PROPERTY & POSSESSION

The right of property is that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual.

Jus proprietatis est jus illud solum et despoticum dominium quod unus homo exercet in rebus externis mundi.

Source: Blackstone, 2 Bl. Comm. 2, 5; 1 Bl. Comm. 138; Weisman, 91bb

Ownership is exclusive dominion — the owner's right excludes all others, including the government, except by due process of law.

Chattels justly possessed cannot be lost.

Catalla juste possessa amitti non possunt.

Source: Jenk. Cent. 28; Bouvier, *Law Dictionary* (1856)

Goods held by lawful right cannot be forfeited without due process of law — just possession is its own defense against all claims of loss or seizure.

Property is the proper right by which a man uses his own thing.

Proprietas est jus proprium, quo quis re sua utitur.

Source: Blackstone, 2 Bl. Comm. 2; 1 Bl. Comm. 138

Property is not a privilege granted by government — it is an inherent right of use and dominion over what belongs to a man.

It is unjust that freemen should not have the free disposal of their own property.

Injustum est, nisi tota lege inspecta, liberos homines non habere liberam potestatem rerum suarum.

Source: Co. Litt. 223a; 4 Kent, Comm. 131; Hob. 87; Weisman, 91e

A free man's control over his own property is a fundamental attribute of liberty — any restraint on disposal is a restraint on freedom itself.

That which is mine cannot be taken away without my act, consent, or forfeiture.

Quod meum est sine me auferri non potest.

Source: Broom, Max. 465; Jenk. Cent. p. 251, case 41; 8 Co. 92; Dig. 50.17.11

No man loses his property except by his own act, his own negligence, or lawful forfeiture — never by the bare will of another.

It is not incumbent on the possessor to prove that the possessions belong to him.

Non possessori incumbit necessitas probandi possessiones ad se pertinere.

Source: Cod. 4.9.2; Broom, Max. 639, 714; Weisman, 91cc

The burden of proof lies on the challenger, not the possessor — quiet possession is its own evidence of right.

When the parties are equal in right, the condition of the possessor is the better.

In pari causa possessor potior haberi debet.

Source: Plowd. 296; Broom, Max. 71; Dig. 50.17.126; 4 Bouv. Inst. n. 3724

Where competing claims are in equipoise, the law favors the party already in possession.

Possession is the best title where no better title appears.

Possessio est optimus titulus ubi alius non apparet.

Source: 20 Vin. Abr. 278; Bouvier, Max. 148; Weisman, 91w

Actual possession establishes a presumptive right that prevails against all the world except a claimant with superior title.

No one gives what he does not have.

Nemo dat quod non habet.

Source: Jenk. Cent. 250; Broom, Max. 499n; Shep. Touch. 243; Fleta, lib. 3, c. 15, s. 8

A man cannot transfer a greater right than he possesses — this applies equally to private conveyance and to government grants of authority.

He who is first in time is stronger in right.

Qui prior est tempore potior est jure.

Source: Co. Litt. 14a; Broom, Max. 354; Weisman, 100l

Priority of claim establishes superiority of right — the earlier right prevails over the later, absent fraud or forfeiture.

A thing belonging to no one naturally belongs to the first taker.

Res nullius naturaliter fit primi occupantis.

Source: Dig. 41.1.3; 2 Bl. Comm. 258; Taylor v. The Cato, 1 Pet. Adm. 53

Abandoned or ownerless things become the property of whoever first takes possession of them.

Every man is the manager and disposer of his own property.

Unusquisque est rei suae moderator et arbiter.

Source: Co. Litt. 223a; Weisman, 91r

The owner alone decides how his property is used, managed, and disposed of — no other party may direct its use without his consent.

Long possession begets right.

Longa possessio jus parit.

Source: Co. Litt. 110b, 115a; Fleta, lib. 3, c. 15, s. 6

Continuous, quiet possession over time ripens into a right that the law will defend, even against a prior claimant who slept on his rights.

Chattels are considered in law among the minor things.

Catalla reputantur inter minima in lege.

Source: Jenk. Cent. 28; Jackson; Weisman, 91p

The law regards chattels (movable personal property) as lesser things compared to land — disputes over chattels receive less elaborate procedure than disputes over freehold estates.

Lordship cannot be in suspense.

Dominium non potest esse in pendenti.

Source: Halk. 39; Jackson

Ownership must be vested in a determinate person at all times — the law does not permit dominion to hang in abeyance without a present holder.

Two persons cannot possess one thing in entirety.

Duo non possunt in solido unam rem possidere.

Source: Co. Litt. 368; Jackson

Two persons cannot each have sole and exclusive possession of the same thing at the same time — co-possession is possible, but not two independent claims of total possession.

Long possession produces the right of possession, and takes away an action from the true owner.

Longa possessio parit jus possidendi et tollit actionem vero domino.

Source: Co. Litt. 110; Jackson; Weisman, 91u

Continuous undisturbed possession over time creates a prescriptive right in the possessor and extinguishes the original owner’s right of action — the law rewards vigilance and punishes the sleeping claimant.

Nothing is so consonant to natural equity as to regard the intention of the owner in transferring his own property to another.

Nihil tam conveniens est naturali aequitati, quam voluntatem domini rem suam in alium transferre, ratam habere.

Source: 1 Co. 100; Jackson; Weisman, 91o

Natural equity demands that the owner's intent govern the transfer of his property — the law respects and gives effect to the will of the proprietor in all conveyances.

The loss falls on the owner.

Res perit suo domino.

Source: Bell Dict. 857; Jackson; Weisman, 91ff

The risk of accidental loss or destruction of property lies with the owner — unless another has assumed that risk by contract or wrongful act.

No one should lose his property without his act or negligence.

Nemo debet rem suam sine facto aut defectu suo amittere.

Source: Co. Litt. 263; Bouvier, *Law Dictionary* (1856); Weisman, 91s

Property is lost only by the owner's own doing or his own fault — never by the bare act of another or by operation of government without cause.

What belongs to us cannot be transferred to another without our consent.

Id quod nostrum est sine facto nostro ad alium transferri non potest.

Source: Dig. 50, 17, 11; Bouvier, *Law Dictionary* (1856)

The right of property includes the exclusive power of disposition — no transfer is lawful without the owner's act or agreement.

Movable things follow the person; immovable things follow their locality.

Mobilia personam sequuntur, immobilia situm.

Source: Bouvier, *Law Dictionary* (1856)

Personal property is governed by the law of the owner's domicile; real property is governed by the law of the place where it is situated — a fundamental rule of private international law.

No one can have a servitude over his own property.

Nulli enim res sua servit jure servitutis.

Source: Dig. 8, 2, 26; 17 Mass. 443; 2 Bouv. Inst. n. 1600; Bouvier, *Law Dictionary* (1856)

A man cannot create an easement or servitude burdening his own land in his own favor — the full ownership already includes every lesser right of use.

He cannot be considered as having ceased to have a thing, who never had it.

Source: Dig. 50, 17, 208; Weisman, 91b; Weisman, 91n

(English-origin maxim.) A party cannot claim to have lost what he never possessed — the defense of prior possession fails when the claimant never held the thing in the first place.

When the question is as to the gain of two persons, the cause or title of the party in possession is the better one.

Source: Dig. 50, 17, 126; Weisman, 91d

(English-origin maxim.) Where two parties each claim gain from a disputed thing, the party already in possession holds the stronger position and need not yield absent proof of superior title.

A deprivation presupposes a possession.

Source: 2 Rolle, 419; Weisman, 91f

(English-origin maxim.) Before claiming deprivation, the claimant must first prove he possessed the thing — a man who never had possession cannot be deprived of it.

A destruction of the thing is the loss of its owner.

Source: Inst. nn. 1456, 1466; Story, Bailm. 426; 2 Kent, Comm, 591; 2 Bouv; Weisman, 91g

(English-origin maxim.) When a thing is destroyed, the owner bears the loss — the destruction of the subject matter extinguishes the owner's rights in it.

