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in Lieu of her right of dower

When Samuel Wilkison of Orange County, New York, wrote his last will and testament in September 1866, there was one thing about which he was abundantly clear.

His wife Ann wasn’t to have any of his lands.

WilkisonShe was to be cared for, for sure: after some personal property went to his daughter Mary and some cash to his one and only grandson and namesake Samuel, all of his estate, real and personal, was to be sold and converted into cash.

And of that cash, some $3,600 was to be invested and kept invested during Ann’s natural life and “the use and income of which Said Sum” was to be for Ann’s benefit. She was to be paid annually the income from the invested money.

Oh, and she was to be given back “all the personal property she brought to (him) upon (their) marriage.”

But, Samuel was clear about one thing, this was “to be in Lieu of her right of dower in (his) real Estate.”1

Now Samuel Wilkison was a fairly wealthy man. He was recorded in the 1860 census as a dealer in or maker of agricultural implements, with $6,000 in real estate and $4,600 in personal property owned.2

It isn’t clear, from the census alone, if Ann was his first wife or his second, the mother of his three children or not. A listing of burials at the Old School Baptist Church Cemetery in Warwick, New York, suggests that Samuel’s first wife was Adaline, who died in 1858, and Ann was a later wife.3 But whatever her role was in that family, it clearly wasn’t to be as the manager of the estate — or owner of any assets outright.

This wasn’t all that unusual a will, even there in 1866, nearly 20 years after New York adopted one of the earliest and model Married Women’s Property Acts.4

Despite the legislative advance in women’s rights, the courts in New York had limited the law to women who married after the law took effect, and to property acquired after the law, and any other way they could think of to limit it.5

But because of that one line in Samuel’s will — that this was “to be in Lieu of (Ann’s) right of dower in (his) real Estate” — Ann had a choice.

The dower right of a widow was a long-accepted common law right to a life estate in one-third of the lands the husband owned at his death — and sometimes even owned at any time during his life — a “provision which the law makes for a widow out of the lands or tenements of her husband, for her support and the nurture of her children.”6

The widow didn’t own her dower land, but she had the right to live there the rest of her life (and the dower land usually included the house), farm the land, mine it if it had minerals. It protected her from being out on the street.

And the law — including the law of New York at the time — didn’t favor deals like Samuel’s. They gave the widow the choice, to accept what a husband left her in his will or to set the will aside and take what the law allowed her as dower instead. New York law provided that “If lands be devised to a woman, or a pecuniary or other provision be made for her by will, in lieu of her dower, she shall make her election whether she will take the lands so devised, or the provision so made, or whether she will be endowed of the lands of her husband.”7

So to find out what happened in this case — to follow the story in any case where a married man’s will made provision for the wife that was in lieu of dower — it’s necessary to look to see what happened after the will was admitted to probate.

Each state’s procedures will be different, but in most cases the widow had a set time — one year in New York — to say yes or no to the bequest in the will.

So it’s not enough to locate the husband’s will and to see how he wanted things handled after his death. It’s also necessary to track down the case file, the loose papers, the dower records in an estate in any jurisdiction where dower was in effect — and see what the widow chose to do.

Because he may have thought it was “in Lieu of her right of dower” — but the choice on that was hers, not his.


SOURCES

  1. Orange County, New York, Surrogate’s Court, Original Wills Vol. 442, Will of Samuel Wilkison, 15 Sep 1866; Surrogate’s Office, Goshen, New York; digital images, “New York, Orange County Probate Records, 1787-1938,” FamilySearch (https://familysearch.org : accessed 15 Nov 2015).
  2. 1860 U.S. census, Orange County, NY, Walkill, population schedule, p. 163 (penned), dwelling 1087, family 1243, Samuel Wilkison; digital image, Ancestry.com (http://www.ancestry.com : accessed 15 Nov 2015); citing National Archive microfilm publication M653, roll 835.
  3. See Old School Baptist Church Cemetery, Wilkison family memorials, Find A Grave (http://findagrave.com : accessed 15 Nov 2015).
  4. See “An act for the more effectual protection of the
    property of married women,” New York Laws of 1848, Chapter 200, in Montgomery Throop, ed., The Revised Statutes of the State of New York, … 1778-1881, III: 2336 (Albany, NY: Banks & Brothers, 1882).
  5. See Carole Shammas, “Re-Assessing the Married Women’s Property Acts,” Journal of Women’s History 6 (Spring 1994): 9-30.
  6. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 393, “dower.”
  7. §13, Title III, Of Estates in Dower, in Throop, ed., The Revised Statutes of the State of New York, … 1778-1881, III: 2198.
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