Reasons why dower might be delayed
John Hassett died in 1868, leaving four children (two sons and two daughters) by an earlier marriage, a widow Ellen and two sons by Ellen.
In 1869, Ellen married again, to James Creigh.
And in August of 1880 she asked the court in McHenry County, Illinois, to set aside her dower and homestead in John Hassett’s lands.1
Why, asked reader, friend and colleague Teresa McMillin, would she have waited all those years before going to court to secure her rights?
The answer, of course, is The Legal Genealogist‘s favorite answer.
And the problem here, as in many cases, is that it depends on a lot of variables, so coming up with one most likely answer to a “why” question often isn’t easy.
First off, let’s remind ourselves what dower is. At common law, a widow was not an heir of her deceased husband — she did not inherit an ownership interest in his lands. What she got instead was dower: a life estate in some portion of his lands, generally one-third — which is why it’s often called the “widow’s thirds.”2
Dower was written into the laws of most states early on, and, by 1868 in Illinois, the widow was entitled to dower of “the third part of all the lands” her husband owned “at any time during the marriage.”3 And an Illinois widow at the time had a specific related right of homestead: to live in any house on the land without worrying that the house might be taken for the husband’s debts while any child was under the age of 21.4
Under the statutes, the heir at law was supposed to assign the dower lands to the widow “as soon as practicable after the death of the husband.”5 If the heir, or the person charged with handling the estate, didn’t do it within a month of the husband’s death, the widow could file a bill in chancery to get the dower set off for her use.6
But in this case, the widow Ellen waited.
The court papers themselves don’t give an outright answer. We can, of course, examine them in detail to see what hints we might find. But what exactly are we looking for?
In the words of another friend and colleague, Thomas W. Jones, we’re looking for a triggering event.
Something that created a reason why this needed to be addressed at that moment in time.
The court documents note that, because Ellen’s two Hassett sons were underage, “no valid or legal settlement division and partition or assignment of dower and homestead or sale of said premises can be effected without the aid and interposition or some court of competent jurisdiction.”7 And, they allege, Ellen at her own expense had built a substantial house, fenced the property and paid all the taxes since Hassett’s death.8
With that in mind, here are some of the likely candidates for the triggering event in this case:
• Ellen wanted to move away from the property and wanted to monetize her dower interest.
• One of the older Hassett heirs wanted to sell or use his or her share in the property.
• One or more of Ellen’s Hassett children was coming of age and wanted to sell or use his share in the property.
• Ellen wanted to secure her interest in improvements she’d made over the years against any claim by any of the children and saw the dower petition as the best way to do that.
There are perhaps other reasons as well, such as a creditor of one of the grown children threatening to try to take the property for debt. In every single case, we need to consider every possible scenario — and see what evidence we might find to figure it out.
Which of these may prove to be true in this particular case requires more work. Other court documents, deeds to or from or among the claimants, and more will need to be reviewed to see if there’s more than just a hint as to the triggering event here.
Just what the reason was why Ellen decided to await her widow’s thirds.
And what led her to stop waiting as of 5 August 1880, in the September term of the court.
Cite/link to this post: Judy G. Russell, “Awaiting the widow’s thirds,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 16 March 2023).
- Bill for Assignment of Dower, Creigh et al. v. Hassett et al., No. 9185, McHenry County, IL, District Court in Chancery, September Term 1880; digital images provided to author by Teresa McMillin. ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 393, “dower.” ↩
- Chapter 34, “Dower,” §1, in Eugene L. Gross, editor, The Statutes of Illinois… 1818 to 1868 (Chicago: E.B. Myers & Co., 1868), 231; digital images, Google Books (https://books.google.com/ : accessed 16 March 2023). ↩
- Ibid., Chapter 48a, “Homesteads,” §1, at 342. ↩
- Ibid., Chapter 34, “Dower,” §17, at 233. ↩
- Ibid., §18, at 233-234. ↩
- Bill for Assignment of Dower, Creigh et al. v. Hassett et al., No. 9185, at page 3 of unpaginated bill. ↩
- Ibid. at page 2 of unpaginated bill. ↩