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The Contractual Fabric of Life: Using Wills,

Deeds, and Other Records To Discover the

Past in New York

BY JOHN THOMAS McGUIRE, J.D., Ph.D.

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It is a pleasure to be here today.

To start, why the title?

In law school, almost before the first day is over in Contracts class,

one learns that a contract involves three elements: an offer, an

acceptance, and consideration. Then the class goes into a discussion

of what the third element consists of, such in the famous “hairy hand”

case discussed in the 1973 classic film, The Paper Chase.

But I chose the title because our lives, from birth to death, consist of

contracts, or agreements, between two or more parties, for better or

worse.

Deeds, wills, and civil/religious marital documents are among the

most precious, most valuable documents in peoples’ lives. One of the

reasons for this factor involves descendants trying to piece together

familial records and genealogists assisting such descendants or just

trying to provide viable historical records for future generations.

I will be focusing on earlier periods of New York State history, from

roughly the mid-seventeenth century to the early twentieth century.

In response to previous requests, moreover, I’ll discuss the history of

adoption in the Empire State, and the available means to use

adoption records for genealogical purposes.

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But before we get into the nitty-gritty of searching for such records,

let’s look at some legal terms that we’ll be using throughout the

lecture:

DEED: A legal document that is signed and delivered, especially one

regarding the ownership of property or legal rights.

The term replaced the medieval one of “charter,” used with

mercantile houses, and the requirements of attesting witnesses

replaced that of seals. (Perhaps the most famous example is the

Magna Carta, which was on exhibit at the Clark Museum two years

ago.) The term can be expanded to a wide variety of forms, such as

licenses and commissions, but we will restrict the term to property

conveyances for purposes of this lecture.

Most deeds naturally were handwritten before the early twentieth

century and the advent of the typewriter, so handwriting can be a

problem.

Sometimes, however, the deeds were pre-printed, fill-in-the-blank

documents (still around today!), so it might be easier to read and

analyze.

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The deed from time immemorial contains the following elements”

“Grantor”—Transferor of property

“Grantee”—Transferee of property

“Consideration”—What exchange is made between the parties

“Property Description”—Quite complex, usually in metes and bounds

Three types of general deed:

WARRANTY—This deed is the golden standard, because it involves

warranties or guarantees against any claims. There can be general

warranties, which are more common in residential transactions,

which guarantee the grantee of the property transaction any coverage

for claims before he or she takes possession of the property, or

special warranties, more common in commercial transactions, which

involves only claims after the grantor took possession of the property.

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BARGAIN AND SALE—This is a transaction usually undertaken when

legal authorities (such as courts) need to transfer property. This deed

conveys the power to sell the property, but does not guarantee full

and proper title. Thus the grantor is saying, “Grantee, I can sell this

property, but I can’t guarantee that there’s no problems with the

chain of possession.”

QUITCLAIM—The worst type of deed, except that it was commonly

used in Western states until the early twentieth century, and in New

York until the mid-nineteenth century. All the grantor is doing is

saying, “Hey, I have no rights to this property after the transfer,” or in

other words, “I’m quitting my claim to this property.”

MORTGAGES: This seems supplemental, but the documents describing

the acquisition of loans using the real property in question may

provide not only clues or information about the mortgagee’s financial

status, but other information about the property itself.

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WILL: The term has changed to include so-called “living wills,” but this

is a relatively recent historical development, we will restrict the

definition to “a written or oral communication by a person stating

how their real and/or personal property should be disposed of after

their deaths.”

Until the mid-twentieth century, most wills were HOLOGRAPHIC, or

written by hand. So the legibility of writing can be an issue, unless an

official notary or scrivener was used.

One must also keep in mind that, unfortunately, people in the past

often did not leave wills behind, and thus died INTESTATE. (That also

happens in the present, but we shall leave that for a law course.)

With MARRIAGE RECORDS, we can have three possibilities:

(1) Civil certificates of marriage;

(2) Religious certificates of marriage; and

(3) Indexes of marriages.

Now that we’ve defined these records, the main question now

becomes: HOW DO WE GO ABOUT FINDING THEM?

DEEDS AND MORTGAGES

A little history is in order.

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In 1664, New Netherland, the Dutch colony, surrenders to the British

navy, headed by the Duke of York, without a shot being fired. (It

didn’t help that the Dutch colonial government possessed no

sufficient forces to defend the area.)

The Duke of York, later the ill-fated (and little loved) James II

After a troublesome twenty years, during which the Dutch reoccupy

the colony (albeit for a year), the British government begins to

organize New York into counties. The clerk’s office of each county

starts to collect copies of deeds, but it is not a uniform requirement

until 1823.

