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September 2004

VA-ROOTS@LISTLVA.LIB.VA.US

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From:
Paul Drake <[log in to unmask]>
Reply To:
Paul Drake <[log in to unmask]>
Date:
Fri, 10 Sep 2004 21:22:20 -0500
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The questions call into play both the ancient law of England and the
variations of those old principles by the American colonies/States.
Because of those variations from time to time and place to place, I
speak only of VA and NC.

From the earliest times, The English law recognized an inchoate
interest (an interest that MIGHT - MIGHT - vest (come to reality) in
the wife if she outlived her husband.  The purpose was to protect and
provide a measure of sustenance for widows.  That claim - I did not
say right - was in the profits and rents in 1/3 of the land he owned
during the marriage, in addition to her [privilege to live on the
property for her lifetime - a "life estate".  Those inchoate rights
vested in the widow at his death intestate only, but notice that she
came to the same rights (almost) if he died testate yet did not by
will provide her with interests equal to what would have been her
"dower".

Notice also that her dower rights were extinguished in all real estate
as to which she joined in a conveyance - deed, usually - from her
husband to other persons.

It is from that basic principle that we now may guess - GUESS - that
if no wife signs a man's deed, then at that date he was not married.
Nevertheless, as Lou has stated, one may not rely on that inference,
since at times the instrument by which she consented to his sale may
be separate and distinct and may not have found its way to the records
we now examine.  Then too, again as Lou mentioned, some clerks on the
fringes of settlement were prone for whatever reasons to not follow
the "letter" of the law in that regard, and finally, some men simply
sold land when away from those who knew him and stated that he was not
married, when indeed he was.

****Plus, those states that were once under the Napoleonic Code, or
adopted it, had their own provisions -- these include, e.g., Louisiana
and Texas (who use "community property" rights instead of dower
rights).

****Correct

.... And I have seen several examples of transfer of land
without dower rights among members of the same family; apparently all
parties thought there would never be a court contest involving clear
title in these cases, and so did not go to the trouble (and expense?).

********* Correct, but very seldom

So, lack of dower right release, while it might tell you something
about probability, is not, by itself, hard proof that there was no
wife.  (I wish it were - it would make some of my family riddles
easier to solve.)

****well stated.      Paul

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