There is no prescription for that which is not possessed.

Source: Cycl. Diet. 693; Weisman, 91j

(English-origin maxim.) No prescriptive right can ripen over property that is not actually possessed — adverse possession requires actual, continuous occupation.

Things abandoned [or which belong to no one] become the property of the first occupant.

Source: Taylor v. The Cato, 1 Pet. Adm. 53, Fed. Case. No. 13, 786; Dig. 41, 1, 3; 2 Bl. Comm. 258; Weisman, 91l

(English-origin maxim.) Property that has been abandoned or that belongs to no one may be claimed by the first person to take possession of it. This principle governs salvage, derelict property, and unowned natural resources.

That does not truly belong to one which can be taken from him upon occasion.

Source: Dig. 50, 17, 159, 1; Weisman, 91m

(English-origin maxim.) Property that may be seized upon occasion is not truly owned — secure ownership means the thing cannot be taken at the pleasure of another.

When a man has the possession as well as the right of property, he is said to have jus duplicatum-a double right, forming a complete title.

Source: Bract. lib. 4, tr. 4, c. 4; 2 Bl. Comm. 199, 311; Weisman, 91x

(English-origin maxim.) When a claimant holds both the right of possession and the right of property, he holds an unassailable title that prevails over all challengers.

Rights of dominion are transferred without title or delivery, by prescription, to-wit, long and quiet possession.

Source: Co. Litt. 113; Weisman, 91y

(English-origin maxim.) Long and quiet possession, undisturbed by any adverse claim, transfers dominion without deed or delivery — time perfects title.

No one can grant or convey what he does not own.

Source: Seymour v. Canandaigua & N.F.R. Co., 25 Barb. (N.Y.) 284, 301; Fassett v. Smith, 23 N.Y. 252; Weisman, 91aa

(English-origin maxim.) A conveyance is void if the grantor does not hold title to the thing conveyed — the purchaser takes nothing from one who has nothing to give.

Two cannot possess or own one thing in entirety.

Source: Co. Litt. 368; Dig. 13, 6, 5, 15; Bract. fol. 28b; Weisman, 91dd

(English-origin maxim.) Sole and exclusive possession cannot vest simultaneously in two separate persons — co-ownership is possible, but two claims of total dominion over the same thing are mutually exclusive.

The legal conception of property is of right.

Source: Leroy Fibre Co. v. Chicago M. & St. P. Ry., 232 U.S. 340, 350; Weisman, 91hh

(English-origin maxim.) Property is a right, not merely a physical thing — the constitutional protection extends to the right itself, not just to the tangible object.

Things taken or captured by pirates and robbers do not change their ownership.

Source: 1 Kent, Comm. 108, 184; Weisman, 91ii

(English-origin maxim.) Stolen goods retain their original ownership — pirates and robbers cannot pass title, and the true owner's right survives the taking.

It is one thing to possess; it is another to be in possession.

Source: Hob. 163; Bract. 206; Co. Litt. 14a; Weisman, 91kk

(English-origin maxim.) Possessing a thing in fact and having legal possession are distinct — one may physically hold a thing without having the legal right of possession, and vice versa.

Neither disease, indigence, nor any evil of the same kind is more contrary to nature than appropriating or desiring to appropriate the property of another to our own use.

Source: C.L.M.; Weisman, 91q

(English-origin maxim.) The natural law recognizes the right of property as so fundamental that its violation is worse than any natural misfortune — no condition of want or hardship justifies the taking of another's property, and government is no exception: the power of eminent domain, taxation, or regulatory seizure without the owner's consent and just compensation is a trespass upon a right that precedes all civil institutions.

Things which are taken from enemies immediately become the property of the captors.

Quae ab hostibus capiuntur, statim capientium fiunt.

Source: Weisman, 91lj; Weisman, 91jj

Property seized from an enemy in war vests immediately in the captor by the law of nations — no further judicial proceeding is required to transfer title.

He who has fraudulently dispossessed himself of a thing may be treated as if he still had possession.

Qui dolo desierit possidere, pro possidente damnatur.

Source: Wharton, III-B-9

A person who fraudulently divests himself of possession of property may still be treated as if he retained it. This prevents a wrongdoer from evading an action for recovery by voluntarily parting with possession before suit is brought.

He has better title who was first in point of time.

Source: Co. Litt. 14a; Weisman, 91ll

(English-origin maxim.) Priority in time gives superiority of right — the first to establish a claim has the better title, all else being equal.

The law of God and the law of the land are all one, and both preserve and favor the common and public good of the land.

Le ley de Dieu et le ley de terre sont tout un, et l'un et l'autre preferre et savour le common et publique bien del terre.

Source: Keilw. 191; Wharton; Weisman, 70q

Divine law and the law of the land share a common purpose — the protection of the public good and the common rights of the people. Neither contradicts the other when rightly understood.

Whose is the soil, his it is even to the sky above and to the depths below.

Cujus est solum, ejus est usque ad coelum et ad inferos.

Source: Co. Litt. 4a; Wharton, Legal Maxims, Max. 24; Broom, Max. 395; 2 Bl. Comm. 18; 9 Co. 54; C.L.M.; Weisman, 70f

The owner of land owns everything above and below it to an indefinite extent — the surface is merely the midpoint of his dominion.

Land comprehends every ground, soil, or earth whatsoever — meadows, pastures, woods, moors, waters, and marshes.

Terra comprehendit omnem rem, solum, seu fundamentum quodcunque.

Source: Co. Litt. 4a; Weisman, 70w

"Land" in law is the broadest term — it encompasses not merely dry soil but every type of ground and the water that covers it.

Land lying unoccupied is given to the first occupant.

Terra manens vacua occupanti conceditur.

Source: C.L.M.; Dig. 41.1.3; 2 Bl. Comm. 258; Weisman, 70e

Where land has no owner, the first man to take actual possession establishes the original right.

Whatever is planted in the soil belongs to the soil.

Quicquid plantatur solo, solo cedit.

Source: Inst. 2.1.32; 2 Bouv. Inst. n. 1572; Dig. 41.1.7.10

Whatever takes root in the soil becomes the property of the landowner, regardless of who planted it — a trespasser who plants crops on another's land loses them, and a tenant's plantings revert to the landlord absent a contrary agreement. Cite this in disputes over ownership of timber, orchards, or improvements affixed to land.

Whatever is built upon the soil belongs to the soil.

Quicquid inaedificatur solo, solo cedit.

Source: Broom, Max. 401-431; Inst. 2.1.29; Co. Litt. 4a; Fleta, lib. 3, c. 2, s. 12

Buildings, fences, walls, and all permanent structures affixed to land become part of the land — they pass with a grant of the soil.

Water follows the land.

Aqua cedit solo.

Source: 2 Bl. Comm. 18; Co. Litt. 4; Weisman, 70k

A sale of land passes the water covering it — the owner of the bank owns the stream.

Water runs and ought to run as it has been accustomed to run.

Aqua currit et debet currere, ut currere solebat.

Source: Bouvier, Max. 118; 3 Kent, Comm. 439; Kauffman v. Griesemer, 26 Pa. St. 407, 413; Weisman, 70l

No landowner may divert the natural flow of water to the injury of his neighbor — the watercourse belongs to the land through which it naturally runs.

Prescription is a title derived from use and time, having the force of law.

Praescriptio est titulus ex usu et tempore.

Source: Co. Litt. 113

Rights of dominion may be acquired by long and uninterrupted use — time, combined with quiet possession, creates title.

Use your own property so as not to injure another's.

Sic utere tuo ut alienum non laedas.

Source: Broom, Max. 364; 9 Co. 59; Wharton, Legal Maxims, Max. 80; 3 Bl. Comm. 217; Weisman, 59r

Ownership is not license for abuse — every man must exercise his property rights with due regard to his neighbor's equal rights.

Every innovation disturbs more by its novelty than it benefits by its utility.

Omnis innovatio plus novitate perturbat quam utilitate prodest.

