family

A fee-simple, so called because fee is the same as inheritance, and simple is the same as legitimate or pure; and thus fee-simple is the same as a legitimate or pure inheritance.

Feodum simplex quia feodum idem est quod hereditas, et simplex idem est quod legitimum vel purum, et sic feodum simplex idem est quod haereditas legitima vel hereditas pura.

Source: Litt. § 1; Jackson; Weisman, 58f

Fee-simple is the highest estate in land — it is an absolute and unconditional inheritance, free from any limitation as to heirs.

A manor is called from “manendo,” according to its excellence, a seat, great, fixed, and firm.

Manerium dicitur a manendo, secundum excellentiam, sedes magna, fixa et stabilis.

Source: Co. Litt. 58; Jackson

The manor, as the permanent seat of lordship and governance, signifies stability — its fixed nature is the basis of the feudal land tenure system and the rights attached thereto.

When anything is prohibited directly, it is also prohibited indirectly.

Quando aliquid prohibetur ex directo prohibetur et per obliquum.

Source: Co. Litt. 223; Jackson; Weisman, 90a

The law cannot be evaded by doing indirectly what it forbids doing directly — a prohibition extends to every method of accomplishing the forbidden result.

The wisdom of the law cannot be valued by money.

Source: Jenk. Cent. 168; Weisman, 71k

(English-origin maxim — no Latin equivalent; the English title is the original form.) The principles of justice embedded in the common law transcend monetary valuation — a court cannot put a price on the rule of law itself, nor can damages adequately compensate for the destruction of legal principle.

Things which are found within the reason of a law are supposed to be within the law itself.

Source: 2 Inst. 689; Weisman, 71qq

(English-origin maxim — no Latin equivalent; the English title is the original form.) Whatever falls within the spirit and purpose of a law is governed by it, even if not expressly named — a statute prohibiting fraud covers schemes not specifically enumerated if they fall within the mischief the law was enacted to remedy.

Where the law compels a man to show cause, it is incumbent that the cause be just and lawful.

Ubi lex aliquem cogit ostendere causam necesse est quod causa sit justa et legitima.

Source: 2 Inst. 269; Jackson; Weisman, 14h

When a party is ordered to show cause, vague or pretextual reasons will not suffice — the cause shown must be substantive, lawful, and sufficient to justify the act in question.

It is lawful to repel force with force.

Vim vi repellere licet.

Source: Weisman, 82d

Self-defense is a natural right — a man may use proportionate force to defend his life, limb, or property against unlawful aggression without waiting for the aid of the law.

Capacity is the attribute of a person by which he may exercise civil rights.

Capacitas est attributum personae per quod jura civilia exercere potest.

Source: Sargent v. Burdett, 96 Ga. 111, 22 S.E. 667; Bouvier, Law Dict.; Weisman, 76d

A party who lacks legal capacity — whether by reason of age, unsoundness of mind, or legal disability — cannot bind himself or others by his acts.

A personal connection equals, in law, a man’s own proper interest.

Persona conjuncta aequiparatur interesse proprio.

Source: Bac. Max. 18; Jackson

A party closely connected by blood or legal relationship is treated as having the same interest as one’s own — this applies when determining standing, interest in litigation, or the right to act on behalf of a connected party.

He who is in the womb is regarded as already born whenever his benefit is in question.

Qui in utero est pro jam nato habetur quoties de ejus commodo quaeritur.

Source: Dig. 1, 5, 7; Co. Litt. 36; Bouvier, Max.

The unborn child is treated as a living person for purposes of inheritance, guardianship, and any other matter where recognizing his existence serves his interest.

Towns and boroughs [municipal corporations] act as if persons.

Source: Warner v. Beers, 23 Wend. (N.Y.) 103, 144; Weisman, 76j

(English-origin maxim.) Municipal corporations are treated as artificial persons in law and may sue, be sued, hold property, and enter contracts — but only within the powers granted by their charter.

A madman has no will.

Furiosi nulla voluntas est.

