By:  T. Vance Little

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 sense 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.

A

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.

EXAMPLE – 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.

EXAMPLE: 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.

EXAMPLE: 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.

EXAMPLE: 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.

EXAMPLE: 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.

EXAMPLE: 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.

ATTORNEY IN FACT

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.

EXAMPLE: 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.

B

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.

EXAMPLE: 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.

EXAMPLE: 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.

EXAMPLE: 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.

C

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.

EXAMPLE: 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.

EXAMPLE: 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.

EXAMPLE: 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 – Spouse.

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.

EXAMPLE: 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.

EXAMPLE: 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.

EXAMPLE: 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.

EXAMPLE: 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.

EXAMPLE: 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.

EXAMPLE: 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.

D

DEED – Document that transfers title to property.
There are two kinds of deeds. A warranty deed warrants or guarantees that the grantor has good title to the property. If it should turn out that he did not have good title, he is guilty of breach of warranty and is liable for damages.

A quitclaim deed, on the other hand, does not guarantee anything. If the grantor has good title, he passes good title. If he or she does not have good title, he passes a defective title. He or she makes no promises one way or the other.

Quitclaim deeds are frequently used in inter-family exchanges of property when the parties are certain of the status of the title. Such an inter-family quitclaim deed should not raise a red flag to a title search. But a quitclaim deed between unrelated parties should raise a few questions.

EXAMPLE: Ronald Redhand owned a piece of property. Everyone knew that there was a question about where the boundary line was between him and his neighbor. He sold the property with a quitclaim deed because he could not guarantee that he had good title to all the land covered by the deed. His buyer was willing to take a chance.

DEMISE – Conveyance or transfer of property
For the most part, convey and demise are synonymous. demise, on the other hand, is used more frequently in connection with leasing than with selling.

DEVISE – Disposal of real property by will
Under the Common Law, a devise could only refer to real property. The term bequest was the counterpart of devise and was used to refer to personal property. Devise and bequeath are both technical words, the former referring to real property and the later to personal property. These terms have lost their technical significance. Today, in most jurisdictions non-technical words are adequate to pass property so long as they reflect the true intent of the person attempting to pass the property.

Devise is a verb. The noun is spelled the same way, but it is pronounced “device.” The one devising is called a “devisor,” and the one receiving the real property is called a “devisee.”

EXAMPLE: Clark Grabble left a will saying, “I give, devise, and bequeath all of my property to my beloved wife Esmarelda.” The word “devise” took care of the real estate. The word “bequeath” took care of the personal property. The word “give” was redundant because it refers to both kinds of property.

DISCLAIM – To renounce the receipt of property

The right to disclaim the receipt of property is of recent origin as a legal term referring to estate administration. It derived from and is driven by tax considerations. Under Common Law and old state law there was no way for a person to refuse to accept property received by inheritance. People had no choice but to accept the property and turn around and make a gift of it to another if they wanted to get rid of it. Today, both state law and Federal tax law permit a person to disclaim his interest in inherited property. If the correct procedure is followed, the property passes to the next taker as if the original taker had predeceased the person from whom the property came.

EXAMPLE: Riches George was married to wealthy Wanda. When Riches died, he left his fortune to Wanda. The last thing Wanda needed was another four of five million dollars. She disclaimed, and it went to their children.

DISSENT – Election not to take under will

A widow has a “right of election,” that is, she can take what is left her in the will or she can take what she would have gotten had there been no will. In order for her to take her “intestate” share, she must dissent from the will. It is not something to which she is automatically entitled. She cannot take both her intestate share and what she is left under the will. She must take one or the other, i.e., she has the “right to elect” which she will take.

Under the Common Law, no one other than a surviving wife had the right to dissent. The husband and children did not have a right to dissent. This law has been changed in most jurisdictions. Also, the “elective share” has been changed in most jurisdictions to be something different from an “intestate share.” In some jurisdictions the amount of the “elective share” depends on how long the couple were married.

EXAMPLE: Walter Weatherley and his wife Hortense were not on the best of terms. As a matter of fact they had not spoken in years and had not done anything else together either. Walter in his will left Hortense a brand new five dollar bill and no more. Hortense had the last word. She dissented from the will and took a full one third of his estate. She didn’t get the five dollar bill though.

DOMICILE – One’s home

Domicile is not necessarily one’s residence because domicile is more than a residence. It is fixed and permanent and, to some extent, is a matter of intent. It is the place to which the person intends to return when he is away from home.

