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 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.

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LAPSE – Ineffective gift

A gift that fails to be effective is said to lapse. Such gifts are most often bequests in wills. If the person named in the will to receive a bequest dies before the maker of the will, the bequest will very likely lapse.

There are various problems associated with lapsed “legacies.” The main one is who gets the property when there is a lapse. If the bequest is conditioned on “if he survives me,” the bequest will completely fail and go with the residuary estate to other beneficiaries under the will. If there is no such survivorship condition, the bequest usually will go to the heirs of the deceased legatee.

EXAMPLE: The will said, “I give all my money to my children in equal shares.” One child did not survive the father. A controversy arose as to who got the share of the deceased child. The children of the deceased child claimed it as did the other brothers and sisters. The law will generally favor the children of the deceased child. It depends on the relationship of the deceased child to the maker of the will. If he were more remote than being a child, his share would probably go to the other beneficiaries under the will.

LAWS OF DESCENT AND DISTRIBUTION – Laws that prescribe who gets property when there is no will

There are two sets of laws written by state legislatures for those who never got around to writing their own wills. One set governs the passage of real property and is called “law of descent.” The other set of laws pertains to the passage of personal property, and is called “law of distribution.”

Land always descends to the next of kin at the moment of death. Personal property, on the other hand, passes into the hands of the executor/administrator to be sold if need be to pay debts and administrative expenses. Any balance is distributed to the heirs when the administration of the estate is complete.

In early days all personal property had to be sold (reduced to cash) to facilitate an equitable distribution at the termination of the estate. Reducing to cash also provided money to pay debts.

EXAMPLE: Tater Tott died, leaving his farm and his herd of goats to his wife. She took over the farm the next day and continued to live there and work the land. The herd of goats were taken over by the executor of the estate. They had to be sold to pay Tater’s debts. The wife was left goatless.

LEGACY – Bequest or gift by will

Legacy and bequest are generally the same. Legacy, however, implies a gift of money, which is technically called a “pecuniary bequest.”

LEND – Creating a life estate

The term lend is found in many old wills. It creates a life estate. As such, it is less than an outright gift, being only the use of property for a lifetime.

EXAMPLE: The will said, “I lend to my wife my plantation for her life and at her death, it is to go to my children in equal shares.” The wife had a life estate. The plantation was hers as long as she lived. She was entitled to live on it and receive all the income from it. But she did not have the right (or power) to sell it. She could sell her life estate, which is all that she had.

LETTERS OF ADMINISTRATION – Evidence of an administrator’s authority

When a person qualifies as an administrator of an estate, he or she is issued letters of administration by the court as evidence of his authority to perform all acts pertaining to the estate. Such authority is needed for such acts as entering the decedent’s safe deposit box, transferring stocks, and collecting proceeds of insurance policies payable to the estate. During the course of administration of the estate, the administrator may get additional copies as they are needed.

EXAMPLE: After her husband died and she became the administratrix of his estate, Obedient Wife went to the bank to close out his savings account. The head teller asked for a copy of her letters of administration. Obedient Wife didn’t know what she was talking about. She had to go home and dig out the copy she was given at the courthouse when she qualified as administratrix of her husband’s estate.

LETTERS TESTAMENTARY – Executor’s authority

Letters testamentary serve the same purpose as Letters of Administration. The difference is that Letters of Administration are issued to an administrator, while letters testamentary are issued to an executor. An executor is the one named in the will to handle the estate, while an administrator settles the estate when there is no will or the person named in the will for some reason fails to qualify.

LIFE ESTATE – Lifetime right to property

An interest in property that lasts as long as a person having the right lives is a life estate. When that person dies, that interest terminates, and the property then goes to the remaindermen. In times past, it was common for a husband to leave his wife a life estate in his property, with a remainder to his children.

EXAMPLE: The will says, “I give, devise, and bequeath to my beloved wife, Annabel, all my property including my farm, Blackacre, and my horse, Tonto, for her lifetime and at her death to my children in equal shares.” Annabel had a life estate in Blackacre and Tonto.

