Legal Concepts and Terms, etc. Relevant to Genealogy

Contributed by: June Bork.

1. A man who receives by a will cannot be a witness to it.
2. A nun-cupative will can dispose only of personal property.
3. A married woman could not make a will without her husband's consent and even so, could dispose only of personal property unless there had been a pre-nuptial agreement.
4. Title to land could be conveyed either by inheritance or deed or marriage.
5. If a man sells land and there is no record in the Deed Book that he purchased that land, then he inherited it or his wife inherited the land and a record of that is in the probate files. Knowing this will help to discover the identity of the wives.
6. A man did not have to be 21 to buy land, but he did have to be 21 to sell it. He did not have to own property to vote, but he did have to be a free man. He had to be 21 to serve on a jury, but he did not have to own property or to be naturalized.
7. A woman was never a taxable or tithe. If her name appears on a tax list, it is because she is a widow; she has a male of taxable age in her household or a slave of taxable age.
8. Quakers used numerical dating and did not take oaths and were not married in a civil service. A Quaker's last will does not begin with: "In the name of God, Amen," and there are no marriage bonds for Quakers.
9. There are excellent indexed records for Moravians and Quakers; many records of both Lutheran and Reformed churches and ministers that have been translated.
10. All males and females enumerated in the census records prior to 1850 are not necessarily members of the immediate family; they are merely members of the household and may not even be related.
11. "Junior" did not necessarily mean "son of," but was a designation for a younger man of the same name in the same area. A man could be a "junior" at one period and "senior" at a later period.
12. "Infant" did not mean a babe in arms but someone under legal age.
13. An "orphan" was someone under 21 who had lost his or her father; the mother might well be living.
14. An illegitimate child almost invariably took the surname of the mother.
15. If a man died in Rowan County, NC and devised his land in Davidson County to his son, there will not be a record in Davidson County to show the transmittal of that property.
16. In intestacy, the Court appointed as administrator(s) the widow & relict [who may have already remarried and may have a different name] and/or sons(s) who are of legal age. If they relinquish, the largest creditor is appointed.
17. A posthumous child, even if not mentioned in the will, will share equally with the other children.
18. Not just anyone can file a caveat to a will - only a person who stands to inherit from the estate, and only then if he would receive more by the laws of intestate succession than from the provisions of the will.
19. If no executor is named in the will, the Court appoints an administrator "cum testamento annexo" to carry out the provisions of the will.
20. According to the laws of intestate succession, the widow receives 1/3rd of all property, and the remainder goes to the children.
21. The law of primogeniture was legally abolished in 1784 and had to do only with the estate of an intestate.
22. Normally, the widows of intestates were allotted a year's provision.
23. Until 1868, a husband had a life estate in all real property owned by his wife at the time of their marriage; this is known as curtesy.
24. Dower rights pertained to the belonging of the husband, whether he owned it before the marriage or acquired it afterward. Husbands did have identical rights to property owned by their wives, but when referring to those rights they are called curtsy rather than dower.
25. Curtesy or Courtesy, Scotch Law. A life-rent given by law to the surviving husband, of all his wife's heritage of which she died in feft, if there was a child of the marriage born alive. The child born of the marriage must be the mother's heir. If she had a child by a former marriage, who is to succeed to her estate, the husband has no right to the curtsy while such child is alive; so that the curtesy is due to the husband rather as father to the heir than as husband to an heiress, comfortable to the Roman law, which gives to the father the use of what the child succeeds to by the mother.
26. If an estate was debt-ridden, the personal property was disposed of first. The widow's 1/3rd was protected and usually 1/3rd for the children against any claims for debt.
27. An "orphan" over the age of 14 could select his own guardian [as it is now]; if he were younger, the Court appointed the guardian. If an orphan were left little estate, he was often apprenticed by the Court to learn a trade.