Domicile is important in probate matters. An estate must be settled in the state in which the deceased person was domiciled at the time of his or her death. That state of domicile may not be the state in which he or she died nor the state in which he or she resided at the time of his or her death.

EXAMPLE: Henry Gullyhopper lived in Randolph County, North Carolina. Most of his children had migrated to the West. He spent time with first one and then the other of them. He died while residing with his daughter in Missouri. His estate should have been settled in North Carolina, which is not to say that it actually was settled there.

DOWER – Wife’s interest in husband’s real property

Dower is the counterpart of curtesy, the interest a husband takes in his wife’s real estate. The dower to which a wife is entitled is a life estate in one-third of the property. It applies only to real estate is a life estate only. Curtesy, on the other hand, applies to the whole of the real property.

A husband cannot keep his wife from obtaining the equivalent of dower. If he tries to give her less, she can dissent from the will and take her dower, along with whatever else the law provides.

Since dower is only a life estate, upon the death of the widow her dower lands will be divided among the husband’s heirs. Frequently, division of the lands will be found in probate records long after the death of the husband. Such a division usually occurs at the later death of the wife.

NOTE: Dower is what state law says it is. The above explanation refers to the state of the law generally in early post-Colonial days in America.

EXAMPLE: Ezra Eagleheart died intestate leaving a wife and several children. They couldn’t decide how to divide his lands among themselves. The had to file suit against their mother. It was a “friendly” suit, but that’s the way it had to be done because the American law system is based on an adversarial procedure. The court appointed a committee of three men familiar with the property. They hired a surveyor and divided the land into tracts. They had to give Momma one third of the land for life because that was her dower.

E

EASEMENT – Right to use another’s land
An easement might come into being when one owns land that is land-locked and the only way he can get to the land is across the land of another. The latter person may grant an easement to the land-locked neighbor. Courts will sometimes grant such easements when neighbors are not cooperative with each other. Such court granted easements are called “easements of necessity.”

Since an easement is only a right, it is not equivalent to ownership. One who has an easement across another’s land does not own the road. Instead, he simply has a right to use it.

An easement usually, but not always, passes with the land. That is, one who buys the land would do so subject to another’s right to passage across the land.

EXAMPLE: Ovander Hubbard decided to divide up his land among his children. There was no way to give all of them access to the main road. The land he deeded to his son Junior had no access. The father gave Junior an easement across the land of his Sister Bea. She sold her land. The buyer tried to stop Junior from going across his land. He was not successful since the easement went with the land. Junior continued to cross the land with his horse and buggy. He thumbed his nose at the buyer at each crossing. They were never too friendly.

EJECTMENT – Suit to recover possession of land

When a tenant fails to pay his rent, an ejectment suit might be brought against him to have him removed from the premises. A tenant may also be subject to an ejectment suit for misuse of the leased premises.

EXAMPLE:

Horace Holythanthou decided to rent his corn farm and move into town to help his daughter Sister Bea run a boarding house of questionable repute. The renter forthwith set up a still so that he could sell his corn in liquid form. Easier to haul to market that way. The bootleg operation offended Horace’s Baptist sensibilities. He filed an ejection suit for misuse of the premises. The outcome depended on His Honor’s sensibilities.

ELEEMOSYNARY – Charitable

Eleemosynary is an old English word referring to alms given to the church. It has come to mean charitable and is used to describe any charitable organization.

If an eleemosynary gift is found in the old records, one can assume that it was motivated by true benevolence. Not so today. One can assume that recent eleemosynary gifts are at least in part motivated by current tax laws.

EXAMPLE: Charley Churchgoer left in his will a substantial gift to the local Presbyterian Church. His neighbors couldn’t figure it out, because ol’ Charley was a Methodist. The Presbyterians did not, however, look that gift horse in the mouth. They used to money to buy pads for the pews to better endure long and boring sermons.

EMANCIPATED CHILD – Free from parents

Under the Common Law parents were entitled to the services of their children and their earnings until they reached adulthood or leave home. In early days, it was not uncommon for parents to “hire out” their children. Wages thus earned were paid to the parents.

The theory that a parent was entitled to the service of his minor children was by no means a one-way street. The parent was charged with care, custody, and control of his children. These obligations continued until the child became emancipated.