LINEAL DESCENDANT – Children, grandchildren, etc.
Persons in the direct line of descent, such as, children and grandchildren are lineal descendants. When there is no will, lineal descendants always inherit before more remote kindred. When there are no lineal descendants, the remote kindred inheriting would include children or other descendants of brothers and sisters.

EXAMPLE: “Since I have no children nor wife, I leave my entire estate to the children of my deceased brother John.” John’s children are collateral heirs, and lucky too.

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MARITAL INTERESTS – Property interests between married persons

Because of the marriage relationship, marriage partners take certain interests in property belonging to the other. They are called marital interests. It is mostly the wife who has marital interests since the property is likely titled in the husband’s name. This situation is changing in modern times when the wife is just as likely to have separate property as the husband.

Marital interests include the wife’s dower and the husband’s curtesy in the other’s real estate. Other marital interests are the wife’s right to a year’s support, either the husband’s or wife’s right to exempt property, and homestead.

EXAMPLE: Freddie Mae and Freddy Mack Hatfield fought like cats and dogs their entire married life. Freddy Mac died leaving Freddie Mae nothing in his will. It was his last act of defiance, which turned out to be futile. Freddie Mae got dower, homestead, a year’s support, and all the household furnishings. Freddy Mac turned over in his grave.

MOIETY – Equal part or share

EXAMPLE: “I leave all my property in equal moieties, one such equal moiety each of my children who survives me.” The property passed in equal shares.

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NATURAL GUARDIAN – Parent of a child

One of the several kinds of guardian is a natural guardian. Such a guardian is the natural parent of a child. In modern times this guardianship is a joint one shared by the parents, and it passes to the surviving parent upon the death of one of them.

Being natural guardians means that the parents are responsible for the child during his minority and are obligated to provide for his basic needs, such as food, clothing, and shelter. natural guardians are usually deemed to have this responsibility, regardless of the resources of the minor himself.

NEXT OF KIN – Closest blood relatives

Those persons who inherit real property when a person dies without a will are called next of kin. They were the persons who stand in the closest blood relationship to the deceased person. The term is distinguished from “heirs,” who inherit personal property. The one person who is almost never next of kin is the spouse, not being related by blood to the deceased person.

EXAMPLE: Joe Blow died without a will survived by a wife and two children. His children as next of kin inherited his farm, Blackacre. His wife as his heir inherited his mule, Toby, and his double blade plow.

NON COMPOS MENTIS – Incompetent

There is a different connotation between incompetent and non compos mentis. Incompetent is usually used in the legal sense, after there has been a legal proceeding and a person has been legally declared incapable of handling his own affairs. One the other hand, non compos mentis implies that the person who innately bereft of memory and understanding, or of unsound mind. In any event, a conservator is required to handle the property whether the person were incompetent or non compos mentis so long as there has been a legal proceeding.

NUNCUPATIVE WILL – Oral will

Nuncupative will also goes by the name of “soldier’s will” because it was frequently used by soldiers dying on the battlefield. Even though oral wills are recognized in some states today, there may be strict standards to be applied to such wills. Those standards might include:

(1) It must be made by a person on his deathbed. The person must be in peril of dying, and he must actually die and die of that which he thought he was going to die of. Otherwise, the will is revoked.

(2) There must be two witnesses who heard the statement.

(3) It must be reduced to writing within a certain period of time and offered for probate within a certain period of time.

(4) There is a dollar limitation on the amount of property that can be disposed of by such a will.

(5) A nuncupative will may dispose of personal property only, not real property.

EXAMPLE: Example: Uncle Felix was shot in a local tavern. He thought he was going to die and told two fellow imbibers there he wanted his girlfriend Caldonia to get his rocking chair and his good buddy Abner to get his house. They wrote down what they heard. Uncle Felix did die of the gun shot wound. The oral will was probated. Caldonia got the rocking chair, but Abner did not get the house. A nuncupative will cannot dispose of real property.

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None At This Time

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PARTITION – To divide property

The term partition is usually used in the sense of dividing undivided interests in property. It is a legal action that is brought to divide property among the owners of undivided interests. If the property can be divided physically, such a division will be made. The court may order a commission appointed for that purpose. If the property cannot be physically divided, the court will order that the property be sold and the proceeds divided among the owners.

