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
So… 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.
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 393, “dower.” ↩
- 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. ↩
- 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). ↩
- 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). ↩
- Searing v. Searing, 9 Paige Ch. 283 (N.Y. Chancery, 1841). ↩
- Ibid. at 284-285. ↩
- Ibid. at 289. ↩
Good for her. I have always wondered how often women said “no” to the men back than. And not just for land cases 🙂
Agreed. On both.
I thought dower rights were still an issue. I was “privately examined” and had to sign when my husband transferred some of his business property to his mother. This would have been some time in the early 1980s. Is this no longer the case in Ohio?
For the most part, the right of dower has been abolished in favor of what’s called the spousal share (a right to inherit not just a life estate). But many states didn’t abolish it until quite late (Virginia, for example, not until 1990), and there are still four states where dower exists. Michigan is one, Kentucky is another, Arkansas is the third, and — as you know only too well — Ohio is the fourth. Ohio gives dower rights to husbands as well as to wives.
This is good to know. Thanks!
Though I have never seen a record of a wife saying “NO!” to releasing dower rights, there are all too many deeds in Virginia where no dower was released at all….or perhaps many years later when the buyer wanted to sell it to someone else. I once asked noted local historian in Virginia’s Northern Neck Carolyn Jett if she had ever encountered a case where a wife refused to relinquish her dower. She said, “Yes, just once.” I believe she said the wife later did relinquish the dower but only after she had moved to Kentucky and her husband had died. I don’t have any particulars on that case, sorry to say. While it may amuse the Legal Genealogist to see a wife saying “NO!” she should remember that the husband/wife relationship treated married couples as one entity, and for the most part married people took this seriously. The next stop was rarely divorce court.
The next stop was divorce court all too frequently, Craig, even in a place like your research focus of Virginia, where divorce was harder to get than in most places. There are hundreds of petitions to the Virginia Legislature for divorce while it was still a legislative prerogative. There are thousands of cases that went to the courts after jurisdiction switched to the courts — and that’s in a state where divorce was hard to get! There are also the divorce meccas, like Indiana in the 1850s, the Dakota Territory, Utah, Nevada and Alabama, where people fled to get divorces they couldn’t get in their home states. Yes, the common law treated married couples as one entity — and it was that very fact that gave rise to dower even in England well before the Revolution and eventually, there and here, to the married women’s property acts (starting, by the way, as early as 1839 in Mississippi) as a recognition of the reality that women had the right to have their needs and wants met as well. During the common law era, however, the one bit of bargaining power given to a woman was this exact right of saying no. And I’m glad to see that at least some women were able to use it.
I disagree with the premise that woman had no rights, or that a dispute over selling land led to divorce. But, where we more often see wives saying “NO!” is in the wills of their husbands, whereby they renounce any benefit of the will and take instead their dower thirds. This is more typical with the last spouse of a man who may have one or more wives (and children). Yes, lots of people did not have harmonious marriages. But lots of people did.
Feel free to start your own blog and write from your point of view, Craig. It’s a free country.
I was a notary in the early 60’s in Dallas for a construction company. When the repair job on the home was finished, the insurance company issued the claim check to the man and wife. My job was to have the man sign it, then ask him to leave the room, ask the wife was she being coerced in anyway to sign the check. I always felt a little uncomfortable with that. Being married myself, I could not in anyway imagine telling my Sandy to do this or that…”can you” or “would you” or “could you” works much better. (grin)
II always knew you were a smart man, Stan!
This is why community property and its legal agonists exist in a number of states today. The force of law protects spousal interests, while making room for a couple to make their own choices through a prenuptial agreement (though in the latter case, a disparity in economic power frequently can lead back to the abuses of the bad old days).
And of course we still have courts of equity to step in when that disparity in economic power is too great… 🙂