A genealogical research guide to New Hampshire historical statutes from 1623 to 1950.
Historical Law Guides > New Hampshire
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Legal Ages at a Glance General Principles Legal Age of Adulthood Marriage Property Ownership |
Inheritance Taxation Courts Sources & Where to Verify |
| Legal milestone | Age | Notes |
|---|---|---|
| Full majority | 21 | Both sexes, whole period; fixed by the common law, never by statute |
| Marry | 14 male / 12 female | Floor of 14 male / 13 female from 1907 |
| Marry without a judge's permission | 18 male / 16 female from 1907 | Raised to 20 male / 18 female in 1923 |
| Apprenticeship ends | 21 male / 18 female | A girl's indenture also ended if she married |
| Choose own guardian | 14 | Both sexes; the choice brackets a birth year |
| Guardianship ends | 21 | The final account approximates a birth year |
| Make a will | 21 | Married persons of any age from 1923; needs 3 witnesses |
| Serve as executor | 21 (full age) | A minor named executor takes over at majority |
| Witness a will | Any age if competent | Any gift the will leaves to a witness is void |
| Witness a deed | Any age if competent | 2 witnesses required |
| Testify as a witness | Any age if competent | |
| Taxable as a poll | 18 to 70; 21 to 70 from 1842 | Men 18–21 enrolled in the militia were exempt before 1842 |
| Jury service | 21 | Freehold required until 1842; women from 1947, on registering |
| Criminal responsibility | 14 at common law | Under 7 none; 7–14 presumed none; from 1907 a child under 17 could go to juvenile court, but the criminal law still applied |
New Hampshire's law came from England. Settlement began on the Piscataqua about 1623, the region became a royal province in 1679, and English common law (judge-made law, handed down through court decisions rather than written by a legislature) governed from the start. The state kept it deliberately when it wrote its own constitution: all the laws previously adopted, used, and approved in the Province, Colony, or State of New Hampshire, and usually practiced on in the courts, remained in force until the legislature altered them1. Property between husband and wife ran on the common law until 1860 and on statute thereafter.
Two structural features shape almost every New Hampshire record. Probate — wills, estates, guardianships — belonged to a judge of probate, who also appointed and removed the guardians of minors, insane persons, and spendthrifts2. And the province was divided into five counties by an act of 1769, confirmed by the Crown in 17713. Before that division probate was done for the province as a whole, so the earliest New Hampshire wills and administrations sit in a single province-wide series rather than five county ones.
The General Court replaced common-law rules with statutes over time, and those dates make useful anchors — each one marks a change you will see in the records:
For any given year, the rule in force is the statute where one had been passed by then, and the common law otherwise.
Full legal age in New Hampshire was 21, for women and men alike, for the whole period. The state never passed a general statute defining it, so the common-law age governed both sexes throughout4. Anyone under 21 was an "infant" in legal language, even a 20-year-old.
A minor could own property. What the law limited was the minor's power to part with it:
Majority was 21 for both sexes, without variation. Two other ages did differ by sex, and are easy to confuse with majority:
Into the twentieth century the common-law ages governed, and the Revised Statutes of 1842 wrote them down: the age of consent was 14 for a male and 12 for a female10. The sentence carried forward unchanged through the Compiled Statutes of 1854 and the General Laws of 187811. A couple who had reached those ages married on their own consent, and no statute required a parent's permission, so a nineteenth-century New Hampshire marriage record stands alone with no consent paper behind it.
The act of 1907 built the modern structure. Below 14 for a male and 13 for a female no valid marriage could be contracted at all, and such a marriage was void12. Above that floor the act set an age of consent — 18 for a male and 16 for a female — and a marriage below it could be annulled by the superior court at the suit of the underage party, unless that party confirmed the marriage after reaching the age13. An amendment of 1923 raised the ages to 20 for a male and 18 for a female, and let a parent or guardian bring the annulment suit as well14.
Between the floor and the age of consent a couple needed permission. Where special cause made the marriage desirable, the parties, together with the parent or guardian having custody of the underage party, applied in writing to a justice of the superior court or to the judge of probate of the county, who heard them and granted written permission15. A New Hampshire marriage of a teenager after 1907 therefore carries a parent's written consent and a judge's written permission with the license papers, filed with the town clerk, and both name the family. A town clerk was forbidden to issue a certificate, and a magistrate or minister to solemnize, below the age of consent without them16.