EXAMPLE: Elmo Mudd, died unmarried and intestate, survived by six children. They got in a big squabble over who was going to get what part of the farm, Blackacre. One of the children brought a law suit for partition of the land. The court appointed three men to view the premises and divide it into six approximate equal parts, one for each of the squabbling children. A plat of the partitioned land was filed with the final decree in the law suit.

PER CAPITA – Equal division of property
A per capita division of property is an equal division of property among those of the same generation. Per capita is a method of distributing property which is to be distinguished from “per stirpes.” Literally, per capita means by the heads and means that those in equal degrees of kinship inherit equally. A “per stirpes” bequest, on the other hand, would be by representation, and each family unit would divide the parent’s share. See below.

EXAMPLE: Eric Liefson had three children, all deceased. All of the children had been married and had children of their own, Alpha, one; Beta, two; and Kappa, three, for a total of six grandchildren. He left his estate to them in equal shares. They received one sixth each.

PER STIRPES – Inherit by representation
Per stirpes is to be distinguished from “per capita.” It means “by the steps,” and is frequently referred to as the doctrine of “representation.” Each subsequent generation represents the prior generation in respect to an inheritance.

EXAMPLE: In the above example a per stirpes gift to Eric’s grandchildren would have been as follows: Alpha’s one child, one third; Beta’s two children, one sixth each; and Kappa’s three children, one ninth each. It makes a difference.

PERSONAL REPRESENTATIVE – Executor or administrator

Personal representative is a collective term that includes both an administrator or administratrix and an executor or executrix. He or she is the person who steps into the shoes of a deceased person, winds up his or her affairs, settles his or her estate, and distributes the remaining assets to those who are entitled to receive those assets. If he or she is named in the will, he is an “executor.” If he is court appointed, when there is no will or when the person named in the will does not qualify, he is an “administrator.”

EXAMPLE: James Golightly left a will in which he named his oldest son Orville as executor. James died, and Orville qualified as the executor under his will. Before Orville could wind up his father’s estate, he himself died. What to do now. The Court appointed James’ second son to complete the administration. The second son was called an “administrator” because he was not named in the will. Both, however, were their father’s personal representatives, i.e., they stepped into his shoes and wound up his affairs.

PRETERMITTED CHILD – Forgotten child

A pretermitted child is one that is left out, or omitted from the terms of the will. When such an event happens the question arises as to whether the omission were intentional or not.

EXAMPLE: Eddy Egbert was one of 13 children. They were all born in Virginia. As they grew to adulthood, they joined the Westward Movement to transmontane lands. After Eddy’s father’s death and the reading of his will, it was discovered that Eddy’s name was missing from the list of children named in the will. Eddy claimed that he was a pretermitted child and that his father had forgotten about him since he had been gone from home so long. His brothers and sisters claimed that the omission was intentional because they said that he was the black sheep of the bunch.

PRIMOGENITURE – Inheritance by eldest son

Primogeniture is a Common Law system under which the oldest son inherited all the land at the death of his father. Second sons and daughters were left to fend for themselves. This practice came to America with our ancestors, but was soon outlawed when the Colonies became states. It is to be noted that primogeniture applied only to real property and not to personal property. Second sons and daughters inherited equal shares of money, which was often enough to get them started in the New World.

EXAMPLE: Many of the progenitors of aristocratic families in early America, especially Virginia, were second sons of wealthy English families, such as, the Lees, Washingtons, Carters, Custises, Pages, Randolphs, Balls, and others.

PROBATE – To prove

When used in reference to a will, probate means proving that the document which purports to be the will of a deceased person is actually his will. The customary way of proving a will is to have the witnesses to the will come into court and testify that they witnessed the signature on the will. If neither witness is available, someone must be found who recognizes the signatures of the witnesses, or at least one of them.

In the case of a holographic will, where there are no witnesses, a search is made for someone to testify to the fact that he recognizes the handwriting of the person who wrote the will.

