Wordscape: Willing Words - Patricia Law Hatcher, CG, FASG Most of the legal language encountered in wills is not obsolete, but it isn't necessarily part of our daily vocabulary. We should begin our discussion with words that rarely appear in wills themselves, although they may be encountered in subsequent documents related to the will. The person writing the will is the testator (male) or testatrix (female), and we say that he or she died testate. We also might refer to that person as the maker of the will. Organization and Structure The preambles in wills are largely boilerplate, but may have individual and interesting elements. Although the existence of some regional differences in wording have been suggested, local custom seems to be the predominant factor determining the wording. Thus, some preambles contain wording such as "In the name of God, Amen," or "I recommend my soul into the hand of almity god," but others do not. Unlike deeds, in which the date often occurs at the very end of the document, wills almost always have the date at the beginning, followed immediately by the name of the testator or testatrix, which is frequently modified by occupation (for men), marital status (for women), and/or place of residence. Next, there may be statements explaining why the will is being made: "not knowing the day of my death, being stricken in age, desiring to put my hous in order, knowing I must shortly put of[f] this frayle Tabernaclle" or the more common "uncertainty of this mortal life." Occasionally we learn that the testator is about to undertake a journey (often to Europe) or to march off to war. The preamble contains statements describing the maker's physical and mental health. The most common wording is "being sick and weak in body but of perfect mind and memory thanks be to God." Needless to say, the maker's mental health is always excellent, no matter how good or bad his or her physical health is, because if he or she were not of sound mind, the terms of the will could be challenged. The preamble concludes with the standard phrase, "do make and ordain this my last Will and Testament in manner and form following." The phrase Will and Testament simply refers to a written expression (testament) of the desire (will) of the maker. Those desires are usually clearly structured. The words creating the structure (Videlicit, Imprimis, Item) often are written in abbreviated form such as Viz, Imp, or It. They can be difficult to recognize in handwritten form because they begin with letters we rarely find as capitals. Viz means "to-wit" or "specifically" and is usually followed by enumerating details such as the names of all the children. Imprimis means first. Each bequest is usually an Item. Technically devise means to give realty (real property, land), but in older wills you will find it used synonymously with bequeath, which today is reserved for bequests of personality (personal property). Devisee refers to the person receiving the property. You may also see recipients called legatees (usually referring to personal property) or beneficiaries, especially after the testator has died. Near the end of a will you often find the phrase all the rest, residue, and remainder. This covers anything not included in specific items. The person(s) then named are called residual or residuary heirs or beneficiaries. I have noted that when many children are named, they are often named in birth order (youngest to oldest or oldest to youngest, often with boys and girls separate). Wives and Widows Remarriage following the death of a spouse was common in most parts of early America. If a testator says that his wife may keep that which she brought with her, it most commonly means that she has been married before. Less often it indicates an inheritance from her father, prior to the time of her marriage. (Any inheritance during her marriage would have gone to her husband.) Technically, it could include clothing and household items, but these were usually long since worn out and not worth mentioning in a will. (Her dowry went to her husband and was not hers; we'll discuss that another time.) A man might want to ensure that his property or the benefit of his property (referring to the use of property or income from the property, both real and personal) did not fall into the hands of a subsequent husband of his wife, and would therefore limit such use to during the term of her widowhood, which would end if she remarried. Children We should begin this section by discussing another word that does not appear in wills: primogeniture. This was the principle of English common law under which the eldest son inherited real property (land). Technically, it means that he had the right to the property (i.e., it couldn't be willed by the father to other persons). The degree to which it applied in the colonial period varied by colony and over time. (It was abolished after the American Revolution.) Virginia, for example, had a law stating that an eldest son could challenge a will in which his father had devised real property. We use the term more generally, to refer to property that passes silently to the first son without being mentioned in the will. You might see married daughters described as intermarried with, rather than wife of, as in "my daughter Margaret intermarried with William Jones." The terminology had no special meaning in wills. Don't Read Too Much into It When a testator or testatrix says that he or she is hereby revoking all former wills made by me, this does not mean he or she has made any previous wills. Nor when it refers to the last will, does it preclude the possibility of making future wills. Other Parties The testator was supposed to ordain, constitute, and appoint one or more persons, as executor or executrix. In general, there was not a specific age that an executor had to be, but since other roles, such as the ability to sell land, were determined by age, at least one executor should have been an adult. An underage child may have been named, in anticipation that those duties would have been assumed later. Likewise, one or more overseers or trustees might be appointed to help, especially if there is an executrix or minor children. Above the names of the witnesses, you may see the word Teste, which means attest or witness. You may find a statement that witnesses or the testator affirmed. Quakers did not swear oaths, so this suggests the individuals may have been Quakers. You should certainly investigate this. Occasionally, in an area where the recorders and residents were primarily Quaker, this wording may have been simply from force of habit. Signing When a will is signed, it is said to have been executed. (Why the word "signed" is insufficient is beyond me, but I'm sure there must be a valid legal reason for it.) Ancestry Daily News 6/14/2005 - Archive . Ancestry Daily News, 14 June 2005 Patricia Law Hatcher, FASG, is a technical writer, instructor, and professional genealogist. Her oft-migrating ancestors lived in all of the original colonies prior to 1800 and in seventeen other states, presenting her with highly varied research problems and forcing her to acquire techniques and tools that help solve tough problems. She is the author of Producing a Quality Family History. Copyright 2005, MyFamily.com.