Source: 2 Co. 36; Broom, *Legal Maxims* (1874)

The law disfavors unnecessary change — established customs and settled property rights should not be lightly overturned for the sake of novelty.

Allodial land is that possessed by a man in his own right, free and absolute, owing no rent or service to any superior.

Allodium est praedium liberum ab omni servitio.

Source: 2 Bl. Comm. 104; 3 Kent, Comm. 495; 4 Kent, Comm. 2; Barker v. Dayton, 28 Wis. 367, 377; Weisman, 70p

In America, all land is held in allodium — the citizen owns in his own right, free of feudal obligation, and no government officer is his landlord.

Hanging fruits are considered part of the land.

Fructus pendentes pars fundi videntur.

Source: Dig. 6.1.44; 2 Bouv. Inst. n. 1578; Weisman, 70t

Ungathered crops growing upon the land belong to the landowner — once severed, they become personal property.

Not right, but seisin, makes the stock of descent. (But see now 3 & 4 Will. IV. c. 106.).

Non jus, sed seisina, facit stipitem.

Source: Fleta, 6, c. 14; Jackson

At common law, the line of descent is traced from the person last seized (in actual possession), not from the person who held the mere right — actual seisin, not bare title, determines inheritance.

A reversion of land is as it were the return of the land to the possession of the donor or his heirs after the termination of the estate granted.

Reversio terrae est tanquam terra revertens in possessione donatori sive heredibus suis post donum finitum.

Source: Co. Litt. 142; Jackson

When a lesser estate (life estate, term of years) expires, the land reverts automatically to the grantor or his heirs — the reversion is a present interest, vested from the moment the grant is made.

Tenure is a compact contrary to the common nature of the fee, put into a contract.

Tenor est pactio contra communem feudi naturam ac rationem in contractu interposita.

Source: Wright, Ten. 21; Jackson

Tenure modifies the natural freedom of the fee by imposing conditions of service or obligation — it is an artificial arrangement that restricts what would otherwise be absolute ownership.

Rivers and ports are public, therefore the right of fishing there is common to all.

Flumina et portus publica sunt, ideoque jus piscandi omnibus commune est.

Source: Bouvier, *Law Dictionary* (1856); Weisman, 86n

Navigable rivers and public ports belong to no private owner — the right to use them, including the right of fishing, is a common right of the People.

Gathered fruits do not make a part of the house.

Fructus perceptos villae non esse constat.

Source: Dig. 19, 1, 17, 1; 2 Bouv. Inst. n. 1578; Bouvier, *Law Dictionary* (1856); Weisman, 70u; Weisman, 83j

Once crops are harvested and severed from the soil, they cease to be part of the realty and become personal property — the distinction between fructus pendentes and fructus percepti governs whether they pass with the land.

An estate in free and pure allodium, and an estate in fee simple absolute, refer to essentially the same thing.

Source: 4 Kent, Comm. 2; Weisman, 70a

(English-origin maxim.) Allodial title and fee simple absolute describe the same thing: absolute ownership of land free from any superior lord or rent, the highest estate known to law.

What the original estate determines, the derivative estate determines also.

Source: 8 Coke, 34; Broom, Max. 495; Weisman, 70b

(English-origin maxim.) A derivative estate cannot outlast the estate from which it was carved — when the original grant expires or is defeated, every lesser estate carved out of it falls with it.

An alien holds no lands.

Source: Tray. Lat. Max. 203; Weisman, 70g

(English-origin maxim.) At common law, an alien could not hold freehold land — the capacity to own real property was tied to allegiance, and one who owed no allegiance could acquire no estate.

The shore is where the highest wave from the sea has reached.

Source: Dig. 50, 16, 96; Weisman, 70h

(English-origin maxim.) The boundary between sea and land is fixed at the line of the highest tide — everything below that line belongs to the public. In the American system, the sovereign is the People, and public trust lands below the high-water mark are held for their benefit, not for the government's exclusive use.

In no tenement which is held for a term of years is there an avail of homage; but there is the oath of fealty (loyalty).

Source: Co. Litt. 67b; Weisman, 70i

(English-origin maxim.) A tenant for years owes fealty but not homage — the oath of loyalty is required of all tenants, but the ceremony of homage is reserved for freehold estates.

The situation and productiveness of the soil constitutes the value of the land.

Source: West River Bridge v. Dix, 6 Howard (47 U.S.) 507, 537; Weisman, 70m

(English-origin maxim.) In assessing the value of land for any legal purpose — condemnation, taxation, or damages — the court must consider both the quality of the soil and its productive capacity.

Whichever of two parties has the division of an estate, the choice of the shares is the other's.

Source: Co. Litt. 166b; Weisman, 70s

(English-origin maxim.) When one co-owner divides the estate, the other has the right to choose which share he will take — the power of partition and the power of election are separated to ensure fairness.

Every entry on lands without the owner's leave, or authority of law, is a trespass.

Source: C.L.M.; Weisman, 70c

(English-origin maxim.) The right to exclude others from one's land is among the most ancient rights secured by the common law — any unauthorized entry, whether by a private party or a government agent acting without lawful warrant or the owner's consent, constitutes a trespass actionable at law regardless of whether actual damage is shown.

A fee cannot in any way be constituted without investiture.

Feudum sine investitura nullo modo constitui potest.

Source: Wharton, III-114

A feudal estate cannot be created without investiture — actual delivery of possession (livery of seisin) is essential to the creation of a freehold interest in land.

That which ought to have been done, is to be regarded as done, in favor of him to whom, and against him from whom, performance is due.

Source: Story Eq. Jur. § 64; Adams' Equity, 74; Burch v. Newberry, 1 Barb. 648, 664; Hasbrouck v. Paddock, 1 Id. 635; Craig v. Leslie, 3 Wheat. 563; Roosevelt v. Bank of Niagara, Hopk. 583; Wharton, III-B-20

(English-origin maxim.) Equity treats as done what ought to have been done. An agreement for valuable consideration is treated as executed from the date performance was due. Money agreed to be laid out in land is treated as real estate; land contracted to be sold is treated as money.

Buildings pass by a grant of the land.

Source: Fleta, lib. 3, c. 2, s. 12; Weisman, 70o

(English-origin maxim.) A conveyance of land includes all structures upon it — buildings are part of the realty and pass with the soil unless expressly excluded.

Hanging fruits make part of the land.

Source: Dig. 6, 1, 44; 2 Bouv. Inst. n. 1578; Weisman, 70t

Unharvested crops are part of the real property — they pass with the land in a conveyance and are treated as realty until severed.

The law of God and the law of the land are one, and both preserve and favor the private rights to the land.

Lex Dei et lex terrae omnia una, et ambo conservant et praeferunt jura privata ad terram.

Source: Keilw. 191

The divine law and the common law unite in one purpose: the protection of every man's private right to his land and home.

Every man's house is his safest refuge.

Domus sua cuique est tutissimum refugium.

Source: 5 Co. 91b; 3 Inst. 162; Dig. 2.4.18; Broom, Max. 432; Weisman, 54d; Weisman, 54f

The law regards the home as the ultimate sanctuary — no power may breach it without the most urgent lawful necessity.

Every man's house is his castle and fortress, not merely for his own protection, but for the protection of his family and his property therein.

Domus sua cuique est castrum et fortissimum.

Source: 5 Co. 91b; Broom, Max. 432; Curtis v. Hubbard, 4 Hill (N.Y.) 437; Weisman, 54g

The "castle doctrine" means the home is fortified by law against all intruders — the householder defends not only himself but his family and goods.

Nothing is more sacred, more inviolate, than the house of every citizen.

Nihil est magis sacrum, magis inviolatum, quam domus uniuscujusque civis.

Source: C.L.M.; Dig. 50.17.103; 5 Co. 91, 92; Weisman, 54c

The sanctity of the home is among the highest protections the law affords — even the winds of heaven may blow through it, but the government may not enter without warrant.

No citizen may be dragged from his house to be conducted before a judge or to prison.

Nemo de domo sua extrahi debet.