Marriage within the prohibited degrees of kinship was incestuous and void, and the children of such a marriage illegitimate. The province act of 1714 set out the degrees17; the Revised Statutes of 1842 restated them as two lists, one of the women a man could not marry and one of the men a woman could not marry18; an act of 1869 added first cousins19. A bigamous marriage was void without legal process.
From 1907 health restrictions were added: epileptic, imbecile, feeble-minded, and insane persons were forbidden to marry unless the woman was over 4520. From 1 October 1938 each applicant filed a physician's certificate, backed by a blood test, that the applicant was free of syphilis21. That certificate was a confidential report filed apart from the marriage record, so it does not appear in the marriage register even though the couple produced one.
Those impediments — kindred, an existing marriage, want of age, and from 1907 health — were the ones the statutes named, and they applied to all persons alike, whatever their race22. New Hampshire's marriage law never turned on the color of the parties, so Black, mixed-race, and enslaved couples married under the ordinary law and appear in the same town and church records as everyone else. As a practical matter an enslaver's consent controlled, and enslaved spouses could be sold apart, so a recorded marriage may describe a household later broken up.
A valid marriage required a ceremony before an authorized official. The courts settled it early and held to it: some form of solemnization was required, and attestation before an official who could certify the marriage to the recording clerk was essential23. Marriage came from that ceremony — the reason New Hampshire had no common-law marriage during a couple's joint lives. New Hampshire marriage evidence is a return, not a declaration.
The couple also had to give public notice before the ceremony. Into the mid-nineteenth century the intention was published on three public meeting days and certified under the town clerk's hand; an act of 1854 replaced publication with a notice of intention filed in the clerk's office, and the new system began on 1 January 185524. The duty to record is older still: the province act of 1714 gave a married couple a week to have the marriage recorded and made the town clerk return a quarterly list of marriages, births, and burials25. So the marriage record is a town record from 1714 forward, kept by the town clerk rather than by a church or a county office, and the notice of intention from 1855 is a second entry for the same couple.
An irregular ceremony still made a marriage. No marriage solemnized before someone professing to be a justice of the peace or minister of the gospel was void for want of authority in that person, or for any informality in the certificate of intention, if the marriage was otherwise lawful and either party believed they were lawfully married26. A runaway marriage is a real marriage and its children are legitimate; the penalty fell on the officiant, who forfeited sixty dollars for marrying a couple without the clerk's certificate27.
Who could officiate widened over time, and that decides whose book to search. Under the province act of 1714 only a settled minister residing in the province could marry people, and only in his own parish28. The Revised Statutes of 1842 added any justice of the peace within his county and any ordained minister residing in the state in regular standing with his denomination29; later acts admitted out-of-state ministers under a commission from the governor or secretary of state30. Quakers kept the right to solemnize marriages in the way usually practiced among them31, so those marriages sit in monthly meeting records.
One New Hampshire rule has no counterpart in most states. Persons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for three years and until the death of one of them, are afterwards deemed to have been legally married32. It first appears in the Revised Statutes of 1842 and runs unbroken into the modern code.
The rule operates only on death, and only afterwards. It does not make a living couple married, but it settles inheritance, dower, and legitimacy for a couple who never had a ceremony. This is why a New Hampshire probate file may treat a widow as a widow when no marriage record exists; the proof will be depositions from neighbors among the estate papers. In civil actions, acknowledgment, cohabitation, and reputation were competent proof of a marriage33; in a bigamy prosecution there had to be proof of a marriage in fact34.
The right to acquire, hold, and convey land belonged to every free man in New Hampshire, of any race, and at any age. A male took land from birth when it came to him by inheritance, gift, or devise (a gift of land made by will). The age that mattered was the age at which he could deal in it himself: at 21 he bought, sold, mortgaged, and conveyed in his own name, and before 21 his deed was voidable35. Marriage left him with the same power a single man held — a married man bought, sold, and devised his own land in his own right, and his deed carried his signature alone, subject to the homestead rule below.
Enslaved men had no legal capacity to own property; anything in their possession belonged in law to the enslaver.
A resident alien held land like a citizen. From the Revised Statutes of 1842 any alien resident in the state could take, purchase, hold, convey, or devise real estate, and it descended as if he were a native citizen36; the State's claim to such an estate by escheat (the reversion of land to the state for want of an heir) was discharged37. A foreign-born ancestor needed no naturalization to hold his farm, so a landowning immigrant's deed is not evidence that he had naturalized.
