Y or y not

One letter … and a world of difference

Reader Miriam D. has ancestors from all over the American south and, as a result, is struggling to understand the differences that sometime crop up between jurisdictions.

And right now what has her confused is the difference between dower and dowery (or dowry — you’ll see it spelled both ways).

“There’s a whole set of records for one case out of Georgia about dower,” Miriam said, “and then I turn around and get all confused by another case in Louisiana about dowery. What gives here anyway?”

Oh, great question.

dowryBecause what Miriam has here is more than just a difference of one letter — it’s a difference in entire legal systems, giving rise to entirely different concepts, different expectations and different records that result.

In both cases, the words refer to some property — land, money, rights of some kind — going from one party to another as the result of marriage. But because of the different underlying legal systems, the property rights are going in different directions.

The word dower as a legal term means the “provision which the law makes for a widow out of the lands or tenements of her husband, for her support and the nurture of her children.” The dictionary definition goes on:

Dower is an estate for the life of the widow in a certain portion of the following real estate of her husband, to which she has not relinquished her right during the marriage: (1) Of all lands of which the husband was seised in fee during the marriage; (2) of all lands to which another was seised in fee to his use; (3) of all lands to which, at the time of his death, he had a perfect equity, having paid all the purchase money therefor.1

The term arises out of the common law tradition — the type of law that developed initially out of decisions by English law courts in the middle ages and was eventually collected and reported in guides like Blackstone’s Commentaries2 or, even earlier, Matthew Hale’s History of the Common Law.3

The common law was widely applied in early American colonies settled by the English and, for the most part, was incorporated into early American law at the time of the Revolution. For example, the New Jersey Constitution of 1776 provided that:

the common law of England, as well as so much of the statute law, as have been heretofore practised in this Colony, shall still remain in force, until they shall be altered by a future law of the Legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this Charter…4

Under that English common law, a wife’s dower was her right, on her husband’s death, to enough of his estate to support herself and her children. In most jurisdictions, she had the right to live on and get the profits from one third of his land during her lifetime plus some percentage of his personal property. After her death, the lands would go to their children (or to his heirs if there were no children); the widow didn’t have the right to sell or will the property away.

So you’ll see all sorts of records, in Miriam’s Georgia case and throughout the former English colonies, setting side dower for widows and resolving issues that came up because of dower rights.

But the English weren’t the only ones who colonized parts of America… and other colonizing nations brought their own laws and traditions into their territories. In particular, the French and Spanish colonies brought a legal system with them called the civil law, based on the Roman legal code:

Civil law systems, also called continental or Romano-Germanic legal systems, are found on all continents and cover about 60% of the world. They are based on concepts, categories, and rules derived from Roman law, with some influence of canon law, sometimes largely supplemented or modified by local custom or culture. … In North America, civil codes are found in Louisiana and Quebec.5

And the other word Miriam is struggling with — dowery or dowry — comes out of that civil law tradition. It is “the property which a woman brings to her husband in marriage; now more commonly called a ‘portion.’ By dowry is meant the effects which the wife brings to the husband to support the expenses of marriage.” And, the definition adds:

This word expresses the proper meaning of the “dos” of the Roman, the “dot” of the French, and the “dote” of the Spanish, law, but is a very different thing from “dower,” with which it has sometimes been confounded. By dowry, in the Louisiana Civil Code, is meant the effects which the wife brings to the husband to support the expenses of marriage. It is given to the husband, to be enjoyed by him so long as the marriage shall last, and the income of it belongs to him. He alone has the administration of it during marriage, and his wife cannot deprive him of it. The real estate settled as dowry is inalienable during marriage, unless the marriage contract contains a stipulation to the contrary.6

The concept was one of contract: both man and woman entering into a marriage were expected to contribute to the costs of establishing the new household. And the bride’s portion — her dowery or dowry — what property she brought into the marriage that her husband had the right to use, and what property she had the right to keep separate, was spelled out in the marriage contract.7

Under the civil law, then, the records will be very different: there will be marriage contracts and records of agreements drawn up by notaries public (who played a much more significant role under civil law systems than they did in common law jurisdictions), and Miriam will see outcomes in her Louisiana cases that don’t look much like what she’ll see in Georgia.

Two words so very similar, two legal concepts — and legal systems — so very different.

And a great example of how knowing the law lets us understand the records.


SOURCES

  1. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 393, “dower.”
  2. William Blackstone, Blackstone’s Commentaries on the Laws of England (Oxford, England, 1765-1769); various editions, digital images, Google Books (http://books.google.com : accessed 7 Apr 2014).
  3. Sir Matthew Hale, The History of the Common Law of England, 3d ed. (London, England : Nutt & Gosling, printers, 1739); digital images, Google Books (http://books.google.com : accessed 7 Apr 2014).
  4. The Constitution of 1776, text, State of New Jersey (http://www.state.nj.us : accessed 7 Apr 2014).
  5. What is the Civil Law?,” LSU Law Center (https://www.law.lsu.edu : accessed 7 Apr 2014).
  6. Black, A Dictionary of Law, 384, “dowry.”
  7. See generally Frederick J. Stimson, American Statute Law: An Analytical and Compared Digest of the Constitutions and Civil Public Statutes of All the States and Territories Relating to Persons and Property, Volume 1 (Boston: C. C. Soule, 1886), §6429; digital images, Google Books (http://books.google.com : accessed 7 Apr 2014).
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6 Responses to Y or y not

  1. Jerry says:

    And so, a “dowager” (I’m think Downton Abbey, here) is a woman with a life estate, or dower, (under English common law) in her deceased spouse’s lands?

    • Judy G. Russell says:

      That’s one common meaning, yes. It’s also used, of course, to distinguish the widow of a nobleman from the wife of the current title holder.

  2. Jade says:

    The different status of dowry property and dower interest in property can have serious practical consequences.

    A distant cousin wrote her will in 1845 in what is now WV. She was a ‘grass widow’ (heheheheh). She bequeathed her land to three children born of her marriage, and personalty to a child born before her marriage (who was not described as such in the will). Her father devised land on which she lived to her in his 1831 will, and father and mother had conveyed adjacent land to her in 1824. She had purchased another tract herself in 1830.

    When brought for probate in the Court of Common Pleas in 1853, the Court initially refused to accept it on the basis that the property was that of her husband, and she had no right to devise it by will. In this interpretation, she would be treated as widow of a person who died intestate, her dower interest extinguished by her death, and the property would be treated as if her husband had died intestate — divided equally among the four children.

    The children devised land sued to have the will probated as written, explaining that the husband had left in 1819 and not heard from since, so presumed dead, so their mother should not be considered femme couverte; that the husband had never treated the first child as his own; that the land bequeathed in the will was the testator’s own, acquired from her father and by her own industry.

    The Court accepted this explanatory Bill of Complaint as written — and it was very helpful that the father’s will and the deeds to my cousin were all well and clearly recorded in the same county’s records. The will was admitted to probate, and title to the lands vested in the three children of the marriage.

  3. Aquila says:

    Thank you for the clear explanation of the difference between dower and dowery/dowry and that they derived from different legal systems. I have some research ongoing with people resident in Quebec between 1775 and 1880 as well as another group from New York and Pennsylvania. It explains why the women were dealt with differently which was not apparent from the records I had found.

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