Source: Dig. 50, 17, 5; Broom, Max. 99; Weisman, 24x; Weisman, 103u

One who is insane cannot form the legal intent necessary to make a binding contract, execute a deed, or commit a crime requiring mens rea.

A minor is to be assisted: a mistake of youth is easy.

Succurritur minori: facilis est lapsus juventutis.

Source: Jenk. Cent. 47; Jackson

Courts extend relief to minors who err in legal transactions because youth naturally lacks the judgment to avoid such mistakes — the law protects against the consequences of immaturity.

A minor has the power to make his condition better, but not worse.

Minor potestatem habet conditionem suam meliorare, non deteriorem facere.

Source: Co. Litt. 337; Broom, Max. 496

An infant may accept a beneficial grant or settle a debt, but cannot bind himself to an onerous contract or convey away his property to his own prejudice.

A minor cannot take an oath.

Minor jurare non potest.

Source: Co. Litt. 172b; Litt. 289; Weisman, 80b

Because an oath binds the conscience and carries legal penalties for its breach, the law does not permit a minor — who cannot fully appreciate these consequences — to swear one.

A minor before coming of age cannot act in a case of property.

Minor ante tempus agere non potest in casu proprietatis.

Source: 2 Inst. 291; Morgan, Eng. Legal Maxims no. 1256; Weisman, 80d

Transactions involving real property require full legal capacity. A minor's deed of conveyance is voidable at his election upon reaching majority.

A minor is not bound to answer during his minority, except as a matter of favor in a cause of dower.

Minor non tenetur respondere durante minori aetate, nisi in causa dotis.

Source: 3 Bulstr. 143; Morgan, Eng. Legal Maxims no. 1261; Weisman, 80h

The law shields infants from the burden of litigation. They are not compelled to defend or plead until they reach the age at which they can do so with full understanding.

A minor ought not to be guardian of a minor, for he who knows not how to govern himself is presumed to govern others badly.

Minor non debet esse custos minoris; alios enim praesumitur male regere qui seipsum regere nescit.

Source: Co. Litt. 88b; Fleta, lib. 1, c. 10; Morgan, Eng. Legal Maxims no. 1259; Weisman, 80c

Guardianship requires a degree of judgment and prudence that the law presumes an infant does not possess. The protector must be at least as capable as the one he protects.

An infant does not differ much from a lunatic.

Infans non multum a furioso distat.

Source: Bract. l. 3, c. 2, s. 8; Dig. 50, 17, 5, 40; 1 Story, Eq. Jur. ss. 223, 224, 242; Weisman, 76e

Both infants and the insane lack the legal capacity to bind themselves. The law protects both on the same principle — neither can consent with understanding.

The law favors minors.

Lex favet minoribus.

Source: Jenk. Cent. case 97; Jenk. Cent. case 47; Weisman, 80g

In all doubtful cases, the law leans in favor of protecting the interests of infants. This is not indulgence but necessity — those who cannot protect themselves must be protected by the law.

A guardian may make the estate of an heir in his custody better, not worse.

Custos statum haeredis in custodia existentis meliorem, non deteriorem, facere potest.

Source: 7 Co. 7; Weisman, 53a

The guardian holds a fiduciary position — he may improve the ward's estate by prudent management but may not diminish it by waste, sale, or self-dealing.

If a guardian commit fraud upon his ward, he shall be removed from the guardianship.

Si custos fraudem pupillo fecerit, a custodia removendus est.

Source: Jenk. Cent. 39; Weisman, 53c

The guardian who betrays his trust forfeits his office. The remedy is immediate removal — the law does not leave a ward in the hands of a proven fraudster.

A guardian ought not to make money from the guardianship of his ward.

Tutor non debet lucrari ex tutela.

Source: Manning v. Manning's Ex'rs, 1 Johns. Ch. (N.Y.) 527, 535; Dig. 26, 7, 33; Weisman, 53b

The guardianship is a trust, not a profit center. Any benefit the guardian extracts from the ward's estate is a breach of duty and must be disgorged.