Everything turned on whether a woman was married. A single or widowed woman — a feme sole, "woman alone" — bought, owned, sold, mortgaged, sued, and was sued exactly as a man did. A woman transacting freely in the New Hampshire deed books before 1846 is almost always unmarried or widowed; after 1846 a wife with a recorded settlement could deal in her separate property too.
A married woman was a feme covert, "covered woman," under coverture — the common-law rule that a wife's legal identity merged into her husband's. He controlled her property and took its rents and profits, and her contracts had no force on their own. New Hampshire dismantled that in stages, and each stage changes what you should expect to find:
| Year | What the act provided |
|---|---|
| 1845 | A married woman of 21 and sane mind may devise her own real estate by will |
| 1846 | Before marriage the parties may contract in writing that the wife keeps her property to her sole and separate use |
| 1846 | Property may be given or devised to a married woman to her sole and separate use, without a trustee |
| 1846 | Such a contract or conveyance of land must be recorded in the registry of deeds |
| 1854 | As to property held to her separate use, a married woman has the same rights and remedies in her own name, and may be sued on her own contracts |
| 1860 | Every woman holds to her own use, free of her husband's control, all property earned, acquired, inherited, bequeathed, given, or conveyed to her, before or after marriage |
| 1876 | Every married woman may make contracts and sue and be sued as if unmarried, saving interspousal contracts and any suretyship for her husband |
| 1877 | The 1876 act does not cut down her right to release or convey homestead, dower, or other interests not held to her own use |
The powers and the entitlement arrived separately, and it helps to keep them apart. By 1854 a married woman could hold property to her sole and separate use, and as to that property she had the same rights and the same remedies in her own name, at law and in equity, and could be sued on her own contracts and wrongs just as if she were unmarried38. What she needed first was property held on those terms, which before 1860 meant a marriage settlement or a gift made to her sole and separate use under the acts of 1846. The 1860 act supplied the other half, making every married woman entitled as of right to what she earned, inherited, or was given39. General contractual capacity came later still. An act approved 18 July 1876 removed the disabilities of married women outright: every married woman might make contracts, and sue and be sued in all matters at law and in equity, in the same manner as if she were sole and unmarried. It carried the two limits that lasted into the twentieth century — the laws on contracts and conveyances between husband and wife were left untouched, and no contract or conveyance by a wife as surety (a promise to answer for another's debt) or guarantor for her husband bound her40. An explanatory act approved 10 July 1877 added that nothing in the 1876 act cut down a wife's right, alone or with her husband, to release, mortgage, or convey to anyone other than her husband her homestead, dower, or other interest in property not held to her own separate use41. The 1846 recording requirement is worth knowing on its own: a New Hampshire marriage settlement went on record in the county registry like a deed, so it is indexed under the wife's maiden name and ties her birth surname to her married one.
Three earlier routes let particular wives act alone. A wife deserted for three months without support, or who was the injured party where a cause of divorce existed, could hold property, contract, sue, and be sued as if unmarried42, and the probate judge could order the absent husband's property sold for her support43. A woman married to an alien or to a citizen of another state, living separate here for six months, had the same powers and the custody of her minor children44. And a married woman could petition to have a trustee appointed to hold her property45. Each leaves a probate file that names the husband and states how long he had been gone, and each is a sign that a marriage had broken down years before any decree.
This is the most useful dating tool in New Hampshire land research, and the answer changes in 1842. New Hampshire narrowed dower earlier and further than most states, but it did so in two stages.
Dower is a widow's life estate in her late husband's land — the use of it for her lifetime, not ownership, with the land itself passing to the heirs. From the Revised Statutes of 1842 it attached only to the real estate of which her husband died seized, meaning land he still owned at his death46. It reached no wild land: a widow was endowed only of land in a state of cultivation during the marriage, or of a wood or timber lot occupied with a farm the husband owned47. Her share was measured by income, being enough land to yield a third of the yearly income of the whole48.
Before 1842 the rule was wider. Under the province act of 1714, re-enacted in the same terms in 1791, a widow took her third of every parcel of which she was dowable at common law — all the land her husband held at any time during the marriage, the courts stating the test as land of which he was seized during coverture49. The act of 13 December 1804 cut back what counted, confining dower to land in cultivation and to wood or timber lots kept with a farm; but it left dower attached to land the husband had sold, providing that where he parted with his title and afterwards died, his widow was endowed of a third of that land, valued as it stood when he parted with it50. The conveyancing act of 10 February 1791 says the same thing from the other end, saving the dower of any widow of a grantor who had not joined with her husband in his deed51. So for the half-century before 1842 a wife's signature on her husband's deed did real work, and its absence left her dower alive against the buyer.
