Definition
The legatory is the third portion of a deceased freeman's personal estate recognized under the custom of London, representing the share that the freeman retained full testamentary power over regardless of surviving family. Under that custom, when a freeman died leaving both a wife and children, his personal estate was divided into three equal parts: one third to the wife (the widow's part), one third to the children (the children's part or orphan's part), and one third — the legatory — to the deceased, who could dispose of it freely by will. If no will existed, the legatory passed as intestate property. The term is sometimes rendered as the "dead man's part" in older sources.
Common Confusion
LEGATORY and DEAD MAN'S PART are the same thing under different names. Some historical sources, including Bouvier, signal this equivalence explicitly by cross-referencing the two terms. Researchers should not treat them as distinct concepts. Additionally, LEGATORY should not be confused with LEGATEE (a person who receives a bequest) or LEGACY (a testamentary gift). The phonetic and etymological similarity to those terms creates a real risk of misreading in older legal manuscripts and digests.
Why It Matters in Research
Researchers working in English ecclesiastical court records, Prerogative Court of Canterbury records, or London civic archives from the medieval period through the eighteenth century will encounter the tripartite division of estates as a governing framework for probate disputes. The legatory is the operative unit in any dispute about testamentary freedom within that system: if a decedent's family claimed he disposed of more than his lawful third, the legatory is the battleground.
The custom of London was a recognized deviation from the general common law rule that gave a testator broader control over personal estate. By the eighteenth century, the custom began losing ground. The Statute of Distribution (1670) had already rationalized intestate succession in England generally, and the tripartite custom of London was formally abolished by 11 Geo. I, c. 18 (1724). After that point, the legatory as a living legal category disappears from practice. Any source after 1724 invoking the term is either engaged in historical commentary, discussing pre-abolition disputes, or — more dangerously for the researcher — using the term loosely.
This matters for corpus navigation because entries in Black's and Bouvier treating LEGATORY appear without a clear signal that the concept was already abolished law at the time those dictionaries were compiled. A researcher relying on those entries without the historical context might mistakenly treat the legatory as a generally applicable common law doctrine rather than a geographically and temporally specific custom.
The term also surfaces indirectly in treatises discussing the customs of York and Wales, which had analogous tripartite schemes. The York custom persisted longer than London's, and some research contexts will require distinguishing which local custom governed.
Historical Dictionary Support
Black's Law Dictionary (1st and 2nd editions) and Bouvier's Law Dictionary are in agreement on the substance: the legatory is the freely disposable third of a London freeman's personal estate when wife and children both survive. All three sources cite Bacon's Abridgement (Customs of London, D.4) as the governing authority, which is the appropriate historical source.
The entries are notably brief given the complexity of the underlying custom. None of the three dictionaries provides the historical context of abolition, the statute that ended the custom, or a comparison with the analogous customs of York and Wales. This omission is consequential: a researcher reading only the dictionary entries receives a definition without any signal that the term describes extinct law.
Bouvier's cross-reference to DEAD MAN'S PART is the most useful navigational feature across the three sources. Black's does not replicate this cross-reference explicitly, which creates a minor gap between the two primary authorities.
The maxim appended in the Black's entries — Legatos violare contra jus gentium est (from 4 Coke, pref.) — is unrelated to the definition of legatory and appears to have been included through a typographical or editorial adjacency in the original source text. Researchers should not read it as substantively connected to the legatory concept.
Jurisdictional Note
The legatory was specific to the custom of London and did not apply as general English common law. Analogous but distinct tripartite customs existed in York and Wales. No American jurisdiction adopted the custom, making the term a purely English historical concept for American legal researchers.