Why not Mom?
Reader Sharon G. Whitney simply couldn’t wrap her head around what the Delaware County, Indiana, Circuit Court thought it was doing in 1890.
That was the year, she reported, that the United States Bureau of Pensions finally got around to awarding a pension based on a deceased Civil War soldier’s service.
It gave benefits to his widow for the period from February 1877 to February 1882, when she remarried, and then it gave benefits to the children from the date of their mother’s remarriage to the day before each turned 16.
That’s when the Delaware County Circuit Court appointed a guardian for those minor children. And it didn’t appoint their mother. Instead, it appointed their paternal uncle — their father’s brother.
And that has Sharon perplexed: “Why,” she asks, “would the minor heirs of a deceased Civil War invalid need a guardian when their mother, who was not incapacitated, was living, but remarried?”
The answer is simple — and infuriating to a 21st century woman: because somebody had to be legally responsible for the children’s money — and women weren’t taken very seriously by the law at that point.
Let’s back up a little.
First off, you want to look at the law that gave the pension rights to this widow and these children, often called orphans by the law because their father was deceased.1
In 1862, Congress passed a comprehensive pension law covering those who were then fighting and dying in the Civil War. It provided benefits for those wounded and disabled, in section 1, and then went on in section 2 to provide:
That if any officer or other person in case of named in the first section of this act has died since the fourth day of death of those March, eighteen hundred and sixty-one, or shall hereafter die, by reason of any wound received or disease contracted while in the service of the United States, and in the line of duty, his widow, or, if there be no widow, his child or children under sixteen years of age, shall be entitled to receive the same pension as the husband or father would have been entitled to had he been totally disabled, to commence from the death of the husband or father, and to continue to the widow during her widowhood, or to the child or children until they severally attain to the age of sixteen years, and no longer.2
Under the law, then, the widow of a man killed in the Civil War was entitled to a benefit, and the money went to her (and not to any children) while she remained a widow. Her remarriage would terminate her right to receive benefits.3
But when she remarried, the money wasn’t hers any more. It was to go to the children, up until each of them turned 16.
Now… in our 21st century experience, we’d all expect the mother to be the natural choice to handle the children’s benefit. That’s certainly the way it’d be handled in most cases today.
Not so in the past.
Remember that, at common law, control over the persons and the estates (property) of a child rested with the father — and only the father. And in the course of explaining the legal power of the father, Blackstone in his Commentaries on the Laws of England noted, in passing, that “a mother … is entitled to no power, but only to reverence and respect…”4
Let’s repeat that: “a mother … is entitled to no power, but only to reverence and respect…”
We can add in the legal disabilities of women generally, both in the common law and in early statutes. Think, just as one example, about the fact that a wife didn’t ordinarily inherit from her husband: all the property went, not to her, but to the children — and then often to the sons and not the daughters.5
So when it came to guardianship, the law naturally looked to men as well — at least when it came to property.
To understand that better, we need to keep in mind that, in the common law, there were three essential types of guardians: the guardian by nature; the guardian for nurture; and the guardian in socage. The guardian by nature or guardian for nurture had the right to physical custody of a minor child. That was always the father or, if the father died without naming a guardian in his will, then the mother.6 The difference between the two was that the guardianship by nature lasted to age 21 and gave the guardian control over the child’s personal property. Guardianship for nurture lasted to age 14 and didn’t involve property at all.7 The guardian in socage was the one who had custody of a minor’s lands and person.8
In America, the guardian in socage gave way to the guardian by statute — the person “appointed for a child by the deed or last will of the father, and who has the custody both of his person and estate until the attainment of full age.”9 And if nobody was named by the father, the court stepped in with a guardian by appointment of the court, with the same authority.10
Notice that this type of guardianship came into play only when there was an estate involved. If Papa died, and there wasn’t any property involved, then if Mama was able to keep the kids, she simply kept them. If Mama died too, then Gramma or Grampa took them in. Or Aunt Fanny and Uncle Bert. Or a cousin down the road. Or even a neighbor down the road. This was informal, and if the kids got raised, didn’t starve and didn’t run wild, nobody took a second look. Remember: the notion of formal adoption under the law didn’t even start in the United States until the 1850s.11
But when property or money was involved, the preference was overwhelmingly for the nearest male relative who couldn’t inherit from the child to serve as guardian. Even the example used by Blackstone points this out: “where the estate descended from his father, … his uncle by the mother’s side cannot possibly inherit this estate, and therefore shall be the guardian.”12
And that’s exactly what happened in Sharon’s case: the mother was bypassed by the law as entitled to “reverence and respect” but not to legal power, and her late husband’s brother was named the guardian instead.
That doesn’t mean the children lived with him. In all likelihood, they would have remained with their mother and her new husband. But the legal authority over the money they were receiving from their father’s pension would have been with their uncle, not their mother.
