was one of them, don't despair. You might find the clues you are seeking, or a mention of your man or woman, in the Will of a brother, a sister, a parent, a child, a grand parent, uncle or aunt or even a friend or neighbour.

But firstly, what exactly is a Will? You know, of course, but do you know the meaning of all the somewhat technical terms you might find?

TERMS USED

A Will is the documentary instrument by which an individual regulates the rights and obligations of others over his possessions or family after his death. You must distinguish, in theory at least, between a Will and a Testament. A Will deals with real property - land and buildings - while a Testament deals with the personalty, or personal property such as money, clothes, furniture, equipment, trading stock, bank accounts and debts owing. The two types are commonly combined in a "last Will and Testament".

The man or woman making the Will is the testator or testatrix and he or she will devise real property and bequeath personalty. Again, the two are commonly combined in a stated intention to "give, devise and bequeath".

A Will is usually, but not necessarily, in writing. Until 1838 it was possible to make a nuncupative Will, an oral statement before witnesses. Such Wills were usually made when the testator was very ill and they are not uncommon, especially in earlier periods. They were committed to writing after declarations by witnesses. It is still possible, if a man is about to go into battle, to make a nuncupative Will.

For hundreds of years, the Church administered testamentary matters through Courts of various types, in which the appropriate official would annex his Probate to the documents, confirming their validity. The wording of the Probate Act --- in Latin until 1733 and in English thereafter --- was endorsed on the Will which was kept by the Court, and the wording was also entered in an Act Book. A Probate copy of the Will, carrying the endorsement of the Court, was given to the representatives of the dead person and a copy was transcribed by a Court official in a register to provide a Register Copy.

An executor (fem: executrix) will be nominated, usually by the testator. He or she is the person who legally acts after the death to see to the payment of debts, to gather in all the assets and to ensure that the testator's wishes are carried out. There may be more than one executor and nowadays it is quite common to name a bank or other similar body to act in this capacity, avoiding any possible problems caused by human mortality.

Not everyone could validly make a Will. Not everyone who could would choose to do so. If a person died without making a Will i.e. intestate, or if he made a Will without naming an executor, the disposal of any assets would be controlled by means of an Administration, a term usually abbreviated to Admon. Again, the Church would oversee this. Admons form a second series of records the family historian may need to consult, but the information provided is likely to be much less informative than that in a Will.

If a testator wished to change any of the terms of a Will, he could do so by means of one or more Codicils, usually found annexed to the Will itself. If certain legacies were conditional on some future event, such as a child attaining the age of 21, the task of an executor might continue for many years and he will normally be named as a Trustee.

WHO COULD MAKE A WILL?

The precise position is complex and has varied at different times, but broadly a Will could be made by any adult except slaves, traitors, prisoners, heretics --- and married women. A single woman could make a Will but it would be nullified by marriage. Widows could and did make Wills. It was possible for a married woman to make a Will --- with her husband's consent, which could be withdrawn at any time, and a Will made by a woman during her marriage had to be expressly confirmed by her if her husband predeceased her.

Restrictions on married women were substantially amended by the Married Woman's Property Act 1882 and females now have exactly the same testamentary rights as men.

WHERE WILL YOU FIND A WILL?

How can you find if your man, or, less commonly, your woman, left a Will or whether there is an Admon? Where will the documents be kept and how can you gain access to them?

There are two quite different scenarios. Prior to 1858, jurisdiction over testamentary matters was exercised by the Church. The Probate Act of 1857, which came into force on 12th January 1858, transferred this jurisdiction to the state and provided for the establishment of District Probate Registries and of a Court of Probate which later became the Probate Division of the High Court. So there are two different sets of records and different ways of consulting them, depending on the date of Probate. Obviously, the Will of a person dying after 12th January 1858 would be administered under the new rules, but remember that there will be a period of time between the death and the granting of Probate. This period may be quite short but can extend to several years. Clearly, the post January 1858 rules can apply to the Estate of a person who died before January 1858. The newly opened Durham Probate Registry proved its first Will on 22nd January 1858 and it is hardly surprising that 40 of the first 50 Wills proved there related to people who died in 1857. In April 1858, the Will of Robert Rain Young of Bishopwearmouth, who had died as far back as 1854, was proved at Durham and doubtless there are cases of even longer gaps between death and the grant of Probate.

POST 1858 POSITION

40 District Probate Registries and a Principal Probate Registry were established under the 1857 Act. There are now rather fewer. The Principal Probate Registry is at Somerset House, Strand, London WC2R ILA. [This has now moved to First Avenue House, 42-49 High Holburn, London WC1V 6NP - Ed.] The local registries which will chiefly concern local searchers are those at Durham and Newcastle. The Newcastle Registry's jurisdiction extended over the whole of Northumberland and also, from 1926, to some areas on the south bank of the Tyne. The Durham Registry covered the whole of County Durham, with the post 1926 exception mentioned. Durham Registry closed in 1969 and its records were then transferred to York. It should be noted that jurisdiction in a local registry is no longer confined to a particular geographical area.