One wrinkle is worth naming. The clause measuring dower by income kept reckoning the land as it stood when the husband “died or parted with his title,” and that wording survived unchanged into the code of 194252, which sits awkwardly beside the rule that dower reached only land held at death. The case law resolves it in favor of the narrower rule. In the century of decisions digested from 1816 to 1920 there is no case of a widow recovering dower against a purchaser from her husband, and the heading that collects the ways dower could be lost names only elopement with an adulterer and the levy of an execution — not the wife's failure to join in a deed53. Read the clause as a rule for valuing land, not as a second class of dowable land.
From 1842 the consequence for the records is immediate. Land a husband sold in his lifetime passed to the buyer without a dower claim his widow could assign against it, so his deed carried his signature alone, and after 1842 a deed signed by a husband alone is the normal form. Dower was assigned by the probate court in one or more parcels54, so the dower record is a probate document, and it describes the widow's thirds on the ground.
What did require a wife's signature was the homestead. From the act of 1851 the family homestead of the head of each family, to the value of five hundred dollars, was exempt from attachment and from sale on execution for causes of action accruing after 1 January 185255, and no conveyance by the husband of the exempt property was valid unless the wife joined in the deed — the one exception being a mortgage given at the time of purchase for the purchase money56. Later codes put it more broadly: no deed or mortgage by the owner alone affected the interest of the wife, widow, or children, and the deed of husband and wife together barred the homestead right57. The right ran for the life of the wife or widow and the minority of the children58.
Two other rules turn on a spouse's signature. From 1913 no conveyance, lease, or mortgage of household goods in use by a husband and wife in their household was valid unless the owner's husband or wife executed it too, so a chattel mortgage of the family furniture carries both names59. And the signature could be dispensed with: from 1851 a husband or wife whose spouse had been insane for a year could petition the judge of probate for a license to convey land free of the other's rights, and a conveyance made under the license barred them60. A deed with one signature and a probate license recited in it means the absent spouse was living but had been adjudged insane, and the petition file names them both.
| Period | What the wife's signature does | Needed? |
|---|---|---|
| Province – 1804 | Releases common-law dower, which reached every parcel held at any time during the marriage | Yes |
| 1804 – 1842 | Releases dower in cultivated land, including land the husband had already sold | Yes |
| 1842 – 1851 | Nothing for dower; dower reaches only land held at death | No |
| From 1852 | Bars the homestead right in the family home | Yes, for the homestead |
So a wife's name on a deed dated after 1852 usually means the parcel was the family home; after 1842 her absence from a deed of other land carries no inference either way; and before 1842 her absence left a dower claim outstanding.
The husband's mirror-image right was curtesy — a widower's life interest in all his late wife's land, which arose only if a child had been born alive of the marriage. New Hampshire kept it as a common-law right throughout this period61. A widower holding a life estate in his late wife's farm while her children hold the title is curtesy, and it means a child of that marriage was born alive.
A child could own land at any age, taking it by inheritance, gift, or devise as an adult did. Conveying it was the constraint, and New Hampshire ran that through the probate court: a minor's land was sold under a license from the judge of probate, the guardian gave a fresh bond and took an oath before selling, the sale had to be made within two years of the license, and the guardian executed the deed62. Where a New Hampshire deed conveys a child's land, the probate file holds the family. Own at any age; convey freely at 21.
A witness of any age could serve, provided they understood an oath and could relate what they had seen. A conveyance had to be signed and sealed by the grantor, attested by two witnesses, acknowledged before a justice of the peace, notary, or commissioner, and recorded at length in the registry of deeds for the county where the land lay63. Recording is what makes the deed good against the world; between the grantor and his heirs it stands unrecorded64.
The statute fixed the number at two and left the question of who could serve to the common law; competency, not age, was the test. In practice witnesses were adults, and often kin or neighbors of the grantor, which makes the two names at the foot of a deed worth harvesting. A subscribing witness (a witness who had signed) might have to prove the deed in court years later if the grantor died, went insane, refused to acknowledge it, or left the state65, and that proof is a second record made long after the sale.
Enslaved people appear in New Hampshire records as property, and the tax lists are where they can be counted. Estate inventories list them among the goods, and the province rate acts rated them as items of estate: the act of 1770 set every male slave from 16 to 50 at sixteen shillings and every female slave in those ages at eight66, and the act of 1773 rated male slaves from 16 to 45 at ten shillings and females at five67. Because enslaved women were rated as well as enslaved men, both sexes appear in the colonial invoices by age bracket.
