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:
(Living persons in red)
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 per capita” |
“to my issue per capita” |
“to my children/issue per stirpes” |
“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…
SOURCES
- 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. ↩
I never knew–thanks for the explanation! This should clear up some things in estates.
Glad it’s helpful, Linda!
I knew there was a reason we used “issue
per stirpes” Thanks again as always!
Glad to help, Kelly!
Good explanation. Love the chart. It took me the longest time to realize that when the term “infant” is used, it didn’t necessarily mean a baby. I’ve assumed it meant a child that hadn’t yet reached the age of majority whatever that might mean at the time.
Thanks for the kind words, Teresa. And good assumption on infant. Black defines it as “A person within age, not of age, or not of full age; a person under the age of twenty-one years; a minor.”
It’s so nice to have an explanation in one handy place to refer to! (Especially with the chart.)
Thanks, Betsy! I’m glad it’s helpful.
Would you happen to know if “per capita” was ever in vogue, or had a particular geographic proclivity? Certainly today, it is extraordinarily unusual to see anything other than “heirs” or named individuals. And maybe it’s just that I have practiced in FL and WA and researched genealogy in OH, WV, PA, CT, and VT (primarily) but I am certain I have never run across a will with a “children per capita” provision. I am also certain modern practitioners would advise their clients about the default canons of descent and proffer a better way of reaching the desired outcome. Just so, it exists. But do we know anything about its prevalence?
Many thanks, as always, for your blog.
Brad, I’m not aware of any geographic focus to the term, and it surely was only used in those few instances where the will was actually drawn up by a lawyer who had a clue what the Latin phrase was! I’ve seen it only a few times, just as I’ve only seen per stirpes a few times, except in the opinions of the courts interpreting a will. A layman would have said share and share alike far more routinely; the courts interpreting that language would have used per capita.
It never fails to amaze me that I wonder about a term and then *POOF* you do a post on it. I just come across the phrase “per stirpes” in my great-great aunt’s will – written in 2008! Thank you!
I’m so glad my timing worked for you, Sara!
What if the will names 4 unrelated individuals? For example: I give all my property to Bob, Carol, Ted and Alice, equally, per capita.
Same rule, Mike. Per capita by definition means by head, so one-fourth each to Bob, Carol, Ted and Alice. What would happen to the share given to Bob, Carol, Ted or Alice if one of them died before the testator would depend on the rest of the will language and state law.
could I leave a specific sum to each of my grandchildren per stirpes? Meaning to bypass my children but if a grandchild died before I did, their share would go to their child(ren)?
Sure. You can divvy up your estate any way you’d like, including leaving it all to the local home for wayward cats. Your lawyer will guide you through the best way to phrase what you want so as not to leave any loopholes under the laws of the state of your residence. Sometimes an individual state is looking for some pretty specific language to be sure there’s no question about what the testator (you) intended. So be sure to get professional help in drafting your will, but unless you live somewhere with some really goofy laws, you can certainly bypass your children and leave everything to the grandkids and, if any of them should die with issue, to their issue and if any of them should die without issue, to the rest of the grandkids, etc.
Question. My parents trust, to which myself and my brother and sister are all named beneficiaries has Per Stirpes Per Issue Only next to them, what does this mean?
You’ll need to consult with an attorney in your jurisdiction to review the exact language of the document as it’s interpreted under the laws of the state where the trust exists.
So then, it would be fair to say that “per stirpes” cannot apply to a group of unrelated individuals?
Let’s say a trust devised to four people (A B C D), none of who share an ancestor with any other. You couldn’t say “per stirpes among A, B, C, and D” and expect that when D’s line extinguished, his share would be split among A, B, and C – at least, you couldn’t make that share-upon-extinction happen just by saying “per stirpes”?
However, you could say “to D and his issue per stirpes” and, upon extinction of one sub-line of D’s, that sub-share could be split by the other sub-lines, because the sub-lines all share the common ancestor, D.
But where the persons taking are not related, “per stirpes” doesn’t work because it implies a common ancestor.
Right? Am I making sense?
You wouldn’t say “per stirpes among A, B, C, and D” no. What you might say is “to A, B, C, and D and, if any of them do not survive me, to their heirs, per stirpes” — meaning, for example, that the heirs of A would take A’s share on a per stirpes basis among those heirs.
Wife’s Will says to husband and if dies to children in equal shares, absolutely and forever; husband predeceased wife, one child predeaceases and has no children. Would the surviving children share and share alike.
In most jurisdictions, yes, given these facts.