There are national indexes of all Wills proved and Letters of Administration granted, for the whole of England and Wales, for each year from 1858, known as the Index of Grants. These indexes themselves provide a great deal of useful information such as names of testators in alphabetical order, dates of death, addresses, occupations, names of executors etc. They are in annual volumes according to the date the Probates or Letters of Administration were granted. The Admons are indexed in the same volumes as the Wills --- before 1870 following the "Wills" section, after that date, mixed in with them.

Until 1929, each District Registry was supplied with a complete set of the indexes and, of course, there was a complete set at Somerset House. Sadly for local searchers, the set from 1858 to 1929 previously held at Newcastle Registry was moved elsewhere some years ago and there is now no complete set held in the region. [This was the position in 1994. Of course, now there is a microfiche version at the NDFHS Library and Research Centre at Percy House which covers the period 1858-1943 - Ed.]

Initially, each District Registry held the Wills it had proved and copies were sent to Somerset House. It is, of course, also possible that copies may be held by solicitors or among family papers.

The current position is that Newcastle Registry has national indexes from 1929 and holds the original Wills proved at Newcastle since then. These indexes can be searched free of charge at the Registry. Pre-1929 indexes are held by the York Probate Registry but there is no facility for the public to inspect them. Requests for postal searches (cost £2 per person) and requests for copies of pre 1929 Wills should be made to York, as should queries concerning he former Durham Registry. Alternatively, the indexes at Somerset House [Now First Avenue House - Ed.] can be searched in person without charge, or by post for a small fee, or by using one of the numerous searchers who advertise in publications such as Family Tree Magazine. Copies of any Will can be obtained for quite a small fee, the precise amount being dependent on the number of pages.

The address of Newcastle Probate Registry is Plummer House, Croft Street, Newcastle upon Tyne NE1 6ND and that of the York Registry is Duncombe Place, York YO I 2EA.

An alternative to consulting the indexes at 'official' Probate Registries and obtaining copy Wills from them is available to local researchers in respect of Wills proved between 1858 and 1940. Register copies of Wills --- copies made in manuscript by Court Clerks --- are bound in large volumes, with an index in each such volume. Those compiled at Newcastle Probate Registry are at Northumberland County Record Office. Those compiled at the former Durham Registry are held by Durham University Library Archives and Special Collections, 5 The College, Durham [Now held at Palace Green, Durham site - Ed.]. These volumes can be consulted free and provided you have some idea of the likely date of proving a Will they provide a convenient method of avoiding even the small charges imposed by an official registry. Because of the size of the volumes, photo copies of pages of these volumes are not feasible.

For Wills proved after 1940, the only facilities available, other than via family papers and similar sources, are those at District Registries or at Somerset House. It is of course possible for non-local searchers to use the Probate Registry nearest their home, which should hold post-1929 indexes and may still hold those for earlier years.

PRE 1858 POSITION

Ecclesiastical jurisdiction applied. One of three Courts, Durham, York and Canterbury, will have been involved with Durham and Northumberland Wills.

All Wills proved in the Diocese of Durham were proved in a single Court, the Consistory Court of the Bishop of Durham. It is however, not true to say that all Northumberland and Durham Wills were proved in Durham. Prior to 1837, the Diocese of Durham covered the whole of the two pre-1974 counties of Durham and Northumberland, with the important exception of Hexham and Hexhamshire, which was a detached part of the Diocese of York, and the lesser exception of the Northumberland parish of Thockrington which was an "ecclesiastical peculiar" of a York prebend. The parishes included in Hexham and Hexhamshire, and thus not within the Durham Court's jurisdiction, were Allendale, Allenheads or Allendale St. Peter, Bingfield St. Mary, Carrshields or High West Allen, Hexham, Ninebanks or Low West Allen, St. John Lee, St. Oswald in Lee and Whitley Chapel.

Pre-1837 Hexhamshire and Thockrington Wills are held with the York Diocesan Archives. Probate Records for 1837 to 1857 for these areas are in the main series of Durham Probate records.

There are also complications caused by the location of Durham Diocese, along with the Dioceses of Carlisle, Chester, Sodor and Man and York within the Province of York with the Archbishop of York at its head. The Will of a testator dying with bona notabilia i.e. goods and debts worth over £5, solely in Durham Diocese would be proved in Durham. However, if he also held such goods elsewhere in York Province, his Will would be proved at York. This is likely to be particularly important if a testator lived in the south of County Durham bordering on Yorkshire, or near the Hexhamshire area.