The most common way for a child to become prematurely emancipated is by marriage. When a child marries and leaves the custody of his parents, he takes on the responsibility of his own family, whom he must support by his earnings.

The emancipation of a child need not be by overt act. Failure of the parent to enforce his right to services of the child or to support the child amounts to involuntary emancipation.

EXAMPLE: Susie Que at the age of 17 one day went out to get the cows. Instead of bringing in the cows to milk, she met Sam Nerdowell, and they eloped. Susie’s father could no longer make her bring in the cows. Her husband took over that role.

EQUITABLE OWNERSHIP – Beneficial ownership

There are two kinds of ownership of property, one being “legal ownership” and the other being “equitable ownership.” A person who holds title to property or in whose name the property is registered in the legal owner of that property. Such legal ownership is like the name on an automobile title or the one whose name is on a deed to real property.

The person whose name appears on an automobile title is not always the person who drives the car. Similarly, the person whose name appears on a deed is not always the one who receives the income from the real estate. The person who drives the car or who receives the income from the real estate receives the benefits from the property and is thus called the equitable owner. He may also be described as the “beneficial owner” of the property.

The term equitable ownership is used in connection with trusts. The trustee is the legal owner of the property, but the beneficiary of the trust is the equitable owner of the property.

EXAMPLE – Susie Que’s father may have lost the right to make her bring up the cows after her emancipating marriage, but he had the last word about her inheritance. He left her share of the family farm in trust for Susie Que as protection against her irresponsible husband. She received the income from her share of the farm, but she did not hold title to the land. She was the equitable owner only.

ESCHEAT – Passage of property to the state

When a person dies without heirs or next of kin, his property is said to escheat, that is, it goes to the state in which the property is located. Escheat is based on the principle that property ownership is not a natural right, it being a privilege granted by the state in which the person lives. The idea goes back to early Common Law days when the king did, in fact, own all the land and, in turn, parceled it out to his lords.

In earlier times, the law provided that the property of a person who committed a felony would escheat. Since the felon was deemed unfit to own property, it would go to the state.

In some states there is a limitation on distant relatives inheriting property. In such states, property will escheat before it goes to distant cousins. The state, in such an instance, becomes what is called the “laughing heir.”

In Common Law, the principle of escheat applied only to real property. Today, in all states, it applies to personal property as well as real property.

EXAMPLE: Barney Bachelor lived alone and so far as anyone knew he had no relatives by blood or marriage. He stashed away quite a nest egg. Upon his death without a will his nest egg went into the basket of his state of residence. There it hatched into welfare payments.

EXECUTOR – Person named in will to settle an estate
An executor’s duty is to carry out, or execute, the terms of the will. An administrator, on the other hand, is the one appointed to settle an estate when there is no will.

Under Common Law during the period of administration of an estate, the executor became the legal owner of the deceased person’s personal property (not his real property). He held title to the property for the purpose of liquidating it to pay debts and the costs of administering the estate. He or she must distributes what was left to the beneficiaries.

For an estate to have an executor, there must be a will and the person named in the will must actually qualify as executor. If there is no will or the executor named in the will is unable or unwilling to settle the estate, the estate will have an “administrator.” An administrator is always court appointed.

No one has a legal right to be an executor. The selection of an executor is purely a personal right. There could be many reasons why any particular person was chosen as executor, but, as a rule, it would be safe to conclude that the person so selected was close to the deceased person and was a respected man or woman in the community and a person of business ability. If the wife is named, it may be assumed that she was a person of some ability and had considerable business knowledge. The feminine form of executor is “executrix.”

EXAMPLE: George Gotrocks had been married to Goldie for many years. She was an educated woman and was aware of his business dealings. He had no qualm about appointing her the Executrix under his will. He had confidence in her ability to deal with all business matters that might come up. He was able to rest in peace.

EXEMPT PROPERTY – Free from claims for debts
The law provides in most states that all of a deceased person’s property may be sold to raise money to pay his debts, with the exception of certain enumerated items of property. These items are called exempt and include household furnishings, tools, and equipment, farm animals, and family treasures, such as books and Bibles. The theory is to exempt such property as will allow the widow to maintain a household for herself and children.

The law specifies the items that are exempt. Frequently the list is antiquated and includes such things as a mule, a cow, and a wash tub. More modern versions include musical instruments and the family automobile.

