Dower vs. inheritance

After my previous post, the question came up about whether a widow’s dower right in her husband’s property is an “inheritance,” since, as we traditionally see the term being used in seventeenth-century New England, it is held only for the widow’s lifetime and reverts to her children on her death.

However, I found the following on Wikipedia: “Usually, the wife was free from kin limitations to use (and bequeath) her dower to whatever and whomever she pleased. It may have become the property of her next marriage, been given to an ecclesiastical institution, or been inherited by her children from other relationships than that from which she received it.”

Using this definition, a widow’s dower was an inheritance under her own control, but in practice, we very often see husbands stating in their wills that the widow was to have the use and benefit of the property only during her lifetime or her widowhood and that upon her death or remarriage it was to revert to the heirs he designates in the will. A husband could not reduce or vacate his wife’s dower right to the use and benefit of one third of his estate for her lifetime, but he could give her more than one third and he could dictate her power to dispose of it.

Absent instructions from a husband’s will, or when there was no will, the dower apparently stayed with the widow even when she remarried.

Thomas2 Carter’s second wife was Elizabeth (Bunker) Johnson, the widow of William Johnson of Charlestown. William’s will in 1677 gave to his “beloved wife Elizab. Johnson full power to sell my land on Misticke side…,” from which proceeds she was to make payments to her sons and keep the rest. He gave Elizabeth the remainder of his property “for her comfortable livelihood and if she stand in need of supply I do give her powr to dispose of all my household goods to any of her children either in the time of her life or at her death as shee shall see cause.” After Elizabeth’s death, whatever land remained was to be divided amongst their sons.

Absent instructions from a husband’s will, or when there was no will, the dower apparently stayed with the widow even when she remarried. To avoid having it swallowed up in the new husband’s estate, a pre-marriage contract might be signed, or the second husband’s will might state that whatever his bride had “brought to” the marriage was to be returned to her.

In short, “it’s complicated.”

Alicia Crane Williams

About Alicia Crane Williams

Alicia is the lead genealogist on the new NEHGS study project, Early New England Families, 1641-1700. Prior to joining the NEHGS staff, she compiled and edited numerous important genealogical publications including The Mayflower Descendant, the Alden Family Five Generations project, and the Harlow Family : Descendants of Sgt. William Harlow (1624/5-1691) of Plymouth, Massachusetts. Alicia has served as Historian of the Massachusetts Society of Mayflower Descendants, Assistant Historian General at the General Society of Mayflower Descendants, and as Genealogist of the Alden Kindred of America. She earned a bachelor’s degree from the University of Connecticut and a master’s degree in History from Northeastern University. In October 2016, Alicia was elected a Fellow of the American Society of Genealogists.

16 thoughts on “Dower vs. inheritance

  1. Problem with using Wikipedia is that its contributors are international. In the much of the world the dower right of a woman ( an American legal codification) would sometime be what is understood as a “dowry” the property that a woman brought into the marriage. Depending of country, jurisdiction, a father or parent’s instruction and tradition it would or would not merge with marital estate ( real or personal) or stand apart under a woman’s or her representatives control.

    1. Julie, yes, I will have to see if I can track down that source of the quote from Wikipedia. Technically, dower right and dowery were not the same. Dowery became the property of the husband, but it is definitely gray area about dower rights.

  2. I turned to an 1832 case, Webster v Merriam, 9 Conn 225, for an illustration of how dower worked. The probate law at the time gave 1/3 of all the lands and houses to the widow for her life, and the 2/3 residue and remainder to the children (with the reversionary interest of the 1/3 widow’s dower share). The children in this case were left all the land by their father, and they wanted to liquidate their 2/3 share as well as Mom’s 1/3, but Mom was still alive. The Connecticut Supreme Court held that the widow’s 1/3 of the real estate was hers, and the court did not have the power to divide and distribute all the property before the widow’s death. The decision notes that the Massachusetts Supreme Court in Sumner v Parker (no citation given) found “the court had not the power to distribute an appraised value to one of the heirs of his share of the reversion during the life of the widow. … [t]he object of that provision … was to prevent a prejudice to the estate by a division.”

    Thus, in Connecticut, the dower share given to the widow was only a life estate– not a “fee simple” inheritance. The widow was not free to alienate or sell her dower share independently of the entire estate. I think what the Connecticut Supreme Court was getting at was that a division of the lands in which there was a dower share might work financial inequity to both the widow and the other remaindermen (heirs). With respect to a widow’s remarriage, I haven’t seen anything that would terminate the dower share except for death.

    1. Carolyn, excellent, thank you. Like all legal things, precedence and practice affect everything. In 1677 the colonies would have been operating under English laws, so it looks like I’ll be getting into more research.

  3. It is complicated. I have been reading the book, “First Generations: Women in Colonial America” by Carol Berkin. The first section on white women in the 17th century Chesapeake has many examples of dower.