The southern part of England, with Wales and the Channel Islands, formed the Province of Canterbury. If a testator held goods etc., both in Durham Diocese and in Canterbury Province, or in Durham and in both York and Canterbury provinces, or if he died at sea or abroad, the Prerogative Court of Canterbury claimed jurisdiction. It seems also to have been possible for Wills of men of wealth and position to be proved at Canterbury.

PRE-1858 DURHAM WILLS

All the surviving pre-1858 Wills proved at Durham are held by Durham University Library Archives and Special Collections, 5 The College, Durham where they can be examined free of charge by anyone. [The probate material is now held at the Palace Green site of Durham University Library - Ed.]

Until 1822, the whole of the records of the Consistory Court of Durham were kept in Durham Cathedral. They were then moved to Durham Diocesan Registry, subsequently to Durham Probate Registry and finally to their present home at Durham University. At certain periods, the records were badly neglected and there have been considerable losses of Probate material, particularly in earlier periods.

The records cover the period from about 1540 to 1857. As previously mentioned, Hexham and Hexhamshire Wills are included with the Durham records from 1837 only.

There are five stoutly bound volumes of manuscript indexes to the Durham Probate Records. These indexes, which are not modern, are arranged chronologically within each letter of the alphabet i.e. testators with a surname beginning with the letter 'A' in 1741 are followed by those for 1742, and then those for 1743 and so on. The names are not in strict alphabetical order within each letter. The volumes, which include both Wills and Admons, cover the respective periods 1540 to 1599, 1600 to 1660, 1661 to 1786, 1787 to 1831, and 1832 to 1857. The indexes are arranged by the year in which Probate etc., was granted and not by the year the Will was made in or in which the testator died. Most Wills were proved in the year of death. or in the immediately following years but it is possible, particularly if a Will was contested, or there were complications, for Probate to be granted many years after a death.

There are microfilm copies of these indexes in a number of places, including Newcastle Central Library and the Society of Genealogists in London and in local County Record Offices. Note however, that these are indexes only --- the repositories mentioned do not hold copies of the Wills themselves, or microfilms of them. The Church of Jesus Christ of Latter-day Saints also has microfilm copies of the indexes and has over 250 reels of microfilm of Durham Probate Records from the 16th century, which can be obtained via Family History Centres of the Church.

The indexes unfortunately list many wills etc. which no longer survive. If the original Will is no longer in existence, it may be possible to see a transcribed version of it in the Registers of Wills at Durham, which are available from about 1534 but with gaps in the series. There are modern card indexes in the search room in Durham for the periods 1540 to 1660 and 1832 to 1857, which are alphabetical in arrangement and include all surviving Wills and Admons and much other Probate material, and are therefore more accurate than the bound index volumes.

Inventories - lists of the possessions left by the deceased --- can he found in many instances up to the 1720's. There are however, cases where a Will survives without an Inventory, or vice versa. If one is traced, an Inventory can go into considerable detail about the testators' worldly goods, often listing the contents of every room or of a farm and giving names of individuals to whom money was owed or who had debts owing to the deceased. Thus a tradesman could list all his customers who had outstanding bills and these often lengthy lists of names are themselves of considerable genealogical value. Unfortunately there is no form of index to the names mentioned in them.

All of the Probate documents - Wills, Inventories, Act Books etc. - can be freely consulted by anyone at the Search Room at 5 The College, Durham [This is now Durham University Library Archives and Special Collections, Palace Green, Durham - Ed.] during normal opening hours. The staff do NOT undertake postal searches.

Copies of Wills etc., can be obtained at a cost of 25p per sheet plus a handling charge of £2 plus VAT (and postage if appropriate). You should not send any money in advance. You will be sent an invoice with the copies. Larger wills will carry a larger handling charge.

PUBLISHED VOLUMES & TRANSCRIPTS OF WILLS PROVED AT DURHAM

Over the years a number of different individuals and organisations have extracted details of certain Wills. The extent and nature of this work varies quite considerably and the details below are intended to give only an approximate idea of the contents of each book. The list does not pretend to be exhaustive and the NDFHS Editor would be glad to know of any material omissions relating specifically to Durham and Northumberland.

Index to Durham Wills - by L.W. Robinson 1915, described as an "attempt to make a list of all Wills in the Durham Probate Registry". It is an index only and is known to be incomplete. Typescript, it covers the period 1540 to about 1812. Copies in Newcastle Central Library and Gateshead Library.

Testamenta Dunelmensis - by H.M. Raine (14 volumes). In the early part of this century, H.M. Wood made a transcript in 2 volumes with a separate index. The order is chronological in each volume. Sometimes the full Will is given but usually there are extracts only. Only selected Wills are included. Copy in Newcastle Library.