In addition to exempt items, a widow is usually entitled to a year’s support and homestead, which are also exempt from the claims of creditors as is the wife’s elective share of an estate.

EXAMPLE: When Sarah Louisa’s husband died, she was scared to death that she would have to sell Maud, his favorite mule to pay his debts. Not to worry. The mule was an item of exempt property and was still available to plow the cotton.

F

FAILURE OF ISSUE – No direct descendants

The term FAILURE OF ISSUE is frequently found in old documents. It does not mean that the person was not survived by any heirs, such as, brothers, sisters, uncles, aunts, or cousins, but it does mean that there were no direct descendants.

Neither does failure of issue mean that a person never had any children, but it does mean that none of them or their descendants lived to survive him.

EXAMPLE: Adam Apples’ only son died without children a week before he died. There was a failure of Adam’s issue. His property went to his wife or collateral heirs, much to their delight.

FEE SIMPLE – Outright ownership

There is probably no more important term in the law of real property than fee simple. It means one thing and one thing only — complete ownership. When a person owns land in fee simple, it means that he owns the land absolutely and in his own right. The term is sometimes shortened to “fee.” It sometimes is lengthened to “fee simple absolute.”

Owning land in fee simple does not mean that the land is free and clear of encumbrances, such as mortgages or other debts. Ordinarily, one has to own the land in fee simple before he or she can place a mortgage on it. The fact that he or she does place a mortgage on the land does not change his or her fee simple ownership.

Fee simple ownership is to be distinguished from such forms of ownership as fee tails, life estates, remainders and reversions.

EXAMPLE: After years of renting and share cropping, Hopping John finally scraped together enough money for the down payment of a farm. Even though it had a sizeable mortgage on it, Hopping owned the farm in fee. He went around saying, “Tee hee, I owe my farm in fee.”

FEE TAIL – Entailed property
Property that passes from generation to generation in the same family is called fee tail or entailed property. It means that a restraint has been placed on the ownership of property, that restraint being that the property cannot be sold. The only way such property can be transferred is by inheritance within the family unit.

A person in his or her will might leave his or her land to his or her children and further provide that after their deaths it must go to their children, and after their deaths to their children, and so on down the line.

There are obviously disadvantages of ownership in fee tail. As descendants multiply, the land becomes divided into progressively smaller units until it becomes virtually useless to any one owner. Consequently, fee tails have fallen into disfavor and have been abolished in most American states, but they were very much around in the early days of America.

There are several variations of the fee tail. The descent of land may be restricted to the eldest in the family, which is known as “primogeniture.” Also, fee tail may be restricted to either male or female descendants.

EXAMPLE: Hopping John was so proud of his farm that he decided to keep it in the family forever. He put an entailment on it in his will, thus creating a fee tail. A couple of generations later the heirs were so irked when a subdivision passed them by that Hopping John rolled over in his grave.

FIDUCIARY – Confidential relationship

A fiduciary is a person bound to act on behalf of another person. Such a legal relationship exists between a guardian and his ward, a trustee and the beneficiary of the trust, and an executor and the beneficiary of the estate.

The word fiduciary is a generic term that means guardian, executor, agent, administrator, and trustee. The actions of a fiduciary are required by law to be his perception of what is in the best interest of the person on whose behalf he is acting. If he were to act out of self-interest, it would be a violation of the fiduciary relationship.

A fiduciary who is handling money or property for another must keep that money or property separate from his own. He or she cannot deal with the property in any way that would allow him or her to make a profit for himself or herself, even if it is fair. He or she is prohibited from all forms of self-dealing.

A fiduciary relationship is in the nature of a confidential relationship.

EXAMPLE: Daniel Dunnaway died on the Kentucky frontier leaving two minor sons as his only heirs at law. Scalped by Indians, no less. Their uncle qualified as guardian for the minors and held title to the 640 acre land grant left by Daniel. The uncle wanted to buy the land grant. He had to have court approval to make sure the transaction was fair to all involved.

FREEHOLD ESTATE – Ownership of land
There are several kinds of ownership of land. It might be owned outright, or it might be owned subject to some restraints. A term referring to all of those forms of ownership is freehold estate. It is a term that means any interest in property capable of being inherited or transferred. Technically, a freehold estate does not include a lease, which, in most states without a sublease clause, is non-transferable.

