Genealogy And The Law







Legal Terms You Should Know: A - C

Short Title: 101 terms that every genealogist needs to understand

This area of the Web Site is made available to help clarify some of those questions, concepts and ideas that often give us problems. Understanding these terms gives us greater meaning when we are trying to make sence out of legal documents and papers of our ancestors.

T. Vance Little has given us permission to add these terms to this web site and make them available for everyone to use and understand.

Examples are included with most terms.


ABATEMENT - Reduction of a bequest
A person by his will may attempt to dispose of more property than he owns at the time of his death. When one makes a will, he contemplates the property that he has at that time. The will, on the other hand, disposes of the property that he owns at the time of his death. He may have sold a piece of property and dissipated the proceeds between the time the will was written and his death. A Beneficiary may receive less than the amount specified in the will. Such a reduction is called an abatement.

Bequests abate in accordance with their priority. A bequest of specific property will not abate if the property is still in the estate at the time of the distribution of the estate. Several bequests stated in dollar amounts will abate proportionately if there are insufficient funds to satisfy all of them.

Silas Goodman directed in his will that his farm, Blackacre, be sold and that each of his six children be given $10,000 out of the proceeds. Unfortunately, Blackacre only brought $30,000. The bequests to the children abated $5,000 each.

ADVANCEMENT - Inheritance given before death
An advancement reduces the amount that the recipient of the gift is entitled to take after the death of the person making the gift. For such a gift to be an advancement, there must be an intent that it be so. Ordinarily, there can be no advancement when there is a will unless the will takes the advancement into consideration. It will be assumed that the father wished to favor one child and that the gift was not an advancement of that child's share of the estate unless there is clear evidence to the contrary.

Modern law requires that the donor make a written statement contemporaneously with the gift that it is to be an advancement or the recipient must acknowledge the gift as an advancement. Otherwise, such gifts will not be taken into consideration in a division of the donor's estate.

Will Gooch lived in Caswell County, NC. In 1798, his son John was about to join the Western Migration to Williamson County, TN. Old Will got his tobacco pouch and took out $1,000 in gold and gave it to his departing son. He rewrote his will as John's wagon train was going out the gate. He left John out of his will. When Will died, his son John sued the estate. He lost. The courts declared the $1,000 gift was an advancement of John's inheritance. He never spoke to his brothers and sisters again.

AFFIDAVIT - Written statement made under oath and acknowledged before a notary public or before a witness.
The theory behind an affidavit is that a person is less likely to make a false statement in writing and under oath than an oral statement. There is no guarantee that the contents of the affidavit is true. The researcher may only assume that it is more likely to be true than false because it was given under oath. The fact that the statement was signed before a notary or a witness pretty much forcloses the possibility that the affiant (person making the statement) will deny having made the statement or try to claim that it was a forgery.

Any document (usually deeds) filed in the Register of Deeds Office must be witnessed or notarized. The use of notaries is of fairly recent origin. The names of the witnesses are a clue as to the identity of the person signing the document.

AFTER-ACQUIRED PROPERTY - Property acquired after the date of a will.
It is the property that a person owns at the time of death that counts, not what was owned when the will was made. When a will enumerates each item of property, such an enumeration will cover only those items owned at the time the will was made. If additional property is acquired after the will is made and if the will makes no provision for such after-acquired property, the problem becomes what to do with the later-acquired property. Usually, a person will be deemed to die "intestate," that is, without a will in respect to that property. The problem can be solved by including a "residuary clause" in the will, that is, a statement that disposes of "all the rest and residue" of the property.

Ebenezer Scroggins made his will and carefully enumerated each piece of property that he owned and designated which of his children was to receive each piece. He omitted three of his children because he had already given them advancements. He bought another piece of property and neglected to up-date his will. He died. Who got the last acquired piece of property. All his children in equal shares. He died intestate as to that piece of property.

ALIENATION - Voluntary transfer of property.
During the early days of the feudal system in England, land could not be sold. It stayed within the family unit and passed by right of inheritance. This prohibition against a sale was called a "restraint on alienation." As time went on, individual rights began to emerge as to property rights. Landowners were permitted to voluntarily transfer their property, first by will and later by deed. Hence, there evolved the principle that a restraint on alienation of property was illegal.