If one needs to examine deeds from the pre-English (or pre-1664)

periods, one must usually look at the following translations of such

deeds (since the deeds were naturally written in Dutch):

Arnold J.F. Van Laer, trans., New York Historical Manuscripts: Dutch, 3

vols. (1638-1660) (Baltimore: 1974). A small number of deeds are

translated in Charles Gehring, trans., New York Historical Manuscripts:

Dutch, Volumes GG, HH & II; Land Papers (Baltimore: 1980).

If one does not want to travel to far-away counties to look up deeds

and/or mortgages, the NEW YORK STATE ARCHIVES have the deeds

and/or indexes for the post-1664 period. Indexes, as I will discuss

with marriage certificates, are simply registers that record basic

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information on the transfers, such as the name of the grantor, the

name of the grantee, and the date of transfer. Here’s an example

from the seventeenth century:

These, however, are only available on microfilm, and are not

available either on-line or by interlibrary loan, at the present time.

You can find information on them at

http://www.archives.nysed.gov/research/res_tips_014_deeds.sht ml

WILLS

This is an interesting area. Some of you may be aware of the New

York Surrogate’s Courts, which are the county courts which oversee

the probate process, or the proper administration of decedents’ wills,

including any controversies that might arise concerning such

documents. But those courts were not established until 1787. The

courts that handled such matters before the Constitution’s ratification

were the colonial PREROGATIVE COURT and its post-1777 successor,

THE COURT OF PROBATES. Interestingly, while the latter court was

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established for the whole of New York State, a little conflict known as

the American Revolution was going on at the time, and thus some

areas of the state (especially New York City) were still under British

control. Thus the Prerogative Court’s records lasted until 1783, or the

official end of the Revolution with the signing of the Treaty of Paris.

The Court of Probates continued to function after 1787, albeit in

limited circumstances, until its final dissolution in 1823.

These records can be found at

http://www.archives.nysed.gov/research/res_tools_nysa_path_prob

ate

For after 1787, the situation is much easier, in a way. You will need to

contact the Surrogate Court office for the county you are interested

in. As is usual with such requests, email inquiries cannot be readily

answered to. So you make inquiries by the “snail mail” route. Old-

fashioned, perhaps, but required. You should be as specific and

succinct as possible.

You can find more information at:

http://www.archives.nysed.gov/research/res_tools_nysa_path_pro

bate

SPECIAL EXCEPTIONS

There are certain exceptions for the post-1787 period: certain wills

and probate documents for the city of Manhattan (New York City did

not become incorporated until 1898); authenticated (or “proven”)

wills by the New York State Supreme Court between 1786 and 1829;

and out-of-state resident wills from the nineteenth century. The

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locations of these documents can be found at the first website

indicated above (pre-1787).

MARITAL RECORDS

We must make a clear distinction between civil and religious records

of marriage. If you are looking for the latter, the parish, congregation,

or synagogue where the marriage took place (or apparently took

place) is the first place to look, particularly if there is no

corresponding civil record. But if we are only looking for the former,

then this is the way to go:

The keeping of vital statistics, unlike court records, possesses a

patchwork pattern in New York State history. This was not

uncommon in the United States until the Progressive Era (1890-1920),

when the modern organization of governments, particularly

municipalities and agencies, became the accepted form.

The New York State legislature did not create a statewide mandate

for the keeping of birth, death, and marital records until 1881, when

the newly created Department of Health became charged with the

responsibility in coordination with local boards of health. But this

mandate did not become compulsory until the original law was

amended in 1913, so the keeping of pre-1913 records was haphazard,

to say the least.

The Department of Health indexes, which include the persons

married, date of marriage, and place of the event from 1881 onwards

(sporadically) and after 1913 (definitely), do not include, however, the

records of any of the New York City boroughs. You must go through

the Vitalsearch Company (for a fee) or the Italian Genealogical Society

for such information. Some information is available for areas of Kings

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and Queens County before their incorporation either into the city of

Brooklyn or New York City in the late nineteenth century, but that

information can be spotty. The indexes do not include any marriage

records for Albany, Buffalo, and Yonkers prior to 1908.

Moreover, you must still inquire at either the State Department of

Health or the local registrars of vital statistics for marriage

certificates, because the New York State Archives only have the

indexes, not the certificates. The good thing, however, is that you can

receive uncertified records of such certificates for genealogical

purposes, as long as the persons are deceased.

