Friday, January 20, 2012

Legal Terms and Concepts (E)

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1. entail
entail, in law, restriction of inheritance to a limited class of descendants for at least several generations. The object of entail is to preserve large estates in land from the disintegration that is caused by equal inheritance by all the heirs and by the ordinary right of free alienation (disposal) of property interests. Legal devices similar to entail were known in Roman law and in all the countries of Europe. In England the entail became common in the early 13th cent., and in its most usual form was a conveyance by a grantor (owner) of real property to a grantee and the “heirs of his body,” i.e., his lawful offspring, in successive generations. In the inheritance the rule of primogeniture was observed. The subsequent development of the entail reflects a continuing struggle between the effort to preserve large estates and the need for free alienation. By the mid-13th cent. the courts interpreted the birth of a live baby as the satisfaction of a condition that vested the grantee with the power of alienation. This result was overcome by the statute De donis conditionalibus [conditional gifts] (1285), which gave effect to the grantor's intent. In time the grantee was able to get control of the property despite the statutory prohibition by use of the fine and other technical legal devices. Current English law permits the holder of entailed property (either real or personal) to dispose of it by deed; otherwise the entail persists. In the United States for the most part entails are either altogether prohibited or limited to a single generation.

2. easement
easement, in law, the right to use the land of another for a specified purpose, as distinguished from the right to possess that land. If the easement benefits the holder personally and is not associated with any land he owns, it is an easement in gross (e.g., a public utility's right to run power lines through another's property). At common law an easement in gross could not be transferred, but today it may be transferable. If the easement is held incident to ownership of some land, it is an easement appurtenant (e.g., the right to run a ditch through a neighbor's yard to drain your land). The land subject to the easement appurtenant is the servient estate, the land benefited the dominant estate. If certain conditions are met, the easement passes with the land to the new owner after the sale of either estate. An easement may be created by express agreement of the parties, in which case it must usually be in writing, or it may be implied by a court from the actions of the parties in certain circumstances.

3. estate
estate. 1. In property law, see property; tenure. 2. In constitutional law, an estate denotes an organized class of society with a separate voice in government. Representation by estate arose in Europe in the 13th cent. when the feudal system was being broken up as a result of the growth of the towns. The term generally designates three classes—the nobility, the clergy, and the commons. The commons were the knights and the townspeople of substance—the burgesses or bourgeoisie. The sovereign would occasionally consult the three estates and consider their grievances. Often voting was by an estate as a whole rather than by individual vote. In many cases the estates might merely advise the sovereign, and their decisions were not binding. From these practices modern parliamentary institutions gradually evolved in several countries. Much of the constitutional development of the later Middle Ages is a record of the emergence of the commons—sometimes called the third estate—into a position of equality with the other two estates. The process is clearly shown in the history of the States-General in France. The next step was the transition from representation by estates to popular representation. A crucial moment in the French Revolution was the rejection of voting according to estates and the merger of the States-General into the national assembly. The English Parliament may be viewed historically as a representative body of the estates; the nobility and the Church of England are represented by the House of Lords, and the commons—the remaining adult citizens—by the House of Commons. In fact, however, the term estate is not applicable to a country with democratic institutions and is probably not appropriate in any modern state.

4. evidence
evidence, in law, material submitted to a judge or a judicial body to resolve disputed questions of fact. The rules discussed in this article were developed in England for use in jury trials. Today, they are generally observed in all countries having the common law, although they have been extensively modified by statute in some jurisdictions. The first juries were not neutral triers of fact; rather they were convened because of their immediate knowledge of the dispute before the court. Later, the practice developed of having witnesses testify before an impartial jury. The groundwork of the rules of evidence was laid between 1500 and 1700.

The Role of Evidence in a Trial; Burdens of Proof

In criminal trials, the prosecution has to prove each element necessary to its case beyond a reasonable doubt. In civil trials, on the other hand, a party has the burden only of proving affirmative contentions by a preponderance of the evidence. Thus the plaintiff must offer some proof of each of the elements that combine to constitute the defendant's alleged wrong (see procedure), while the defendant must prove his or her affirmative defenses, e.g., in a suit for negligence, that the plaintiff's own negligence contributed to the injury.

Satisfying the burden of proof requires the prosecutor or the plaintiff to present evidence first. At the close of this presentation the criminal or civil defendant may move for acquittal or a nonsuit if admissible evidence supporting necessary contentions has not been offered. Proof may be dispensed with when an adversary formally admits a fact either in the pleadings or in court, or when the court may take judicial notice of the fact, i.e., when the fact is universally known or is easily ascertainable by the judge beyond reasonable dispute.

In recent years the problems of procuring evidence have been eased somewhat by the introduction of broader discovery (i.e., disclosure) rules. In civil cases, these rules compel each party to a suit to allow the other to have access to its witnesses and to certain types of evidence before the trial. In criminal cases, the judge has the discretionary power to order discovery; in any event, the prosecutor must release all exculpatory evidence on request.