Source: Dig. 50.17.103; Weisman, 54e

The home is so protected that the person within it may not be seized by force — process must be served, not executed by violence at the threshold.

It is settled that that place is to be considered the home of each man where he has his habitation and has established his business.

Domus est constitutum habitaculum.

Source: Dig. 50.16.203; Arnold v. United Ins. Co., 1 Johns. Cas. (N.Y.) 363, 366; Weisman, 54b

Domicile is fixed by habitation and intent — where a man dwells and keeps his accounts, there the law considers him at home.

A home is a social unit formed by a family living together in one dwelling.

Domus est societas quaedam a familia cohabitante formata.

Source: Anaya v. Foundation Res. Ins. Co., 414 P.2d 848, 849; Weisman, 54h

The home is defined not by walls but by the family within — a dwelling becomes a home when a family makes it the seat of their common life.

Every person has exclusive dominion over the soil which he absolutely owns; hence such owner has the exclusive right of hunting and fishing on his land, and the waters covering it.

Omnis persona habet exclusivam dominationem super solum quod absolute possidet.

Source: L. Realty Co. v. Johnson, 92 Minn. 363, 365; Weisman, 70j

Absolute ownership carries absolute dominion over every use of the land — including every creature and watercourse upon it.

It is not permitted to build upon one’s own land what may be injurious to another.

Aedificare in tuo proprio solo non licet quod alteri noceat.

Source: 3 Inst. 201; Jackson

Ownership of land does not confer the right to erect structures that cause harm to a neighbor — the right of property is bounded by the equal rights of others.

A man shall not be punished for suing out writs in the king’s court, whether he be right or wrong.

Home ne serra puny pur suer des briefes en court le roy, soit il a droit ou a tort.

Source: 2 Inst. 228; Jackson

The right of access to the courts is fundamental — no man may be penalized for seeking judicial remedy, even if his cause ultimately fails.

Residence creates domicile.

Source: Arnold v. United Ins. Co., 1 Johns. Cas. (N.Y.) 363, 366; Weisman, 54a

(English-origin maxim.) The fact of dwelling in a place establishes legal domicile — actual residence, not mere intent, creates the jurisdictional tie between a person and a locality.

Every man's house should be a perfectly safe refuge.

Source: 3 Inst. 162; Clason v. Shotwell, 12 Johns. (N.Y.) 31, 54; 5 Coke, 91b; 11 Coke, 82; Weisman, 54f

(English-origin maxim.) The home is sacred and inviolate — it must be a place of perfect safety from both private intrusion and government overreach.

A gift is perfected by the possession of the receiver.

Donatio perficitur possessione accipientis.

Source: Jenk. Cent. 109, case 9; 2 Kent, Comm. 438; Ewing v. Ewing, 2 Leigh (Va.) 337; Weisman, 48s

No gift is complete until the thing given passes into the hands of the recipient — intent alone does not transfer property.

The donor never ceases to possess until the donee begins to possess.

Nunquam donator desinit possidere, antequam donatarius incipiat possidere.

Source: Bract. fol. 41b; Dyer, 281; Weisman, 48u

There is no gap in ownership — the donor holds until the moment the recipient takes, and at that instant ownership transfers.

No man can transfer to another a greater right than he himself has.

Nemo plus juris ad alienum transferre potest quam ipse haberet.

Source: Dig. 50.17.54; Broom, Max. 499n; Noy, Max. 9th ed.; Weisman, 86l

This is the universal limit on all transfers — a grantor cannot convey what he does not own, whether it be property, power, or privilege.

Clandestine gifts are always suspicious.

Dona clandestina sunt semper suspiciosa.

Source: 3 Co. 81; Noy, Max. 152; Jackson, Latin for Lawyers, 1915; Weisman, 48c

Secret transfers raise the presumption of fraud — the law expects transactions in property to be open and visible.

He who gives an end gives the means to that end.

Qui dat finem, dat media ad finem.

Source: 3 Mass. 129; Weisman, 52h

A grant of a right carries with it everything necessary to exercise that right — the law will not allow a grant to be rendered futile for want of means.

When anything is granted, that also is granted without which the thing granted cannot exist.

Quando aliquid conceditur, conceditur et id sine quo res ipsa esse non potest.

Source: 11 Co. 52; Shep. Touch. 89; Hob. 234; 3 Kent, Comm. 421; Jenk. Cent. 32, case 63; Weisman, 52b

A grant of land carries the right of access; a grant of water carries the right to the channel — every grant includes its necessary incidents.

The manner gives law to the gift.

Modus legem dat donationi.

Source: Co. Litt. 19a; Weisman, 48f; Weisman, 48k

The terms and conditions attached to a gift by the donor govern its use — the recipient takes subject to the mode prescribed.

The will of the donor, manifestly expressed in his deed of gift, is to be observed.

Voluntas donatoris in carta doni sui manifeste expressa observetur.

Source: Co. Litt. 21; Weisman, 48h

The donor's intent, when clearly stated in the instrument of gift, binds all parties — no court may rewrite a deed of gift against the donor's expressed will.

Whatever is built upon the soil belongs to the soil; buildings belong to the soil.

Omne quod solo inaedificatur solo cedit; aedificia solo cedunt.

Source: Fleta, lib. 3, c. 2, s. 12; Broom, Max. 401; Weisman, 70r

A conveyance of land carries every structure upon it — the grantee takes the buildings without separate mention.

Every grant is to be interpreted most strongly against the grantor.

Concessio versus concedentem latam interpretationem habere debet.

Source: Co. Litt. 183a; Chelsea v. Malden, 4 Mass. 134; Weisman, 52c

Where a grant is ambiguous, the grantee is favored — the grantor who chose the words bears the burden of any uncertainty.

A gift is not presumed.

Donatio non praesumitur.

Source: Jenk. Cent. 109; Jackson; Weisman, 48q

The law does not presume that a transfer of property was intended as a gift — a gift must be proven by clear evidence of donative intent and delivery.

Some gifts are perfect, others incipient and not perfect; as if a gift were read and granted, but delivery had not yet followed.

Donationum alia perfecta, alia incepta et non perfecta; ut si donatio lecta fuit et concessa, ac traditio nondum fuerit subsecuta.

Source: Co. Litt. 56; Jackson

A gift is imperfect until delivery is complete — a declared intent to give, even formally recorded, does not transfer ownership without actual or constructive delivery to the donee.

He who gives a thing by mistake has a right to recover it back; but, if he gives designedly (with knowledge of the facts), it is a gift.

Source: Dig. 50, 17, 53; Weisman, 48a

(English-origin maxim.) A gift made under mistake of fact may be recovered, but a gift made deliberately and with full knowledge is irrevocable — intent and knowledge at the time of giving determine whether restitution lies.

One who gives and yet retains does not give effectually. Or, one who gives, yet retains, gives nothing.

Source: Tray. Leg. Max. 129; Weisman, 48b

(English-origin maxim.) A purported gift where the giver retains possession or control is no gift at all — delivery must be complete and unconditional to perfect the transfer.

No man can give that which he has not.

Source: Fleta, lib. 3, c. 15, s. 8; Jenk. Cent. 250; Broom, Max. 499n; Jackson v. Bradford, 4 Wend. (N.Y.) 619; Shep. Touch. 243; Weisman, 48d

(English-origin maxim.) No man can give away what does not belong to him — the donor must have title to the thing given, or the gift is a nullity.

That is considered to be given which is granted when no law compels.

Source: Dig. 50, 17, 82; Weisman, 48e

(English-origin maxim.) A voluntary transfer made without legal compulsion is treated as a gift — the absence of obligation distinguishes a gift from a payment or a performance.

A bequest is not rendered void by an erroneous description.

Source: Inst. 2, 20, 30; Broom, Max. 645; Weisman, 48g

(English-origin maxim.) A bequest that incorrectly describes the thing given is not thereby voided — if the intended subject can be identified despite the error, the gift is upheld.

A gift is said to be pure and simple when no condition or qualification is annexed.