For the New York City boroughs, you must inquire at the New York

City Municipal Archives, which contain the following areas and years:

Manhattan: 1847-1848, 1853-1937

Brooklyn: 1866-1937

Bronx, Queens, Staten Island: 1898-1937 (records before the 1898

incorporation are incomplete).

Post-1937 records can be obtained from the borough offices of the

New York City Clerk.

The New York Public Library has a nice description of available marital

records at

http://www.nypl.org/about/divisions/milstein/vitalrecords.

Find more information at:

http://www.archives.nysed.gov/research/res_topics_gen_vitalstats

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DIVORCE RECORDS

As you may know, divorces were historically hard to undertake in this

state until the adoption of no-fault divorce in recent years; you had to

prove adultery or domestic violence, for example.

But divorces were practically non-existent before 1787, mainly

because they could only be granted through petitions to either the

colonial or state legislatures, and such petitions were granted only in

a very few instances.

From 1787 through 1847, the New York State Chancery Court took

care of divorce cases, which were allowed. They are available at

http://www.archives.nysed.gov/a/research/res_topics_legal_probate

_chancerycourt.

Since 1847, the New York State Supreme Court has had primary

jurisdiction over divorce case files, and a supreme court is located in

most of the counties, unless jointly shared by two counties.

Interestingly, you must get a judicial order to unseal any divorce

records less than 100 years old, unless you are a party to the divorce

or an attorney for one of the parties (Domestic Relations Law Section

235). “Good cause,” moreover, must be shown for such an unsealing.

Domestic Relations Law § 235 : NY Code - Section 235: Information

as to details of matrimonial actions or proceedings

1. An officer of the court with whom the proceedings in a matrimonial action or a written agreement of separation or an action or proceeding for custody, visitation or maintenance of a child are filed, or before whom the testimony is taken, or his clerk, either before or after the termination of the suit, shall not permit a copy of any of the pleadings, affidavits, findings of fact, conclusions of law, judgment of dissolution, written agreement of separation or memorandum thereof, or testimony, or any examination or perusal thereof, to be taken by any other person than a party, or the attorney or counsel of a party, except by order of the court. 2. If the evidence on the trial of such an action or proceeding be such that public interest requires that the examination of the witnesses should not be public, the court or referee may exclude all persons from the room except the parties to the action and their counsel, and in such case

13 may order the evidence, when filed with the clerk, sealed up, to be exhibited only to the parties to the action or proceeding or someone interested, on order of the court. 3. Upon the application of any person to the county clerk or other officer in charge of public records within a county for evidence of the disposition, judgment or order with respect to a matrimonial action, the clerk or other such officer shall issue a "certificate of disposition", duly certifying the nature and effect of such disposition, judgment or order and shall in no manner evidence the subject matter of the pleadings, testimony, findings of fact, conclusions of law or judgment of dissolution derived in any such action. 4. Any county, city, town or village clerk or other municipal official issuing marriage licenses shall be required to accept, as evidence of dissolution of marriage, such "certificate of disposition" in lieu of a complete copy of the findings of fact, conclusions of law and judgment of dissolution. 5. The limitations of subdivisions one, two and three of this section in relation to confidentiality shall cease to apply one hundred years after date of filing, and such records shall thereupon be public records available to public inspection.

SPECIAL ISSUES

What if the name of the town or village in question has changed or

vanished?

Over the years, decades, and centuries towns or villages either change

their names (as during the anti-German hysteria of World War I) or

simply “vanish.”

The United States Geographic Names Information System is a logical

tool to obtain the names of different towns or villages. This can be

found at http://geonames.usgs.gov.

ADOPTION RECORDS

And now, by popular demand, we come to a new topic: the use of

adoption records for genealogical purposes.

It’s hard to believe today, in our legalistic (over legalistic?) world, but

adoptions did not become “officially” recognized until the mid-19th

century, and our neighbor state to the east--otherwise known as the

Bay State, or Massachusetts (also Red Sox Nation?) led the way. By

passing the 1851 Adoption of Children Act, the Massachusetts

legislature became the first state to shift the system of adoption to

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the jurisdictional process to ensure that adoptions would be “fit and

proper.” Although this state did establish such central adoption

organizations such as the Children’s Aid Society and the State

Charities Aid Association by the 1890s, New York apparently did not

follow the Massachusetts model until the late 1800s.