Things to Remember

• Watch for a man disposing of more land than you can find him buying. Did land come to him by death? Did his wife inherit property that he is selling?
• Taxable age for white men during the colonial period was 16; during the Revolutionary War it varied from county to county; after 1784, it was 21.
• Be very careful about accepting any information on a death certificate other than the date of death, as the information was given under stress by someone who may not have a full knowledge of the facts. The same holds true for obituary notices. Most often, the date of death will vary between a Bible or birth register, the tombstone and or obituary.
• Phonetic spelling can be tricky. The clerk wrote down what he HEARD, i.e., Anne Eliza or Annie Liza, Synderalugh or Cinderella.
• Watch for occupations being Capitalized as identification following a name, without a coma. Very few people had three names. John Williams Carpenter in 1785 was probably John Williams, carpenter. John Henry Taylor may well have been John Henry, tailor.
• Many times there are no commas separating a list of names of children in a will and you may have either ten daughters with single names or five daughters with double names or a mixture. There were very few punctuation marks in the ancient records - no periods or commas.
• If a man left underage children, you should expect to find a guardian being appointed and the children being referred to as "orphans" although their mother may still be living and be appointed their guardian. If she has remarried, her new husband is often appointed guardian of the minor children.
• Spelling can be very confusing, i.e., "hairs purchaced waggins at Estate sail."
• When checking an index, say the surname and envision every possible spelling. Jo Linn eventually identified her husband's ancestor Lewis Redwine as having been Ludwig Rheitweil
• Some names were shortened through usage. Mr. Reed Pickler had difficulty with his line until he realized the surname of the immigrant ancestor was Blankenpickler.
• In examining a Bible record, see if the handwriting is all the same. If it is, all entries were probably made at the time of the latest entry; if entries were made at the time the event occurred, they are more apt to be accurate.
• In NC, the marriage act of 1741 forbade "the abominable mixture" between white men and women and Indians, Negroes, Mustees and Mulattoes or any person of mixed blood.
• Words denoting relationship, such as "in-law" and "step," often had different meanings from what they have today. "Nephew" sometimes meant grandson or grandchild, such as "to my nephew Rebecca Hayes." "Brother" could be also brother-in-law or brother in Christ or a minister.
• Non-jurors or non-swearers were people who refused or failed to take the oath of allegiance, i.e., Loyalists or Tories. Many when faced with the possible confiscation of their property, embraced the Revolutionary Cause, and some became super patriots.
• Inventories and estate sales reveal much about the occupation and status of the deceased and often suggest other records that might be searched.
• Analyze the naming patterns in the generations you have constructed as a possible clue for a given name of an earlier male or the maiden name of a wife. For example, the widow Hartwell Drake almost certainly had a mother whose maiden name was Hartwell.
• Often a later child was given the same name as one who had died earlier.
• If there is no marriage bond for a 2nd marriage, look for an age-gap between children to try to determine when the first wife died.
• One hundred years ago, middle names were more prominent in some families more so than others. When families continually gave a first name of John or William or Thomas, etc., a middle name was added to tell which John came from which family. Nick names such as Jack/Jackson/Jonathan, etc., were also used to distinguish one John from the other. The same applies to Mary/Polly; Hannah/Nancy/Anna; Frances/Fanny; Elizabeth/Eliza/Betty/Beth, etc.

More Court Terms

Some of the terms I have run across in ancient court records:

• acknowledge - ack. (see "proved") = "acknowledged" in land transactions.
• The usual procedure in a legal transfer of land was that the seller, after deeding over the land, go before the county court and under oath, publicly acknowledge the transfer. If married, the wife may appear also and be examined privately (privily) to determine if she agrees with the transfer of the land and to relinquish her dower rights to the property. If she does not do this in court, commissioners are appointed to visit her and examine her as to the transfer. In deed records, and abstracts of land transfers, there often is a note entered by the Clerk similar to this: "Ack: 23 May 1750." This means the seller, (grantor of the deed) and his wife, if any, personally appeared before the court or did so by proxy.
• detinue = an action brought to recover in Specie of personal chattles from one who acquired possession of them legally, but retains it without right together with damages for the detention.
• ejectment (Latin: Ejectione firmae - see de ejectione firmae) - A writ or action of trespass to obtain the return of lands or tenements to a lessee for a term of years that had been ousted by the lessor or by a reversioner, remainderman or stranger. The lessee was then entitled to a writ of ejectment to recover, at first, damages for the trespass only, but later the term itself, or the remainder of it, with damages; A writ then of ejectione firmae, or action of trespass in ejectment, lieth, where lands or tenements are let for a term of years; and afterwards, the lessor, reversioner, remainder-man, or any stranger, doth eject or oust the lessee of his term. In this case he shall have his writ of ejection, to call the defendant to answer for entering on the lands so demised to the plaintiff for a term that is not yet expired, and ejecting him. By this writ the plaintiff shall recover back his term or the remainder of it with damages, (William Blackston, Commentaries on the Laws of England 199, 1768).
• enfeoff- enfeoffment-infeoffment-feoffment = At common law, the act or process of transferring possession and ownership of an estate in land; the instrument or deed by which one obtains such property or estate; to invest with an estate held in fee simple.
• enseal - place a seal upon or to sign
• et al = "and others"
• ex parte = Upon or from one side only; Ex parte hearing (Law) that which is had or taken by one side or party in the absence of the other.
• fee simple = ownership of land with unrestricted rights of disposition; "forever" an estate of inheritance in fee simple
• impariance = is a conference between attorneys, etc.
• indefeasible = of a claim or right that cannot be defeated, revoked, or lost; cannot be undone or made void.
• indefensible = meaning not capable of being defended or maintained, vindicated or justified; a bad cause is indefensible
• indenture = Indentures were originally duplicates, laid together and indented, so that the two papers or parchments corresponded to each other. But indenting has gradually become a mere form and is often neglected while the writings or counterparts retain the name of Indentures.
• intestate = died without last will and Testament.
• Jural = pertaining to positive rights & obligations
• L.S. = (after a signature) = On recorded deeds and on originals written after the actual use of seals passed out of fashion, the seal became a flowery circle enclosing the words "Seal" or "Locus Sigilii," that is, the place of the seal, abbreviated L.S. Blocks Law Dictionary gives this meaning: "For some period in history seals were required to consist of wax affixed to the parchment or paper on which the terms of the instrument were written. This was required to have an identifiable impression made upon it. Usually this was made by the signet ring. In time when ordinary people, who did not have signet rings, learned to read and write, it was to be expected that substitutes for the traditional seal would be accepted by the law. Thus, today it would be generally accurate to say that a seal may consist of wax, a gummed wafer, an impression on the paper, the word "seal," the letters "L.S." (locus sigilli) or even a pen scratch."
• Livery and Seizen = a practice between the seller and buyer of a piece of land. They met on the property and in the presence of witnesses declare the contents on which livery is to be made. This was a ceremonial act by which the seller delivers (livery) a clod, or twig or some other piece of turf or branch from some plant growing on the property and this transfer is accompanied with words much like the following: "I deliver these to you in the name of seizen of all the lands and tenements contained in this deed." It was a formalized ritual probably called for by the purchaser who may have had something to gain by having several witnesses to the event. These matters concern a vocabulary no longer used, and made manifest that which is now reduced to words on paper.
• mocon = motion