G

GIFT CAUSA MORTIS – Gift in contemplation of death

There are many legal technicalities involved in making gifts. A GIFT CAUSA MORTIS is a special kind of gift that has all the features of a regular gift, plus some more of its own. It is sometimes called a “death bed gift.” Such a gift must be made by a person who is ill or “in peril of death” and thinks that he is going to die. In order for the gift to be effective, he must actually die, and he must die as a result of that particular illness or peril. If he does not die, the gift is revoked.

A gift causa mortis is to be distinguished from a “gift in contemplation of death” as defined in modern tax law. The latter has nothing to do with whether or not a gift is complete or effective. Federal tax law requires that a gift made in contemplation of death or so many years prior to death is taxed as if the gift were never made. The gift, however, is not revoked.

EXAMPLE: Ferdinand Bullard took to his sick bed with pneumonia as diagnosed by his doctor. He was sure that he was going to die and told his good buddy Hershel that he could have his shot gun. Hershel took the gun home with him. Ferdy miraculously survived and wanted his gun back. Hershel said, “Go fly a kite.” Ferdy went to see his lawyer instead and got his gun back. Since he had not died, the gift was revoked.

GUARDIAN – Caretaker of minor and his property

There are several kinds of guardians, two being guardian of the person and guardian of the property. The former is charged with the care and custody of the minor himself, while the latter is appointed to take charge of and preserve the minor’s money and other property. Indeed, the same person may be guardian of both the person and the property. In modern times a corporation, such as a trust company or bank, may act as guardian of the property, but it would not be appropriate for such an entity to act as guardian of the person.

Usually, records of guardianships are found in probate court records. It is the duty of a guardian to make an inventory of the assets that came into his hand upon his appointment. He must make an annual accounting with the court. There is required a final accounting at the termination of the guardianship, which is usually when the minor ward reaches the age of adulthood.

The primary duty of a guardian is to preserve a minor’s property for him until he reaches his majority. In Common Law, the guardian had no right to sell, or convert to cash, any of the minor’s property, unless it was perishable in nature or unless the only way to preserve the value of the property was to convert it to cash. Modern law, however, has recognized a right in the guardian to sell guardianship personal property and reinvest the proceeds in other assets or property. There was under Common Law an absolute prohibition against selling a minor’s real property without court approval. Such a prohibition still exists in some jurisdictions.

Another thing that might be found in records relative to guardianships are records of guardian bonds. A guardian was and is required to post bond to insure his carrying out his duty to preserve the property of the ward. In the old days such a bond was in the form of a surety (or guarantee) by two or more individuals in the community. Today one is likely to find an insured bond purchased from an insurance company.

Under the Common Law, when a minor reached the age of 14 he was allowed to select his own guardian with, of course, court approval.

GUARDIAN AT LITEM – Temporary guardian

The court will some times appoint a temporary guardian to represent a minor in some matter pending before the court. It is to be distinguished from a “general” guardian, who represents a minor in all things concerning the minor’s business. A guardian ad litem, on the other hand, is appointed by the court to represent the minor in respect to a single matter pending before the court. The need for a guardian ad litem is based on the adversarial nature of the Common Law and American court systems.

If a guardian decided it would be in the best interest of his ward to sell real estate belonging to the minor, he would have to petition the court to approve such a sale. The court, in turn, will appoint a guardian ad litem to look into the matter and to see if the proposed sale will serve the best interests of the minor. He will review the sufficiency of the sales price and the general circumstances of the minor. The guardian ad litem will make his report to the court, and the court will make its decision on the basis of the guardian’s request and the guardian ad litem’s report.

EXAMPLE: Isaac was serving as guardian for his niece Lovely Hart, who owned a valuable tract of land. Isaac was approached by a very interested buyer. He felt like the sale would be in everyone’s best interest. He was required, however, to take the matter to court for approval. The judge appointed a guardian ad litem to look into the matter. A hearing was held and the guardian ad litem made his report in which he said that it looked okay to him. The judge then approved the sale.

H

HALF BLOOD – Half brothers and sisters

Siblings of the half blood have only one common parent. Those who descend from the same parents are said to be brothers and sisters by the “whole blood.” Brothers and sisters of the half blood do not inherit equally, In the absence of a provision to the contrary, each will inherit from his natural parents and will taken nothing from his “step” parent.

EXAMPLE: Lovingood had been married twice and had two sets of children. The mother of the second set was decidedly the richer of the two. At her death without a will, even though she had been a good and loving mother to both sets of children, only the second set inherited property from her. The first set of children were greatly chagrined.

