Definition
Latin: "to the heads" or "by heads." A method of distribution in which each qualifying individual takes an equal share, calculated by counting the number of persons rather than the number of family lines or branches.
In inheritance law, succession in capita means that an estate is divided equally among all claimants who stand in the same degree of kinship to the decedent, each person receiving a proportionate share as an individual right. The shares are determined by the number of persons, not by the number of family groups those persons represent.
In procedural law, challenges in capita refers to challenges directed at individual jurors, as distinct from a challenge to the array, which attacks the entire panel as improperly constituted.
Common Confusion
IN CAPITA vs. IN STIRPES: These are the two foundational modes of succession and are frequently contrasted. Per stirpes (or in stirpes) distributes property by family branches: if a claimant has predeceased the decedent, that claimant's descendants step into the branch and divide only that branch's share among themselves. In capita distributes without regard to branches — every qualifying individual takes equally from the whole. The distinction matters most when some claimants are of closer kinship than others, or when one branch has more members than another. A per stirpes distribution produces unequal per-person shares when branch sizes differ; a per capita distribution produces equal per-person shares regardless of family structure.
IN CAPITA vs. IN CAPITE: These look nearly identical and appear in close proximity in historical sources. They are unrelated. In capite ("in chief") is a feudal tenure term describing land held directly from the Crown. Burrill and both editions of Black's treat them as separate entries. Researchers working in older digests or abridgments should take care not to conflate them.
Why It Matters in Research
The term appears across two distinct legal contexts — inheritance and jury procedure — and researchers should identify which context governs before applying definitions. Most modern usage is in succession law; the jury challenge usage is largely obsolete in American practice but appears frequently in historical procedural sources.
In succession law, in capita is the civil-law ancestor of the modern per capita rule. When reading pre-20th century American cases or treatises on descent and distribution, expect to encounter in capita alongside in stirpes as a paired conceptual framework imported from Roman and civil law. Researchers using 19th-century equity and probate materials should be alert to the fact that courts often used the Latin term where modern sources would write "per capita," and that the underlying civil-law meaning (equal shares, individual right, same degree of kinship) is more precise than casual modern use of "per capita" sometimes implies.
The qualification that all claimants must stand in equal degree of kinship is essential and sometimes obscured in secondary sources. In capita does not mean simply "divide equally among everyone who shows up." The equal-share rule applies among persons at the same generational level. Where claimants are of mixed degree, the result depends on whether the jurisdiction applies strict in capita distribution or blends it with stirpital representation.
Burrill's entry draws on Hallifax's Analysis of the Civil Law and signals the Roman law origin, which matters when tracing doctrinal development. Researchers working on comparative or historical inheritance law will find the civil law pedigree useful for locating parallel sources in continental treatises.
The jury-challenge usage of in capita is largely a historical artifact in American sources, but it surfaces in early federal and state procedural materials and in English common law treatises. It provides useful contrast to challenges to the array and helps researchers understand how early courts distinguished individual from systemic jury objections.
Historical Dictionary Support
Black's (1st and 2nd editions) give substantially identical entries, covering both the inheritance and jury-challenge meanings in parallel. The inheritance definition is brief and functional; neither edition elaborates the civil law pedigree or the equal-degree requirement with much precision.
Burrill goes further. He identifies in capita as derived from the civil law, supplies the viritim formulation (man by man, or singly), and cites Hallifax for the requirement that claimants be in equal degree of kindred. Burrill's entry is the most analytically precise of the three and is the appropriate starting point for tracing the doctrinal background of the term.
None of the historical dictionary sources address the modern American per capita statutory framework or the treatment of in capita distribution in 20th-century uniform acts. Researchers should treat the historical entries as foundational but supplement them with modern succession law materials when applying the concept to contemporary questions.
Jurisdictional Note
Modern American succession statutes (including Uniform Probate Code jurisdictions) generally use the term "per capita" rather than in capita, and the UPC's per capita with representation scheme operates differently from strict in capita distribution. Researchers moving between historical sources using in capita and modern statutes using per capita should verify which distributional rule actually applies in the jurisdiction at issue.