Two province acts of 1714 fell on people of color as persons rather than property. No Indian, Negro, or Mulatto servant or slave might be abroad after nine at night unless on a master's errand, and constables and householders could hold them until morning68; and anyone who bought or received money or goods from an Indian, Mulatto, or Negro servant or slave, suspecting them stolen, forfeited the value, while the servant or slave was whipped69. Both were repealed in 1792, and both generated justice-of-the-peace and quarter sessions records rather than property records.
New Hampshire passed no gradual-abolition act, so there is no manumission series to search. Slavery ended by attrition instead: the state rate act of 1789 drops slaves from the list of rateable estate altogether70, and the Revised Statutes of 1842 and every later code carry no slave law. The practical marker of freedom in the record is a person's disappearance from the rateable-estate column and appearance as a poll or head of household.
The act of 1857 settled what the codes had left unsaid. Neither descent, near or remote, from a person of African blood, nor color of skin, was to disqualify anyone from becoming a citizen of the state or deprive them of a citizen's full rights; any slave brought into the state, with or without consent, became free; and holding a person as a slave was made a felony, punishable by one to five years at hard labor71.
Free people of color could own land, and did. No New Hampshire statute limited their right to acquire, hold, or convey real estate, so they appear in the ordinary deed books and probate files rather than in a separate series. The same is true of Native sellers: New Hampshire carried no counterpart to the neighboring colonies' requirement of legislative approval for purchases of Native land, so such a deed stands on the ordinary recording law and sits in the county registry.
A person who died without a will died intestate, and a statute divided the estate. New Hampshire ran land and personal property through the same rules: real estate not devised (left by will) descended in equal shares, and personal estate not bequeathed, once the administrator's account was settled, was distributed by decree of the judge — the widow's share first, then the residue in equal shares to the same people who would have taken the land72. The decree of distribution is the probate document that names the whole family in one place.
| Period | Who took the estate |
|---|---|
| Province – 1789 | One third of the personal estate to the widow forever, plus her dower for life; the residue in equal portions among the children, except that the eldest son surviving took a double portion |
| From 1789 | Equal shares among the children and the representatives of any who had died |
The province rule came from the act of 14 May 1718. Its preamble explains why the land was divided among all the children rather than going to the eldest alone: estates in these plantations consisted chiefly of lands subdued by the labor of the proprietors with the help of their children, the younger of whom had generally served longest. The eldest son's double portion sat on top of that division rather than following from it73. Where there were no sons the daughters inherited as coparceners (co-heirs holding together). Where land could not be divided without spoiling the whole, the judge could order it to the eldest son, or to another son on his refusal, on his paying the others their shares — so a province-era estate may produce bonds from one son to his siblings rather than a partition of the land. The division was made by five sufficient freeholders on oath, or any three of them, and their return describes the farm.
The double portion ended with the act of 3 February 1789, which repealed the act of 1718 outright and made land descend in equal shares among the children and the representatives of those who had died74. The date of death is the test: an intestate who died in 1788 has an eldest son with a double share, and one who died in 1790 has children with equal shares. Where a division return does not add up on equal shares, check the date of death before assuming a missing heir.
Two further rules from the 1789 act ran for a century and a half. A child who died under 21 and unmarried passed his share from a parent to his brothers and sisters, to the exclusion of the other parent75, which explains estates where a surviving mother takes nothing. And advancements counted against a child's share: land deeded for love or affection, or personal property charged in writing or delivered before witnesses bidden to take notice76. A deed reciting love and affection is an advance on a share rather than a gift outside the estate, and it should turn up again in the settlement.
Under the act of 1789 the widow took one third of the surplus personal estate forever, or one half where her husband died without issue, in addition to her dower77. The Revised Statutes of 1842 refined it, and the shares turn on whether there were lineal descendants and whether there was a will:
| Situation | The widow's share, in addition to dower |
|---|---|
| Intestate, lineal descendants surviving | One third of the personal estate78 |
| Intestate, no lineal descendant | One half of the estate79 |
| Testate, no lineal descendant, and no provision for her or she waives it | One third of the estate80 |
| Testate, lineal descendants, and no provision or she waives | A child's part — an equal share alongside each child — never more than one third81 |
Where she took a child's part her share and each child's were equal, so the fraction counts the children: a widow taking one fifth means four children shared with her. She could elect instead to take, including her dower, an amount not exceeding what her husband had received from her or in her right during the marriage82, which is evidence she brought property to the marriage. Where a settlement had been made on her before the marriage these rules did not apply at all83, so an unusually small share should send you looking for a recorded marriage contract. By the 1940s the figures had been rewritten in dollars: one third if issue survived; $5,000 plus half the remainder where there was a will and no issue; $7,500 plus half the remainder where there was no will and no issue84.
