Definition
THEN is a word of reference, not a word of independent temporal force. Used as an adverb in legal instruments — particularly wills, deeds, contracts, and conditional clauses — it carries two distinct operative meanings depending on context:
1. As an adverb of time: "At that time" — referring to a time already specified or fixed elsewhere in the instrument. THEN does not establish a time on its own; it points back (or forward) to a time previously identified. A bequest to "my children then living" means children living at whatever moment the instrument has already designated — typically the testator's death, or the termination of a prior life interest.
2. As an adverb of contingency: "In that event" or "in that case" — signaling that a following clause is conditional upon the occurrence of a preceding event. In this sense, THEN is the operative trigger in if/then constructions and functions to connect a condition to its consequence. A contract clause reading "if Buyer defaults, then Seller may terminate" uses THEN in this contingent sense.
The distinction between these two meanings is not merely grammatical. In will construction, the temporal meaning governs who qualifies as a beneficiary; in conditional instruments, the contingent meaning governs whether an obligation or right arises at all.
Common Language
Modern common usage (Wiktionary): "Being so at that time."
Historical common usage (Webster's 1913): "At that time (referring to a time specified, either past or future)"; also "soon afterward, or immediately; next; afterward."
The common language captures only the temporal sense. Legal usage carries the additional — and often more consequential — contingent sense: THEN as "in that event." In contract and statutory construction, this contingent meaning frequently governs entire clauses, and courts have had to determine which sense was intended when drafters used THEN ambiguously. The word looks innocuous in ordinary speech; in legal instruments, its precise meaning can determine whether a right vests or a condition is triggered.
Common Confusion
THEN is frequently treated by non-specialist drafters as mere connective tissue — a transitional word carrying no independent legal weight. This is the central drafting trap. The word does no independent work of fixing time, but it does do the critical work of referencing whatever time or event the instrument has already established. Courts have consistently held that THEN cannot supply a date that the instrument itself has failed to provide. When the antecedent reference is ambiguous or missing, THEN becomes a source of litigation rather than clarity.
A secondary confusion: THEN in the temporal sense is sometimes misread as fixing a moment at execution of the instrument rather than at the time designated by the surrounding text. In class gift construction — "to my children then living" — this misreading can produce the wrong class of beneficiaries.
Why It Matters in Research
Researchers working in wills and estates, contract construction, or real property will encounter THEN with regularity and should treat it as a flag requiring closer reading of the surrounding instrument.
In will construction cases, the phrase "then living" is among the most litigated formulations in succession law. The question is almost always: living at what moment? THEN refers back to a fixed point; if that fixed point is disputed or unclear, the whole bequest is in play. Researchers should look to the instrument's broader structure to identify what time THEN references — the testator's death, the end of a life estate, the birth of a child — and confirm that the court or commentator has correctly identified that antecedent.
In older legal instruments, drafting conventions were less standardized, and THEN appears in both temporal and contingent senses, sometimes within the same document. Historical sources in the Law Mind corpus — particularly 18th and 19th century conveyances and wills — require careful attention to surrounding syntax to determine which sense is operative.
The contingent sense of THEN in if/then constructions intersects with research on conditions precedent and conditions subsequent. A researcher who encounters THEN in a conditional clause should cross-reference those entries, since the determination of which type of condition is present can affect whether a right is defeated or whether it simply never arose.
Burrill's entry adds the historically significant note that THEN appears as a common word of reference in wills where life interests are bequeathed in succession, particularly in class gift contexts terminating with a gift to persons "then living." This usage generated substantial case law through the 19th century and into the 20th. Researchers in historical estates litigation should be alert to this pattern.
Historical Dictionary Support
The historical sources are in close agreement on the core dual meaning. Black's (both editions), Anderson's, and Bouvier's all frame THEN as, strictly speaking, an adverb of time — "at that time," pointing to a time already fixed — while acknowledging that it frequently functions as an adverb of contingency equivalent to "in that event." Black's 2nd edition and Anderson's both make clear that THEN "has no power in itself to fix a time," which remains the operative doctrinal statement.
Burrill's diverges usefully by focusing on the class gift context — the succession of life interests followed by a gift to persons "then living" — which represents the most practically significant deployment of the temporal sense in historical practice. Burrill also notes a distinct Old English law usage of THEN (from the Saxon) as a word for "slave," entirely unrelated to the adverbial sense; this meaning has no modern legal relevance but may surface in deep historical research involving pre-Norman or early common law sources.
No historical source fully develops the contingent sense with the rigor that contract construction cases eventually would. The dictionaries treat the contingent meaning as a recognized secondary usage but do not explore its implications for conditions precedent or conditions subsequent — gaps that later case law and secondary literature fill.
Jurisdictional Note
The interpretive principles governing THEN are consistent across common law jurisdictions: the word references time or contingency already established elsewhere in the instrument and does not independently fix either. However, specific outcomes in class gift and will construction cases vary by jurisdiction depending on local rules of construction and whether a jurisdiction has adopted interpretive defaults (such as a preference for construing "then living" to mean living at the time of distribution rather than at execution).
Encyclopedia Cross-Reference
Law Mind Encyclopedia — Wills and Testamentary Construction
Law Mind Encyclopedia — Conditions Precedent and Conditions Subsequent
Law Mind Encyclopedia — Contract Interpretation and Canons of Construction