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.”
Though The Legal Genealogist has tackled this before,1 it’s a topic that keeps coming up, so 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.”2
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.”3
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.”4
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.5
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.”6 It means the same thing when the term used is share and share alike — in equal shares or proportions.7
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.”8
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
- See Judy G. Russell, “Per capita, per stirpes,” The Legal Genealogist, posted 10 Sep 2012 (https://www.legalgenealogist.com/blog : accessed 30 Mar 2015). ↩
- 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. ↩
These comments are still applicable today. Having just had a new will written because of a move to another state, I made sure I understood exactly how the wording would affect my heirs. I probably drove my attorney a bit nuts with my questions, but I feel very comfortable now that my estate will be disbursed as I intend.
Yes, indeed, the law remains the same — though lawyers generally tend to speak more English than Latin these days! 🙂
By far the best explanation of these terms as we genealogists encounter them. I looked at my will and am planning to redo it anyway but now will be certain it does what I want it to do.
Thanks for the kind words, John!
I’m an accountant, dealing primarily with taxes. Your readers don’t even want to know about the wording in a document I received yesterday in connection with a case!
Since this topic will come up again in future, I’d recommend a small change to the illustration. Add a fourth person in the middle generation, with a different positive number of children than the other one who has died. I think this will serve to illustrate the terms just that little bit more since each case would then have a different result (aside from “per capita” and “share and share alike”).
One particularly nasty example of this involved the will of someone who owned a valuable city block in the heart of Melbourne. He died in 1864, but the distribution was only triggered in 1926. To quote a newspaper of the time – “By the will of John Lobb the corpus of the estate was to be divided on the death of his children and the expiration of three months from the time that the youngest, for the time being, of his grandchildren should have attained the age 21 years among his grandchildren then living and the issue of any then dead.”
By this time some children had died without issue and some had large families and some small ones. A “per capita” challenge was made, but the judge decided that the will fairly clearly indicated “per stirpes”. The one adjustment he made was to divide the shares of lines with no children among those with.
Takeout message from all this – don’t leave a will with messy consequences. John Lobb may have avoided leaving money to his children, but it was his grandchildren who suffered for it.
If it’s per issue, ie all the descendants, what does it matter that Brenda has died? The way you explain “issue,” if Brenda were alive, each of the five descendants should get 20%.
Can that really be right?
It matters because only the living take, Israel. Once Brenda has died, she’s out of the equation.
But if she were alive would it be divided by five because there are five descendants?
Only if the will clearly said that’s what was intended, since the usual intent of a decedent would be to benefit children before grandchildren.
I’m still trying to figure out who the children of a couple in mid 19th century Iowa were. Your blog touches on the borders of my problem. My Phebe dies intestate (as far as I can tell) in Iowa in 1863. The only probate records are quite sketchy. The final settlement says her little estate will be divided among seven heirs, but they aren’t named. I believe but have not proven that by 1863 she had six living children, plus one deceased son with no issue, plus one deceased daughter with several children. So who were the seven heirs? If the court counted all the children of the deceased daughter as a single heir, the list would work out nicely for my attempt to reconstruct the family. But I don’t know if that was ever done. Further, would the wife of the deceased son have any claim on the estate? I don’t think so, but I’d like to rule that out.
It isn’t likely that all of the grandchildren were referred to as a single heir. It’s possible, and you should read other probate records of the time and place to see if that was local practice. But it wouldn’t be the norm. The wife of the deceased son shouldn’t have any claim on the estate unless the mother died first, in which case the daughter-in-law as widow of the son might have a dower right.
Ah as always Judy, I love your way of explaining things. You take such a complex subject and make it understandable to those of us less familiar with legalese and I thank you for that. (Now if you could just figure out how to fix my aging memory!)
Excellent bog post, Judy! I would like for you to expand on it, particularly with regard to the term “per capita.” My questions are similar to those of Dave and Israel above. Using your illustration, let’s assume instead that either Charlie or Adam married and had children living at the time of John’s death. Or that either Dan or Edna had children at the time. In a per capita distribution, would a living parent and child inherit equal shares, or would the parent’s inheritance exclude the child? Also, if an infant (minor) was entitled to inherit under a per capita distribution, but died before distribution and before reaching the age of majority, how would that share be treated? And one more question: In states that have recently established “personhood” laws, would a fetus conceived before a decedent’s death, but born after, be considered to inherit a share under any of the circumstances you addressed?
I can already hear you saying, “It depends.” Perhaps you will consider expanding on this topic in another blog post?
Here is an example of how the wording of a will can make a big difference to genealogists, from my own research:
I have a 4-great uncle who received 4800 acres in Tennessee for his service as a surgeon in the Revolution. He never went there, but evidently during his lifetime, he offered it to his siblings, nieces, and nephews. He signed a prenuptial agreement, married in 1791, and lived out his life in Georgetown District, SC. He and his wife had no children. His 1817 Will was destroyed in a Courthouse fire during the Civil War, but one provision survives in court papers filed in the 1820s in Williamson County, TN. “I give devise and bequeath unto my brothers and sisters, in the State of Tennessee . . . the whole of my land in that State . . . to be equally divided among them share and share alike . . . excepting [others named] . . . who are each to receive one half only of the proportion devised to each of the other devisees.” The settlement documents name all of his siblings, indicate whether they were living or dead at the time of the decedent’s death, list how many children they had, indicate whether each sibling / niece / nephew was or was not living in Tennessee on that date, and name the nieces and nephews who were entitled to inherit. This is the only primary document found to-date that establishes many of these relationships — for a family that originated not in South Carolina or Tennessee, but in North Carolina. A wonderful way document a pre-Revolution household in a place and at a time far from the source!