SOURCES
- See Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 857, “orphan.” ↩
- “An Act to grant Pensions,” 12 Stat. 566, 567 (14 July 1862). ↩
- See William H. Glasson, Federal Military Pensions in the United States (New York: Oxford University Press, 1918), 127; digital images, Google Books (http://books.google.com : accessed 6 June 2016). ↩
- William Blackstone, Commentaries on the Laws of England, Book I: The Right of Persons (Oxford, England: Clarendon Press, 1770), 453; digital images, Google Books (http://books.google.com : accessed 6 June 2016). ↩
- See e.g. ibid., at 463-464. ↩
- Black, A Dictionary of Law , 552-553, “guardian by nature.” Ibid., 553, “guardian for nuture.” ↩
- Ibid. ↩
- Ibid., 553, “guardian in socage.” ↩
- Ibid., “guardian by statute.” ↩
- Ibid., 552, “guardian by appointment of the court.” ↩
- See “Timeline,” The Adoption History Project (http://pages.uoregon.edu/adoption/index.html : accessed 6 June 2016). ↩
- Blackstone, Commentaries on the Laws of England, Book I: The Right of Persons, at 461. ↩
It’s taken a long time for the legal rights of women to evolve and there are still a few wrinkles in state laws and many more in other countries. We should not take for granted the rights we currently have, and in fact, there is still no Equal Rights Amendment.
Considering the rights of women at this time, maybe the uncle was the more likely one for guardianship of these funds. Perhaps in all their wisdom, they did not want the new husband benefiting in any way, like maybe he married her to get those funds.
The risk that the funds would have been used by the new spouse was always a concern, Stan, and one reason why the guardianship would have been required.
Ironically, in this particular case, the uncle was eventually removed from guardianship and prosecuted by the Bureau for embezzling the remaining minor’s pension (over $1000), running out of state with another man’s wife, and abandoning his own wife and small children. This is all in the pension file of the children’s deceased father and his widow.
If the uncle served any time, it was for about 3 years. A federal judge, Judge Baker in Indianapolis “cleared” his criminal docket of many “small revenue” criminal cases and the men were “suspended and out.” Indiana State Sournal, Vol LXXX, Issue 47, p. 8, Wed, 24 Nov 1897
Talk about irony… 🙂
I have a guardianship with no reason for it. The father was still alive and I can’t find any information about the man made the guardian. He could be related to the father or mother, they had the same last name. He isn’t in any census, etc. The court simply says he was named the guardian but didn’t give a reason. I can’t find a relative dying at that time so can’t figure it out.
It’s frustrating when you can’t find the triggering event, but you know there had to have been one: a death in the family, an inheritance, an entitlement to something coming to the children.
Could the father have been mentally incapacitated?
It’s possible but unlikely. (There’d be no reason to have a guardian if there was no property involved, even if the father was incapacitated.)
I have a Civil War pension situation in West Virginia where the widow was the guardian of the children until she remarried but state law required that the new husband become the guardian. The accounting for the use of the funds required of him is well documented in the file.
Amazing, isn’t it? She’s perfectly capable as long as she’s single, but her brain turns to mush when she marries? Sigh…
Julia, I have a very different WV case. The mother remarried twice while there were children still under 16, and I found no indication that a husband was named guardian. Her widows pension ceased with the first remarriage. Not until 2 years later in 1872 did she apply for the stipend due orphans of a soldier who died while in service. At this time her second husband was still living. A totally unrelated person was appointed guardian and duly filed fiduciary accounts. He continued as guardian after her second hubby died and she married again. The same guardian continued until the last child turned age 16.
Maybe I have not searched the court records well enough, but thus far have found no indication that either of the later husbands acted as guardian in the fiduciary sense (accounting for the minors’ funds).
Judy, Thank you soooo much for this post/email. This has puzzled me for years. You are awesome and so is your blog!
Thanks for the kind words.
Thank you Judy for blogging my question and the rest of you for your questions and comments. For a follow up to my question, see my reply to Stan Baker. I totally agree with the laughable idea a woman shouldn’t manage such things if she was married (“coverture”?) but if she was single, then maybe she could.
What a story this is…
I also have a guardian case that I’m trying to puzzle through. Widowed mom was made guardian of three children in Iowa. She moved to Missouri with a new guy, married him, taking her children with her as far as I know. They moved back to Iowa after three years. After a couple years more, and three more children, she divorced number 2 for debt and desertion in 1864. In 1866, she resigned her guardianship of the first two children. The new guardian promptly sold the kids’ land. Her dower right was recognized.
This all brings me to a couple of questions.
Why did she resign the guardianship? Was this financial? I thought at first that maybe she couldn’t petition the court to sell the land on her own as a woman, but looking at other cases up for probate at that time, that does not seem to be the case. This led me to a second question. How financially onerous was a guardianship? I see a lot of security being required of guardians. This woman was living on the edge with five mouths to feed. But then, sale of the first two children’s land would have helped feed at least those two, wouldn’t it? I don’t see how resigning the guardianship would have helped her financially. Do you have any thoughts?
Consider the potential here for a conflict of interest: if the land was sold, she might benefit by getting her dower interest. But selling the land might not benefit the children. So it may simply have been that.
So are you saying that the resignation would be to avoid the APPEARANCE of wrongdoing? That she had someone else be guardian so that the land could be sold without her looking bad? And she would still get the dower portion?
Thanks for your response.
Without looking in detail at the documents (something I’m afraid I don’t have time to do), I’d at least consider whether she was legally hamstrung while serving as guardian. She’d have been bound not to act against the children’s interest and yet it might not have been in her interest. So resigning might have offered a way out. This isn’t a “this is what happened” scenario. I’m tossing this out as a possibility.
Hmm. Interesting, and something I hadn’t thought of.
Judy, A beautiful explanation of statutory morphing from our common law heritage.
Thanks for the kind words.