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feme sole status under the law - an unmarried woman of age or a widow
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The women above are fictional but examples of the types of documents where you might find the above daughters and wives are below: |
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| BIRTH RECORDS | |
| 1. | christening - if your ancestor lived in an area where no early birth records exist but they were of a denomination that believed in christening or infant baptism hunt for church records to prove children |
| 2 | MARRIAGE |
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marriage bond - in states that required bonds
fathers are often named and consents
filed with the bond divorce - separation - desertion. Divorce prior to the civil war was not common - especially in the American south. Those records were usually filed with state governing bodies. More common was separation "from bed and board". In cases where the husband would not agree to this the wife had to petition the court and it was up to the jury (of men) to decide if she was being mistreated enough to deny him his place as her husband. If she was granted separation - primarily on grounds of abuse, adultery or bigamy, the husband sometimes had to pay security for his good behavior and could be imprisoned for not paying his alimony. It was rare that these were granted for adultery alone - courts were afraid she might need help with support - so she usually needed a more threatening reason. In cases where both parties agreed to quit living together a third party (often a brother) negotiated the terms of the agreement; how much the husband would pay for the wife's upkeep etc. These were sometimes filed in court records, sometimes in deed books, often in equity/chancery court if the state or colony had those. desertion was common in early America and left wives in legal limbo. They were still feme covert [one with the husband with no separate legal identity] but needed to make decisions on their own. After 7 years without a trace court restored their feme sole status and they could marry again. |
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| LAND - DEED RECORDS | |
| 3 | deed where wife signs - many colonies/early American states required the wife's signature to sell property because she was entitled to dower right (1/3) of any real property her husband acquired. When she signs the deed it will usually state that she was "examined privately" by the clerk or a commissioner and has said it was her will that the property was being sold and she was not coerced. If the release of dower was required but no one has record of it the wife can come back many years later and say she didn't want it sold and wants her third. [note: all dower law was not uniform for instance CT, MA & PA did not require private examination because they expected wives to obey. CT & PA passed laws so that dower right was limited to land the husband owned at the time of his death. |
| 4 | deed part 1 part 2 where wife does not sign but releases dower - in some places the wife does not sign the deed but the record of dower release follows the deed in the deed book. |
| 5 | deed where grandfather transfers land to son on behalf of grandchildren - in return they take care of him in his old age |
| MILITARY - PENSION RECORDS | |
| 6 | pension papers sometimes show children's birthdates ( particularly if the widow was applying on behalf of herself and minor children) |
| WILLS | |
| 7 | will part 1 part 2 - some wills name all children; some simply say "to all my children" - pay close attention to administrators, witnesses and anyone mentioned in the will. Make an attempt to find their wives and connections. Some wills asked that the estate be inventoried and a sale take place to simply divide things equally; others were very detailed in who got what. If the father gives a only a dollar to some children that is usually a sign that he has already given that child his / her portion. Some husbands willed life estates to their wives - she stayed in the house and had everything not specifically assigned to her children till her death when they passed on to the heirs. |
| 8 | If the
son-in-law was deemed a problem sometimes fathers appointed trustees to
a married daughter's inheritance to be doled out in increments - or sometimes
they simply made it clear the inheritance was for the
daughter [even though the law said it became her husband's]
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| 9 | If a child was deceased - portion goes to grandchildren - it was customary for fathers who had seven children to divide his estate 7 ways after his widow got her portion (or if she was already gone to split the estate evenly). If a married daughter was deceased her children (or at least some of her children) are often named as getting her share. |
| 10 | in some cases the wife will reject the will - this is usually not because she dislikes her husband's terms but more often because he owed money; by rejecting the will her dower portion comes off the estate before the creditors can come take it away instead of "after my just debts are paid." [There were exceptions to this - in Pennsylvania there was an early era where the creditors came first]. Notes of rejection are usually filed with the estate records - but sometimes it is just a note in the court orders and then you find an inventory and dower division in the estate records. |
| 11 | if the heirs were not happy with the will they might go fight it out in chancery court / equity court - attention might be called to this in the local court order book |
