Researching dower in North Carolina
Reader Marcia is puzzled.
“I have been doing family history in North Carolina and dealing with Dower and other goodies,” she writes. “When she got the land as a dower right did the widow own it outright?”
Great question, because a lot of people don’t understand dower — what it was and how it worked.
First off — the definition.
Dower was the “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
So… this is a common-law concept, which means it originated in the English common law we brought over with us as colonists.2
Second — did North Carolina follow the common-law rule?
Oh, yeah. The first reference to dower in colonial North Carolina is in a 1694 court record in which the wife of a landowner relinquished her right to dower.3 The first statute: in 1715, in the context of surveys of land.4 The concept was so ingrained in North Carolina law that, after the Revolution, when the new state was forfeiting lands of British loyalists, it still provided for the dower rights of the widows of men who had been loyal to the Crown.5
Third — does North Carolina still provide for dower today?
Nope. Dower was abolished in the Laws of 1959, chapter 879, § 1, effective in 1960.6
So Marcia’s research would have to be before 1960 to have dower involved, but note that this only affects widows, not women whose husbands were still alive. So it’s very different from when married women got the right to control their own land. Property rights of married women began to be protected in North Carolina under the Constitution of 1868.7
And finally — what exactly did the widow get?
In general, the widow got “an estate for the life of the widow in a certain portion of the … real estate of her husband, to which she has not relinquished her right during the marriage…”8
And it’s that “estate for the life” part that answers the heart of Marcia’s question: a life estate isn’t the same thing as ownership. It’s defined as an “estate whose duration is limited to the life of the party holding it, or of some other person; a freehold estate, not of inheritance.”9 In essence, the widow 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.
But she didn’t own the land and didn’t have the right to pass it on to her heirs. On her death, that one-third would go back into the husband’s estate and get distributed to his heirs. During her lifetime, those heirs could go to court against the widow to stop her from committing what was called waste, like not taking care of the house or chopping down the orchard.
A very different notion from outright ownership.
Tarheel dower: very much a part of researching in North Carolina.
Cite/link to this post: Judy G. Russell, “Tarheel dower,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 25 Aug 2020).
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 393, “dower.” ↩
- See William Blackstone, Commentaries on the Laws of England: Book the Second (Of Things) (Oxford : Clarendon Press, 1770), 129 et seq. ↩
- See “Minutes of the General Court of North Carolina, including Chancery Court minutes (Nov 26, 1694 – Nov 30, 1694)”, in William L. Saunders, editor, The Colonial Records of North Carolina, 10 vols. (Raleigh : State Printers, 1886-1890), 1: 434. ↩
- See “An Act for Preventing Disputes concerning Lands already Surveyed,” in Walter Clark, The State Records of North Carolina, 16 vols. (numbered to follow the Colonial Records) (Winston and Goldsboro : State Printer and Nash Brothers, 1895) 23: 36. ↩
- See “An Act to carry into effect … An Act for confiscating the property of all such persons as are inimical to this or the United States…,” in ibid., 24: 268. ↩
- State of North Carolina, 1959 Session Laws and Resolutions (Winston-Salem : p.p., 1959), 886 et seq. ↩
- See Article I, Article X, §4, in North Carolina’s 1868 State Constitution, Secretary of State (https://www.sosnc.gov/ : accessed 25 Aug 2020). ↩
- Black, A Dictionary of Law, 393, “dower.” ↩
- Ibid., 720, “life-estate.” ↩