Colonial Legal Terminology

The following terms are often found in court records, deeds, wills, grants, and other legal documents.   This list is not intended to be in any way complete.  Rather, it is a list of common terms that are often misunderstood by genealogists.   I have also included some terms which might, in context, offer genealogically valuable clues.

Abate / Abatement

Abate and abatement have several uses.  In a lawsuit, an abatement is a court order to terminate the suit, either because the plaintiff dropped the suit, or one of the parties died, or the defendant moved out of the court’s jurisdiction.  When applied to a bequest or a judgment, it normally means that assets were insufficient to cover the amount, and the amount due was reduced.  In general, it means that something was terminated or lessened.

Administrator or Administratrix

A court-appointed manager of the estate of a person who either did not leave a will or whose will failed to name an executor (or whose executors declined to act).  The administrator had the same powers regarding property that the deceased would have had if alive.  The administrator or administratrix had powers and duties similar to executors, with a few specific restrictions relative to executors.  The administrator of a deceased’s estate was normally the closest relative who was both able and willing to serve.

Administrator with the will annexed

This terminology was used when a will existed, but failed to name an executor, or when the named executor died, resigned, or refused to serve.  It is sometimes rendered as the Latin cum testamento annexo.   

Administrator de bonis non

This terminology was used to identify an administration of a partial estate, as when an executor or administrator was replaced before distributing all the estate’s assets.  The Latin means, more or less, “of items not administered”.  Thus the term is typically applied to a second administrator of a partially distributed estate,.  Note that he or she might also be an administrator cum testamento annexo.

Ad litem

Limited to a single instance.  Used when a person was appointed to perform some task ad litem, meaning only for the specific case at hand.  

Ad quod damnum

A type of writ ordering an assessment of damages that might result from an action.  We normally see it in two different situations.  First, it was used to assess damage to a landowner whose property was taken or used for some public purpose (like a road) or a private purpose (like a mill flooding a neighbor’s land).   Another use, after 1734 in Virginia, was as a means of docking an entail (that is, to convert a fee tail interest into a fee simple one.)

Alias Capias

See Capias.  Generally, an alias writ is the second one, issued because the first was not executed for some reason.

Appurtenance

Literally, something attached or subservient to a more important thing.  In deeds for land, it refers to things attached to the land (buildings, orchards, etc.)

Assign

As a noun, this is a person who acts on behalf of someone else.  As a verb, the act of transferring an interest in something to another person.  For example, a patent applied for but not yet issued might be assigned to another person. 

Bastard

A child born out of wedlock, or to a couple who were not married in a way recognized by the civil authorities.  Under common law, if the parents later married one another, the child was legitimatized.  At the request of the mother or the authorities, an identified father could be compelled to provide for the child’s support.  A bastard child, even if acknowledged, could not inherit from the father.

Bequest

A transfer of personal property, usually by will.  “Bequest” was used for personal property and “devise” for real property. (Legacy has the same meaning as bequest.)

Brother (Sister)

These terms were often used for stepbrothers, half brothers, or even for brothers-in-law.  It does not necessarily refer literally to a brother or sister.

Capias

An order to the sheriff to arrest or take into custody a person to assure their appearance in court.  If the order was not executed, a second order was called an alias capias.  If a third order was necessary, it was called a pluries capias.

Caveat

A notice not to do something until the person caveating has been heard.  It is often seen in the case of land claims, where a caveator might object to a claim overlapping his own.  It is also seen in the case of wills, as when a widow might caveat a will to prevent probate until her objection is heard.

Chattel

Personal property such as livestock and household goods. See Estate.

Citizenship

In the colonies, only an English citizen could own land, serve on a jury, hold public office, or vote.  If a person did any of those things, we can be sure they were either English-born or had been naturalized as an English citizen.  In Virginia, for instance, a foreign-born person could be naturalized as a citizen only by an act of the Assembly before 1680, which acts are preserved in Hening’s Statutes at Large.  After June 1680 citizenship could be bestowed by the Governor.

Cousin

Generally, “cousin” refers to a nephew or niece.  In the broadest sense, it could mean any familial relationship, blood or otherwise, except for first-degree relationships.   

Demise

A term that normally meant “lease” in colonial land transactions.

Devise

A transfer of real property, usually by will or deed.  In wills, “bequest” was used for personal property and “devise” for real property.

Dower

A widow’s interest in the property (especially land) of her husband.  Normally we see it used in the sense of the wife’s one-third interest in the land which her husband owned during the marriage.  During her husband's life, a wife's dower interest was essentially meaningless.  Upon her husband's death, it entitled her to a lifetime interest in one-third of  the land, no matter who owned it.  (Technically, the interest was in the income produced by the land, for the widow held no ownership interest.)  Prudent buyers would assure that the widow relinquished her dower interest in any sale by her husband or, after his death, by the heir to the land.   The widow generally could not sell or devise her dower interest, since it was hers for her lifetime only. 