The law will provide for orphans, the insane, and the poor as though it were their guardian and curator.

Lex orbis, insanis, et pauperibus pro tutore atque curatore providebit.

Source: Morgan, Eng. Legal Maxims; cf. Jenk. Cent. 97; 3 Co. Inst. 6

Where no private guardian exists, the law itself steps into the role of protector for those who cannot protect themselves — orphans, the insane, and the destitute.

A infant is not supposed to be able to suffer, i.e., to do an act to his own prejudice.

Source: Dig. 50, 17, 110, 2; Weisman, 80e

(English-origin maxim.) An infant is presumed incapable of performing any act to his own prejudice — invoke this to void a minor's improvident conveyance, waiver, or admission as beyond his legal capacity.

A minor who is under twelve years of age cannot be outlawed, nor placed without the law, because before such age he is not under any law, nor in decennary.

Minor, qui infra aetatem 12 annorum fuerit, utlegari non potest, nec extra legem poni, quia ante talem aetatem, non est sub lege aliqua.

Source: Co. Litt. 128; Wharton, II-436; Weisman, 80f

A child under twelve cannot be outlawed or subjected to the penalties of law, because he is not yet considered to be within the law's jurisdiction — cite this when challenging any legal proceeding brought against a very young child.

The union of male and female is founded upon the law of nature.

Conjunctio maris et feminae est de jure naturae.

Source: 7 Co. 13; Broom, *Legal Maxims* (1874), p. 505; Weisman, 79f

Marriage is not a creature of statute but a natural institution recognized and protected by the common law.

Not cohabitation but consent makes marriage.

Nuptias non concubitus sed consensus facit.

Source: Coke, Co. Litt. 33a; Dig. 50, 17, 30; Jackson, *Latin for Lawyers* (1915), Max. 739

Marriage is constituted by the voluntary agreement of the parties, not by mere cohabitation — consent is its essential element.

Husband and wife are regarded in law as one person.

Vir et uxor censentur in lege una persona.

Source: Jenk. Cent. 27; Co. Litt. 112; Jackson, *Latin for Lawyers* (1915), Max. 1065; Weisman, 79i

At common law, husband and wife form a legal unity — the acts, acquisitions, and obligations of one are attributable to both.

Marriages ought to be free.

Matrimonia debent esse libera.

Source: Halk. Max. 86; 2 Kent, Comm. 102; Jackson, *Latin for Lawyers* (1915), Max. 568; Weisman, 61l; Weisman, 79d

No external compulsion or unreasonable restraint should be placed upon the right to marry — it is a matter of free choice.

A sentence against marriage never becomes a thing finally adjudged.

Sententia contra matrimonium nunquam transit in rem judicatam.

Source: 7 Co. Rep. 43, 48; Jackson, *Latin for Lawyers* (1915), Max. 969; Weisman, 79e

A decree annulling or denying a marriage is never absolutely conclusive — the question of marital status may always be revisited on new evidence.

The presumption is always in favor of the legitimacy of children.

Semper praesumatur pro legitimatione puerorum.

Source: Co. Litt. 126; 5 Co. Rep. 98b; Weisman, 79l

Children born during wedlock are presumed legitimate — the law favors the protection of the innocent over suspicion of the parents.

A betrothal in the present tense is a mutual promise constituting marriage itself.

Sponsalia de praesenti est repromissio.

Source: Co. Litt. 34; Jackson, *Latin for Lawyers* (1915), Max. 990

At common law, *sponsalia de praesenti* — a present-tense exchange of vows ("I take thee") — constituted an actual marriage, as distinguished from *sponsalia de futuro* (a promise to marry in the future, i.e., an engagement). The mutual present consent of the parties, not the ceremony, made the marriage.

It is called affinity when two families, divided from one another, are united by marriage, and one of them approaches the confines of the other.

Affinitas dicitur, cum dux cognationes, inter se divise, per nuptias copulantur, et altera ad alterius fines accidit.

