Genealogy and the Law - Legal Terms You Should Know, P to R

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.


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.

    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.

    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."

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.

    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.

    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.

    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.

    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.

    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.


None At This Time


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.

    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.

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.

    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.

    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.

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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