A surviving spouse had a second choice, and it changes what the deed books show. By giving up dower or curtesy and the homestead right, a widow or widower could take instead a share of the real estate outright — one third where issue survived, and the same dollar-based shares as above where none did — owning it in fee rather than holding it for life85. The election runs back to the General Laws of 1878, and the allowance section expressly counts a widow's allowance against it86. A widow who appears in the deed books selling land in her own name after her husband's death is therefore not necessarily an anomaly: she may have released dower and taken a third of the land outright, and the release will be in the probate file over her signature.
A widow could also be granted a reasonable allowance out of the personal estate for her present support, which the judge then counted against her distributive share (her portion of the personal property) in the decree of distribution87. It is a separate probate record, granted early in the administration. And where her husband left a will she disliked, she could waive the provision made for her by a writing filed with the judge, taking her dower and distributive share instead88. The waiver sits in the probate file over her signature.
A minor inherited immediately, and managing the inheritance fell to a guardian appointed by the judge of probate89. A guardian was appointed where a minor had property to manage or had no parent to manage it, so where a child inherited nothing there is often no guardianship record at all. The guardian gave bond with sureties conditioned on a faithful discharge of the trust and a true account on oath90, gave public notice of the appointment91, and returned an inventory of the ward's estate92.
The age of choice was 14, for both sexes. Below it the judge appointed; above it the minor, even if already under guardianship, could elect any suitable person, whom the judge then appointed, and only where the minor neglected to nominate after being cited did the judge appoint as for a younger child93. The rule is as old as the state: the probate act of February 1789 empowered the judges to allow guardians chosen by minors of fourteen and upwards, and to appoint for those within that age94. A guardianship record in which the child does the choosing is evidence the child had reached 14, which brackets a birth year.
Guardianship ended at 21. Every guardian continued until the ward reached 21 or was discharged according to law95, and the bond ran to accounting at that point. That final account is one of the most valuable documents in New Hampshire genealogy: it dates the ward's majority, and therefore approximates a birth year, and it frequently gives a female ward's married surname, because the receipt is signed in the name she then bore.
Two rules relocate a guardianship record. A married woman appointed guardian had the same powers and duties as any other96, but if a female guardian married, the marriage extinguished the trust outright under the Revised Statutes97, and by the 1940s the judge could revoke it at his discretion98. A guardian replaced a few months into the term may be a widow who remarried, and the successor's appointment dates the marriage. By the twentieth century the father and mother of an unmarried minor were joint guardians, and on the death of either the survivor became sole guardian of the child's person99.
At common law such a child was filius nullius, "nobody's child," and could inherit from no one. New Hampshire gave the child the mother's line by statute: the mother and her heirs are the child's heirs in the ascending and collateral lines, and the child and its issue are the heirs of the mother100. That rule runs from the Revised Statutes of 1842 through every later code.
Inheritance from the father came through the parents' later marriage. Where the parents of children born before marriage afterwards married and recognized them as their own, the children were legitimate and inherited equally with the other children, by an act of 1860101. A single marriage can turn a child born years earlier into a legitimate heir, so where an estate division includes a child whose birth predates the parents' marriage, the marriage record is the document that makes the division lawful.
Where paternity was contested it was determined in a bastardy proceeding, and the file names the father. A pregnant woman complained in writing under oath to a justice of the peace against the man she charged, and the justice issued a warrant102; the issue was tried in court, by jury if either party asked, as chargeable or not chargeable103; and a man found chargeable was ordered to pay a reasonable sum to the mother, or to the selectmen of the town liable for the child's maintenance104. Where the mother refused to prosecute, the town could bring the complaint in its own name within a year of the birth105, so a town-brought case dates the birth to within twelve months.
The age to make a will was 21. Every person of 21 and of sane mind could devise and dispose of his property, real and personal, by his last will in writing106, and a companion section repeated the age as a condition of passing real estate107. Those sections carried unchanged through the Compiled Statutes of 1854 and the General Laws of 1878108. An act of 1923 added married persons under that age, so from then on a married minor could make a will at any age; the same act provided that "every person" in the section included a married woman109.