Source: Co. Litt. 157; Jackson

Affinity is the legal bond created between each spouse and the blood relatives of the other — it arises solely from marriage and defines the degrees of relationship that the law recognizes between the two kindred groups.

Consent, and not coition, constitutes marriage; and the parties are not able to consent before marriageable years.

Consensus non concubitus facit matrimonium; et consentire non possunt ante annos nubiles.

Source: 6 Co. 22; Jackson; Weisman, 79q

Consent is the foundation of marriage, and consent requires capacity — those below the age of lawful marriage cannot give it, rendering any purported union void.

A subsequent marriage makes the children legitimate so far as relates to the priesthood, not as to the succession, on account of the custom of the kingdom, which is contrary thereto.

Matrimonium subsequens legitimos facit quoad sacerdotium non quoad successionem propter consuetudinem regni quae se habet in contrarium.

Source: Co. Litt. 345; Jackson

At common law, a subsequent marriage of the parents legitimated children born before it for ecclesiastical purposes, but the custom of England did not extend that legitimation to rights of inheritance.

All things which belong to the wife belong to the husband; the wife has no power of her own, the husband has it all.

Omnia quae sunt uxoris sunt ipsius viri; non habet uxor potestatem sui, sed vir.

Source: Co. Litt. 112; Jackson; Weisman, 79o

At common law, the doctrine of coverture merged the wife's legal identity into her husband's — her property and legal capacity were subsumed under his authority during marriage.

Polygamy is the marriage of many husbands or wives at one time.

Polygamia est plurium simul virorum uxorumve connubium.

Source: 3 Inst. 88; Jackson

The law defines polygamy as the simultaneous union of multiple spouses — a practice forbidden at common law and punishable as an offense against the institution of marriage.

A betrothing is the agreement and promise of a future marriage.

Sponsalia dicuntur futurarum nuptiarum conventio et repromissio.

Source: Co. Litt. 34; Jackson

A betrothal (sponsalia) is a mutual promise of future marriage — it creates a binding obligation at law, distinct from the marriage itself but enforceable as an agreement.

A subsequent marriage removes the previous wrong.

Subsequens matrimonium tollit peccatum praecedens.

Source: Reg. Jur. Civ.; Jackson; Weisman, 79p

A subsequent lawful marriage between the parents cures the prior wrong of illegitimacy — the children are thereby legitimated, and the moral fault is removed by the lawful union.

A wife has no power of her own, but is under the government of her husband.

Uxor non est sui juris sed sub potestate viri.

Source: 3 Inst. 108; Jackson; Weisman, 79j

Under the common law doctrine of coverture, the wife's legal capacity was absorbed into her husband's — she could not sue, contract, or hold property independently during the marriage.

It is not lawful to have two wives at one time.

Duos uxores eodem tempore habere non potest.

Source: Inst. 1, 10, 6; Bouvier, *Law Dictionary* (1856); Weisman, 79a

The law of nature and of nations forbids bigamy — no man may contract a second marriage while a first subsists.

Divorce is called from divertendo, because a man is diverted from his wife.

Source: Co. Litt. 234; Weisman, 79b

(English-origin maxim.) The word 'divorce' signifies the legal turning away of one spouse from another — cite this when tracing the etymology and common-law meaning of divorce in jurisdictional or pleading disputes.

The male sex always includes the female.

Source: Dig. 32, 62; Weisman, 79c

(English-origin maxim.) In the construction of statutes, the masculine gender includes the feminine unless the context requires otherwise — invoke this rule of interpretation when a statute uses only masculine pronouns.

Insanity prevents marriage from being contracted, because consent is needed.

Source: 1 Bl. Comm. 439; Weisman, 79g

(English-origin maxim.) A marriage contracted by a person of unsound mind is void ab initio, because the essential element of consent is absent — cite this to annul a marriage where one party lacked mental capacity at the time of the ceremony.

A wife follows the domicile of her husband.

