The Certificate of Live Birth, or COLB, is the second of the estate documents to be created, and as discussed in the post on the Identification of Newborn, is the second document created following the birth of the child.
Before delving into this document, however, a basic primer or introduction to deeds will be helpful. This is because to better comprehend the scope and ideas shared within this document, one necessarily must have some idea what a deed is, and what purpose deeds serve. Though there are several deeds, and an exhaustive exploration of the topic being beyond this simple introduction, there are some deeds of specific interest which necessarily must be explored. But first, what is a deed?
A deed is defined, in pertinent part as: “2. A written instrument by which land is conveyed. 3. At common law, any written instrument that is signed, sealed, and delivered and that conveys some interest in property.“ (Black’s Law 8th Ed., pg. 444) This definition is based on older works and cases decided by the King’s Bench. One such work, from 1897, is A Treatise of the Law of Deeds, by Robert Thomas Devlin. In Volume I of A Treatise of the Law of Deeds, Devlin explained in section 5, pg. 7-8, that a deed “includes all varieties of sealed instruments. Even bonds and executor contracts under seal may be included by the term.” Additionally, what a deed is, and it’s function, have been described by Sir Henry Finch thus:
“A deed is a writing sealed and delivered. For if either a parchment without writing be delivered as one’s deed, yet it is not his deed, though an obligation be afterwards written in it: or if it be a writing but not sealed at the time of the delivery of it as his deed, it is a scrole and not his deed. Or if I make and seal a deed, and the party take it without my delivery, I may plead it is not my deed.” (Law, or a Discourse Thereof 108 [1759]).
“What then is a deed? Unfortunately the word is not free from ambiguity. In the original and technical sense a deed is a written instrument under the seal of the party executing it. Because, however, of the wide use of such instruments in the conveyance of real estate, it has come to mean in popular acceptance any formal conveyance for the transfer of land or of an interest therein. The dual use of the term has crept into the language of courts and law writers, so that in the reading of cases it is difficult to determine whether the word is used in the first and original sense, or whether it connotes a formal instrument of the type ordinarily employed for the conveyance of land.” 28
“All deeds are documents, but not all documents are deeds. For instance, a legend chalked on a brick wall, or a writing tattooed on a sailor’s back may be documents but they are not deeds. A deed is, therefore, a particular kind of document. It must be a writing and a writing on paper or its like, e.g., vellum or parchment. Any instrument under seal is a deed if made between private persons. It must be signed, sealed, and delivered. A deed must either (a) effect the transference of an interest, right or property, or (b) create an obligation binding on some person or persons, or (c) confirm some act whereby an interest, right, or property has already passed.” Gerald Dworkin, Odgers’ Construction of Deeds and Statutes 1 (5th ed. 1967).
As noted above, there are several forms of deed, but only some of these are pertinent to the current discussion. These specific deeds are:
Absolute deed: A deed that conveys title without condition or encumbrance. -Also termed deed absolute.
Deed of Distribution: A fiduciary’s deed conveying a decedent’s real estate.
Deed of Gift: A deed executed and delivered without consideration. -Also termed gratuitous deed.
Deed of Separation: An instrument governing a spouse’s separation and maintenance. [Cases: Husband and Wife 278.]
Deed of Settlement: 1. A deed to settle something, such as the distribution of property in a marriage. 2. English law. A deed formerly used to form a joint-stock company.
As the Certificate of Live Birth is made on the birth of the child, this can easily be identified as a grant deed (grant deed. (1891) A deed containing, or having implied by law, some but not all of the usual covenants of title; esp., a deed in which the grantor warrants that he or she (1) has not previously conveyed the estate being granted, (2) has not encumbered the property except as noted in the deed, and (3) will convey to the grantee any title to the property acquired after the date of the deed) or a gift deed granting to the child its estate from the estate of the parents. More specifically, from the estate of the father of the child.
With this basic comprehension of deeds, we can now explore the Certificate of Live Birth and see what this document contains, why it is there, and what the purpose of this document actual is.
Looking at the Certificate of Live Birth a few things are noticeable from the beginning. As noted in The Myth of the Birth Certificate Bond, the ribbon decorations are obvious and play a central role. Making it reasonable that this would gain the focus of many who would look at this document to learn its purpose and scope.
The document typically holds as its first entries the name of the child. This is separated into the now universal three box data collection set, First Name, Middle Name, and Last Name. If we look at and compare this document formatting to that of the Newborn Identification form (see post on Identification of Newborn), we see how the formatting has changed. Where, in the Newborn Identification document there is the one name box, the new form separates this. The only real significance to this is in recognizing that there is now a set data collection set occurring, and where government forms are used there is a specific purpose for collecting this data in this fashion.
Another notable difference is that in this birth record, the order of birth is notated for the first time. This is quite significant, and the significance of this notation is explained in the post where we will explore the field and discipline of heraldry.
