The language of the law. Part Latin, part Anglo-Saxon, all confusing.
Some of the most important types of records we ever come across as genealogists are estate records. All the kinds of documents that get created when someone dies: wills, inventories, petitions for partition, and more.
And all kinds of terms get used in those documents that can be as confusing as all get out. And very little is more confusing than the concept of who gets what from a will.
Part of the problem is the use of terms like “children” and “issue” and “heirs.” And it gets even worse with the use of terms like “per capita” and “per stirpes.”
Let’s see if we can make sense of this.
Let’s say that John and Mary have three children, two boys and a girl — Adam, Brenda and Charlie. Adam and Charlie are crusty old bachelors who never marry. Brenda marries and has two children, a son Dan and a daughter Edna. By the time John and Mary pass on, Brenda has also died, so the living members of the family are Adam, Charlie, Dan and Edna. The family would look like this:
Now let’s say John is the last of the parents to die, and he leaves a will written years before, when Brenda was still alive. How his estate gets split up among his four living descendants depends on the words that were used in the will.
He might have said he wanted his estate to go to his children. In the law, as in common every-day usage, that means Adam, Brenda and Charlie. The word “child” in the law of wills, descent and distribution “is used strictly as the correlative of ‘parent,’ and means a son or daughter considered as in relation with the father or mother.”1
Or he might have said he wanted his estate to go to his issue. Now that’s a little different. In the law of wills, descent and distribution, that means “all persons who have descended from a common ancestor,” so it’s “not only a child or children, but all other descendants in whatever degree.”2
Or he might have said he wanted his estate to go to his heirs. And that’s a whole ‘nother kettle of fish. The problem is that the word is usually used when there isn’t a will; heirs are those who “succeed…, by the rules of law, to an estate in lands, tenements, or hereditaments, upon the death of [an] ancestor, by descent and right of relationship.”3
It’s a pretty safe assumption that, unless he said something specific to indicate a different intent, John would have wanted his estate to be divided among all of his descendants. That’s the usual presumption in the law.4
But how should it be divided? That’s where those other terms come into play.
The term per capita means, literally, “by heads” and refers to individuals. And when it comes to an estate, “the persons legally entitled to take are said to take per capita when they claim, each in his own right.”5 It means the same thing when the term used is share and share alike — in equal shares or proportions.6
By contrast, the term per stirpes means “by roots or stocks” or “by representation” where “a class or group of distributees take the share which their stock (a deceased ancestor) would have been entitled to, taking thus by their right of representing such ancestor, and not as so many individuals; while other heirs, who stand in equal degree with such ancestor to the decedent, take each a share equal to his.”7
And if John didn’t use either of those terms or concepts, the law would usually look at the classes: children would be one class; grandchildren a second class. Those in each class would take per capita; those who took by representation of a higher class (Dan and Edna taking Brenda’s share) would take per stirpes.
So how does this work? Like this:
|“And I leave my estate…”|| “to my children
| “to my issue
| “to my children/issue
|“to my heirs”|| “to my heirs
share and share alike”
|Adam (living)||one half||one fourth||one third||probably 1/3||one fourth|
|Charlie (living)||one half||one fourth||one third||probably 1/3||one fourth|
|Dan and Edna, children of Brenda (dec’d)||nothing|| Dan, one fourth
Edna, one fourth
| Dan, one sixth
Edna, one sixth
| Dan, prob. 1/6
Edna, prob. 1/6
| Dan, one fourth
Edna, one fourth
There are exceptions, of course; sometimes unless it was clear that a deceased child’s children were deliberately excluded, even saying “to my children per capita” wouldn’t exclude the grandchildren. That’s a matter that could vary from state to state, and even today it’s often different between states and American law can differ from the rule in England and British commonwealth nations.
But this will get you started when you’re poking around in that 18th or 19th century will…
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 200, “child.” ↩
- Ibid., 645-646, “issue.” ↩
- Ibid., 565, “heir.” ↩
- See e.g. Cook v. Catlin, 25 Conn. 387, 390-392 (Conn. 1856). ↩
- Black, A Dictionary of Law, 169, “capita”; ibid., 885, “per capita.” ↩
- Ibid., 1089, “share and share alike.” ↩
- Ibid., 887, “per stirpes.” That second word is pronounced stir’-pees. ↩