A New Hampshire will needed three credible witnesses. No will was effectual to pass real or personal estate unless made by a person of 21 and sound mind, in writing, signed and sealed by the testator (the person making the will) or by someone in his presence at his express direction, and attested and subscribed in his presence by three or more credible witnesses110. The seal was required until 1887, when an act struck the words "and sealed" and made every will not executed under seal as effectual as though sealed111; the three-witness requirement stood. A will of this period with fewer than three witnesses never passed the estate, so look for an administration rather than a probate.
A witness to a will could be of any age; what mattered was that the witness gained nothing under it. A beneficial devise or legacy to a subscribing witness was void as to that witness and those claiming under him, unless there were three other subscribing witnesses, in which case the gift stood and he was competent; a provision for the payment of a debt was neither void nor a disqualification112. A legatee among the three witnesses means the legacy failed, and it tells you the drafter thought that person close enough to the family to leave them something.
An executor had to be of full age — 21. No person not of full age, and no person the judge deemed incapable, could be appointed to administer an estate113. Where a minor was named executor the court granted administration to someone else, and when the minor came of age and applied, administration of the estate not already administered was granted to him and the earlier grant revoked, unless it had gone to a co-executor, in which case he became a joint executor114. An administration revoked and regranted some years after a testator's death, to a person named in the will, marks that person's twenty-first birthday.
Administration otherwise went in order: to the executor named in the will, then the widow or next of kin or their nominee, then a devisee or creditor, then anyone the judge thought proper115. Because the widow and next of kin ranked ahead of creditors, an administration granted to a creditor usually means the family renounced, and the renunciation is a signed paper in the file. If an executrix or administratrix married, the marriage extinguished the trust under the Revised Statutes116; by the 1940s she continued in it117.
Two taxes fell on individuals. The poll or head tax — a capitation, a flat charge on a person rather than on property — is the prize for genealogy, because it lists people who owned nothing, which makes the annual invoices into census substitutes. The property tax reached real estate improved and unimproved, stock in public funds and corporations, money on hand or at interest, stock in trade, carriages worth more than fifty dollars, horses and neat cattle over eighteen months, and sheep over six months118.
Everything runs through the annual invoice. The selectmen of each town took it in April, covering all the polls and property liable to be taxed in the town on the first day of that month119. Every person was taxed in the town where he was an inhabitant or resident on 1 April120, and a man who moved after that date still paid that year in the town he left121. A New Hampshire tax list therefore places a man on a single precise date, and a man appearing on two towns' lists in successive years moved between the two Aprils.
The poll ages and the rate per poll were fixed by the province rate acts and, after independence, by the annual valuation acts122:
| Period | Who was set in the list as a poll | At what value |
|---|---|---|
| Province (1770 act) | All male polls 18 and upwards | 18 shillings |
| Male slaves 16 to 50; female slaves 16 to 50 | 16s.; 8s. | |
| Province (1773 act) | All male polls 18 and upwards | 12 shillings |
| Male slaves 16 to 45; female slaves 16 to 45 | 10s.; 5s. | |
| 1784 | All male polls 18 and upwards | 10 shillings |
| From 1789 | All male polls 18 to 70 | 10 shillings |
| 1803 – 1842 | All male polls 18 to 70, except those 18 to 21 enrolled in the militia (acts of 1803, 1812, 1830, and 1833) | $1.30, later $1.10 |
| Revised Statutes of 1842 | All male polls 21 to 70, except paupers and insane persons | |
| By the 1940s | Each person 21 to 70, women included; a husband liable for his wife's poll tax where they lived together |
Two things fall out of that table. A young man's first appearance on a colonial or early state list brackets his eighteenth birthday, and from the Revised Statutes of 1842 it brackets his twenty-first; his last appearance brackets his seventieth. And because enslaved men and women were both rated in the province lists while free women were not, the presence of women in a household's rating is itself information.
The militia exemption is the one to watch, because it did most of the work of the later age change. Four successive valuation acts — of 1803, 1812, 1830, and 1833, each repealing the last — rated male polls from 18 to 70 but exempted those between 18 and 21 who were enrolled in the militia123, and militia enrollment was the ordinary condition of a young man in those years. In practice a young man commonly first appears on a New Hampshire tax list at 21 even before 1842. The Revised Statutes of 1842 repealed the act of 1833 and wrote that practice into the rule.