There are also two ways to probate a will, “common form” and “solemn form.” Probate in “solemn form” requires that all interested parties, either named in the will or heirs at law, be given notice that the will is to be probated on a certain day at least 30 days hence. They are given notice that if they have any objection to the will being probated, they should show up on that day and state their objections. Probate in “solemn form” cuts off the right of anyone to contest a will at a later date. Probate in “common form” is probate without notice. The right to contest lasts for the period of time set by law, which is usually two to five years.

EXAMPLE: After Grandpa Gallivanter died, the heirs were upset over the provisions of his will and were all bragging about how they were going to break the will. The lawyer for the estate got tired of hearing all that yakking and decided he would make the loud mouths either put up of shut up. He set the will for probate in solemn form. None of the dissidents showed up on the day set for probate. They lost their right to contest at a later date.

PROBATE PROPERTY – Property that comes into the hands of a Personal Representative
In probate law a distinction is made between property which comes into the hands of an executor or administrator and property that does not. Non-probate property means items that do not come into the hands of the executor or administrator in the administration of an estate. Instead, they pass directly to the heirs or next of kin. There are three classes of non-probate property. They are real estate, jointly held property with right of survivorship, and property which passes to the survivor by right of contract, such as under an insurance policy.

Real estate is non-probate because of a long Common Law tradition that holds that there can never be one moment of time when every piece of real estate is not owned by someone or some legal entity. In Common Law states real estate is deemed to vest in the next taker at the moment of death. It does not pass into the hands of the executor or administrator. It is not liable for the payment of the decedent’s debts unless the personal property is inadequate to do so. The researcher will not find real estate listed on the inventory of estate assets.

Let us hasten to point out that the above rules could be negated by directions in the will to the contrary. A person may direct in his will that his real estate be sold and the proceeds divided among the beneficiaries under the will. That is perfectly alright.

Jointly held property with right of survivorship passes to the survivor at the moment of death also. It is not available to pass into the hands of the executor or administrator. It, too, is not liable for the payment of the decedent’s debts.

The list of items payable to a beneficiary by contract, thus escaping the probate process grows yearly. It used to be that life insurance was about the only item that fell into that category. Today, bank accounts can be set up with a “payable on death” provision. So can listed securities.

EXAMPLE: See the example for laws of descent and distribution where Tater Tott’s farm was non-probate (real estate) and his herd of goats was probate (personal property).

PROBATE COURT – Court that handles probate matters
The probate court did not exist as a separate court in most jurisdictions in early America. State legislatures established courts and determined which courts had jurisdiction over what matters. Handling such probate matters as probate of wills and overseeing the administration of estates was fairly simple and was likely given to another court, such as the Quarterly County Court, the Surrogate Court, or the Orphans’ Court.

Larger issues, such as, will contests were likely to have been assigned to Circuit Courts. While matters of interpretation of will and ascertaining heirs were proper matters for the Chancery Court.

EXAMPLE: Peter Pride’s will was probated in the Quarterly County Court in Williamson County, Tennessee. His heirs got into a squabble about how to interpret some of the wording in the will. That suit went to Chancery Court. Finally, one of the heirs claimed that both witnesses were not present when the will was signed. He filed suit in the Circuit Court.

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None At This Time

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REAL PROPERTY – Land and its appurtenances

The land anything permanently attached to it is called real property. It is usually further added that there must be an intent that the attachment be permanent. Such attachments include buildings, growing crops, and standing timber. All other property is personal property. Historically, real property has been given preferential treatment over personal property in the settlement of estates. In the old days, state law usually provided that in the payment of estate debts the personal property must be exhausted before real estate was required to be sold. Please see the definition of “personal property” for the distinction between the two forms of property.

EXAMPLE: Uncle Nabob died owing everybody in the county. He had a lot of land, but very few personal assets. It didn’t take long to exhaust the personal property in the payment of debts. The next step was to petition the probate court for permission to sell real estate to pay estate debts. No doubt the court was perfectly willing to do so. Especially since the judge was running for re-election.

REMAINDER – Final property interest

That interest in property that is left over when a prior interest terminates is called a remainder interest. The people who receive this final interest are called “remaindermen.” The prior interest is usually a life estate. Actually, the remainder interest is the greater interest. It is really the entire interest in the property subject to the life estate.