HEIR – One who inherits personal property

There was at Common Law a definite distinction between heir and “next of kin.” Heir meant the person who received personal property upon the death of the person owning the personal property. The person(s) who received real property was/were “next of kin.” In recent times the word heir has lost its technical distinction and is used to refer to anyone who receives any kind of property.

EXAMPLE: Clem lived in one of those states that l had some crazy Common Law provisions about heirs and next of kin. When he died, his land went to his children and his cattle and farm equipment went to his wife. It didn’t make any sense, but his children were his next of kin, and his wife was his heir. Real estate followed the blood line, which did not include the wife.

HEREDITAMENT – Any inheritable property

The term hereditament is usually used in connection with the sale of land. At Common Law hereditament also included certain heirlooms and furniture which by custom were deemed to pass with the land, as well as growing crops.

EXAMPLE: Paul Peevers had a contract to sell his 100 acre farm. The contract said, “All lands and hereditament attached thereto.” Before the sale, he decided to move a small building from the tract being sold onto another tract that he owned. The buyer went up in smoke. He sued and won because the word “hereditament” included all buildings regardless of size.

HOLOGRAPHIC WILL – Hand-written will

A holographic will must be written entirely in the handwriting of the person making the will. It is not necessary that it be in any particular form, but it must be clear that it was intended to be a will. Its terms must be sufficiently clear to dispose of the property. To be valid in most states, a holographic will must be signed and dated. It is not necessary that there be witnesses.

EXAMPLE: Goober Peay was not feeling well. He was a little short of writing paper too. He peeled the label off a can of Campbell soup and wrote, “All that I have I leave to my honey MaggiSue.” He signed his name and stuck the paper in a drawer. Goober died without making another will. MaggiSue was the first on the scene to claim her inheritance. Goober’s children filed suit to have the will declared invalid. They won. Goober had failed to date the will. There was nothing wrong with the writing or the paper either, but omitting the date was a fatal error.

HOMESTEAD – The family residence

In probate law homestead is generally considered to be the house and adjoining land where the head of the family lives. In most states, homestead passes to the widow upon the death of her husband. It is exempt from the claims of creditors of the estate.

The homestead interest that a wife takes at the death of her husband is similar to dower. The difference is that homestead includes the dwelling, while dower does not necessarily include the dwelling. As a practical matter, dower is usually physically expanded to include homestead. Minor children are also entitled to homestead, free from the claims of creditors.

In some states a widow will lose her homestead upon her remarriage. She may also forfeit her right to homestead by her misconduct or by abandonment.

In ancient times, homestead was measured in terms of a dollar amount. A widow might be entitled to homestead not to exceed the value of $5,000. Due to the difficulty in equating homestead to a dollar figure, modern law tends to define homestead as a specific dollar amount without regard to the residence.

EXAMPLE: When John died, the probate court appointed a committee of three men to divide up his property among his wife and children and to “lay off” his wife’s homestead and dower. They measured off a third for the wife and included the house, the run-down old shack that it was, in the wife’s part. That was her homestead and dower.

HYPOTHECATION – Pledge of collateral

When property is pledged to secure a loan, there is said to be a hypothecation of collateral. It also means a mortgage, such as, when money is borrowed and land is mortgaged to secure the loan. Hypothecation has the technical connotation, largely lost in time, that there is no delivery of the collateral to the lender, such as, when stock is presented as collateral to a loan and not actually placed in the hands of the lender. In case of default, the lender would have a “right” to sell the collateral without actually having it to sell. This lack of delivery can present practical problems.

EXAMPLE: Wally Wallace needed some money to buy his kids school clothes. He went to his friendly banker. The banker asked for collateral. Wally offered his prize Angus bull. The banker took it although the bull would not fit in the bank’s collateral vault. Wally defaulted on the loan. The banker had a hard time rounding up his bull, but he finally captured the bull and had a freezer full of beef steaks for a while.

I

INCOMPETENT – Unable to manage one’s affairs

To be declared legally incompetent, there must be a legal proceeding. Once a person is declared to be legally incompetent, he so remains until he legally has his competence restored. Such a legal proceeding is similar to one in which he was originally declared to be incompetent. Under old law to be legally incompetent, there must really be some mental impairment. Mere old age and physical frailty are not sufficient to constitute incompetency. Modern law recognizes different levels of competence and affords for more flexibility in dealing with incompetent persons than in the old days.