Our forefathers brought the principle of free alienation of property to America with them. They did, however, recognize certain restraints on the sale of property so long as such restraints were not "unreasonable." Some restraints are in the form of deed restrictions. The concept of what is "reasonable" restraint continues to be refined by court decisions.

As to his daughter Agatha, Zeke was a doting father, but he was not too fond of his son-in-law. In his will he left Agatha a tract of land with the provision that she could never transfer it to her husband or any of his relatives, no matter how remote. The provision is probably invalid as an unreasonable restraint on alienation of property.

ANCILLARY - Secondary
The term ancillary is seen most often in connection with estate administration. It means a secondary administration of an estate or an administration of the estate in a state other than the one in which the decedent lived at the time of his or her death.

The primary administration of an estate must be in the state where the deceased lived at the time of his or her death. If the person owned property in another state, the estate might have to be administered in that state. Such an administration in another state is secondary, or an ancillary administration.

The principle behind multiple administrations of an estate is that each state looks after the property within its bounds. It must be handled in accordance with the laws of that sate. Most sates require that an administrator be a resident of that state. That resident administrator is, thus, under the police power of the state. This idea dates back to the time that states were considered to be sovereign.

If a person died without a will with property in another state other than his domicile, that property will pass according to the laws of that state and not the laws of the state of domicile.

Zachariah Zitter lived in Virginia at the time of his death, but some of his vast land holdings lay in North Carolina. The primary administration of his estate was in Virginia, but there had to be a secondary or ancillary administration in North Carolina.

APPURTENANCE - Everything belonging to land
It is common to find in deeds a transfer of land and all "appurtenances." The effect of such wording is to transfer the land and everything that belongs to it, such as buildings, easements, and rights-of-way.

An appurtenance may be a tangible item attached to the land, such as a building. It may also be an intangible item, such as an easement across the land.

Bascomb Bacon sold a piece of land to his next door neighbor. Before the neighbor took possession, but after the deed had been signed, Bascomb cut a large walnut tree and hauled it away to the saw mill to have it cut into lumber with which he intended to have a lovely table made. The neighbor sued. Bascomb was caught red handed. The tree was indeed an appurtenance and went with the property.

ATTEST - To bear witness to
Attest is also seen in the form of "teste" or "test." It means that the attesting witness saw the signer sign his name, or his "X," as the case may be. An attesting witness usually does not need to know the contents of the instrument because he does not vouch for the validity of the instrument. He simply witnesses the signing of the instrument.

Attesting witnesses are used most frequently in witnessing wills. At one time, it was the practice to have attesting witnesses to deeds. This practice has been largely supplanted by notarization.

Person authorized to transact business on behalf of another. The term has nothing to do with being licensed to practice law. The authorization is called "power of attorney." In the early days powers of attorney were recorded in the Register of Deeds Office. Recordation is required if the attorney in fact signed an instrument, such as a deed, that was itself recorded in the Register's Office.

In 1802, Caleb Clodhopper waived goodbye to five of his six children and their families as they left Rockingham County, North Carolina, headed to the land of milk and honey on the west side of the mountains. He died a few months later. A couple of years later word was sent to the Clodhopper heirs that their shares of their father's estate were ready to be picked up. They all got together and selected one nephew to go back to North Carolina and pick up the money. They executed a power of attorney authorizing him to do so. He recorded it in the Register of Deed's Office.


BENEFICIARY - One who receives benefits
There are various ways in which one may receive benefits, such as being the beneficiary under an insurance policy, being the beneficiary of a trust, or being the beneficiary of an estate. When the term is used in respect to estates, it means that the BENEFICIARY will receive a distribution from the estate.

Where there is a trust, one may find such terms as "beneficial ownership," or "beneficial use." These terms refer to the fact that a BENEFICIARY of a trust is entitled to certain rights, or more correctly, benefits, without being the actual legal owner of the property.

Louie Lovingood died leaving a will in which he left his entire estate to his sweetie Susie Applewhite. Susie was the beneficiary. His wife was furious.

