Caveats and devisavits and legal Latin. Oh my!

Any human being who’s ever bought something and then regretted it has heard the phrase “caveat emptor” (let the buyer beware)¹ — usually from the seller of the item. And those of us who’ve made the mistake of selling something on eBay that didn’t qualify for seller protection and been forced to take it back when the buyer didn’t like it have also learned the phrase “caveat venditor” — let the seller beware.²

Genealogists have to figure out the word “caveat” in a whole ‘nother context — and it has nothing whatsoever to do with buying OR selling. Don’t you just love legal Latin? No? Fear not. The Legal Genealogist will hold your hand.

Caldwell County NC will caveat

On 26 May 1854, Elizabeth Baker of North Carolina executed a will, naming her brother Richard Baker and her nephew Josias Wakefield as the executors. After her death in 1856, Josias presented the will to the Caldwell County, North Carolina, Court of Pleas and Quarter Sessions for probate.

In the document, Elizabeth left money and property to her relatives but she sure didn’t treat them equally. Brother Richard, five nephews, two nieces, and one grand niece each received one of Elizabeth’s nine slaves. And then she “g(a)ve and bequeath(ed) to the children of (her) deceased brother John Baker the sum of One dollar to be equally divided among them.”³

Now if you’re sitting there entertaining the notion that the — count ’em — 12 kids that brother John named in his 1844 will, probated 1848,⁴ were thrilled with their treatment at the hands of their aunt, um… think again. Elizabeth’s will folder at the North Carolina Archives contains this notation, from the clerk of the County Court:

The last will & paper writing purporting to be the last will and Testament of Elizabeth Baker was offered by Josias Wakefield one of the executors therein named for probate whereupon Hosea Bradford and Robert Mc. Shell and wife Theny opposed the probate and and asked leave to Caviat the same and make up an issue Devisavat vel non, which is allowed…⁵

Soooo… what exactly do we have here?

First off, we have a clerk who knows the Latin word… but can’t spell it. It’s caveat, not caviat. Black explains that, used this way, a caveat was a “formal notice or warning … used in the proper courts to prevent (temporarily or provisionally) the proving of a will or the grant of administration.”⁶ In short, it’s the way that John’s kids (daughter Theny Shell and her husband ended up joined by a bunch of her brothers and sisters) asked the Caldwell County Court not to probate the will and not to let the estate be administered by Josias (who, after all, got a much bigger piece of the pie than John’s kids did) until they could get a law court to hold a trial over the validity of the will.

Then, the clerk says, they were allowed “Devisavat vel non.” More Latin. And more mispelling. It’s actually “devisavit vel non” (an i at the end of the first word rather than an a). That was the order of this court, acting as a probate court, to a court of law, for a jury trial to decide whether the document being offered really was valid as Elizabeth’s will.⁷ So, in plain English, that’s the County Court agreeing that there should be a jury trial.

The two sides in the case agreed that the trial should be in the Caldwell Superior Court.⁸ Where, I should add, a jury promptly returned a verdict we might describe as “caveat greedy kids.” It essentially told ’em all to go home, behave themselves, and figure out how to divide the dollar among them.⁹

SOURCES