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The election

When Alexander J. Taylor died in Kent County, Delaware, in September 1881, he left everything — everything — to his widow, Wilhelmina W. Taylor.

He left her in charge of his estate. He left her in charge of their two small children, Alexander and Ella. And he left her all of his worldly goods, both real and personal, of whatever kind and wherever situate.1

And on 28 March 1882, Wilhelmina went in to the Orphans’ Court and said, in effect, “thanks, but no thanks”:

Wilhelmina W. Taylor, widow of the said Alexander J. Taylor deceased, and one of the devisees under his said last will and testament, voluntarily appeared in open Orphans Court, and made her election under the statute in such case made and provided, to her dower at law out of the real estate of her said deceased husband in lieu of the portion of his said real estate so devised to her in his said last will and testament aforesaid.2

Say what?

She’s giving up the entire estate and taking her dower instead?

dower.delDower, you may recall, is a widow’s right to live on and receive the benefits and profits of some portion, usually one-third, of her husband’s lands.3

The widow doesn’t own that dower property; all she gets is a life estate — the rights to the land for her lifetime. She can’t sell it; she can’t give it away; she can’t leave it to somebody else in her will.

So why in the world would Wilhelmina — why would anybody — turn down complete ownership of all of the property — real and personal — in favor of a life estate in just a third of the land?

It doesn’t seem to make sense.

But it does.

It makes perfect sense.

Because of the law.

And because, with everything else Alexander left to Wilhelmina, he also left her a mountain of debts.

His administrator James Wolcott — appointed when Wilhelmina declined to handle the estate — told the court that “Alexander J. Taylor at the time of his death was indebted to sundry persons which in the aggregate amounts to a large Sum of Money and … his personal estate is … insufficient for the payment of his debts.” So he asked for permission to sell the house and lot on State Street in Dover.4

The total amount of the debts, according to the administrator, was nearly $5,000 after the personal property was used to pay down the amount. The real estate only sold for $3,400.

And — by saying “thanks, but no thanks” — Wilhelmina salvaged a big piece of that.

The sale, you see, was subject to Wilhelmina’s dower interest in the land. And the law was very much on Wilhelmina’s side.

First, a widow was entitled to choose between whatever her husband left her in his will and her right to dower.5 More importantly for Wilhelmina, her dower was a “third part of all the lands … whereof her said husband was seized … to hold to her as tenant in dower for and during the term of her natural life, free and discharged from all and any … debts, liens and incumbrances.”6

And if that wasn’t enough, the law also said she could take her share as part of the proceeds of sale of the whole real estate, rather than as a right to a physical part of the land.7

So by saying “thanks but no thanks” to the whole, Wilhelmina put much more in her pocket than she could have gotten under the will.

Giving up everything in this case wasn’t giving up a thing.

And understanding the law lets us understand the records.


SOURCES

  1. Kent County, Delaware, Orphans’ Court Alexander J. Taylor File; Delaware Public Archives, Dover; digital images, “Delaware Orphan Court Records, 1680-1978,” FamilySearch (https://familysearch.org : accessed 7 May 2015).
  2. Ibid., widow’s election, 28 Mar 1882.
  3. See generally Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 393, “dower.”
  4. Kent County, Delaware, Orphans’ Court Alexander J. Taylor File, petition filed 28 Mar 1882.
  5. §5Chapter 87, “Of Dower,” in Revised Statutes of the State of Delaware … (Wilmington, Del. : James & Webb, printers, 1874), 534.
  6. Ibid., §1, at 533.
  7. Ibid., §17, Chapter 85, “Of Intestates’ Real Estate,” at 516.
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