  4. Alicia,

    These will all assist you:

    1) Law in colonial Massachusetts, 1630-1800 : a conference held 6 and 7 November 1981 / by the Colonial Society of Massachusetts. Boston : The Society ; [Charlottesville] : Distributed by the University Press of Virginia, 1984. F61 .C71 v.62/
    Indispensable, which means I have to replace my lost copy. It is about time for another synthesizing conference to update all scholarly work done since.

    2) Black’s law dictionary / Bryan A. Garner, editor in chief.
    Publication Info. St. Paul, MN : Thomson Reuters, [2014]
    KF156 .B53 2014
    Edition Tenth edition.
    Description xxxv, 2018 pages ; 26 cm
    Bibliography Includes bibliographical references (pages 1997-2018).
    Summary For more than a century, Black’s Law Dictionary has been the gold standard for the language of law. This edition contains more than 50,000 terms, including more than 7,500 terms new to this edition. It also features expanded bibliographic coverage, definitions of more than 1,000 law-related abbreviations and acronyms, and reviewed and edited Latin maxims.
    Contents Preface to the Tenth edition — Preface to the Ninth edition — Preface to the Eighth edition — Preface to the Seventh edition — Guide to the dictionary — List of abbreviations in definitions — Dictionary: — Appendixes: — Table of legal abbreviations — Legal maxims — Declaration of independence — Constitution of the United States of America — Universal Declaration of Human Rights — Members of the United States Supreme Court — Federal circuits map — British regnal years — Bibliography of books cited.
    Handy and does cover changes in dower law and dowry but the 1st several editions would be better on all that.

    3) Blackstone, William, 1723-1780. Commentaries on the laws of England : in four books / by Sir Wm. Blackstone. Publication Info. Portland [Me.] : Printed and published by Thomas B. Wait and Co., ; 1807.
    Vault Rare Book Collection KD660 .B52 1807 v.3 REQUEST AT 7TH FLOOR DESK AVAILABLE
    Edition From the last London edition with the last corrections of the author, and with notes and additions / by Edward Christian.
    Description 4 v., [3] leaves of plates (1 folded) : geneal. tables, port. ; 22 cm.
    Note Library has v.3 only of this edition.
    Bibliography Includes bibligraphical references and index.
    Likely available on line through archive.org. This is the hard nut.

    4) The Legal Papers of John Adams for the extensive overview of the law that Adams had to learn as explained in the book leading-off introductions, and in the footnotes per specific cases. BUT our Society does NOT have a copy of those several volumes, it seems.

    5) The Suffolk County Court Records, 2 vols. Publications of the Colonial Society of Massachusetts. vols. 29 and 30
    F61 .C71 v.29-30 AVAILABLE
    Description 2 v. 25 cm.
    Preface signed: Samuel Eliot Morison. “The manuscript book of records of the quarterly court of Suffolk county, Massachusetts … is the property of the Boston Athenaeum.”–Pref.
    Half-title. Paged continuously. Preface signed: Samuel Eliot Morison.
    Subject Court records — Massachusetts — Suffolk County.
    Suffolk County (Mass.) — History — Sources.
    Massachusetts — History — Colonial period, ca. 1600-1775 — Sources.
    Added Author Morison, Samuel Eliot, 1887-1976.
    While most of what the Court in these years dealt with was trade and crime matters, it also handled probate as this court was part of the original court system. The index is in volume 2. What you see here is actual Case Law being done–the working out of the more general pronouncements of the several books of law Ms Swiggart cited above.

  5. Alicia, thanks for posting on this topic again[???]. This one on inheritance, juxtaposed with your other recent post on that will that excluded the son-in-law’s two oldest children–and my response, “The Will”–is leading me 1) to reconsider certain phrases in John Lake’s will in which he gives to 2nd wife Lucy outright as her own the dower he received upon their marriage, and 2) to reconsider the legal necessities behind the signing of that receipt for said dower. If I take John Lake at his word in his will, as I argues you do for that other will, and there is no reason not to, then…. But right now I have to go look at some other probate records for Helen.

  6. And ANOTHER very useful overview on inheritance that I just came across while re-reading Am Ancestors mag, 18:2:8: Carole Shammas, et. al., Inheritance in America from Colonial Times to the Present (NJ: Rutgers U. Press, 1987), cited by Ann Lawthers in answering an “Ask The Genealogist” question.

    So much for your leisure reading time!

  7. I just read the novel, “The Widow’s War”, by Sally Gunning, c 2006, which is about a woman in Cape Cod in 1760’s with the same problems with widow’s rights. Some things never change.

  8. Isaac Oakes Estate 1813 of Jericho, VT Administrators David Oakes and Thomas Oakes both of Jericho 5 April 1813. The widow received dower one third of the dwelling house that belonged to Isaac Oakes Deceased, the middle room called the kitchen one small buttery south side of said room nigh the chimney. May I ask a question, did family receive the other 2/3 of the house and was this a common practice. Thank you

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