Calendar Change

NS = New Style Dating - see Calendar change

OS = Old Style Dating - see Calendar change

England and all territories governed by her used the Julian Calendar until 1751, often referred to as Old Style or O.S. Under that system, the new year began on 25 March, while all of March was recognized as the first month. Thus, where numbers were used instead of month names, one has to calculate the month: i.e., 3-11-1680 meant May 11, 1680. The 7th month meant September. Since the Gregorian Calendar, or New Style [N.S.] began its year on January 1st, some writers employed a system of double-dating years for the dates which fell into January, February, or March such as 1731/2. Double-dating occurs only for dates within the first three months of the year and does not exist after 1752 when the Gregorian Calendar was adopted by England and her territories.

Prior to 1752, it is perfectly possible to find a will dated October first and probated January third of the same numerically numbered year. It is possible to find a woman marrying with a birth date of 3 January 1750. The problem occurs only prior to 1752 in connection with the first three months of the year and with the use of numbered months. One watches for it particularly in dealing with Quaker records where the months are invariably numbered.

Other Helpful Information

• Path = The term "Path" can be a road or path from one place to the other or a horse racing track, the sport of gentlemen.
• A Rowling (Rolling) Path = is a path where the tobacco casks were rolled to the docks to load on ships; tobacco was the main commodity shipped to Great Britain, etc.
• Pocoson = a reclaimed marsh land
• Proved = If the seller cannot appear in court personally, the deed document was witnessed by several individuals who signed on behalf of the purchaser. A note by the Court Clerk: "Proved: 20 Oct 1791" means the witnesses appeared before the court and certified the veracity of the transfer.
• Use of the term "before the court" could signify appearance before one of its Justices and be at a time outside the time of the usual quarter sessions. The court, finding the transfer of the property to be in proper order, orders the Clerk to record a copy of the deed in the County Deed Book. In cases where it is known that the grantor is to appear before the court and acknowledge the deed, it would not be necessary for witnesses.
• Replevin Bond = meaning the recovery by a person of goods claimed to be his, on his promise to test the matter in Court & give the goods up again if defeated
• reversioner or remainder - see ejectment
• S.S. = Latin for "scilicit" used in making up a jurat. The 25 March 1755 date is actually 1755/56, the valuation having been made in January 1755, necessarily preceding that court session. Black's Law Dictionary gives meaning of "SCILICET" = (sil-o-set or sit). [fr. Latn scire licet "that you may know"] That is to say; namely; Videlicet. Like videlicet, this word is used in pleadings and other instruments to introduce a more particular statement of matters previously mentioned in general terms. It has never been quite as common, however, as videlicet - Abbr. sc.; scil.; (erroneously) ss.].
• Scire Facias = Latin for "that you cause to know, in law." A writ founded on a record requiring the person against whom it was issued to appear & show cause why the record should not be enforced or nulled seize - to put in legal possession or assign ownership to another yeoman = "of the most respected class; a freeholder; a man free born; A Yeoman in England is considered as next in order to the gentry.