Source: Bract. 1; Bouv. 158; Weisman, 48i

(English-origin maxim.) A gift made without conditions or qualifications is absolute and irrevocable from the moment of delivery — no strings may be implied where none were expressed.

He gives nothing who has nothing.

Nihil dat qui non habet.

Source: Cycl. Diet. 693; Weisman, 48m

A person who owns nothing has nothing to give — the purported gift or conveyance of another's property passes no title and confers no right on the recipient.

That which one has given, knowing it not to be due, with the intention of redemanding it, he cannot recover back.

Source: Dig. 12, 6, 50; Walker v. Hill, 17 Mass. 388; Weisman, 48n

(English-origin maxim.) One who knowingly pays what is not owed, intending to demand it back later, cannot recover — the deliberate payment with knowledge forecloses the claim for restitution.

To present is no more than to give or offer on the spot.

Source: Co. Litt. 120; Weisman, 48p

(English-origin maxim.) To present a thing is to deliver it on the spot — presentment is an immediate, in-person act of giving or offering, not a future promise.

Among other methods of acquiring property, a great, much-used, and celebrated method is that of gift.

Source: Bract. fol. 11; Weisman, 48r

(English-origin maxim.) Gift is one of the principal modes of acquiring property recognized at law — voluntary transfer without consideration is as valid a conveyance as sale or exchange.

He who has a right to give has the right to dispose of the gift.

Source: Wing. Max. 53; 2 Coke, 71; Broom, Max. 459, 461; Weisman, 48t

(English-origin maxim.) The power of disposition follows the power of giving — he who may give freely may also direct the terms and manner of the gift.

It is necessary that a certain thing be brought into the gift, or made the subject of the conveyance.

Source: Bract. fol. 15b; Weisman, 48v

(English-origin maxim.) Every gift or conveyance must identify a definite thing as its subject — an attempt to give or convey something uncertain or indeterminate is void for want of a subject.

Permission is a license to do a thing or an authority to do an act, without such authority, would have been unlawful.

Source: Black's, 893; Weisman, 52d

(English-origin maxim.) A license or permission authorizes what would otherwise be unlawful — absent such authority, the act remains a trespass or wrong.

He who is permitted to do the greater may with greater reason do the less.

Source: Dig. 50, 17, 21; Broom, Max. 3d Lond. ed. 165; Shep. Touch. 429; Weisman, 52f

(English-origin maxim.) He who is authorized to do the greater thing is by necessary implication authorized to do the lesser — a grant of broad power includes every narrower power within it.

That which is granted or reserved in a certain specified form must be taken as it is granted, and will not be permitted to be made the subject of any adjustment or compensation on the part of the grantee.

Source: Ex parte Miller, 2 Hill (NY) 423; Bacon, Max. 26, reg. 4; Weisman, 52i

(English-origin maxim.) A grant made in a specific form must be taken exactly as stated — the grantee may not adjust, compensate, or substitute terms that were fixed by the grantor.

That which is permitted only at a loss is not permitted to be done.

Source: Co. Litt. 127; Weisman, 52j

(English-origin maxim.) An act that can only be performed at a loss is not truly permitted — the law does not grant permission that would destroy the very right it purports to allow.

To permit is to allow by passive consent or not hindering; or to grant leave to by express consent or authorization.

Source: Hill v. Montgomery, 176 S.W.2d 284, 287, 352 Mo. 147; Weisman, 52k

(English-origin maxim.) Permission may be given either expressly by words of authorization or impliedly by passive acquiescence — silence in the face of another's act may constitute permission.

If a man grant that which is not his, the grant is void.

Source: Shep. Touch. 243; Watk. Conv. 191; Weisman, 52l

(English-origin maxim.) A grant of what the grantor does not own is void ab initio — no interest passes, and the grantee acquires nothing regardless of the form of the conveyance.

Measure gives validity to the grant.

Source: C.L.M.; Weisman, 52a

(English-origin maxim.) A grant must specify with certainty the quantity, bounds, or measure of what is conveyed — without definite measure, the grant is void for uncertainty. This applies equally to delegations of governmental power: authority not defined in scope and measure by the People's constitutions is authority never granted.

The wrong-doer shall never be heard in court to claim that his felony, or other wrong, gives him any advantage as a defense.

Source: Wharton, III-346

(English-origin maxim.) A wrongdoer cannot invoke his own crime or tort as a shield in court — no man profits from his own wrong, and the law will not hear a defense built on the defender's own misconduct.

A grant must be construed with certainty as to the thing granted.

Concessio per regem fieri debet de certitudine.

Source: Bract. fol. 15b; 9 Co. 46; Bacon, Max.

No grant is valid unless the subject of the grant can be identified with certainty — vagueness defeats a conveyance.

Custom gives law to the gift.

Source: Co. Litt. 19; Broom, Max. 459; Weisman, 48k

(English-origin maxim.) The customs and usages surrounding a gift govern its interpretation — where the terms of a gift are ambiguous, established custom fills the gap.

Let the buyer beware; the buyer ought not to be ignorant that he is purchasing the rights of another.

Caveat emptor; qui ignorare non debuit quod jus alienum emit.

Source: Hob. 99; Co. Litt. 102a; Broom, Max. 690; 1 Bouv. Inst. 383; Barnard v. Kellogg, 10 Wall. (77 U.S.) 388; Weisman, 13b

The buyer purchases at his own risk — he is bound to examine the title and quality of what he buys, and ignorance is no defense.

Let the seller beware.

Caveat venditor.

Source: Lofft. 328; Hargous v. Stone, 5 N.Y. 73, 82; Weisman, 13p

The seller is equally bound to deal honestly — misrepresentation or concealment of defects lies at the seller's door.

To sell is one thing; to consent to a sale is another.

Aliud est vendere, aliud vendenti consentire.

Source: Dig. 50.17.160; Weisman, 13a

The owner's consent is the foundation of every lawful sale — a sale without consent is no sale at all.

He who has the right of giving also has the right of selling and granting.

Qui habet jus donandi habet jus vendendi et concedendi.

Source: Dig. 50.17.163; Weisman, 13c; Weisman, 77r

The right to sell flows from the right to own — if a man may give his property away, he may certainly sell it.

In a contract of sale, an ambiguous agreement is to be interpreted against the seller.

In contractu venditionis, ambiguum pactum contra venditorem interpretandum est.

Source: Dig. 50.17.172; Black's, 2d. 64; Weisman, 13q

The seller who drafts the terms bears the risk of unclear language — doubt is resolved in favor of the buyer.

The price stands in the place of the thing sold.

Pretium succedit in locum rei.

Source: 1 Bouv. Inst. n. 939; 2 Bulst. 312; Weisman, 13h

When goods are sold and the price paid, the seller's claim attaches to the money, not the goods — he can no longer reclaim the chattel but must pursue the price. Cite this to defeat a seller's attempt to recover goods after accepting payment, or to establish that the buyer holds full dominion once the exchange is complete.

He is fraudulent who sells the same thing twice.

Fraudulentus est qui rem bis vendit.

Source: Jenk. Cent. 107; Weisman, 13i

Double-dealing in sales is fraud on its face — a man who sells what he has already sold defrauds the second buyer.

No rule of law protects a buyer who willfully closes his ears to information, or refuses to make inquiry when circumstances of grave suspicion imperatively demand it.

Nulla juris regula protegit emptorem qui voluntarie aures claudit.

Source: Lytly v. Lansing, 147 U.S. 59, 72; Weisman, 13s

The buyer who refuses to investigate what a reasonable man would suspect forfeits the law's protection — willful blindness is no better than knowledge.

The law favors public commerce.

Lex favet commercium publicum.

Source: Wing. Max. p. 738, max. 198; Weisman, 13k

Free exchange among men is favored by the law — restrictions on trade are disfavored and narrowly construed.

There shall be no commerce in illicit or prohibited goods.

Commercium illicitarum vel prohibitarum rerum non est habendum.

Source: 3 Kent, Comm. 262, note; Weisman, 13d

Commerce is favored, but not in things that are inherently wrong — the law will not enforce a bargain in unlawful goods.