Ejectment

A legal process to remove a tenant from leased land.  In the colonies, ejectment suits were frequently used to avoid the cumbersome legal processes for disputing title to land.  When used in this way, half the parties to the suit were fictitious. 

Entail

To create a fee tail.  See separate paper.

Estate

The estate of a living person included both his land and his personal property,.  The estate of a dead person included only personal property (his land having passed directly to his heirs at death exclusive of any probate process).   The use of the term in court records thus does not imply anything about whether the person was alive or dead.   A living person’s estate could be seized, attached, or sold to satisfy judgments.  A dead person’s estate was inventoried, appraised, and distributed to his heirs.  

Escheat

Refers to the  reversion of property to the state (the Crown or Proprietor) when there were no qualified heirs.  For example, patents reverted to the Crown (or the proprietor) when the patentee died without heirs (or was convicted of certain crimes).

Et ux

Latin for “and wife”

Facias

Used to differentiate writs.  Fieri facias refers to a writ of execution, usually to enforce a judgment against a debtor.  Scire facias refers to a renewal of a judgment or an order to appear, usually to answer a judgment.

Fieri Facias

A court-issued writ ordering someone (usually the Sheriff) to execute a judgment – collect money, seize property, etc.  In Latin, “cause to be done”.  Often abbreviated as “fi fa.”

Farm Let

A lease.  Often found as the phrase “lease and farm let” in a lease document. 

Freeholder

Technically, a person with an estate in land, although some colonies, like Virginia, used the term to apply to non-landowners with sufficiently large personal assets.  Only a freeholder could serve on juries, hold office, or vote. 

Glebe

Land belonging to a parish, the income from which was used to support the local church.

Guardian

A guardian was responsible for managing the estate of a minor (or an adult judged not capable of managing their own estate), as well as for their education, debts, and representation in legal actions.  The guardian was not necessarily the person with whom an orphan lived.  Orphans might live with their mother, for instance, but have a guardian to manage their inherited estates.  Orphans under the age of 14 had court-appointed guardians, but at 14 a child could choose their own guardian. 

Headright

This is discussed in more detail on another page, but the point of including the term here is to emphasize that a patentee who claimed a headright was not necessarily the person who imported the headright.  In fact, recent research suggests that most persons claimed as headrights were imported by someone other than the patentee.  In addition, the date of a patent may have been several years after the importation itself – and was intended in the original design of the headright system to have been at least three years later.

Heir presumptive

This refers to the person who would be first in the line of succession if an individual died at this moment.  One cannot become a heir until the death actually occurs, and the heir is “presumptive” because future events could launch another into first place.

Imparlance

A delay or postponement.  Usually seen in the sense of a postponement granted to a defendant to provide time to answer a suit or plea by the plaintiff.

In-law

This term was used in a much broader sense than it is today, referring to any relationship created by legal means (normally a marriage).  For example, a stepfather was normally called a father-in-law.  Likewise, a son-in-law could have meant a stepson, the husband of a daughter, or even the husband of a stepdaughter or daughter-in-law. 

Even terms like “brother” and “sister have to be interpreted in a broad sense.  “Brother” could have been used for stepbrothers, half-brothers, the brother of a sister or sister-in-law, even for a close friend or member of the same religious group.

Infant

Anyone under the age of 21. 

Indenture

Any deed, written contact, or sealed agreement.  The word originally meant a deed or agreement executed in multiple copies with the edges indented for identification.

Intestate

Without a will.  The property of persons who died intestate was subject to a specific set of succession rules which determined who inherited land and another set of rules that determined who inherited the personal property.

Inventory

The inventory of a deceased person’s estate (his personal property) was taken by a small committee of persons who had no personal interest in its value.  They were almost always close neighbors who were unrelated to the deceased.  Thus, such appointments can be valuable clues as to both geography and to the lack of relationship to the deceased.

Issue

This has the same meaning as “living descendants”.  It refers not only to a person’s children, but to their grandchildren, great-grandchildren, and so on.  “Issue of one’s body” specifically refers to children.  In some cases the meaning is counter-intuitive.  For instance a person with children could be said to have “died without issue” if none of the children produced children of their own.

Jury

Jury service was a privilege reserved for freeholders.  Grand juries were usually appointed in advance and served for a term of time.  Case juries were normally chosen on the spot from the group of people attending the court for other actions, persons relaxing in a nearby tavern, or people who were otherwise located nearby the courthouse.  (The term was also used for other groups like those chosen to lay out roads.)  Normally, jury service is a certain indication that a jury member was a landowner (or at least owned property of sufficient value to substitute for land.)

Lease and Release

A form of deed in which the grantor first leases the land for a short term and a nominal consideration, and then releases his rights to the land for the actual purchase price.  This usually takes the form of two recorded documents dated one day apart.  The effect is the same as the normal “bargain and sale” deed.   The lease and release form of deed seems to have been more prevalent in some jurisdictions than in others, and may have reflected a preference on the part of the local court or its clerk.  The lease and release appears to have originally developed as a means of avoiding the requirements of livery of seizen, which was required for deeds but not for leases. 