In retrospect, this seeming reluctance to adopt (no pun intended) our

present-day system does not seem surprising. Since colonial times

adoptions were always considered an informal process, either in

intra-familial (a couple adopting the child or children of a deceased

relative, for example) or, quite frankly, a business transaction (a child

needing support being incorporated into a family as another source of

work/income.)

The two best ways to ascertain whether a child was adopted in New

York before the late nineteenth century is through CENSUS RECORDS

or through records connected with the BIRTH MOTHER’S LAST NAME,

such as local parish records which may record the birth, adoption, or

both. Admittedly, this can be a time-intensive, frustrating process,

but unfortunately there are no easy ways in dealing with what one

could call a “pre-bureaucratized society.”

For more on this topic, an excellent article can be found under

Maureen Taylor, “About Adoption Research,” available at

http://www.genealogy.com/articles/research/69_taylor.html

As for adoptions incorporated under the legal system (say, by 1890), it

can be VERY difficult, for understandable reasons, for any party to

find out such records. NYS Domestic Relations Law §114 (Article 7,

Title 2) seals adoption records:

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N.Y. Domestic Relations Law 114 – Order of Adoption

2. No person, including the attorney for the adoptive parents shall

disclose the surname of the child directly or indirectly to the

adoptive parents except upon order of the court. No person shall be

allowed access to such sealed records and order and any index

thereof except upon an order of a judge or surrogate of the court in

which the order was made or of a justice of the Supreme Court. No

order for disclosure or access and inspection shall be granted except

on good cause shown and on due notice to the adoptive parents and

to such additional persons as the court may direct. Nothing

contained herein shall be deemed to require the state commissioner

of health or his designee to secure a court order authorizing

disclosure of information contained in adoption or birth records

requested pursuant to the authority of section forty-one hundred

thirty-eight-c or section forty-one hundred thirty-eight-d of the

public health law; upon the receipt of such request for information,

the court shall transmit the information authorized to be released

thereunder to the state commissioner of health or his designee.

3. In like manner as a court of general jurisdiction exercises such

powers, a judge or surrogate of a court in which the order of

adoption was made may open, vacate or set aside such order of

adoption for fraud, newly discovered evidence or other sufficient

cause.

4. Good cause for disclosure or access to and inspection of sealed

adoption records and orders and any index thereof, hereinafter the

“adoption records”, under this section may be established on

medical grounds as provided herein. Certification from a physician

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licensed to practice medicine in the state of New York that relief

under this subdivision is required to address a serious physical or

mental illness shall be prima facie evidence of good cause. Such

certification shall identify the information required to address such

illness. Except where there is an immediate medical need for the

information sought, in which case the court may grant access to the

adoption records directly to the petitioner, the court hearing

petition under the subdivision shall appoint a guardian ad litem or

other disinterested person, who shall have access to the adoption

records for the purpose of obtaining the medical information sought

from those records or, where the records are insufficient for such

purpose, through contacting the biological parents. The guardian or

other disinterested person shall offer a biological parent the option

of disclosing the medical information sought by the petitioner

pursuant to this subdivision, as well as the option of granting

consent to examine the parent’s medical records. If the guardian or

other disinterested person appointed does not obtain the medical

information sought by the petitioner, such guardian or disinterested

person shall make a report of his or her efforts to obtain such

information to the court. Where further efforts to obtain such

information are appropriate, the court may in its discretion

authorize direct disclosure or access to and inspection of the

adoption records by the petitioner.

But things can be a bit easier for adoptees born or adopted in New

York State:

Adoption Information Registry

While adoption and birth records remain confidential and under court seal, an adoptee who was born or adopted in New York State, the

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birth parent of that adoptee or the biological sibling of that adoptee can register with the Adoption Information Registry to obtain certain kinds of information.

The Registry helps adoptees obtain available non-identifying information about their birth parents and enables the reunion of registered adoptees with their birth parents and biological siblings. Finally, the Registry provides a place for birth parents to file medical information updates which may be shared with registered adoptees.

To learn more about the New York State Adoption Information Registry Program and to download registration forms visit:

Adoption Information Registry

https://www.health.ny.gov/vital_records/adoption.htm

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Search Strategy Material

Askin, Jayne, with Molly Davis. Search: A Handbook for Adoptees and

Birthparents, 2nd ed. Phoenix, AZ: Oryx Press, 1992. (R,362.8,A835,83-

24192,1992)

Beard, Timothy Field. "Adoptees in Search of Their Natural Parents." How to

Find Your Family Roots. New York: McGraw-Hill, 1977, pp.157-166.

(R,929.1,B368,78-26290)

Berko, Robert L. Using Public Records to Find and Investigate Anyone. South

Orange, NJ: Consumer Education Research Center, 1997.