BEQUEST - Gift made by will
The verb which means to make a bequest is "bequeath." The term bequest may be used synonymously with legacy. The English Common Law made a distinction between a gift of real property and a gift of personal property The latter was referred to as a bequest and the former was a "devise." This technical distinction has largely been lost with the passage of time. Today any gift by will is generally referred to as a bequest.

Simon Slickark died with a will leaving $10,000 each to his four favorite nephews. The lucky nephews received bequests, pecuniary bequests, to more exact.

BODILY HEIRS - Natural-born descendants
This term is used interchangeably with "heirs of the body" and "heirs lawfully begotten." In previous times, the term had to be used in conjunction with a transfer of property to create a transmissible interest. For instance, a transfer "to John Doe" gave him only a life interest; but if the transfer were "to John Doe and his bodily heirs," his interest was one that he could transfer to another by will or deed.

These terms have largely lost their technical meanings. Today, it is not uncommon to find wording such as "to John Doe, or his descendants, per stirpes." Basically, this terminology means that if John Doe dies before his benefactor, John Doe's children will take the share their father would have taken if he had lived.

Fitzhugh Humpernickle died leaving a will which named his son Hughie and the lawfully begotten heirs of his body a hundred acre farm. Fitz received a fee simple interest that he could sell or otherwise dispose of at any time he wished and to anyone he wished.


CODICIL - Amendment, addition, or change to a will
A will is said to "speak as of the moment of death." It has no effect until the maker has died. One may change his or her will any time prior to death. This change may be made in the form of a codicil, which should refer to the original will and should be executed with the same formalities as the will.

It is recommended that the same persons witness the codicil who witnessed the will, thus holding to a minimum the number of persons required to probate the will. If there are several codicils or extensive changes, the will should be rewritten in its entirety. Such a rewriting will simplify and clarify matters, and it also may avoid any unpleasantness associated with having as a matter public record the bequests deleted from the will by the codicil.

Matilda Tally was an old maid. She executed her will leaving every thing to two favorite nieces, Florene and Flodene, who were old maids too. Florene got married, which really ticked Tilly off. She drew up a codicil leaving the happily married niece one copper penny and no more.

COLLATERAL HEIR - Non-lineal heir
A collateral heir is one who inherits from a relative other than a direct ancestor. Under the law of most states, direct heirs inherit in preference to collateral heirs, they being heirs only if there are no lineal heirs.

Green Horn died childless, unmarried, and intestate. All his brothers and sisters were dead too. His nieces and nephews inherited his meager estate. They were collateral (and disappointed) heirs.

COMMON LAW - English law brought to America
The English Common Law is that great body of law developed in England by statute and by court decisions which was brought to America by our ancestors. The law evolved over several centuries. It is extremely complex and not always logical, but it can provide an answer to any legal question, usually one for either side of the issue. The principle of judicial precedent was important in the Common Law. There was a large body of unwritten law that evolved purely from court decisions.

The Common Law was and is the law in most states unless the state legislature has passed a law to the contrary. Today, the Common Law is becoming obsolete as new laws are passed by state legislatures, such laws being designed to be more appropriate to our changing world.

Most of the legal terms contained in this work are of Common Law origin. Usually the Common Law principle is stated because it is likely to be applicable to the term as found in historical and genealogical research.

Under the Common Law, if there is no will, a surviving wife never inherited real property from her husband in fee simple because she was not of his blood line. The rule has been changed in most states today.

Consort and relic are words mostly seen on old tombstones. They usually refer to women. Because of their connotations, they can present some good clues. A consort is a wife (or husband). A relic is a widow.

The tombstone inscription read, "Sarah Jane Robberson, consort of John Z. Robberson." We can assume from this inscription that John Z. was still living when Sarah Jane died, if she was his wife. If it had said that she was the relic of John Z. Robberson, we can assume she was his widow at her death and that he died before she did.

CONSTRUCTION - Interpret or clarify
Since legal terms have technical meanings, those meanings are not always readily apparent, especially to laymen. When a term is used and there is no clear expression of intent, the only thing to do is to bring a suit and have the document "construed." The judge will then try to think for the person as the person would have thought, if he had thought at all! Construction suits are usually brought in chancery courts.

