Women, Property, Inheritance and Genealogy -- Part One: Some background

Elizabeth Tanner Will 1763

I could write a book or a series of books about any one of the topics in the title of this post. Wait a minute! I have written (or helped write) a series of books about genealogy (search for my name on Amazon.com), but that still leaves women, property, and inheritance. We do have a book about probate. See the following Worldcat.com entry:

Eakle, Arlene H., and James L. Tanner. 2015. The ins and outs of probate for genealogists research guide. Morgan, UT: Family History Expos.

Despite this shorter citation, Holly Hansen was also an author. See also Amazon.com (https://www.amazon.com/Ins-Outs-Probate-Genealogists-Research/dp/1515034097/ref=sr_1_1?ie=UTF8&qid=1505743520&sr=8-1&keywords=james+tanner+probate)

There is also a book used as a textbook at Brigham Young University entitled as follows:

Salmon, Marylynn. 1992. Women and the law of property in early America. Chapel Hill [u.a.]: Univ. of North Carolina Press.

At the end of this post, I will provide a list of additional books on these subjects. But now it is time to write more specifically about women, property, and inheritance.

The first word that comes to mind when talking about the history of laws in America is diversity. Unfortunately, this term has come to have two radically different definitions: differences in the laws from one city, county or state to another and the employment of different racial, gender and ethnic individuals by law firms. The diversity I am writing about is the difference in laws between different jurisdictions. In fact, every one of the original U.S. Colonies had their own and substantially different laws concerning women, property rights, and inheritance. These differences have been carried over into substantial differences in the laws throughout the 50 states and 3,142 counties or county equivalents. 

To get some idea about the scope of jurisdictional diversity in the United States here is a short analysis of the counties and county equivalents in the United States today from Wikipedia:  List of United States counties and county equivalents.

Instead of counties, Louisiana is divided into 64 parishes which are functionally similar to counties. Alaska is divided into 19 organized boroughs and a single Unorganized Borough. The United States Census Bureau has divided the Unorganized Borough of Alaska into 10 census areas for federal census and planning purposes. The 38 cities in the state of Virginia are independent cities, which are not considered part of a particular county, and the states of Maryland, Missouri, and Nevada each have one independent city which is not considered part of a particular county. The Census Bureau and the Office of Management and Budget consider the 64 parishes, 19 organized boroughs, 10 census areas, 41 independent cities, and the District of Columbia, though not the Unorganized Borough, to be equivalent to counties for statistical purposes.

By USA Counties.svg: U.S. Census Bureauderivative work: Abe.suleiman (talk) - USA Counties.svg, Public Domain, https://commons.wikimedia.org/w/index.php?curid=9416002

Unknowingly, genealogists tend to think of the past as an extension of the present rather than the other way around. I am also guessing that most genealogists view the past with more uniformity than actual historical reality would suggest. This is particularly true about women's rights, property rights and the customs, processes, procedures, laws, and regulations affecting inheritance. Genealogists, like most of the population, also tend to view subjects such as women's rights in the light of recent developments and attitudes. They also tend to view the changes that have occurred most recently as "progress" and additionally filter all writing or discussion on the subject through a heavy-handed censoring mechanism based on vague concepts of "political correctness." Subsequently, there is a danger in writing about a combination of the subjects that anything I write will be controversial.

Never being one to shy away from controversy, I am determined to launch off into a discussion of the interrelationship of these three subjects.

The issue of diversity jurisdiction was addressed in the United States Constitution, Article 3, Section 2, Clause 1:

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

This provision of the United States Constitution was amended by the 11th Amendment:

Amendment XI
The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

I mention this because genealogical research extends back in time before the formation of the United States and any application of the United States Constitution.  At the time of the formation of the United States, the framers of the U.S. Constitution were concerned about the diversity of laws between the various colonies. The United States Supreme Court was set up as the ultimate arbiter between the states. From a genealogical standpoint, it is important to understand both the extent and pervasiveness of the diversity that existed between the colonies with regards to the laws pertaining to women, property, and inheritance.

This is also an important principle that needs to be understood by any historical researcher including genealogists. For example, I began this post with a screenshot of a will executed by one of my ancestors in Rhode Island in 1763. Here is a quote from an article entitled, "Married Women's Property Laws" from the Law Library of Congress website:

During the nineteenth century, states began enacting common law principles affecting the property rights of married women. Married women's property acts differ in language, and their dates of passage span many years. One of the first was enacted by Connecticut in 1809, allowing women to write wills. The majority of states passed similar statutes in the 1850s.²⁹ Passed in 1848, New York's Married Women's Property Act was used by other states as a model: 

AN ACT for the effectual protection of the property of married women.
Passed April 7, 1848.
The People of the State of New York, represented in Senate and Assembly do enact as follows:
Sec. 1. The real and personal property of any female who may hereafter marry, and which she shall own at the time of marriage, and the rents issues and profits thereof shall not be subject to the disposal of her husband, nor be liable for his debts, and shall continue her sole and separate property, as if she were a single female.
Sec. 2 The real and personal property, and the rents issues and profits thereof of any female now married shall not be subject to the disposal of her husband; but shall be her sole and separate property as if she were a single female except so far as the same may be liable for the debts of her husband heretofore contracted.
Sec. 3. It shall be lawful for any married female to receive, by gift, grant devise or bequest, from any person other than her husband and hold to her sole and separate use, as if she were a single female, real and personal property, and the rents, issues and profits thereof, and the same shall not be subject to the disposal of her husband, nor be liable for his debts.
Sec. 4. All contracts made between persons in contemplation of marriage shall remain in full force after such marriage takes place.³⁰

I have left in the footnote references. Note, I have a copy of the will executed by my female ancestor in 1763. This quote from the Library of Congress seems to indicate that Connecticut was the first state or one of the first states to enact laws allowing women to execute wills in 1809. I think we have to be careful as genealogists to sift out historical reality from present-day political correctness. By the way, the statement made by this article from the Library of Congress is the commonly accepted position with regards to early women's rights in America. It is also the reason why I begin this discussion by referring to the issue of jurisdictional diversity.

Stay tuned for future installments.