EXAMPLE: The will said: “All that I have I leave to my wife for her lifetime an at her death to my children in equal shares.” The wife took a life estate in all assets. The children took the remainder, which was what was left at the death of the wife.

RESIDUARY ESTATE – All the rest and residue

When a will is written, usually bequests of specific property are stated first. After such specifics, the will usually goes on to dispose of the balance of the estate.

EXAMPLE: Portly Porter when he drew up his will was careful to dispose of every item that he owned down to the last belt buckle. At the end of that multi-page list, he said, “All the rest and residue of my property I give to…..” He was well advised to include the residuary clause because it disposed of anything he might have omitted from his list or acquired after the execution of the will.

REVERSION – Return of property to original grantor

It is possible for a person to transfer property for a specific reason or a specific period of time and reserve the right to retrieve the property. Reserving such a right is called a reversion. In the early days, it was not uncommon for a man to transfer land for a purpose such as a school with the provision that if it ever ceased to be a school, it would revert to his or his heirs.

EXAMPLE: In 1900, Will McFly deeded one acre of land to the local school board to be used to build a school on. The deed provided that if it ever ceased to be a school, the property would come back to Will, or his heirs, if he were not living. Some 75 years later the school was closed and the students transferred to a new consolidated school a few miles away. Will had long since been dead, but the property reverted to his three children. They opened up a honky-tonk.

RULE AGAINST PERPETUITIES – Vesting of property interests

The law does not permit an indefinite suspension of the true ownership of property. A person cannot create an infinite series of life estates by leaving his property to a series of groups of people for their lifetimes forever (unless it is a fee tail). At some point the “fee simple” ownership must vest in someone.

Several hundred years ago, the English courts came up with a rule that limited the suspension of ownership. This rule was called the rule against perpetuities. It is somewhat complex, but its basic idea was that ownership cannot be suspended in perpetuity or forever.

The time limit set forth in the rule against perpetuities is “lives in being plus 21 years.” One may suspend ownership for a period of time measured by the lifetimes of a certain group of people and then add 21 years. One may select his own group, and any group will do as long as its members are ascertainable. Usually the group is a family unit.

The maximum period of time a personal trust can last is also measured by the rule against perpetuities.

EXAMPLE: Walter Wiseguy set up a trust which he funded with $100,000. The trust was never to pay out any income, rather the income was to be re-invested. Walter figured that eventually all the money in the world would be in the trust. The courts said, “Whoa, something ain’t right here.” They knew that all trusts must come to an end sometime. They figured that it would be okay for a trust to last for the lifetimes of its beneficiaries and then go on until the their children were mature enough to handle the money. They arbitrarily said that it is okay for a trust to last for the lifetimes of “lives in being” and 21 years thereafter. Thus, was born the Rule Against Perpetuities.”

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STATUTE OF LIMITATIONS – Expiration of time to institute law suit

There is a limitation on the time within which a law suit must be filed. The law will not allow a person “to sit on a right” forever. He must either assert that right within a given period of time or he loses the right ever to assert it. That period of time is set by the statute of limitations. The length of time varies, but ordinarily it is six years. The law in some states provides that demand within the period will suspend the statute of limitations.

EXAMPLE: Homer Hornbuckle loaned his brother-in-law $2,000 in 1939. The brother-in-law never got around to repaying the loan. Homer never got around to making demand for the money. Finally in 1998, he sued on the note. The court was sympathetic, but informed Homer that his right to collect this loan has expired long ago. The court did say, however, that if Homer had demanded the money at anytime during the term of the note, it might have stopped the statute of limitations from running. He hadn’t done that either.

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TENANCY BY THE ENTIRETY – Undivided interest in property between husband and wife

A husband and wife may own property as “tenants in common,” instead of as tenants by the entirety, but the law will presume tenants by the entirety if the instrument creating the ownership is silent as to which it is.

The right of survivorship is automatic and cannot be defeated by a provision in the will to the contrary. All the characteristics of “joint tenancy” apply to tenancy by the entirety.