Archibald Wanderlust wrote the following will: "I am going on a journey. If I do not return, I want my sister to have all my property." He did return from that journey, but later died from a gun shot wound from an unknown assailant. Did his sister get his property? Only the courts can say for sure.

CONTEST - Challenge to validity
A will contest is an attempt to have the will declared invalid. A person who brings a suit to contest a will must have an interest in the estate. He or she must be entitled to receive benefits from the estate were it not for the will.

There are a number of grounds for contesting a will:
(1) That the deceased did not have the mental capacity to make a will,
(2) That the will was executed by undue influence,
(3) That fraudulent means were used, or
(4) That the will was improperly executed.

A will contest suit is usually filed in a court of law or circuit court. Thus, in some states, it is possible for an estate to be tied up in three different courts. The probate may be in the county court. A construction suit may be in the chancery court. And the contest is in the circuit court.

Valley Vale had a daughter who was always buttering him up. It inflated his ego. He decided to leave his entire substantial estate to her, leaving nothing to her indifferent brothers and sisters. When Valley died great was the wail of despair, and many were the law suits filed claiming undue influence. Who won? Depends on who had the best lawyer and the best case.

CONVEY - Transfer of title to property
A transfer of title to property is usually by written instrument called a deed. One conveys title to property and not the property itself. In early Common Law days there was a symbolic delivery of a handful of dirt to represent the transfer of land. It is a principle of real property law that every piece of real property must be owned at all times by someone. The title to the property must be held by some person or entity. Therefore, holding title to property is indicative of the ownership.

COURTS OF LAW AND EQUITY - Two kinds of courts
The division of the American judicial system into Courts of Law and Courts of Equity dates back to the English Common Law days when the two most important people in the land were the King and the head of the church, the Chancellor. The court system came to be divided between them. The ultimate arbiter of matters of law was the King, and the ultimate arbiter of matters of equity was the Chancellor.

Courts of Law heard cases dealing with criminal law and tort law. Courts of Equity heard cases where there were no actual laws broken, but justice needed to be done, such as a determination of fact. The distinction between these two court systems still exists in some states today, although many states have abolished the separate court system.

Courts of Equity are called Chancery Courts. They handle matters such as probate, domestic relations, guardianships, injunctions, bills of peace, and declaratory judgments. The judge in a Chancery Court is called a Chancellor.

In small jurisdictions the same man may have acted as both Judge and Chancellor, but never both at the same time.

Sally Searchmore went to the local archives on an ancestor hunt. Should she head first to the Chancery Court records or the Court of Law Records. That's right, Chancery, first. If she has extra time, she might look in the Court of Law records, but she is not likely to find much genealogical information there.

COVENANT - Promise or contract
Technically, covenant is used in a more narrow sense than contract. A contract may be either oral or written, But, when the word covenant is used, it usually implies that the contract has been reduced to writing and signed by the parties. There are dozens of kinds of covenants. Many of them are used in respect to real estate transactions. For instance, a "covenant to convey" is a promise to sell property. In modern parlance it is called a real estate contract.

Sam Spade sold Blackacre to his neighbor. Sam included in the deed a provision that the buyer would not subdivide the property. By signing the deed the buyer agreed to that deed provision. That is what you call a restrictive covenant.

CURTESY - Husband's interest in wife's property
A husband receives a curtesy interest in the real estate owned by his wife at the time of her death. Under the Common Law, curtesy was a life estate in his wife's land. Upon his later death, the land went to her heirs. A husband could not inherit his wife's land since he was not of her blood line unless she left it to him by will.

Curtesy is the husband's counterpart of the wife's dower. There are, also, such things as "curtesy initiate" and "curtesy consummate," the former being what the husband has before a living child is born and the latter being what the husband has after the birth of a child. In most states the husband is not entitled to curtesy unless there was a living child born of the marriage.

Darlene Dapper inherited Brownacre from her father. She was married to Darrell Dapper. They had three children. She died without a will. Darrell inherited a life estate in Brownacre. That was his curtesy. The children got nothing until his death. It was a long wait.







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