Some nuances this time

In The Legal Genealogist‘s experience, it never fails.

Answer one reader question with basic information, and the “well, what about…” questions come rolling in.

You’d think I’d have learned by now to add in some of the nuances up front, but noooooo….

So… here we go, with more on dower.

Tuesday, in response to a question from reader Marcia, we went back over the basics of dower: the fact that it was what a widow in a common-law jurisdiction like North Carolina (the Tarheel State) received as a matter of law on the death of her husband; the fact that it was “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…”; the fact that she didn’t own it but was just entitled to live on it and profit from it during her lifetime.¹

Now, some of the nuances.

Reader Nancy wanted to know “what happened when the widow died? Did the husband’s estate have to be re-opened to distribute her dower?”

Anything the widow got went back into the husband’s estate and would be distributed to his heirs. Technically, the estate should be reopened, and you’ll find plenty of examples of that. In one case in my family in North Carolina, the husband died in one county in 1806. His widow died 42 years later in a county created from the original county. The estate was reopened in the new county, with new administrators named by the court since both men named as executors had died in the meantime!

That’s what should happen. But as genealogists we know the difference between “should” and “did.” In many cases the heirs simply took over the property, divided it among themselves if they needed to divide it, and went on with their lives. (The same is true of all inheritances: in many cases, the heirs never bothered with the formalities of probate.)

In a related question, reader Sue Mullane said: “My ancestor Juliatha Hunt was left the estate of her husband David until her death at which time the estate would be divided among the grandkids. So would there be a record of the estate being divided after Juliatha’s death? And would that be in Court records…?”

As with Nancy’s question, this has to have an “it depends” answer. Technically, there should be a record of the estate division. If there is one, it could be in the records of the local probate court — whatever that was called at that time and place — or in the records of the court that oversaw land issues. That was often a chancery or equity court. Often, the only record will be in the deed books. And don’t be surprised if the only way to document the division is to find the deeds for all the bits and pieces of the land years later when those bits and pieces are sold out of the family.

Reader Larry Thomas got into the weeds of dower in North Carolina with his question: “Under what conditions did the sale of a property require the wife relinquish her Dower? I see, in NC, a John Doe buying and selling property but only a handful have the second entry from the wife relinquishing her right. What, if anything, can be inferred when the wife does sign versus the properties that do not have her inclusion?”

What Larry is asking about is the need for the wife to sign off on the sale of lands by her husband in order to give up — relinquish — her dower right and make sure the buyer got clear title to the land.

Here, we need to remember that dower was a right to a life estate in “a certain portion” of the husband’s lands. What that portion was changed in North Carolina after the Revolution. Before a change in the law overturned the straight common-law rules, the widow had a life estate in the lands her husband ever owned. So she’d need to relinquish her rights when he sold it to make sure that clear title was passed.

But in 1784, the law changed to limit dower only to the lands the husband owned when he died.² So, starting in 1784, her relinquishment wasn’t required: a buyer would get clear title to land with the husband’s acts alone.

Then in 1868, it changed back to the old common-law system, giving the widow dower rights in lands he ever owned during the marriage.³ So after that took effect, relinquishment was required again.

So what do we have here? Another “it depends”: what you can infer from the absence of a relinquishment in North Carolina depends on the time period. Before 1784 and after 1868, it might be indirect evidence that the man wasn’t married at the time of the land transaction. But during the 1784-1868 time, it wasn’t required, so it can’t be considered evidence that the man was unmarried. And, remember, even when relinquishment wasn’t required by North Carolina law, it could also suggest that the man (or his buyer) came from a place where relinquishment was the norm (like Virginia) and expected it.

Which kind of leads right into the question another reader asked: “How different are dower ‘rules’ from state to state?”

Plenty, particularly when it came to that “a certain portion” part and whether the wife had to relinquish or not to pass clear title to a buyer. In some colonies and states, the certain portion included all land the husband ever owned during the marriage. That was the general common-law rule. In others, it was limited to the lands he owned when he died. That makes a big difference in the records, because in theory the wife should have to relinquish when it’s all land he ever owned — and that means records. But there are states where the law said specifically any sale by the husband was good enough to transfer the wife’s dower interest too.

And of course there’s the whole question of how long dower continued to exist under various state laws. Most states began switching over from the idea of dower to the idea of a spouse simply inheriting outright ownership of a portion of the spouse’s estate in the 19th century. The last state to switch over was Michigan, effective in 2017.⁴ Dower still exists today in some form in Ohio, Kentucky and Arkansas.⁵

And we haven’t even mentioned places like Louisiana or Texas or California where the civil law system was followed, common law dower wasn’t in effect, and the wife’s property rights were controlled by the concept of community property… or what happens to property included in a will but as a life estate and not outright ownership… or…

Topics for another day…

And every bit of this reinforcing The Legal Genealogist‘s mantra: if we want to understand the records, we have to understand the law — the specific law in effect at that time and in that place.

Cite/link to this post: Judy G. Russell, “More on dower,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 27 August 2020).

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