Durham Wills 1576-1735 - by L.W. Howe (6 volumes, each indexed.) Compiled late 19th century. Extracts from selected Wills and other Probate and related material. Many of the extracts are stated to relate to Wills not now in existence or not in the indexes at Durham. At Newcastle Central Library.

Northumberland Wills - by J.C. Hodgson. A very large volume, at Newcastle Central Library (reference L 929.3), though not on open shelves. Copies of 122 Wills mainly late 18th or early 19th century. Full copies of the Wills. Alphabetically arranged with an index.

Kirkhaugh Wills - by J.V. Harrison. In Archaeologia Aeliana 4th Series Volumes XL, XLI and XLIII, published by Newcastle Society of Antiquaries in the 1960's and also in a separate offprint volume. Abstracts of Wills of people living in or closely connected with the Northumberland parish of Kirkhaugh. In most cases, all the personal names given in the Wills are stated. Covers 1663 to 1818 but 'there are some from outside these limits'. The Kirkhaugh parish registers were destroyed by fire in the late 19th century and these volumes help to lessen the loss.

Wills of Some Walton Families of Alston from the Probate Registry at Durham. 1908. Full copies of such Wills 1569-1739. At Newcastle Central Library L929.3 1.

Newcastle Records Committee, Volume VIII (1928). An index of some Wills etc., in Durham Probate Registry and from other sources 1540-1598. This includes those Wills, for the stated period, which appeared in 3 Volumes of Surtees Society publications, Volumes 2, 38 and 112, in Raine's Testamenta Dunelmensis and in Sir Cuthbert Sharpe's Wills in the Dean and Chapter Library at Durham Volumes XXXI, XXXII, XXXIII and XXXV.

Surtees Society Publications. This Durham publishing Society has a number of volumes devoted to Wills.

Volume 2 - Wills and Inventories Part I. 1835 and reprinted 1967. Copies of Wills and Inventories for periods to 1580. Includes Wills (in Latin) of a number of early Bishops of Durham and of selected Wills from the Durham Probate records. The Wills are quoted in full, with genealogical and other notes from various sources 438 pages plus an index of testators. Unfortunately, there is no index of the very numerous individuals mentioned in the Wills etc., but this is rectified in Volume 38 (see below).

Volume 38. - Wills and Inventories Part II. 1860 and reprinted 1967. Includes selected Wills and Inventories for the period 1580 to 1599, with 'a few Wills of an earlier date ... which had been overlooked in the first Volume, but which seemed to the Editor of too much value to be left out of the Series'. 345 pages with an index of all names, and an additional index to all names in the earlier Volume 2 (see above).

Volume 112 - Wills and Inventories Part III. 1906 and reprinted 1967. 185 pages plus a complete index of all names mentioned in the selected Wills included, which cover the period 1543 to 1602.

Volume 142 - Wills and Inventories Part IV. 1929 and reprinted 1968. Follows the pattern of the three earlier volumes. Selected Wills from the period 1603 to 1649, with complete index of all names mentioned. 318 pages.

Volumes 116 and 121. Extracts of Wills for Yorkshire, Nottinghamshire, Northumberland, Cumberland and Westmorland 14th-17th centuries.

Volume 201. Darlington Wills 1600-1625. 1993, newly published and described below.

Wills of Robinsons, Robsons and Rippons 1545-1831, Durham Probate Registry. This is a typescript at Gateshead Central Library.

Durham Wills - George Neasham. 4 Volumes of extracts plus an index. At Gateshead Central Library.

Transactions of Newcastle Antiquarian Society, Archaeologia Aeliana, 3rd Series Volume XII - has some extracts from Miscellaneous Northumberland and Durham Wills. See page 47.

Personal Names in Wills Proved at Durham 1787-1791 - This is a new publication by this Society, and is a complete list of all the names --- testators, beneficiaries, witnesses etc., --- mentioned in all the Wills proved at Durham in this 5 year period. Indexed. See below. [This series has now been extended with additional volumes covering the periods 1792-1794, 1795-1797, 1798-1800 and 1801-1803. Details regarding availability may be obtained from the NDFHS Sales Page - Ed.]

Published Volumes and Transcripts of Wills Proved at York or Canterbury - There are a number of works listing Wills etc., proved at York and Canterbury and these will be examined in more detail in the next issue of the Journal [Vol. 19, no. 3 - Ed.]. This will include details of Hexham/Hexhamshire Wills. We will also look at Wills proved during the Commonwealth Period 1650-1660, during which time all Wills were proved at Canterbury only.

This article was first published in the NDFHS Journal, Volume 19, Number 2, Summer 1994.

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