Legacy

Same meaning as bequest

Livery

An archaic term for “delivery.”   Usually found in the context of a livery of seisin, originally referring to a ceremony in which land was conveyed to a new owner.  Most deeds carry a notice of livery of seisin, meaning that physical possession had taken place.

Majority

The age of 21.

Messuage

A dwelling.  Literally, a house along with associated outbuildings and the land they sit upon. 

Moiety

A half-share of something.  Rarely, an equal share other than a half-share.

Nuncupative Will

An oral will.  Nuncupative wills were oral (and obviously unsigned), dictated in the presence of witnesses, one of whom reduced the oral statement to writing.  Nuncupative wills were valid only if dictated during a “last illness” (that is, on a deathbed) and only if no prior written will existed.  There was a common-law understanding that nuncupative wills were invalidated if the testator recovered from the illness or if they were not recorded within a short time.

Orphan

Any infant (person under 21) whose father had died.  Note that a person whose father had died was an “orphan” regardless of whether or not their mother was living.

Personality

Personal property

Petition

In addition to its normal (and modern) sense, petitions were a means whereby a plaintiff could sue a debtor in a distant county without actually having to appear personally in court.  This is a often a useful clue as the residence of the plaintiff. 

Planting and Seating 

In Virginia, a patentee was required to cultivate a portion of the land (or keep livestock) build a structure on the property in order to complete the requirements of the patent.

Pluries Capias

See Capias

Primogeniture

In the southern colonies at least, this was an element of intestate inheritance that is important to understand.  Primogeniture applied only to land, not to the personal property, and used a specific line of succession to determine ownership of an intestate’s land.  (Or in the case of a will, to determine ownership of any land not devised in the will.)  This is more fully explained in another paper.  Virginia, North Carolina, South Carolina, and Georgia did not abolish primogeniture until after the Revolution.

Quitrent

This was an annual payment, a token amount, by a landowner to the grantor of the land.  The rent was paid either to the Crown or the Proprietor, depending on who granted the land.  If the land were sold, the responsibility for the annual quitrent passed to the new owner.  Quitrents were not successfully collected in Virginia, and only one colony-wide list is extant, for 1704.

Relict

A widow.  The concept of common law was that a married couple formed a single entity.  When one died, the other was the relict of the union.  The term was almost universally applied only to the woman.

Room

"in the room of" means “as a substitute for”.

Seisin / seizin

An archaic term roughly meaning “possession.”   Usually found in the context of a livery of seisin, originally referring to a ceremony in which land was conveyed to a new owner.  Most deeds carry a notice of livery of seisin, meaning that physical possession had taken place.

Special Bail

This was a type of security, usually for a debt.  If the debtor failed to make good on a judgment, the person who was his special bail was responsible for paying the debt himself (or serving the time in debtor’s prison).  Obviously something that might indicate a special relationship between the parties.

Spinster

An unmarried adult female (as opposed to a widow).  Commonly seen in public records to identify a single woman of age 21 or older.  (Confusingly, the term also means a spinner of yarn.)

Suits (lawsuits)

It is important to understand that suits were heard in the county of residence of the defendant.  The plaintiff might be from another county, but the suit had to brought in the county where the defendant resided.   The suit would be abated (dropped) if the defendant moved out of the county.  The process for suing depended on the amount in question.  In early Virginia for instance, a single justice could rule if the amount was small (typically under 25s or 200 lb of tobacco).  For amounts under £5 or 1,000 lb. of tobacco, the entire court ruled.  For larger amounts, a jury was required.

Tenements

In a broad sense, this refers to anything held by tenure.  In deeds, it normally refers to buildings.

Three-Lives Lease

A version of the English manorial lease, this is a lease whose term is the lifetime of the longest-lived of three persons.  Usually, the lessee will be something like “John Smith, his wife Sarah, and son John Smith Jr.”, meaning that the lease would remain in force until the last of those three persons died.

Uxor

A wife.  

Witnesses

Witnesses to contracts, suits, and deeds could be practically anyone, including minors aged 14 or more.    

Witness Fees

All witnesses in county courts were paid for their time.  Only persons who lived outside the county were paid for their travel.  Witnesses who resided in a different county were allowed a travel allowance for mileage from their home to the court.  Knowing the allowance might help us determine where they lived.  (The Virginia fee for several years was 1½ lbs of tobacco per mile.)  Fees were paid by whichever party called the witness.

Ye (yis, yat, etc.)

The medieval English alphabet had a character called a thorn, which represented the sound of “th”.   Printers, using typefaces with only 26 letters, adopted the lower-case “y” to substitute for the thorn, thus “ye” was pronounced “the”.   Clerks and scribes also used the letter y for the character combination “th”, as in ye (the), yt (that), yis (this), oyer (other), 5y (5^th), etc.