Source: Tray. Lat. Max. 606; Weisman, 79h

(English-origin maxim.) A married woman's legal domicile follows that of her husband — this common-law rule determined jurisdiction, venue, and voting rights, and is still cited in domicile disputes under traditional choice-of-law analysis.

Wife and son are names of nature.

Source: 4 Bacon's Works, 350; Weisman, 79k

(English-origin maxim.) The relationships of wife and son are created by nature, not by legal artifice — invoke this to argue that the natural family bond is prior to and independent of any civil regulation.

Madness does not allow marriage to be contracted, because consent is required.

Furor contrahi matrimonium non sinit, quia consensu opus est.

Source: Wharton, III-121

Consent is the essence of marriage, and insanity destroys the capacity to consent — cite this to annul a marriage entered into by a person who, at the time of the ceremony, was incapable of understanding the nature of the contract.

The father is he whom the marriage indicates.

Pater est quem nuptiae demonstrant.

Source: Co. Litt. 123; Dig. 2, 4, 5; Broom, *Legal Maxims* (1874), p. 516; Jackson, *Latin for Lawyers* (1915), Max. 792; Weisman, 79n

A child born in lawful wedlock is presumed to be the child of the husband — the marriage itself establishes paternity.

The lawful heir is he whom the marriage shows to be so.

Haeres legitimus est quem nuptiae demonstrant.

Source: Co. Litt. 7; Jackson, *Latin for Lawyers* (1915), Max. 326; Weisman, 58w

Inheritance follows lawful marriage — at common law, only those born within wedlock possess inheritable blood.

Heir is a name of law; son is a name of nature.

Haeres est nomen juris, filius est nomen naturae.

Source: Bacon, Max. Reg. 11; Jackson, *Latin for Lawyers* (1915), Max. 325; Weisman, 58ii

The status of heir is a legal construction tied to rules of succession; the status of son is a fact of nature — the two do not always coincide.

The offspring follows the mother.

Partus sequitur ventrem.

Source: Inst. 2, 1, 19; Jackson, *Latin for Lawyers* (1915), Max. 789; Weisman, 58ff

The status and condition of offspring follow the mother — a rule originating in the law of property in animals and applied at civil law to questions of personal status.

It is not just to make an elder-born a bastard after his death, who all his life has been accounted legitimate.

Justum non est aliquem antenatum mortuum facere bastardum qui pro tota vita sua pro legitimo habetur.

Source: 8 Co. 101; Jackson; Weisman, 58a

The law will not disturb the settled status of legitimacy after death — one who lived his whole life as legitimate cannot be posthumously bastardized.

The law of England rules that the offspring shall always follow the condition of the father; never that of the mother.

Lex Angliae nunquam matris sed semper patris conditionem imitari partum judicat.

Source: Co. Litt. 123; Jackson

Under English common law, legitimate children take the status and condition of their father — a rule distinct from the civil law maxim partus sequitur ventrem, which applies to illegitimate offspring.

It is not just to make an elder-born a bastard after his death, who during his lifetime was accounted legitimate.

Non est justum aliquem antenatum post mortem facere bastardum qui toto tempore vitae suae pro legitimo habebatur.

Source: Co. Litt. 244; Jackson

A restatement of 4.2.6 — the law strongly disfavors posthumous attacks on legitimacy, protecting the settled expectations of inheritance and status.

Parent is a name general to every kind of blood-relationship.

Parens est nomen generale ad omne genus cognationis.

Source: Co. Litt. 80; Jackson

The term "parent" in law is not limited to the immediate father and mother but extends broadly to all ancestors and blood-kindred — it is a word of general application.

Children born under a legitimate marriage follow the condition of the father.

Cum legitima nuptiae factae sunt, patrem liberi sequuntur.

Source: Bouvier, *Law Dictionary* (1856); Weisman, 58i

Where marriage is lawful, the children take the status and condition of the father — the complement to the rule that illegitimate offspring follow the mother.

Paternal power should consist in affection, not in atrocity.

Patria potestas in pietate debet, non in atrocitate consistere.