A man could leave the poll list while alive and still resident. The valuation acts of 1803 and 1812 exempted, besides militia men aged 18 to 21, ordained ministers, the president, professors, tutors, and students of colleges, paupers, and idiots; the acts of 1830 and 1833 kept only the militia men, paupers, and idiots123. The Revised Statutes of 1842 kept the exemption for paupers and insane persons124, and residence in a town merely to obtain an education at a literary institution did not make a student taxable there125, so a young man can disappear from his college town and reappear on his father's list. Otherwise the usual explanations are his seventieth birthday, or a move on the wrong side of 1 April.
Jurors had to be 21, the common-law age of majority. The jury statutes named no age at all: the selectmen were simply to list the persons they judged best qualified, and the age came from the general rule of majority126.
The property qualification changed, and it tells you what kind of man sat on the jury that heard your ancestor's case127:
| Period | Qualification |
|---|---|
| To 1810 | The selectmen list those qualified in their opinion to serve as petit jurors, each to have a freehold estate of forty shillings a year, or other estate to the value of fifty pounds |
| 1810 – 1842 | A freehold of seven dollars a year, or other estate to the value of two hundred dollars |
| From the Revised Statutes of 1842 | The selectmen list annually in December such persons as they judge best qualified, with no property test |
Where your ancestor sat on a New Hampshire jury before 1842 he owned property, and the tax list of that year will show it. After 1842 jury service proves only that the selectmen thought well of him.
The freehold applied to the town's list — the regular panel. A talesman — a bystander summoned on the spot to fill out a short jury — was returned by the sheriff from the persons present under the court's direction, and was held to no freehold of his own128.
Some men were exempt and their names kept off the lists: the governor, secretary, and treasurer of the state, judges and clerks of courts, registers of probate and of deeds, sheriffs and their deputies, counsellors and attorneys at law, ordained ministers, and practicing physicians and surgeons129. An adult man absent from a town's jury list may be one of these.
The jury statutes named no sex and no race, and they were read as male. Women became eligible in 1947, on terms that leave their own record: the selectmen were to list such men and women as they judged best qualified, but a woman's name was not to be placed on the list unless she had first appeared before them and registered for jury service, and the selectmen kept a permanent registration book of the women who did130. A woman on a New Hampshire jury list after 1947 volunteered, and that registration book is a town record.
Before 1907 no New Hampshire statute fixed an age of criminal responsibility, so the common law received at the separation supplied the rule131:
From 1907 a statute changed this. New Hampshire's first juvenile court act applied only to children under seventeen132. Police and justice courts took original jurisdiction133; the court designated a session for children, separate from the criminal session and so far as practicable held in a different room, for which a separate docket was kept, with no minor present unless necessary and no newspaper permitted to publish the proceedings134. Proceedings began by a petition in writing, verified by affidavit135, and a probation officer appointed by the justice kept full records of every case in his care136. A child could still be dealt with under the ordinary criminal law where the offense warranted it137.
The practical effect: from 1907 a child under 17 may have a file on a separate docket kept by the police or justice court, and because publication was forbidden the newspapers do not carry the case. The two records run side by side rather than one replacing the other: the act left the criminal law standing, so a child of that age may still appear in the ordinary criminal records, and both should be searched.
A witness of any age could testify, if he or she understood the obligation of an oath and could give a rational account of what they had seen. The evidence chapter set no age at all; the grounds it named were religious opinion, party status, the death of the other party to the matter in issue, marital confidence, and prior conviction, and it left age to the judge, who decided witness by witness — and children did testify138.
Three statutes reshaped who could take the stand, and each explains what you will find in the files. Husband and wife are competent witnesses for or against each other, whether joined as parties or not, in all cases both civil and criminal139 — except as to any statement, conversation, letter, or communication between them, or where the court thought the examination would violate marital confidence140. The rule survived into the modern code in the same form141, so a New Hampshire case file from the 1870s onward may contain a wife's testimony about her husband's affairs, which earlier files will not.
In the trial of a criminal charge the accused is a competent witness at his own request, but not otherwise142; no inference of guilt follows from his silence, and the prosecution may not comment on it143. And no person is incompetent to testify because he has been convicted of an infamous crime, though the record of the conviction may be used to affect his credit144.
The grounds on which a witness could be kept off the stand were the ones the statutes named, and they applied to all persons alike, whatever their race or sex. Women were competent witnesses throughout the period.
(Guide compiled by Jeniann Nielsen with AI assistance from Claude Opus 4.8 and Gemini Pro 3.1. Check primary sources as needed.)
Every rule above is tagged with the law it rests on. The lists below show where to read those laws in full, and the reference works consulted, so anything here can be checked against the original sources.