Those things which are said for the sake of commendation in sales, if they are plainly apparent, do not bind the seller.

Ea quae commendandi causa in venditionibus dicuntur, si palam appareant, venditorem non obligant.

Source: D. 18, 1, 43; Jackson; Weisman, 13n

Obvious sales puffery — exaggerated praise that no reasonable buyer would take as a guarantee — does not create a warranty binding on the seller.

The payment of the price stands in the place of the purchase.

Solutio pretii emptionis loco habetur.

Source: Jenk. Cent. 56; Jackson; Weisman, 13f

Payment of the agreed price is equivalent to the purchase itself — once the price is tendered, the buyer's right to the thing sold is complete.

No one is bound to sell his property, even for a just price.

Nemo cogitur rem suam vendere, etiam justo pretio.

Source: Bouvier, *Law Dictionary* (1856)

The right of property includes the absolute right to refuse to sell — no compulsion, not even the offer of fair value, can force a man to part with what is his.

The purchaser runs the risk of the loss of a thing sold, though not yet delivered.

Periculum rei venditae, nondum traditae, est emptoris.

Source: 1 Bouv. Inst. n. 939; 4 B. & C. 941; Bouvier, *Law Dictionary* (1856); Weisman, 13e

Once the sale is agreed upon, the risk of loss passes to the buyer even before physical delivery — the buyer's title is complete upon agreement, and the loss falls where the title rests.

In the price of buying and selling, it is naturally allowed to the contracting parties to overreach each other.

Source: 1 Story, Cont. 606; Weisman, 13g

(English-origin maxim.) In arm's-length bargaining over price, each party is naturally permitted to seek the best deal — the law does not police hard bargaining absent fraud or duress.

Purchaser without notice is not obliged to discover his own hurt.

Source: Inst. n. 4336; 4 Bouv; Weisman, 13l

(English-origin maxim.) A bona fide purchaser without notice of a defect in title is not required to investigate beyond what appears on the face of the transaction — the law protects innocent buyers.

Mere recommendation of an article does not bind the vendor of it.

Source: Dig. 4, 3, 37; 2 Kent, Comm. 485; Broom, Max. 781; Weisman, 13m

(English-origin maxim.) Mere praise or recommendation of goods by the seller does not create a warranty — the buyer must distinguish between puffery and a binding representation.

A trustee can never be a purchaser.

Source: Wharton, III-33

(English-origin maxim.) A trustee is absolutely prohibited from purchasing the trust property — the fiduciary duty to the beneficiary is incompatible with the self-interest of a buyer.

Be careful, purchaser.

Source: Wharton, III-38

(English-origin maxim.) The buyer must exercise caution and diligence before purchasing — the law places the burden of investigation on the purchaser.

The buyer buys for the least he can; the seller sells for the most he can.

Emptor emit quam minimo potest ; venditor vendit quam maximo potest.

Source: 2 Kent, Comm. 486; Davoue v. Fanning, 2 Johns. Ch. (N.Y.) 252, 256; Weisman, 13r; Wharton, III-79

Each party to a sale lawfully pursues his own economic advantage — the buyer aims low and the seller aims high, and no wrong lies in driving a hard bargain absent fraud.

A guardian cannot act in the capacity of both buyer and seller.

Item ipse tutor et emptoris et venditoris officio fungi non potest.

Source: Wharton, III-154

A guardian cannot act as both buyer and seller in the same transaction — the duty of undivided loyalty to the ward forbids the trustee from occupying both sides of a dealing.

Inheritance is the succession to every right which the deceased had.

Haereditas est successio in universum jus quod defunctus habuerit.

Source: Co. Litt. 237; Dig. 50.17.62

The heir steps into the shoes of the dead — he takes all rights, all obligations, and all property that the ancestor lawfully held.

God alone makes the heir, not man.

Solus Deus haeredem facit, non homo.

Source: Co. Litt. 5, 7b; Broom, Max. 516; Weisman, 58o

The heir is determined by blood and by law, not by the contrivance of men — descent is a matter of divine and natural order, not human invention.

No one is heir to the living.

Nemo est haeres viventis.

Source: Co. Litt. 8a, 22b; 2 Bl. Comm. 70; 2 Bouv. Inst. n. 1694; Weisman, 58ll

A man has no heir while he lives — inheritance opens only at death, and no expectation of inheritance creates a present right.

The heir is part of his ancestor.

Haeres est pars antecessoris.

Source: Co. Litt. 22; Schoonmaker v. Sheely, 3 Hill (N.Y.) 165, 167

In law, the heir is treated as a continuation of the ancestor's legal identity — the ancestor lives on through the heir for purposes of right and obligation.

He who would have been heir to the father shall also be heir of the son.

Qui doit inheriter al pere doit inheriter al fils.

Source: 2 Bl. Comm. 239, 250; Broom, Max. 517; Weisman, 58z

Descent follows the blood, not the name — if a son dies intestate, the estate passes to the same line that would have inherited from his father. Cite this to establish the order of inheritance when an intermediate heir dies without issue, ensuring the property reverts to the ancestral bloodline rather than passing to strangers.

He who is in the womb is considered as born, whenever his benefit is concerned.

In utero existens pro jam nato habetur, quoties de ejus commodo quaeritur.

Source: Bouvier, Max. 151; Black's, 979; Dig. 1.5.7

A child conceived but not yet born is treated as already alive for purposes of inheritance — the law protects his right from the moment of conception.

The right of survivorship, for the benefit of commerce, holds no place among merchants.

Jus accrescendi inter mercatores pro beneficio commercii locum non habet.

Source: C.L.M.; Co. Litt. 182; Weisman, 58r

Among business partners, a deceased partner's share passes to his heirs, not to the surviving partner — commerce requires certainty of succession.

A greater inheritance comes to every one of us from right and the laws than from parents.

Major haereditas venit unicuique nostrum a jure et legibus quam a parentibus.

Source: 2 Inst. 56; Weisman, 58kk

The rights and liberties secured by law are a greater patrimony than any estate of land or goods — every man inherits the common law itself.

One blood being wanting, he cannot be heir.

Deficiente uno sanguine non potest esse haeres.

Source: 3 Co. 41; Jackson

Inheritance requires the blood connection — where the claimant lacks the requisite line of descent from the ancestor, he cannot inherit, regardless of other considerations.

A brother shall not succeed a uterine brother in the paternal inheritance.

Frater fratri uterino non succedet in haereditate paterna.

Source: Fort. de Laud, by Amos, 15; Jackson

A half-brother related only through the mother cannot inherit lands that descend through the paternal line — the blood of the father is required for paternal inheritance.

An heir is either by right of property or by right of representation.

Haeres est aut jure proprietatis, aut jure representationis.

Source: 3 Co. 40; Jackson; Weisman, 58dd

One inherits either in his own right (as the nearest blood heir) or by representation (standing in the place of a deceased ancestor who would have inherited) — these are the only two modes of succession.

The heir is the same person with his ancestor, a part of his ancestor.

Haeres est eadem persona cum antecessore, pars antecessoris.

Source: Co. Litt. 22; Jackson

In the legal fiction of descent, the heir is treated as a continuation of the ancestor's legal identity — what bound the ancestor binds the heir, and the ancestor's rights vest in the heir without interruption.

Heir is a collective name.

Haeres est nomen collectivum.

Source: 1 Vent. 215; Jackson

The word "heir" comprehends not only the immediate successor but the entire line of successors — it is a word of limitation denoting all who may inherit in succession.

The heir succeeds to the restitution, not to the penalty.

In restitutionem, non in poenam haeres succedit.

Source: 2 Inst. 198; Jackson; Weisman, 58y

An heir inherits the obligation to make restitution for wrongs committed by the ancestor, but does not inherit criminal penalties — punishment is personal and dies with the offender.

All sisters are as it were one heir to one inheritance.

Omnes sorores sunt quasi unus haeres de una haereditate.