Source: Bouvier, *Law Dictionary* (1856); Weisman, 11r

The authority of a parent over a child is grounded in love and nurture, not in violence or tyranny — the law restrains paternal power that degenerates into cruelty.

Children are of the blood of their parents, but the father and mother are not of the blood of their children.

Pueri sunt de sanguine parentum, sed pater et mater non sunt de sanguine puerorum.

Source: 3 Co. 40; Bouvier, *Law Dictionary* (1856); Weisman, 58s

The bloodline runs downward for purposes of descent and inheritance — children inherit from parents, but the parent does not inherit from the child by the same rule.

He who is born out of lawful matrimony follows the condition of the mother.

Qui nascitur sine legitimo matrimonio, matrem sequitur.

Source: Bouvier, *Law Dictionary* (1856); Weisman, 58gg

Where there is no lawful marriage, the child takes the status of the mother — the counterpart of the rule that legitimate offspring follow the father.

The offspring of a legitimate bed knows not his mother more certainly than his father.

Partus ex legitimo thoro non certius noscit matrem quam genitorem suum.

Source: Fortes. c. 42; Bouvier, *Law Dictionary* (1856)

In lawful marriage, both parents stand on equal footing as to the child — the father's identity is as certain as the mother's, because the marriage itself establishes paternity.

The master is liable for injury done by his servant.

Source: Lofft, 229; Weisman, 96b

(English-origin maxim.) Under the doctrine of respondeat superior, a master is liable for injuries caused by his servant acting within the scope of employment — cite this to hold an employer accountable for the torts of his employee.

Free servants are in general all free persons who let, hire, or engage their services to another.

Source: Black's, 2d. 1075; Weisman, 96c

(English-origin maxim.) Any free person who voluntarily hires out his services to another is classified as a servant for purposes of the master-servant relationship — cite this to establish the employment relationship and the duties flowing from it.

He is not presumed to consent who obeys the orders of his father or his master.

Source: Dig. 50, 17, 4; Weisman, 96d

(English-origin maxim.) One who acts under the command of a father or master is not presumed to have freely consented to the act — invoke this to defeat an argument that the subordinate ratified or volunteered the conduct in question.

One is a servant who is employed by a master to perform service in his affairs and whose physical conduct in performance of the service is controlled by the master.

Source: Evans v. Board of Ed. of Hays, 284 P. 2d 1068, 1071; Weisman, 96h

(English-origin maxim.) The defining feature of the master-servant relationship is the master's right to control the physical conduct of the servant's performance — cite this to distinguish an employee from an independent contractor.

No one should be retained in a partnership against his will.

Source: Selden v. Vermilya, 2 Sandf. (N.Y.) 568, 593; United Ins. Co. v. Scott, 1 Johns. (N.Y.) 106, 114; Weisman, 85a

(English-origin maxim.) Partnership is a voluntary association — any partner may withdraw at will, and no court will compel a man to remain bound in a partnership against his consent.

One co-proprietor can exercise no authority over the common property against the will of the other.

Source: Dig. 10, 3, 28; Weisman, 85d

(English-origin maxim.) No co-owner may exercise dominion over common property against the will of another co-owner — cite this to enjoin a partner or joint tenant from unilateral use, alteration, or disposition of shared property.

In a partnership the condition of one who forbids is the more favorable.

Source: Black's, 607; Weisman, 85f

(English-origin maxim.) In a partnership dispute over the use of common property, the partner who objects prevails over the partner who proposes — the veto power in co-ownership is stronger than the power to act.

Where a thing is owned in common or shared equally, it is agreed that the cause of him prohibiting its use is the better.

Source: Dig. 10, 3, 28; 3 Kent, Comm. 45; 16 Johns. (N.Y.) 438, 491; Weisman, 85i

(English-origin maxim.) Where property is held in common, the party who forbids its use has the stronger position — cite this to block a co-owner's attempt to use or dispose of shared property without unanimous consent.

The law favors dower; it is the reward of chastity, therefore let it be preserved.

