Genealogy And The Law

Legal Terms You Should Know: D - G








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.

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."

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.

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.

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.

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.

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.


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.

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.

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 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.

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.

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.

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.

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."

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.

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.


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.

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.

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.

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.

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.


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.

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.

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.







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