AUTHORS

Genealogy and the Law - Legal Terms You Should Know, S to Z

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.


S

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.

T

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.


U

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.


V

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.


W

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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Noel Matthews
Darlene Burns Anderson

State Coordinator:

Taneya Koonce

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