Doti lex favet; praemium pudoris est, ideo parcatur.

Source: Co. Litt. 31, 81; Jenk. Cent. 50; Jackson, *Latin for Lawyers* (1915), Max. 208; Weisman, 33a

Dower holds a favored position in the law — once it attaches, it can be defeated only by the wife's own consent or by divorce.

Where there is no marriage, there is no dower.

Ubi nullum matrimonium, ibi nulla dos est.

Source: Co. Litt. 32; 2 Bl. Comm. 130; Jackson, *Latin for Lawyers* (1915), Max. 1031b; Weisman, 33b

Dower is an incident of lawful marriage — without the marriage, the right to dower does not arise.

Causes of dower, life, liberty, and revenue are among the things favored in law.

Causae dotis, vitae, libertatis, fisci, sunt inter favorabilia in lege.

Source: Jenk. Cent. 284; Jackson, *Latin for Lawyers* (1915), Max. 96

The law extends special solicitude to dower, life, and liberty — these causes receive every favorable presumption and every benefit of doubt.

A woman who voluntarily leaves her husband and commits adultery loses her dower, unless her husband takes her back of his own accord.

Sponte virum fugiens mulier et adultera facta, dote sua careat, nisi sponsi sponte retracta.

Source: Co. Litt. 37; Jackson, *Latin for Lawyers* (1915), Max. 991; Weisman, 33d

Dower is the reward of fidelity — voluntary desertion and adultery forfeit the right, but the husband's reconciliation restores it.

Dower ought not to be sought from dower.

Dos de dote peti non debet.

Source: 4 Co. 122b; Weisman, 33f

A widow cannot claim dower out of lands already assigned as dower to another — the right extends only to the husband's own estate, not to the dower of a prior wife.

An heir under twenty-one years of age shall not be held to answer, except in the case of dower.

Haeres minor uno et viginti annis non respondebit, nisi in casu dotis.

Source: Moor, 348; Jackson, *Latin for Lawyers* (1915), Max. 327; Weisman, 58x

The law protects the minor heir from suit during his minority — but dower, being among the most favored causes, is the single exception.

Legitimacy is the lawful consequence of lawful marriage.

Legitimatio est legis consequentia matrimonii legitimi.

Source: Gaines v. Relf, 53 U.S. 472, 595 (1853); Weisman, 79m

The rights of inheritance and succession flow from the fact of legitimate birth — and legitimate birth flows from lawful marriage.

In law, a dower is a provision for a widow; upon her husband's death, out of his lands or tenements for her support and the nurture of her children.

Source: Co. Litt. 30a; 2 Bl. Comm. 130; 4 Kent, Comm. 35; Chaplin v. Hill, 1 R.I. 452; Hoy v. Varner, 100 Va. 600, 42 S.E. 690; Weisman, 33e

(English-origin maxim.) Dower is the widow's common-law entitlement to a life estate in one-third of her husband's lands — cite this when establishing a surviving spouse's right to a share of the deceased's real property.

A legitimate dower belongs to every woman of all lands and tenements of which her husband possessed in his own right, as of fee, etc.

Dos rationabilis vel legitima est cujuslibet mulieris de quocunque tenemento tertia pars omnium terrarum et tenementorum.

Source: Co. Litt. 336; Weisman, 33c

At common law, every widow was entitled to a life estate in one-third of all lands her husband held in fee during the marriage — this right attached by operation of law and could not be defeated by the husband's conveyance.

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.

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.

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.

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.

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.

A madman can make no contract.

Furiosus nullum negotium contrahere potest.

Source: Dig. 50, 17, 5; 1 Story, Contr. 76

Capacity to consent is essential to contract — where the mind cannot assent, no binding obligation can be formed.

Malice supplies age.

Malitia supplet aetatem.

Source: 1 Bl. Comm. 464; Weisman, 78j

Where a minor demonstrates a degree of malice beyond his years, the law may treat him as capable of criminal intent regardless of the presumption of incapacity attending his age.