Source: Co. Litt. 67; Jackson; Weisman, 58aa

When daughters inherit in the absence of sons, they take together as coparceners — they are treated collectively as a single heir, sharing the inheritance equally among them.

Inheritance is not to be understood as comprehending only the lands and tenements which a man has by descent; but also every fee simple or fee tail which he has by purchase is also called inheritance, because his heirs can inherit it from him.

Haereditas n'est pas tant solement entendue lou home ad terres ou tenements per discent d'enheritage, mes auxi chescun fee simple ou tail que home ad per son purchase puit estre dit enheritance, pur ceo que ses heirs luy purront enheriter.

Source: Co. Litt. 26; Wharton

The term "inheritance" extends beyond lands received by descent to include any estate of freehold acquired by purchase — if heirs can succeed to it, it is an inheritance regardless of how the ancestor obtained it.

A right descends, not the land.

Jus descendit et non terra.

Source: Co. Litt. 345; Bouvier, *Law Dictionary* (1856); Weisman, 70d

What passes by descent is the legal right to the land, not the land itself — the heir inherits a title, not the physical soil.

He who is nearer excludes him who is near; he who is near, him who is remote; he who is remote, him who is more remote.

Propinquior excludit propinquum; propinquus remotum; et remotus remotiorem.

Source: Co. Litt. 10; Bouvier, *Law Dictionary* (1856)

The order of inheritance follows proximity of blood — the nearer in degree always excludes the more remote, tracing the line from the deceased outward.

Not right, but seisin (legal possession), makes a stock from which the inheritance must descend.

Source: Fleta, 1.6, cc. 14, 2, s. 2; Noy, Max. 9th ed. 72, n. (b); Broom, Max. 466; 2 Bl. Comm. 388, 389; Weisman, 58d; Weisman, 91gg

(English-origin maxim.) Inheritance descends from the person who was actually seised (in legal possession), not merely from one who had a right of entry or a bare right — seisin, not abstract right, is the root of descent.

Fee-tail, an inheritance limited in a definite descent.

Source: Litt. s. 13; Black's, 2d. 491; Weisman, 58g

(English-origin maxim.) A fee tail is an estate of inheritance limited to a particular line of heirs — it descends only to the issue of the body of the grantee, and upon failure of such issue, it reverts.

No one can at the same time be the heir and the owner of the same tenement.

Source: Hale, Com. Law, c. 7; Bouv. 141; Weisman, 58q

(English-origin maxim.) A person cannot simultaneously be both heir and owner of the same tenement — the two capacities are incompatible because the heir's right exists only in expectation of the owner's death.

A penal action is not given against an heir, unless such heir is benefited by the wrong.

Source: Black's, 2d. 25; 2 Inst. 442; Weisman, 58t

(English-origin maxim.) An heir is not liable for the penal consequences of his ancestor's wrongs unless the heir has personally benefited from those wrongs — punishment does not pass by descent.

He who provides for himself provides for his heirs.

Source: Black's, 2d. 980; Weisman, 58u; Weisman, 58p

(English-origin maxim.) The prudent man who secures his own affairs thereby secures his heirs — what the ancestor builds lawfully, the heir inherits.

The presumption is in favor of legitimacy.

Source: 1 Bl. Comm. 457; 5 Coke, 98b; Co. Litt. 126a; Weisman, 58bb

(English-origin maxim.) The law presumes that a child born in wedlock is legitimate — the burden of proving illegitimacy falls on the party asserting it, and the standard is exacting.

Possession of the brother in fee-simple makes the sister to be heir.

Source: 3 Coke, 42; 2 Bl. Comm. 227; Weisman, 58cc

(English-origin maxim.) Where a brother dies seised in fee simple, his sister becomes his heir — seisin in the brother at death is what vests the right of inheritance in the sister.

An heir is a part of his ancestor.

Source: Co. Litt. 22; Branch, Princ.; Schoonmaker v. Sheely, 3 Hill. (N.Y.) 165, 167; C.L.M; Co. Litt. 8a; Broom, Max. 519; Weisman, 58ee

(English-origin maxim.) The heir is treated as a continuation of the ancestor's legal person — the rights, obligations, and seisin of the ancestor flow through to the heir without interruption.

A yearly increase goes to enhance the inheritance.

Source: Dig. 5, 3, 20, 3; Weisman, 58hh

(English-origin maxim.) Annual profits and increase of the estate augment the inheritance — rents, crops, and natural increase of livestock all pass to the heir as part of the inherited estate.

The law favors the inheritance of a man.

Source: C.L.M.; Weisman, 58h

(English-origin maxim.) The common law strongly favors the descent of property to a man's heirs — ambiguities in deeds, wills, or statutes are construed so as to preserve the inheritance rather than defeat it, because the right to transmit the fruits of one's labor to one's posterity is a natural right that the law merely recognizes and secures.

All sisters are, as it were, one heir to the inheritance.

Source: Co. Litt. 67; Weisman, 58aa

(English-origin maxim.) Where there are no sons, all daughters inherit equally as co-heirs — they are treated as a single heir for purposes of descent.

A son in the mother's womb is part of the mother's vitals.

Source: 7 Coke, 8; Weisman, 58jj

(English-origin maxim.) An unborn child is considered part of the mother — this maxim bears on inheritance rights and the legal status of the unborn.

An inheritance is either corporeal or incorporeal. Corporeal is that which can be touched and seen; incorporeal, that which can neither be touched nor seen.

Source: Co. Litt. 9; Weisman, 58m

(English-origin maxim.) Inheritance extends to both tangible and intangible property — land and goods are corporeal, while rights, titles, and easements are incorporeal.

No one leaves a greater benefit to his heir than he had himself.

Source: Dig. 50, 17, 120; Weisman, 58n

An heir receives no more than the ancestor possessed — the inheritance cannot exceed the estate of the decedent, and encumbrances pass with the property.

Every will is completed by death.

Omne testamentum morte consummatum est.

Source: 3 Co. 29; Co. Litt. 232; 4 Inst. 279; Broom, Max. 555; Weisman, 103h

A will has no legal force until the testator dies — before death, it is merely an expression of intention, revocable at any moment.

In wills, the intention of the testator is more especially regarded.

In testamentis plenius testatoris intentionem scrutamur.

Source: 3 Bulst. 103; Broom, Max. 555; Jenk. Cent. 277; Co. Litt. 322; Weisman, 103e

The cardinal rule of will construction is to give effect to the testator's intent — technicalities of form yield to the substance of his wishes.

We interpret the charters and deeds of laymen benignly, on account of their simplicity.

Benigne interpretamur chartas propter simplicitatem laicorum.

Source: Jenk. Cent. 81; Dig. 50.17.12; Broom, Max. 437, 568

Instruments drafted by laymen — deeds, charters, wills, and other writings — are construed liberally, because those unskilled in legal language should not be defeated by technical deficiency when their intent is discernible. This rule applies with special force to wills, where the testator can no longer clarify his meaning.

Where two conflicting clauses are found in a will, the last shall stand.

Cum duo inter se pugnantia reperiuntur in testamento, ultimum ratum est.

Source: Co. Litt. 112b; Shep. Touch. 451; Broom, Max. 583; Wharton, Legal Maxims, Max. 25; Weisman, 103b; Weisman, 103q

The later clause prevails on the assumption that it represents the testator's final mind — the earlier, inconsistent provision is deemed revoked.

The will of a testator is ambulatory until the last moment of life — he may change it at any time.

Ambulatoria est voluntas defuncti usque ad vitae supremum exitum.

Source: Dig. 34.4.4; 4 Co. 61; 2 Bl. Comm. 502; Weisman, 103v

No will is final until the testator breathes his last — until that moment, he retains absolute power to alter, amend, or revoke it entirely.

The last will of a testator is to be thoroughly fulfilled according to his real intention.

Ultima voluntas testatoris est perimplenda secundum veram intentionem suam.

Source: Co. Litt. 322; Weisman, 103a

The executor's duty is to carry out the testator's wishes as the testator actually intended them — not as the executor might wish them to have been.

