Definition
A phrase of testamentary construction appearing in wills, typically used to designate the class of persons who would receive a decedent's property under the applicable intestacy statute if no valid disposition had been made — that is, the persons who are legally recognized as heirs at the time of distribution rather than at the time of the will's execution. The phrase functions as a class gift descriptor, directing property to whoever stands as the lawful heir or heirs under operation of law at the relevant moment.
The phrase is not a term of art with a single fixed meaning but rather a drafting formula whose operative significance depends heavily on when the class is determined to close, which jurisdiction's intestacy rules apply, and whether the testator intended a technical legal meaning or a popular one. Courts have repeatedly been called upon to resolve whether the phrase refers to heirs as defined by statute (legal heirs in the strict sense) or heirs as the testator personally understood family relationships.
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Common Confusion
This phrase is frequently confused with simpler class gift language such as "my heirs," "my legal heirs," or "heirs at law." The addition of the clause "who should be legally entitled to the same" is significant: it signals that entitlement is to be measured by law, not by the testator's subjective preference or by informal family arrangement. This distinguishes it from purely relational designations and ties distribution directly to the intestacy scheme. Researchers should not treat this phrase as interchangeable with bare "heirs" language; the qualifying clause has been the subject of dedicated interpretive litigation.
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Why It Matters in Research
The phrase appears most often in older will forms and reported equity cases from the nineteenth and early twentieth centuries, particularly in English chancery practice and American jurisdictions that followed it closely. Its appearance in a will signals that interpretation requires consulting both the applicable intestacy statute and the construction canons governing class gifts.
Several research traps apply. First, the phrase is time-sensitive: the legal heirs entitled to take under intestacy may differ depending on whether the class is determined at the testator's death, at the life tenant's death (in a remainder context), or at some other triggering event. Courts in different periods resolved this question inconsistently. Second, the phrase interacts with the rule against perpetuities in remainder and executory interest contexts, because a gift to "heirs who should be legally entitled" at a future date could create an impermissible future interest. Third, intestacy statutes changed substantially over the nineteenth and twentieth centuries — particularly regarding the rights of spouses, illegitimate children, and adopted children — meaning that the same phrase in wills from different decades may identify entirely different classes of persons.
The Rapalje & Lawrence citation to 8 Jur. 234 places this phrase squarely in the mid-nineteenth-century English chancery tradition, and researchers working with American materials from that period should expect courts to be drawing on English equity doctrine in construing the language. The editorial cross-reference in Rapalje & Lawrence to "heir presumptive" (Lofft 273) is a meaningful navigational signal: the distinction between heir apparent and heir presumptive was directly implicated in cases where it was uncertain, at the time of drafting, who the ultimate taker would be, making this phrase a way of deferring the identification of beneficiaries to the moment of actual legal entitlement.
When researching a specific will using this phrase, identify: (1) the jurisdiction and applicable intestacy statute in force at the testator's death; (2) whether the gift is immediate or in remainder; (3) whether any intervening statutory changes affected the class between execution and distribution; and (4) whether the court applied an English equity construction canon or a local one.
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Historical Dictionary Support
Rapalje & Lawrence treat this phrase as a recognized term of will construction, citing 8 Jur. 234 (a mid-nineteenth-century English chancery report) for its interpretive context. The entry is brief, pointing readers to the broader treatment under HEIR and cross-referencing HEIR PRESUMPTIVE via Lofft 273. This concision reflects the dictionary's approach: the phrase was sufficiently settled in equity practice that it required a reference entry rather than an extended definition, but it was not so uniform as to collapse into a single meaning.
What the historical dictionaries collectively omit is any treatment of how American statutory codification of intestacy progressively displaced the English common-law heir-at-law concept, which had excluded collateral female relatives and treated real and personal property differently. A phrase drafted under English equity assumptions about who "should be legally entitled" would, when applied by an American court in the late nineteenth or early twentieth century, sometimes yield a different class of takers than the testator may have anticipated. This gap is not addressed in Rapalje & Lawrence and represents a persistent interpretive hazard in using older sources to construe this language.
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Jurisdictional Note
American states diverged significantly in how they defined legal heirship, particularly regarding adopted children and illegitimate children, through the mid-twentieth century. A will using this phrase probated before modern adoption statutes normalized the adoptee's inheritance rights may have been construed to exclude adopted children even when a later court would reach the opposite result. Researchers should not assume that the phrase operates identically across jurisdictions or across periods within the same jurisdiction.
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