Jane wrote her will…but was it legal?

Jane F. Roper Samuel, my 3rd Great Grandmother, wrote her will in 1862….long before it was legal to do so in Kentucky and many other states in the United States.

From Famous Kentucky Women :
As early as 1800, women pushed for a better legal position, but Kentucky was backward in regard to women’s rights. Since Kentucky had not seceded from the Union, after the Civil War it did not have the favorable constitutional revisions that women in the Confederate states had.

In Kentucky, a married woman had no property rights. She couldn’t make a will. If she did own property, all of it became her husband’s. She could not make contracts, sue, or be sued. If she took a job, her husband had the right to collect her wages. He had sole guardianship over their children, even if she left him and even over an unborn child. The husband could separate the children from their mother if he wished and, in case of his death, could will their guardianship to some other male.

In 1894, decades behind most other states, Kentucky passed a married women’s property law, as well as laws that allowed women to make wills, serve on the board of directors, and keep their own wages.

Jane wrote her will 11 March 1862. It was recorded with the Clerk of Court’s office in Rockcastle County, Kentucky. As was the norm in those times, the will was handwritten into the official record, Will Book D, pages 336-337 by D.C. Colyer, Clerk of Court. Jane signed the document and it was witnessed by two people.

Did Jane know she was breaking the law? How about the Clerk of Court who recorded the will into official record? It is possible, she and husband, Herndon were no longer married. Although no divorce record has been found, records do show that Jane and Herndon had not co-habited for many years.

Jane Roper Samuel, died 6 November 1862 at the home of her daughter, Martha Samuel Thompson. She was 69 years old. Jane’s will bequeaths to all of her children and one granddaughter, to whom she leaves her side saddle.

Jane F. Roper Samuel’s Will
Written 11 March 1862
Rockcastle County, Kentucky

In the name of God, Amen, I Jane Samuels [sic] being weak in body, but sound in mind make this my last will and testament (viz).

I will to my son, Z. L. Samuels 1 bed stead and furniture, To my daughter Betsy H. Potts 1 frame, and part of my bed clothes, and to her daughter, Gertrude T. Potts my side saddle. I will to my son, John C. Samuels my feather bed and some bed clothes. I will to my daughter, Martha Thompson’s children, $5.00 or the worth of it in something else. All the remainder of everything else that I have I will to my daughter, Rebecca J. McClary. To my son David A. Samuels, I will $1.00.

Given under my hand this 11th of March 1862. Signed, Jane Samuels

Att: A McClary, Susan McClary

(Recorded with Clerk of Court, D.C. Colyer, Will Book D, pp. 336-337, Courthouse, Mt. Vernon, Kentucky)

Genealogy Snapshot

Name: Ancestor Jane F. Roper Samuel, 1793-1862

Parents: John Roper and Mother unknown

Spouse: Herndon Samuel, 1788-1872

Surnames: Samuel, Roper

Relationship to Bonnie Samuel: 3rd Great Grandmother

3 thoughts on “Jane wrote her will…but was it legal?

  1. I’ve found no records about contesting Jane’s will. When she died, the children were all adults, most with their own families, some living out of Kentucky. As to the legality issue, someone at the state historical society, suggested that such laws were not always enforced to the letter. In this case, Jane may have presumed single as she and husband had not lived together for at least ten years. If they had divorced, such records are very hard to track….lots of court house fires I’m told!


  2. I tried to comment. Entered my e mail, password. Told me no user. I’m sure I registered😫 Anyway, the spelling of Samuel with the “s” ? I hope her property was distributed as per her wishes! Sent from my iPad



  3. Surnames are spelled a variety of ways, it is the trail of documents that “proves” the relationship. While we spell our surnames sans the “s”, others in our ancestors have spelled it Samuell, Samul, Sanwel, Samways, etc. Jane Roper Samuel was a literate woman and yet, spelled the name with and without the “s” and even with two l’s as did her husband at times.


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