Definition
A Latin legal term meaning "to beget" or "to procreate." Used in legal instruments, particularly in the drafting of entails and conveyances, to describe the act of begetting offspring. The term appears most often in its participial forms rather than as a standalone verb:
— Procreatus: begotten; already born of a particular body or union.
— Procreati et procreandis (also procreatis et procreandis): begotten and to be begotten; a phrase of art describing the class of heirs eligible to take under a fee tail or similar limitation. The phrase encompasses both children already born at the time of the instrument's execution and those subsequently born.
These phrases were operative words in the conveyancing of real property, particularly in the creation of estates tail, where the grantor wished to restrict inheritance to the lineal descendants of a named person.
Common Confusion
Procreare and its derivatives are sometimes read by modern researchers as merely descriptive biological language. In their legal context, however, they were words of limitation — they defined the boundaries of an estate and the class of persons who could inherit. Misreading them as surplusage rather than operative terms can lead to a fundamental mischaracterization of the estate being conveyed.
Why It Matters in Research
Researchers working with pre-modern conveyances, fee tail instruments, wills, and chancery records will encounter procreare and its participial forms frequently. The critical research intelligence is this: the precise phrase used — procreati alone versus procreati et procreandis — determines the scope of the limitation. Procreati alone refers only to children already born; the full phrase expands the class to include future-born children. In a fee tail analysis, this distinction could determine whether a remainder vested or remained contingent at a given moment.
The phrase procreatis et procreandis appears in early English Chancery practice and equity jurisprudence as well as at common law. Researchers should expect variant spellings and minor grammatical inflections across manuscript and printed sources. Latin ablative and dative constructions appear interchangeably in older instruments depending on the drafter's preferred construction, so procreati/procreatis and procreando/procreandis may appear in different sources referring to equivalent legal effects.
Because estates tail were abolished or severely curtailed in most American jurisdictions by statute (beginning with colonial-era equivalents of the statute De Donis Conditionalibus and later Fines and Recoveries equivalents), this terminology is primarily encountered in historical sources rather than modern drafting. Researchers encountering it in American records before the mid-nineteenth century should consider what jurisdiction-specific statutes governing entails may have altered its effect.
Historical Dictionary Support
Burrill's Law Dictionary provides the core entry: the definition "to beget," the participial forms, and three supporting references — 1 Institutes 20, Comberbach 154, and 1 Peere Williams 427. These citations anchor the term firmly in English common law real property practice. The 1 Institutes reference points to Coke's commentary on Littleton, the foundational text for the law of estates and the fee tail in particular, confirming that procreare and its derivatives were part of the technical vocabulary of estate conveyancing at the highest doctrinal level. The Peere Williams citation places the phrase in early eighteenth-century equity, showing its continued currency in Chancery proceedings over property settlements.
Burrill's entry is appropriately concise for a term whose significance lies almost entirely in its application within longer phrases. Historical dictionaries generally treat procreare and its forms as glossary entries pointing toward the broader doctrine of fee tail and entailed estates rather than as subjects of extended independent treatment. Researchers should not expect standalone doctrinal analysis under this headword in period sources; the substance is in the real property treatises and conveyancing manuals.