AUTHORS

Genealogy and the Law - Legal Terms You Should Know, L to O

by T. Vance Little


A-B-C | D-E-F-G | H-I-J-K | L-M-N-O | P-Q-R | S-T-U-V-W-X-Y-Z

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.


L

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.

M

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.

N

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.

O

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