From a modern perspective, we might think that women had no legal rights in the “old” days, but there actually were many ways in which women were legally protected. For example, husbands could not abandon wives and families (although one had to catch the husband to make him pay up). Another right that we regularly see is the right of dower given to the wife: she was entitled to inherit one third of her husband’s estate, no matter what he might have thought about it. This right is often expressed in land records when the husband sells land and the wife “releases” her dower rights to the property. Not all deeds include this release, but the right was there and the transaction could later be contested without it.
But what about the other way around? While working on the Early New England Families Study Project for Thomas2 Carter of Charlestown, I came across a curious situation where in his 1691 will he left his estate to his daughter-in-law, Esther (Marlow) Carter, wife of his son Thomas Carter, Jr., for her lifetime; it was then to pass to her children, with specific instructions that while “Jr.” was to receive £10 plus “a competent proportion” of the yearly rents from the property, he was in no way, no how to be permitted to “dispose of, or alienate one foot of said lands.”
“Jr.” was to receive £10 plus “a competent proportion” of the yearly rents from the property…
It does not appear that Thomas was incompetent in the sense of diminished mental or physical capability. He bought property on his own in 1693, he was a mariner, and he outlived Esther. Despite what his father had stipulated in the will, when Esther later sold some of the property inherited from her father-in-law, her husband had to give written consent to the sale. For example, on 22 June 1703, “Esther Carter of Charlestowne wife of Thomas Carter of said Towne” was the grantor, but the deed is also signed by Thomas Carter, who “Consents to this act and Deed of his wife.” As her husband and the father of their son Vincent, who was their heir, Thomas, Jr., had a legal claim to rights in the property.
I have seen wills where fathers give property directly to their married daughters with the stipulation that the sons-in-law would have no rights to it, but this is the first I remember of someone leaving the estate to a daughter-in-law in preference to a son. Oh, to have been a fly on the wall when that was going on!
I think that it is incorrect to say that the dower right meant that “she was entitled to inherit one third of her husband’s estate”. She was actually entitled to the *use* of 1/3 of the estate. In the English tradition of large land-holdings, this meant that she was entitled to 1/3 of the proceeds or profits of the land as it was worked by staff or tenants. Translated to the small land-holdings in America, she was entitled to live on the land and arrange for it to be worked. However, she did not own the land. Typical wills of the time stipulated that some other named person would receive ownership of the land upon the wife’s death.
James, you are, of course right. “Inherit” is the wrong word as the dower right only applied to the lifetime of the widow and then would be distributed among the heirs either by direction of the will or by law. I’ll address that in my next post.
In going through deeds for property my family owned generations ago, I found an instance or two where the wife had to retroactively relinquish her right of dower for $1 when they’d forgotten to do that at the time the husband transferred the property. Ooops!