EXAMPLE: Grandpa was getting a little senile. His busy-body daughter-in-law decided to have him declared incompetent and have herself appoint conservator to handle his affairs. A hearing was held in court. The judge determined that Grandpa had more sense than the daughter-in-law and decided to leave well enough alone.

INCORPORATION BY REFERENCE – Inclusion of one document into another

The law allows one to incorporate into his will a legal document, which is separate from the will. This inclusion is called incorporation by reference. The rule makes it unnecessary for the document to be set forth verbatim in the will.

For incorporation by reference to be effective three things are necessary:

(1) The will must clearly refer to the document;

(2) The document must have been in existence at the time the will was signed; and

(3) At probate it must be proved that the document is the one referred to in the will.

If the above criteria are met, the document incorporated by reference becomes a part of the will as fully as if it were set forth word for word in the will.

EXAMPLE: Sam was ready to make a will. His wife had died a couple of years before. He liked the way her will was written. It was in existence and had been probated. He simply referred to that will in his own will. It was incorporated by reference into his will. Saved him the trouble of having to write all that out.

INDEFEASIBLE – That which cannot be defeated

The term indefeasible is used to describe a right that cannot be taken away from one, such as a property right. One who has a vested remainder interest in property has an indefeasible right to the property at some point in time. If he or she were dead at that time, his or her heirs would take the property in his or her stead.

EXAMPLE: The will said, “All I have I leave to my wife for her lifetime and after her death to my children living at my death or their heirs.” The children’s interests were indefeasible. If they were living at their father’s death, they would inherit at their mother’s later death. If one or more of them did not outlive the mother, their heirs would inherit in their place.

INFANT – A minor

An infant is one who has not arrived at legal age and, consequently, is not deemed to be capable of handling his or her own affairs. Legal age is set by state law. In some states, as at Common Law, the age is 21. In other states, one is deemed to have become an adult and emerged from infancy when he or she reaches the age of 18. Some events may terminate infancy automatically, such as, marriage and employment outside the home.

INTER VIVOS – Between the living

An inter vivos transfer is to be distinguished from a “testamentary” transfer. If there is a transfer of land by deed from one living person to another living person, the transfer is said to be an inter vivos transfer. On the other hand, if a living person receives property by will, the transfer is said to be “testamentary.” Trusts may be either inter vivos or testamentary according to whether they are created by a document executed by a living person or by the will of a deceased person. Inter vivos trusts are also called “living trusts.”

EXAMPLE: Olen has only one child. His wife has died. He knows that he wants this only son to inherit the farm. Olen decides he will just go ahead and deed it to him while he is still living. He does so. That was an inter vivos transfer of the property.

INTESTATE – To die without a will

In respect to having a will or not having a will, there are only two ways a person can die, that is, “testate” or “intestate.” When one dies with a will, he or she dies “testate;” and when he or she dies without a will, he or she dies “intestate.”

J

JOINT TENANCY – Undivided interest in property

It is possible for two or more persons to own a piece of property. Their interests in the property are said to be “undivided” or “joint interests.” One of the three kinds of joint ownerships is joint tenancy, which is an undivided interest in property that carries “right of survivorship.” The interest of the deceased owner at his death passes to the surviving owner by “right of survivorship.” The same would be true in a joint checking or savings account or stocks registered jointly.

While joint owners are both living, they are said to be “joint tenants.” As such, they own undivided interests in the property. Each is entitled to certain rights, each having the right to possess the land and to enjoy its benefits. Each has a right to sell his or her undivided interest, although, admittedly, it would not be extremely salable because of its indefinite duration.

It is to be noted that the heirs of the first joint owner to die receive nothing. But the heirs of the last to die take the entire property interest. It is, thus, that many injustices arise, especially in respect to second marriages.

EXAMPLE: Walt was a lonely widower. He met a lively young widow, much his junior. They tied the knot. On the way home from the wedding the new bride suggested that they stop at the bank and add her name to Walt’s bank accounts. They did. Her name was added as “joint survivor.” Trying to keep up with his young wife was too much for Walt. He died of a heart attack. When his children went to the bank to check on his money, they found that the young widow had withdrawn the money and skipped town. It does not take much to see the moral to that story.

K

None At This Time

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