EXAMPLE: Joseph and Mary bought a house in Bethlehem, Pennsylvania, which was deeded to both of them. They became tenants by the entirety. At the death of the first to die, the house passed automatically to the survivor. While both were living, one of them alone could not sell his or her share. It took both signatures to transfer title.

TENANCY IN COMMON – Another undivided interest in property
The distinguishing characteristic of tenancy in common is that it does not carry right of survivorship. The interest of each owner at his or her death does not automatically pass to the other owner(s). His or her interest in the property becomes a part of his or her estate just like any other property that he or she owned. As such, it passes according to the terms of his or her will if he has one, or, if he has no will, it passes according to the law to his or her heirs.

EXAMPLE: In the above example Joseph and Mary could have bought the house as tenants in common rather than as tenants by the entirety. They each would have owned a one half undivided interest in the house. Either could have sold his or her half without the other joining in the sale. Upon the death of each, his or her half would not have necessarily passed to the surviving spouse. The children might have taken an interest, depending on state law.

TESTAMENT – Disposition of personal property

Testament is a word that has largely lost its significance in modern probate law, except when used in conjunction with the word “will.” Under the Common Law, real property was not subject to being transferred to another owner either by will or by deed. It descended within the family unit from generation to generation. The same restriction did not apply to personal property. Such property was subject to being transferred at death by a written instrument. This instrument was called a testament. Wills came to be recognized at a later date as a proper instrument to dispose of real property. Thus, there came into popular usage the term “last will and testament.”

TESTATE – Having a will
The term testate is the opposite of “intestate,” which means not having a will. The privilege of making a will is a right given by the state. If one does not avail himself of this privilege, his property will go to those specified by state law. It is thus correct to say that every one has a will. It may either be one that he made for himself or one that the state made for him.

EXAMPLE: While going through court records in search of her ancestor’s will, Susie Researcher found a notation to the effect that the ancestor died “intestate.” She continued to search. She was wasting her time. If she had read this web page, she would have known that when it said that the ancestor died intestate, it meant that there was no will to be found.

TESTATOR – One who makes a will

The feminine gender of the word is “testatrix.”

EXAMPLE: If Susie Researcher had found a notation in the court records referring to her ancestor as “testator,” she would have known that there was a will. She would have been justified in continuing her search.

TRUST – Holding property for another person

For the most part, a trust is an alternative to a life estate, a guardianship, and a conservatorship. When a trust is created, property is entrusted to a third party to be held for the benefit of one who cannot or does not wish to handle the property for himself or herself.

A person might create a trust for his or her spouse and minor children. He or she may do so either by will or by agreement. Management of the property is entrusted to a trustee, who distributes the benefits of the property, in the form of income, to the wife and children.

EXAMPLE: Silas’ will said, “I leave the share of my estate going to my daughter, Annylou, to her brother, Ezra to be held for her benefit for her lifetime.” The researcher should know that a trust was created for Annylou. He should further know that there were special circumstances. Annylou might have been mentally or physically disadvantaged, or she might have had a husband who could not be trusted to handle her money.

TRUSTEE – One who holds property in trust

The third party who holds property in trust for the benefit of someone else is called a trustee. His or her duties include managing the property, collecting the income, and passing along the net income to the beneficiary.

A trustee gets his or her power from the instrument creating the trust. On the other hand, a guardian or conservator derives his or her power from the law. Consequently, the powers of a trustee can be considerably broader than those of a guardian or conservator, although it is to be noted that modern law tends to give guardians and conservators broader powers and more discretion that in days of yesteryear.

EXAMPLE: In the above example, Ezra was the trustee. As such, he was the manager of Annylou’s property, collecting the income therefrom and using it for the maintenance and support of Annylou.

TRUSTOR – Person who creates a trust

EXAMPLE: In the above two examples Silas was the Trustor because he was the one who created the trust for Annylou. He was also the Testator since the trust was created in his will.

