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Wives occasionally did that… and got away with it

A favorite topic of The Legal Genealogist is that of the legal rights of our female ancestors.

Or, to be more precise, the absence of legal rights for most of our female ancestors for the duration of their married lives.

They couldn’t vote. Couldn’t contract in their own names. Couldn’t go to court on their own. Couldn’t inherit from husbands who didn’t leave wills. So the one big saving grace for many a woman was the fact that, if she managed to outlive her husband, she was entitled to dower.

Dower was the long-accepted common law right of a widow to a life estate in one-third of the lands her 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.”1

She 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.

Now here’s the twist: in many states, the dower right was something that was part and parcel of any property the husband owned, and he couldn’t sell his land without getting his wife to sign off. In many cases, she had to be taken to some private place away from her husband and examined by the proper official to ensure that she was giving up her dower rights voluntarily.

That was the law in Virginia, for example, as early as 1674 when a private law recorded that the wives involved had been taken apart from their husbands and “privily examined” about their agreements to the deeds.2 It was the law in Rhode Island in 1798.3 It was still the law in Texas in 1911.4

NoSo… here’s the question: did any married woman ever really say no to a land deal her husband wanted?

I’ve long thought that, if she ever did, the next court would be divorce court, or maybe the criminal court, where somebody would be charged with assault and battery.

But, it turns out, there really are cases where wives said no. And ended up winning something important in the end.

Case in point: in New York, in 1841, the Court of Chancery was called on to resolve a dispute between the widow of Richard Searing and others who were his next of kin. It was over some debts owed — she said they were owed to her and the next of kin said they were owed to the estate, so when paid the money should go to them, not to her.5

It turned out, from the facts, that the Widow Searing (whose first name, of course, never appears in the case), owned land in Vermont when she was courted by Richard Searing and sold it when they were married. Some of the money went to pay for his debts; the rest went into securities in her name.

Then comes the interesting part:

In 1835, when the decedent was about to sell his farm in which she had an inchoate right of dower, she declined executing the deed, and relinquishing her interest in the farm, unless a certain portion of the purchase money was appropriated for her use. He thereupon agreed that $2000 of the proceeds of the sale should be set apart for her use, and should be deposited in the savings bank, in her name ; which was done accordingly. And this sum, he also permitted her to draw out from time to time and to loan upon securities in her own name, and to retain the possession of the securities thus taken for her own benefit. The securities taken in her name for the monies thus loaned, which were in her possession at the time of the death of her husband, and which he had never claimed or attempted to reduce to possession in his life time, the surrogate decided belonged to her in her own right ; and that she was not accountable therefor, to the next of kin, as a part of the estate of the decedent.6

Read that highlighted part again: she said no! And he gave in and gave her what she wanted.

And, the Chancery Court said, the surrogate was right in upholding that money as hers and hers alone:

The execution of the deed for the Stewart farm by the wife constituted a valid consideration for the part of the purchase money which was agreed to be set apart and in vested for her separate use, so as to make it the duty of a court of equity to protect that interest, even against the marital claims of the husband to the money deposited in the savings bank for her separate use, in case he had attempted to reduce it to possession in violation of his agreement.7

So the answer to the question is: yes. Yes, wives did occasionally say no.

And the next court wasn’t always divorce court.

Good for you, Mrs. Searing.


SOURCES

  1. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 393, “dower.”
  2. See Laws of 1674, Act X, in William Waller Hening, compiler, Hening’s Statutes at Large, Being a Collection of all the Laws of Virginia from the first session of the Legislature, in the Year 1619, 14 vols. (1819-1823; reprint ed., Charlottesville: Jamestown Foundation, 1969), 2: 321.
  3. See The Public Laws of the State of Rhode-Island and and Providence Plantations … 1798 (Providence, R.I.: n.p., 1798), 267; digital images, Google Books (http://books.google.com : accessed 7 Dec 2015).
  4. See Article 6802, Chapter 3, Title 118, in Vernon’s Sayles’ Annotated Civil Statutes of the State of Texas … 1911, 4:4407; digital images, Google Books (http://books.google.com : accessed 7 Dec 2015).
  5. Searing v. Searing, 9 Paige Ch. 283 (N.Y. Chancery, 1841).
  6. Ibid. at 284-285.
  7. Ibid. at 289.
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