Not everywhere at all times
On the 10th of December 1874, a couple with whom The Legal Genealogist has more than just a passing acquaintance sold off 39 and 2/3 acres of land in Parker County, Texas.
G.W. and Martha L. “Cotrell,” as their names appear in the document, are my second great grandparents and, on that day, they executed a deed for that parcel to Isaac Guiles for $130.1
And down at the bottom of the pre-printed form used for the transaction is this:
Note especially this part: “And the said Martha L. Cotrell being examined by me privily and apart from her husband, after having the nature of said Deed fully explained to her declared that she executed the same of her own free will and accord, without force, fear or undue influence of her husband ; and wishes not to retract.”2
Looks like every single document you’ve ever seen where the wife is taken apart and has to agree to the sale in order to give up her dower rights in the property, doesn’t it?
Except that’s not what this is.
When Martha Louisa (Baker) Cottrell was separately examined in 1874, she didn’t have any dower rights to give up in this property.
Because Texas was not a common law state — and dower is very much a common law concept.3
Texas was, instead, basically a Civil Law state when it came to property. And the Civil Law — which had its origins in the Roman code of the Sixth Century4 — treated marital property very differently than the common law.
Under the common law, a married woman acquired no ownership interest in the lands of her husband. She didn’t have a right to inherit them when he died. Unless he specifically left her ownership of all or some of his property in his will, what she got was dower: when it came to land, that was usually a life estate in one-third of the property he acquired during the marriage and, in some jurisdictions, in one-third of the lands he ever owned.5
But under the Civil Law, husband and wife had their own separate property, and whatever land was acquired during the marriage became community property. That was expressly recognized under the Texas Constitution of 1845, under which Texas became a state. Under Article VII, §19, a married woman kept all of the property she acquired before marriage and all she acquired during marriage by gift, devise or descent as her separate property, while other property acquired during the marriage was held in common with her husband.6 A surviving spouse generally acquired all community property on the death of the other if there were no children, and half if there were children.
And, of course, Texas being Texas, it couldn’t just leave it at that. First, it toyed with the idea of dower briefly during the life of the Republic of Texas. Then shortly after statehood, it provided for what looked like a dower right but only in the separate property: under an 1848 statute, if there was no will left by a property owner, the surviving spouse would get a life estate in one-third of the lands held by the other as separate property if there were children, outright ownership of half if there were no children, and outright ownership of all if there were no other heirs (parents, siblings, etc.).7 That wasn’t exactly the same as dower; it was simply the system used to divide up an intestate estate — an estate where there wasn’t a will.
So… G.W. acquired this land in Parker County by land grant from the State of Texas in 1863.8 And he married Martha Louisa Baker, called Louisa, not later than January of 1855.9 Land acquired during the marriage was community property.
What Louisa was agreeing to in 1874, then, was giving up her community property rights: in effect her equal ownership of this land. She wasn’t just waiving dower, as she might have in a common law state. She was a necessary equal partner in the land deal here in this Civil Law state.
Yes, in the vast majority of cases where we see this sort of wife “taken separate and apart and privily examined” language, we are looking at a dower release.
But not everywhere. Not at all times.
And specifically not in 1874 Texas.
Cite/link to this post: Judy G. Russell, “Doubts about dower,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 6 May 2021).
SOURCES
- Parker County, Texas, Deed Book 5: 807, Cotrell to Guiles (10 Dec 1874, recorded 14 July 1879); Parker County Clerk, Weatherford. ↩
- Ibid. ↩
- See generally William Blackstone, Commentaries on the Laws of England, Book the Second: The Rights of Things, 3d edition (Oxford: Clarendon Press, 1768), 120 et seq.; digital images, Google Books (https://books.google.com/ : accessed 6 May 2021). ↩
- See generally Paolo Carozza, “Civil law: Romano-Germanic,” updated 16 Oct 2019, Encyclopædia Britannica, Britannica.com (https://www.britannica.com/ : accessed 6 May 2021). ↩
- Blackstone, Commentaries on the Laws of England, Book the Second: The Rights of Things, at 134. ↩
- Francis Newton Thorpe, compiler, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now Or Heretofore Forming the United States of America, 7 vols. (Washington, D.C. : Govt. Printing Office, 1909), 6: 3561; digital images, Google Books (https://books.google.com/ : accessed 6 May 2021). ↩
- See “Dower in the United States: Texas,” in Charles H. Scribner, The Law of Dower, 2 vols. (Philadelphia: T. & J.W. Johnson & Co., 1867), 1: 56; digital images, Google Books (https://books.google.com/ : accessed 6 May 2021). ↩
- Texas General Land Office, No. 224, G.W. Cotrell, 160 acres (10 Dec 1863). ↩
- Records of the marriage have inconsistent dates. See Judy G. Russell, “Happy anniversary!,” The Legal Genealogist, posted 5 Dec 2020 (https://www.legalgenealogist.com/blog : accessed 6 May 2021). What isn’t in doubt is the recordation of the marriage in Johnson County, Texas, on 29 January 1855. See Weldon Hudson, Marriage Records of Johnson County, Tx. (Cleburne : Johnson Co. Historical Soc., 2002). Also, Marion Day Mullins and Norma Rutledge Grammer, “Marriage records, Johnson County, Texas, 1854-1880,” manuscript; FHL microfilm 227498 Item 5. And see “Johnson County Marriage Records, First Book,” Footprints vol. 11, no. 4 (November 1968) 125-128. ↩
Texas had some strange laws, some protecting women, some not so much! As a notary in 1963 this couples house caught fire, my construction company repaired it, insurance paid for it. When the insurance check came in, the man and woman both had to sign the check. The man would sign, then I would have to ask the man to leave the room, then ask if she was signing of her own free will. Texas strange!
Texas always has to do things its own way! 🙂
What if there was a marriage settlement (or prenuptial agreement)?
In the Civil Law, the marriage contract would override the community property concept, as long as the contract was entered into before the marriage. A buyer of property might still want the wife to sign off, however, to prevent any issue over the title.