Things written in a will which cannot be understood are the same as if they had not been written at all.

Quae in testamento ita sunt scripta ut intelligi non possint, perinde sunt ac si scripta non essent.

Source: Dig. 50.17.73.3; Weisman, 103r

Unintelligible provisions are struck as surplusage — the law will not guess at what cannot be deciphered.

No one is presumed to trifle at the point of death.

Nemo praesumitur ludere in extremis.

Source: Cycl. Dict. 689; 6 Co. 76; Weisman, 103m

A dying man's declarations are presumed to be earnest and sincere — the law gives the greatest weight to words spoken in contemplation of death.

A madman can transact no business, because he does not understand what he does.

Furiosus nullum negotium gerere potest quia non intelligit quid agat.

Source: Dig. 50.17.40; Broom, Max. 314

Legal capacity requires a sound mind — no transaction by one who cannot comprehend the nature and effect of his act has any validity. This applies to contracts, conveyances, wills, and every other legal act without exception.

A testament is the legal declaration of a man's intentions which he wills to be performed after his death.

Testamentum est voluntatis nostrae justa sententia de eo quod quis post mortem suam fieri velit.

Source: 2 Bl. Comm. 499; Inst. 2.10.1; Weisman, 103o

The will is not a contract or a present conveyance — it is a declaration of future intent, taking effect only upon the testator's death.

It concerns the state that men's last wills be held valid.

Interest reipublicae ne hominum testamenta rata habeantur.

Source: Co. Litt. 236b; Black's, 1010; Weisman, 103p

Public policy favors the validity of wills — the law strains to uphold, not defeat, a testamentary disposition, because the right of disposal is fundamental to property itself.

Give your things while they are yours; after death they are not yours.

Da tua dum tua sunt; post mortem tunc tua non sunt.

Source: 3 Bulst. 18; Weisman, 103f

A man who would dispose of his property does well to act in life — after death, the will speaks, but the testator no longer commands.

A legacy is confirmed by the death of the testator, in the same manner as a gift from a living person is confirmed by delivery alone.

Legatum morte testatoris tantum confirmatur, sicut donatio inter vivos traditione sola.

Source: Dyer 143; Bouvier, *Law Dictionary* (1856)

Death is to a legacy what delivery is to a gift inter vivos — until the testator dies, the legacy is merely a promise; at death, it becomes a vested right.

An act already begun, the completion of which depends on the will of the parties, may be recalled; but if it depend on the consent of a third person, or on a contingency, it cannot.

Actus inceptus cujus perfectio pendet ex voluntate partium revocari potest; si autem pendet ex voluntate tertiae personae vel ex contingenti, revocari non potest.

Source: Bac. Max. Reg. 20; Jackson; Weisman, 7d

A revocable act is one that rests entirely in the hands of the parties — once a third party's rights or an external contingency intervene, the power of revocation is lost.

It is the duty of a judge to inquire as well into the time of things as into things themselves; by inquiring into the time you will be safe.

Judicis officium est ut res ita tempora rerum quaerere; quaesito tempore tutus eris.

Source: Co. Litt. 171; Jackson; Weisman, 63w; Weisman, 63bb

Timing is essential to legal rights — a judge must examine not only what was done but when it was done, for the sequence of events often determines validity.

Although the grant of a future interest is inoperative, yet it may become a declaration precedent, which will take effect on the intervention of some new act.

Licet dispositio de interesse futuro sit inutilis, tamen fieri potest declaratio praecedens quae sortiatur effectum, interveniente novo actu.

Source: Bac. Max. Reg. 14; Jackson

A grant of a future interest, though void as a present conveyance, may operate as a declaration of intent that takes effect when a subsequent act completes it.

You will perceive many things more easily by experience than by rules.

Multa exercitatione facilius quam regulis percipies.

Source: 4 Inst. 50; Jackson; Weisman, 69e; Weisman, 95dd

Practical experience is often a better teacher than abstract rules — the law is learned as much by its application as by its study.

The heir ought not to be bound in a penalty for the crime of the deceased.

Poena ex delicto defuncti, haeres teneri non debet.

Source: 2 Inst. 198; Jackson; Weisman, 58v

Criminal penalties are personal and die with the offender — the heir succeeds to the ancestor's property and obligations of restitution, but never to his punishments.

He who does anything by command of a judge will not be supposed to have acted from an improper motive, because it was necessary to obey.

Qui jussu judicis aliquod fecerit non videtur dolo malo fecisse quia parere necesse est.

Source: 10 Co. 76; Jackson

Obedience to a judicial command excuses the actor from imputation of wrongful intent — the necessity of compliance negates the presumption of malice.

What avails in the lesser will avail in the greater; and what does not avail in the greater will not avail in the lesser.

Quod in minori valet valebit in majori; et quod in majori non valet nec valebit in minori.

Source: Co. Litt. 260; Jackson; Weisman, 95k

The argument from lesser to greater (and vice versa) is a fundamental rule of legal reasoning — what holds for a smaller matter holds a fortiori for a larger one.

Simony is the will or desire of buying or selling spiritualities, or things pertaining thereto.

Simonia est voluntas sive desiderium emendi vel vendendi spiritualia vel spiritualibus adhaerentia.

Source: Hob. 167; Jackson

The law forbids the buying and selling of sacred offices, sacraments, and spiritual benefits — such traffic is void as contrary to good morals and the law of the Church.

Things are worth what they will sell for.

Tantum bona valent, quantum vendi possunt.

Source: 3 Inst. 305; Jackson

The true value of goods is their market value — what a willing buyer will pay a willing seller, not any abstract or sentimental valuation.

The intention makes the wording of a will effective.

Voluntas facit quod in testamento scriptum valeat.

Source: D. 30, 1, 12; Jackson

The testator's intent gives life to the words of his will — even imperfect expressions are upheld when the intent behind them can be clearly discerned.

In testaments, the will of the testator should be liberally construed.

Source: Dig. 50, 17, 12; Broom, Max. 3d Lond. ed. 507; Weisman, 103g

(English-origin maxim.) Courts should give the broadest and most liberal reading to a testator's will, favoring validity over technicality, so that the testator's true wishes are carried out.

Old age does not alone and of itself vitiate a will or a gift.

Source: Jackson v. VanDusen, 5 Johns. Ch. (N.Y.) 148, 158; Weisman, 103i

(English-origin maxim.) Advanced age alone does not invalidate a will or gift — the question is always whether the testator had mental capacity, not how many years he had lived.

A person dies intestate who either has made no testament at all or has made one not legally valid; or if the testament he has made be revoked, or made useless; or if no one becomes heir under it.

Source: Inst. 3, 1, pr; Dig. 38, 16, 1; Dig. 50, 16, 64; Weisman, 103k

(English-origin maxim.) A person dies intestate if he made no will, made an invalid will, had his will revoked, or if no one qualifies as heir under its terms — any of these failures triggers the rules of intestate succession.

A testament is the witnessing of one's intention, made under no present fear of danger, but in expectancy of death.

Testamentum, i.e., testatio mentis, facta nullo praesente metu periculi, sed cogitatione mortalitatis.

Source: Weisman, 103j

A valid will must be made freely, without duress or imminent peril clouding judgment — it is a deliberate declaration of intent made in contemplation of mortality, not in the panic of danger.

The right of testaments belongs to the ordinary.

Source: C.L.M.; Weisman, 103t

(English-origin maxim.) Jurisdiction over the probate and administration of wills belongs to the ordinary (the ecclesiastical or probate court) — this maxim establishes that testamentary matters are heard in a specialized forum with original jurisdiction, and no other court may usurp that authority absent express constitutional provision.

It must be shown by the most evident proofs that the testator intended to multiply the legacy.

Evidentissimis probationibus ostendatur testatorem multiplicasse legatum voluisse.

Source: Wharton, III-95

It must be shown by the clearest evidence that a testator intended to multiply a legacy — the law does not presume duplicate bequests, and ambiguity is resolved in favor of a single gift.