Allegedly damaging errors in the admission of evidence are reviewable on appeal if an objection was made during the trial. In their final summing up, the attorneys may make any assertion that is supported to some degree by evidence. British judges and U.S. federal and, in some jurisdictions, state judges are permitted to comment on the credibility of the witnesses and the weight of the evidence. However, the judge must tell the jury that they are not bound by his or her remarks.

Admissible Evidence

Evidence is often presented in a tense, emotional atmosphere in a courtroom long after the event in question took place. The object of the law of evidence is to assure a high probability that questions of fact are resolved correctly. To that end, material introduced at the trial is ordinarily restricted to items of great probative value; that which may arouse unreasoning passion is ordinarily excluded. The nature of the legal controversy and the written pleadings determine what assertions of fact each party must prove or disprove to win the case, and an item of evidence that at best has a remote bearing on the factual issues must be excluded as irrelevant or immaterial. A judge prefers direct evidence (such as an official document or a witness's assertion of immediate knowledge of the question at issue) to indirect or circumstantial evidence, which merely tends to establish the issue by proving surrounding circumstances from which the principal fact may be inferred.

In addition to being relevant, evidence must be competent, i.e., it must not fall under an exclusionary rule. Obviously if the evidence is documentary (e.g., a birth certificate introduced to prove a person's age) or if it is “real” (e.g., a bloody garment exhibited to prove that the victim suffered injury), there can be a question only whether the proffered evidence is itself incompetent. The courtroom presentation of documentary evidence has been complicated by new computer technologies and the digitalization of information, which make the successful forging of texts and photographs far easier than previously.


Most evidence is offered by witnesses who testify before the court. Here, the question of the witness's personal competency must be resolved; it must be shown that the witness was able to know, understand, and remember the matters on which he or she is to be examined. Thus, a witness must possess the sensory faculties needed to apprehend the facts reported and must not be considered mentally ill or incompetent. Children offered as witnesses are examined by the judge to determine their intelligence and understanding.

The witness is first directly examined by the party who offers him or her, then is cross-examined by the adversary. No witness may express an opinion on any matter when the jury can draw its own conclusions from the facts; but on technical questions an expert witness (e.g., a physician) may state an opinion. Hearsay declarations (e.g., testimony concerning a statement made out of court by a person not now before the court) usually are excluded on the grounds that the person who made the statement is not available for cross-examination or for evaluation by the judge or jury. Only when the circumstances of the statement afford a high probability of its truth may it be admitted.

A witness may be excused from testifying about certain matters if he or she pleads personal privilege. In general, information confided in the course of the relations of attorney and client, priest and penitent, physician and patient, and husband and wife is subject to this privilege. In some jurisdictions such witnesses are incompetent to testify (cannot testify). Witnesses are further protected by the Fifth Amendment privilege of withholding evidence that might be self-incriminating. Criminal defendants have the privilege of refusing to take the witness stand (in which case the jury may make no negative assumptions concerning the reasons for such a refusal) and, in most situations, evidence of previous criminal convictions is inadmissible. Under the common law, parties to a civil suit and the defendant in a criminal action were not permitted to testify, but these rules have been abandoned.

5. executors and administrators
An executor is the person designated in the will of a deceased person to carry out the provisions of the will. An administrator is the person appointed by a probate court to perform the identical functions if the will does not name any executors or if those who were named executors are not capable of performing the function or are dead. An administrator is also appointed in the case of the death without a will (intestate) of any person who owns property. Those chosen representatives collect the assets and pay the debts of the estate and then distribute what remains to those who are entitled by provisions of the will or by law. To allow performance of these duties the title to the personal property passes to the executor or administrator, rather than to the beneficiaries. The administrator derives his title from the court through his letters of administration. The executor's source of title is the will itself. Besides being the defendants in any suits brought against the estate, the representatives are also authorized to bring actions to compensate the estate for damage suffered before or after death. Administration is not necessary if the heirs, the creditors of the estate, and all others interested in the estate agree to the settlement of debts and the distribution of the property. Under modern statutes, priority of right to be administrator depends largely on nearness of relation to the deceased. Where no relative applies for papers of administration, creditors, public administrators, or suitable strangers may be appointed administrator. One is ineligible to act as an administrator by reason of being an infant, insane, or lacking ordinary integrity. Illiteracy, lack of business experience, immorality, or adverse interests are not disqualifications. The executor or administrator must, in some states, post a bond for honest and faithful discharge of his duties. After he has paid the legacies and otherwise followed the directions of the will so far as legally possible, the court will discharge him if his accounting is correct and he has shown himself to have acted honestly and in good faith; otherwise his bond may be forfeited, and he is made liable to suit.

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