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USE – Trust

Use is an old term having the same meaning as a trust. It means the right of a person to receive the benefits from property being held by another for his benefit. Use carries with it the connotation of referring to the benefits from the property, while a trust connotes the trustee’s responsibility to the property. Specifically, a trustee would hold property “in trust,” and a beneficiary would be entitled to the USE of the property, meaning the right income from it.

In early times, it was customary to say that property in trust was “subject to a use.” The benefits arising from the property, usually income, were called “usufruct,” and the person receiving the benefits was called “cestui que use.”

EXAMPLE: The will said, “I leave my wife the use of my farm for her lifetime.” The wife had a life estate in the farm. She had the use of it for her lifetime. It made a nice home for her and her second husband.

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VESTED REMAINDER – Certain to come into being
A vested remainder is property that is certain to be received at some time. A remainder interest may or may not be conditioned on the happening of some future event. If it is, the remainder interest is “contingent” upon the happening of that event.

There may be placed no condition on the remainder. If there are no conditions, the remainder is vested.

All remainder interests must be either vested or contingent. If the wording is not clear, the courts will always construe remainder interests to be vested. It is an old principle of Common Law that courts “favor vested remainders.

EXAMPLE: The will said, “I leave my farm, Blackacre, to my wife Elly for her lifetime and then to my children who are living at my death in equal shares.” The children took vested remainders. The will clearly said to the children “living at my death.” If it had said “living at my wife’s death,” the remainders would have been “non-vested” or “contingent.” The children would have had to have lived past the wife’s death to receive anything at all.

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WAIVER – Relinquishment of a right

There are various kinds of waivers, but for purposes of this work perhaps the most important is the widow’s rights to her husband’s estate, which she may give up by waiver. If a widow were to waive her right to dower, the entire interest would pass to the children. Modern law provides that anyone may “disclaim” property. Upon such a “disclaimer” the property will pass as if the person disclaiming an interest in the property had died.

EXAMPLE: Will Williams died without a will. His wife Willie Williams was entitled to dower in his lands. She had plenty of lands of her own, and decided to just let her husband’s lands go on to the children. She waived her right to dower. The land passed right along to the children.

WILL – Document disposing of property

A person’s declaration of what he wishes to be done with his property after his death is called a will. There are various kinds of wills, handwritten, typed, and even oral.

Wills as legally “dispositive” instruments were known in ancient times. Julius Caesar had a will according to Shakespeare’s Mark Antony. But the will as we know it today was first permitted in England in 1540 when Parliament enacted the Statute of Wills, a law which permitted a disposition of real property only. The English law already permitted a disposition of personal property by a “testament.”

A will is said to be “ambulatory.” Being subject to alteration, it is not binding so long as the person is living, which is to say that it “speaks as of the moment of death.”

Admitting a will to probate makes it a matter of public record. It may be read or copied by anyone who wishes and is forever available to the historical researcher.

EXAMPLE: Boots Bellybutton was an old bachelor. He was wishy-washy too. He had a new favorite niece or nephew every week. He was also his lawyer’s new best client. He changed his will every week. That was okay with the lawyer so long as Boots paid his bill, which he did.

WRIT – Court order

A writ is a court order directing the person to whom it is issued to act or to refrain from acting in a certain way. For almost every type of case coming before a court there is a writ. Such writs would include “writ of assistance,” “writ of attachment,” “writ of delivery,” “writ of error,” and so on. There is even such a thing as “writ of right.”

X

None At This Time

Y

YEAR’S SUPPORT – Provision for Widow

A widow has certain rights in respect to her husband’s estate. Depending on state law, she may be entitled to homestead, dower, and a certain share of his personal property. Another right to which a widow may be entitled is a year’s support. If so, she is entitled to an amount of money free from the claims of creditors, which will enable her to support herself and her dependent children for a year in the manner to which she was accustomed during her husband’s lifetime.

EXAMPLE: Quincy was a nice guy, but he was a spendthrift. After the death of Quincy, his estate was determined to be insolvent. Queenie, his wife, was all in a twitter about what she was going to live on. Not to worry. She was entitled from his estate free from the claims of his creditors and amount of money to support her for one years. When she learned that fact, she was content, for that gave her plenty of time to find a new husband.

Z

None At This Time

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