What’s up with women and land ownership you ask? It’s complicated. There are also a lot of myths about marriage and women, which will further complicate your research. That’s why it’s important to learn the facts and laws. We often look at property transfers to find connections between families. I’ve learned that my interpretation of the document and relationships implied therein is only as good as my understanding of the relevant laws, especially those related to the property rights of women in early America. The law of dower is of particular interest. Determining property rights can be a complex question, and I am only scratching the surface here.
Among the several great resources I found are law treatises published in the early 19th century (See A Treatise on the Law of Dower; Particularly with a View to the Modern Practice of Conveyancing by John James Park, available on Google Books). Some online blogs and articles were very helpful as well. Bob Baird has some great articles on his website “Bob’s Genealogy Filing Cabinet.”[1]
You will often read the phrase “at common law” when researching legal issues, especially relating to early American history. America is still a common law country, meaning that its laws are made when decisions are rendered by judges (precedent). When the English settled America, they brought English common law with them. Over time, new laws were established in America that repealed or revised English law. When territories became states, they each adopted their own laws. It’s important to research the laws that were in effect at the time and place of the document that is the subject of analysis.
One such law that came to America from England is the law of dower. Dower (not to be confused with dowery) is the right of a widow to a life estate in her deceased husband’s property. Dower did not amount to ownership. Dower was a widow’s right to the usage, income and enjoyment of the property.[2] If the couple had children the dower share was one-third; if no children, the dower share was one-half. Requirements that the wife consent to relinquish her dower when her husband sold property were enacted in America in the early 18th century.
Understanding marriage in early America is a prerequisite to understanding women’s property rights.
Marriage as a civil contract, rather than merely a religious ceremony, was the result of policy to prevent women and children from being a burden on the government. A husband was bound by law to support his wife and children. Dower facilitated continued support for the widow and children after a husband died. Marriage also meant that the husband and wife were one legal entity and that the wife could no longer own property of her own, nor could she sell property or enter into contracts. In an early treatise on English common law, marriage was described thusly:
“By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called…a femme-covert.”[3]
An unmarried or widowed woman could own property, but a married woman could not.
While dower deals with the husband’s property, what if the wife owned property when she got married or inherited it while married? That question would eventually bring us to another set of laws to research: the law of curtesy. For the sake of brevity and to keep the focus on dower, the simplified answer is that the husband could sell the property if he wished. The wife would not have a dower right to property that she once owned or inherited. However, buyers may have asked for both husband and wife’s signature on a conveyance. If the wife survived the husband, property that she previously owned would become hers again. She could own it because she would no longer be married; she would be a widow.
Here is a simplified breakdown of each scenario:
Husband’s property:
- Husband could do whatever he wanted with the property.
- Wife retained a dower interest in the property while she lived.
- The wife could consent to relinquish her dower if husband wanted to sell the property.
- If husband sold the property, there should be a relinquishment of dower included with the deed.
Wife’s property:
- Husband would acquire a life interest in the property.
- Husband could sell it but couldn’t leave it to anyone in his will while his wife was alive.
- If husband sold it, wife had no dower right, but a buyer may want both husband and wife’s signature on the deed.
- If wife died first, husband could do whatever he wanted with the property.
- If husband died first, ownership of the property reverted back to the wife.
- There would not be a relinquishment of dower connected to the sale of property that was once owned by the wife.
How can this be applied to the documents you’re finding? Depending on the place and time, if you see a deed that is only singed by the husband and a wife has not relinquished her dower, it may mean that he is single or widowed. If a deed is signed by both the husband and wife together, but dower is not mentioned, the deed may be conveying property that once belonged to the wife or was inherited by the wife. If property was conveyed to a woman, she was single or widowed.
[1] Bob’s Genealogy Filing Cabinet. Southern and Colonial Genalogies, 2010-2018, www.genfiles.com. Accessed 2 Feb. 2018.
[2] “Dower and Curtesy.” Bob’s Genealogy Filing Cabinet, 2 Feb. 2018, www.genfiles.com/articles/dower-and-curtesy.
[3] Blackstone, William, Commentaries on the Laws of England, Chicago rpt, 1979.