| remember only women with femme sole legal status [spinsters or widows] can leave wills because married women own nothing on their own. | |
| INVENTORIES - SALES - ACCOUNTS | |
| 12 | If a man left property (real or personal) but died intestate that process begins. The court will appoint the administrator of the estate. Sometimes this was the wife and if she did not carry out the order as they saw fit she would be called to task |
| 13 | three or four men will be ordered by the court to make an inventory of the estate. A small inventory might look like this part 1 part 2 . A larger inventory more like this part 1 part 2 part 3 part 4 |
| 14 | after the inventory there may be a sale part 1 part 2. You may notice that the widow buys many of the items. This is because she has received her third of the household items and if she wants the rest of her things she must buy them back |
| 15 | in both
testate & intestate estates accounts
may have to be submitted if much money was owed out of the estate or to
the estate
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| court order for binding out - if the widow is poor and struggling and the county begins to worry they will become a burden on others the court orders will say something like "the court demands that Elizabeth Hamilton appear next session to give just cause why her children shall not be bound out. She then must come to court and either have a plan for her children or the court will order them bound out. Many times it looks as though she never appears - this is often the only way you know the situation was resolved in some way [she might have gotten married again or go family help or worked out a private arrangement of some sort.] | |
| 17 | apprentice/binding out agreement - many agreements are only noted in the orders. The custom in early times was to take parchment and right the indenture twice, tear it down the middle leaving jagged edges that could only be matched one with the other. The master had one copy / the apprentice/bondservant had the other. If these were also recorded at the courthouse they are usually found in the deed book or in loose papers. |
| 18 | court
order for guardianship - when poor fathers died guardianship was
not an issue because guardianship implied you were guardian of SOMETHING
held in trust for the heir. If the father dies leaving land or money
or other personal property to his underage children the court will appoint
a guardian for each child to watch over this inheritance. It does
not necessarily mean the children ever resided in the guardian's home.
Many husbands left details in wills saying their wives could handle all
this but when they died intestate the court frequently appointed guardians
even if Mom was still living. If the children were young they had
no say in who the guardian was. Once they became teenagers they could
usually come to court and request whoever they wanted.
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| 19 | guardianship reports part 1 part 2- some courts had a separate book. Many kept them in the will book. Some counties were sticklers for quarterly reports; others a yearly report. When they bring their report it says things like - paid .50 for Patsy's shoes; paid $1.00 for material; paid $5.00 for schooling and if money was taken in (by renting of land or slaves etc. held in trust) that was reported as well. This will keep happening until Polly marries or comes of age. |
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dower division - when her husband died intestate the court was to appoint
commissioners to inventory the estate, take care of the sale and divide
off the dower right - 1/3 of the estate. Depending on the state/colony
rules could differ but as time went on this usually meant 1/3 real estate,
1/3 personal estate and in slave-holding states/colonies 1/3 of the slaves
attached to the estate. The widow was allowed to stay in her husband's house
until this was done. At this time she also had one year to make a complaint
if any land had been sold during their marriage without proper dower release
[assuming she did not live somewhere where this was forbidden] dower division showing only the widow dower division showing heirs part 1 part 2 |
| 21 | tax lists - once she is a widow she will not be taxed for herself (because she is a woman) but she will have to pay tax for land or horses or cows or possibly for sons that are of a tithable age. |
| 22 | licenses - widows could apply for licenses to run a tavern, inn, boarding house etc. |
| Remember: regional differences can help dictate how laws were made
regarding women. - example Puritan New England had less protection for women's
dower and property than the American south because they had a utopian view
of a patriarchal system where all women must obey; all husbands must act
"prudently" and all children must take care of their mothers.
They hated equity/chancery court because it was expensive [people talked
a lot in chancery court]. They were however, much more liberal about
divorce. Their religion saw marriage as a civil contract that could
be broken. Of all the colonies only Pennsylvania, Massachusetts and Connecticut built a framework of laws on the assumption that coverture / submission would always work properly. The rest of the colonies recognized that women might have legitimate interests apart from her spouse or differences that might be best for her children. The American south followed British common law; created chancery courts much like the old country and followed English precedent.
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| Anne Livingston http://www.wvc.edu/library/Research/Gen/RBGenIndex.html |