(R,363.2336,qB513,97-12664)

Carroll, Susan. "Genealogy for Adult Adopted Persons-Not an Insoluble

Problem". The Genealogical Helper. V.32 N.6, Nov/Dec 1978, pp.8-12.

(R,929.105,qG326)

Culligan, Joseph J. Adoption Searches Made Easier. Miami, FL: FJA, Inc.,

1996. (R,353.0071,C967,96-17121)

Cyndi's List of Genealogy Sites on the Internet. Scroll down and click on

"Adoption". Internet Address: http://www.CyndisList.com/

Johnson, Richard S. Find Anyone Fast, Spartanburg, SC: MIE Pub., 1997.

(R,362.8,J68,97-12902)

19 Klunder, Virgil L. Lifeline: the Action Guide to Adoption Search. Cape Coral,

FL: Caradium, 1991. (R,362.829,K66,96-5446)

Rillera, Mary Jo. The Adoption Searchbook, 3rd ed. Westminster, CA:

Triadoption Publications, 1991. (R,362.734,R574,83-32287,1991)

Schooler, Jayne E. Searching for a Past: the Adopted Adult's Unique Process

of Finding Identity. Colorado Springs, CO: Pinon Press, 1995.

(C,362.8,S372,96-16747)

Shea's Search Series-online. Internet Address:

http://www.plumsite.com/shea/series.html

Strauss, Jean A. S. Birthright: the Guide to Search and Reunion for

Adoptees, Birthparents, and Adoptive Parents. New York: Penguin Books,

1994. (R,362.8298,S912,96-16967)

Helpful Organizations

NYS Adoption & Medical Information Registry created by Public Health Law

§4138 b-d (Article 41, Title 3). A mutual consent registry. NYS Dept. of

Health, Empire State Plaza, Albany, NY 12237-0023. (518)-474-9600.

http://www.health.state.ny.us/nysdoh/consumer/vr.htm

AAC-American Adoption Congress, 100 Connecticut Ave., N.W., Suite 9,

Washington DC 20036. (202) 483-3399. Committed to adoption reform by

allowing access to records. http://www.americanadoptioncongress.org/

20 AIML-Adoptees Internet Mailing List.

ALMA-Adoptees' Liberty Movement Assoc., PO Box 727, Radio City Sta.,

New York, NY 10101-0727. (212) 581-1568. Provides search assistance and

works for legislative change. http://www.almasociety.org/

CUB-Concerned United Birthparents, 2000 Walker St., Des Moines, IA

50317. (800)-822-2777. Support group and works for legislative reform.

http://www.cubirthparents.org/

ISRR-International Soundex Reunion Registry, PO Box 2312, Carson City,

NV 89702-2312. (702)-882-7755. A free mutual consent registry. Internet

Address: http://www.plumsite.com/isrr/

NAIC- Child Welfare Information Gateway-Formerly the National Adoption

Information Clearinghouse, National Clearinghouse on Child Abuse and

Neglect Information and Child Welfare Information Gateway. Provides

information on all aspects of adoption and includes links to other resources.

http://www.childwelfare.gov/adoption/index.cfm

Materials Concerning Open Records

NYS Domestic Relations Law §114 (Article 7, Title 2). Seals adoption

records. See also, NYS Social Services Law sect.372 (Article 6, Title 1)

"Records and Reports". (RT) . Internet Address for New York State

Consolidated Laws at the NYS Assembly web site:

http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS

21 Hollinger, Joan H. "Aftermath of Adoption: Legal and Social Consequences,"

Adoption Law and Practice, Chapt. 13, V.2. New York, NY: M. Bender,

1991+. (L, 346.730178, A239, 92-3876)

Kuhns, Jason. "The Sealed Adoption Records Controversy: Breaking Down

the Walls of Secrecy," Golden Gate Univ. Law Review, V.24 N.1 Spring 1994,

pp.259-297. (LAW/PER)

Sachdev, Paul. Unlocking the Adoption Files. Lexington, MA: Lexington

Books, 1989. (C,362.734,S121,89-36233)

Wegar, Katarina. Adoption, Identity, and Kinshi: the Debate Over Sealed

Birth Records. New Haven, CT: Yale Univ. Press, 1997.

(C,362.734,W411,97-12184)

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CONCLUSION

The search for the contractual fabric of life, either for our ancestors or

for people from the past in general, can be a never-ending, sometimes

frustrating, but always fascinating endeavor. Good luck with your

efforts!