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From: Langdon Hagen-Long <>
Subject: Re: [APG] Sources: Original vs. Derivative
Date: Thu, 2 Dec 2004 00:40:54 -0800 (PST)
In-Reply-To: <00fa01c4d82b$66d00a40$c59cfea9@merrimanaccnbi>


Sorry - I didn't mean to confuse things. A will is *original* whether it is signed, or not, ,just as if you sat down and wrote a letter. Signed or not, it is your original letter. If you copied it 10 times, one could be randomly chosen as the original, and the rest labeled as copies. If I copied it, we would have a another copy. If the Clerk of Court copied it, wed have an official, authoritative copy, with an attestation that it is a true copy, produced by an individual sworn to perform his duties as accurately as possible. . The letter then becomes evidence equal in quality, or better, to your own original letter, in the view of the court. If you tried to explain that you didnt write one sentence of it in the original, the court has a presumption that the clerks copy is correct, unless and until you prove otherwise, or the court chooses to believe you. The clerks transcription is official.



The clerk's transcriptions can be considered derivative, since they are derived from someone else's will. The importance of the clerks records are so great that I hesitate to call them derivative, with an implication that they are somehow not as trustworthy, or not as good evidence as the original. Legally, the clerk's records override documents created by mere mortals. If I copied a will and left it with the court, it just wont have the same authority as a clerk recording it. The testator owned the will that was lodged at the court. The clerk created a new document, owned by the court. Within the courts and legal system, the clerks record became just as valid and trustworthy, as the original source and even more so, considering the value the court places on clerks records.



A lot of wills were brought to court, which were not proved or recorded. These are original wills, but are they trustworthy evidence, compared to a will that is proved? Wills remained unproven, or were declared void, for good reasons. They are original, but not legal. Anyone could access the file and replace an original will. The only way youd know the difference is by looking at the clerks copy, which is bound so that the chain of custody is guaranteed and documents not lost.



If my ancestor had a problem with title or boundaries with his 1/8 share of land, he could take his deed to court and "prove" the deed. However, clerk transcriptions override anything in the original deed, unless my ancestor could prove otherwise. The clerk's record is presumed to be the accurate version. Each owner had to be given a "copy" of the deed. These were considered "original" deeds, because each of the 8 owners had to sign their own *copy*, and have their own name written in the first paragraph. This makes each deed unique and not a copy at all.



Ive seen many people write, There was a duplicate of this deed on the next page. I doubt any were duplicates. Each one I checked was a release, pepper corn, or Indian corn deed, in which at least two sentences changed on the second copy. These are some of the reasons I stated that not all copies are really copies.



I really dont know what the extra copies of wills are about. Family members or creditors brought the will to court for probate. Maybe different people tried to prove the different wills, written at different times. The latest date would win out, as long as the other factors were acceptable. I dont know why the rest wouldnt be thrown away. Others might be copies, or they could be different versions. These could be *original*, [written by the testator], but not legal, since only one can be the legal will. Carbon copies could be legal. Even typewritters were a problem at first, since wills were preferably written by the testators own hand. Even spoken wills, with witnesses, were legally valid.



Langdon


"Brenda Dougall Merriman, CGRS, CGL" <> wrote:If this is not ad nauseam .. In my neck of the woods, we consider a will as
original when it is signed by the testator (not a register copy or a clerk's
copy) or his mark. It is likely what Americans refer to as a "loose paper"
and not a clerk's copy per se or found in a book/register. But there is
always the possibility that the deceased testator made more than one signed
copy. This may be dependent on the time period, of course. In the 20th
century we are more aware of several copies being made and signed. For
instance, one of them maybe went into safekeeping with a lawyer/attorney,
the testator himself or family kept one, maybe the executors had copies, and
etc.

Does this account for what Virginia refers to as differences in wording or
dates? Which is the one that was submitted for probate? Does the probate
file hold the original hand- or type-written (signed) will, or a copy
handwritten or carbon-copy paper? Does it matter -- are they all "original"
because they may have been signed/executed at the same time?

Just had to ask,
Brenda in Toronto


----- Original Message -----
From: "Virginia L. Aldridge"
To:
Sent: Wednesday, December 01, 2004 7:56 PM
Subject: [APG] Sources: Original vs. Derivative


> snip<
> You had a good point. I had a researcher search for a will in AL. He found
> a book (an old one) that was the will book for that time frame and copied
> the handwritten instrument for me and sent it to me. Then he was informed
> the book (though old) was not the original will book for that time frame.
> After some searching he found the original(this book had paper that
> reminded him of cloth) and copied the will (again a handwritten
> instrument). On reading each document I noted the original had a different
> date and slight difference in wording. So what seems to be an original may
> not be an original, however if we had not been told of the existence of
> the 'original' how would we have known we did not have the Original
> Source.



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