The next item within this document which is significant is names of the parents. The name of the father is listed first, which is not a gender slight, but simply a means to link the child and the estate being created for the child to the estate of the parents. In common law, and old world practice, the father as the protector would bear the responsibility for estate, and upon marriage the estate of the wife would be absorbed into the estate of the man as the familial estate. Ergo, the chief executor is listed.
This also serves the purpose of the common law acknowledgment of an issue. (The term “issue” is a legal term used in wills and estates law from the 16th century and means descendants or offspring.) Where in the olden times the acknowledgment was publicly made before the families and the townspeople, today, the public notice is made by this document.
Next we find the use of and reference to the mother’s maiden name. As set out in the blogs on Myths, this has been skewed by some to support a theory that we are all in admiralty jurisdiction. However, this author believes there is a much more significant use of this information, and that it actually ties to the ancestral estate of the mother.
The last section of the document that is of interest for the present discussion is the signature portion. This section has two parts that is of interest. The first is the use of the term “informant” which some have also misconstrued as having some nefarious meaning. However, In normal parlance, the term simply means one who gives information to another. (Oxford Dictionary). If we set aside the normal bias that is associated with the term “informant” which has come to mean something very different than it did 200 years ago, we can see more clearly that the term here is used simply to denote the person giving the information on the record. This brings the document four square in line with the public notice and public acknowledgement scope that used to be served by other means.
However, when we add to this that the information attested to on the form, and the fact of the creation is witnessed by an “attendant”, which In common parlance, the term Attendant means a person employed to provide a service to the public in a particular place. (Oxford Dictionary) and then counter-signed by another public official (the Registrar) we can see how this document fits squarely into the definition of a formal deed. As this document is also evidencing something declared to be living, as opposed to dead or destroyed, the only reasonable conclusion is that this document is a grant deed, evidencing the creation of the personal estate of the child from the parental estates, while at the same time serving as a reservation of claim to the ancestral estate of the child.
Before we move on to the next estate document, one more aspect of the Certificate of Live Birth needs to be explored. This author has now heard three (3) people state they have been told by a clerk or recorder, while referring to the Certificate of Live Birth, “that’s a death certificate.” The question any reasonable mind would pose is: if this is true, how can it be true?
It is tempting to simply write these accounts off as a misinformed clerk, or obfuscation by a public trustee. However, to do so would be a mistake. As explained below, it is likely these accounts and representations were in fact accurate.
The phrase “death certificate” is defined as: “An official document issued by a public registry verifying that a person has died, with information such as the date and time of death, the cause of death, and the signature of the attending or examining physician.” (Black’s Law 8th@429)
The first part of the definition is clearly satisfied as the birth record is an “official document issued by a public registry.” The birth record also bears a date and time a child is born, which meet the standard set out in the definition, as well as bearing the signature of the physician. Therefore, the majority of the requirements set out in the definition are met prima facie.
The definition of “death certificate” refers to a person. As this is the subject of the definition, it is best to comprehend what is being referred to. A “person” is defined, in pertinent part as: “3. an entity (such as a corporation) that is recognized by law to have the rights and duties of a human being. • In this sense, the term includes partnerships and other associations, whether incorporated or unincorporated.” (Black’s Law 8th @ 1178) Given this definition, an estate can, in many respects, be a “person” as the estate, or more accurately the executor office, is in legal terms a corporation sole. A “corporation sole” is defined as: “A series of successive persons holding an office; a continuous legal personality that is attributed to successive holders of certain monarchical or ecclesiastical positions, such as kings, bishops, rectors, vicars, and the like. This continuous personality is viewed, by legal fiction, as having the qualities of a corporation.” (Black’s Law 8th @366)
In addition, many statutory definitions of the term “person” include in the statute “an estate” as being contemplated by the term.
The next term needing consideration is the word “died”, which in pertinent part means: “2a. To pass out of existence.” and “4a. To cease functioning: STOP.” (Webster’s Collegiate Dictionary 10th Ed @322) And “3. To come to an end; to cease; to be lost; to perish or come to nothing; as, let the secret die in your own breast” (Webster’s 1828) This term is qualified in its usage by the word “death”, which means, in pertinent part: “3. The state of a corporation that has formally dissolved…” (Black’s Law 8th @ 428) or as “5a. The passing or destruction of something inanimate.” (Webster’s Collegiate Dictionary 10th Ed. @296)
Finally, as used in relation to the subject matter, the word “state” refers to a condition of being (Webster’s Collegiate Dictionary 10th Ed. @ 1148) By these definitions, and the above analysis, the birth record can be termed a death certificate as it evidences the passing of the personal estate to the child, the destruction of a portion of the legacy estate, and the loss of rights over this portion by the grantor. Though, it is far wiser to keep with the true aspect of this document: a grant deed.