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The language of the law. Part Latin, part Anglo-Saxon, all confusing.

Yep, The Legal Genealogist is back on the road.

(I’m sure that will come as a shock… not…)

It’s the start of the institute season this summer, and for the first time ever — and hopefully for the last time ever — four institutes are occurring either at the same time or back to back to back to back…

Today, it’s off to Fort Wayne, Indiana, where the Midwest African American Genealogy Institute (MAAGI) gets underway with a meet-and-greet this evening at the Allen County Public Library.1

But this week is also the time for the Genealogical Institute on Federal Records (Gen-Fed), so later in the week I head to Washington D.C. to join the faculty there … at the National Archives.2

Next on the schedule is the Genealogical Research Institute of Pittsburgh (GRIP) for the law course Rick Sayre and I co-coordinate… and then off to Georgia for the Institute of Genealogy and Historical Research (IGHR) for Advanced Methodology and Evidence Analysis.

Whew…

What that means, of course, is that there may be some gaps in the blog posting… and when they occur I’ll try to fill in with some tidbits …

So, for today, C is for “CY-PRES”.

No, that is not misspelled.

No, it is not a tree.

It’s a fairly complicated principle of law that you’ll see come up all the time in all kinds of court cases, but particularly in will contests. The court won’t always use the term cy-pres to describe what it’s doing but here’s the deal.

First, the technical legal definition. Cy-pres, in the law, means “as near as possible.”3

Got that?

No?

Okay, the definition then goes on: “The rule of cy-pres is a rule for the construction of instruments in equity, by which the intention of the party is carried out as near as may be, when it would be impossible or illegal to give it literal effect.” 4

Getting closer?

Close but no cigar, huh?

How about an example? The definition continues: “Thus, where a testator attempts to create a perpetuity, the court will endeavor, instead of making the devise entirely void, to explain the will in such a way as to carry out the testator’s general intention as far as the rule against perpetuities will allow. So in the case of bequests to charitable uses; and particularly where the language used is so vague or uncertain that the testator’s design must be sought by construction.”5

Better? Not completely? That rule against perpetuities thing hanging you up? I don’t blame you. I remember in law school reading a case that said the rule against perpetuities was so complex that it wasn’t malpractice for a lawyer to get it wrong.

So let’s try an easier example. Think about all the situations where a will just isn’t 100% clear in what the deceased meant. If you read the will provision as meaning A, then the provision isn’t valid. But if you read it as meaning B, the provision is valid, and probably does what the deceased would have wanted. Choosing B instead of A is cy-pres.

Lots and lots of these kinds of cases, particularly in probate court.

And that’s the letter C, 2017 alphabet soup.


SOURCES

  1. Yes, I know, it’s such a hard life having to lecture at one of the nation’s premier genealogical libraries…
  2. Yes, I know, it’s such a hard life having to lecture at the nation’s premier archival repository…
  3. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 314, “cy-pres.”
  4. Ibid.
  5. Ibid.
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