Tuesday, March 9, 2010

Property Laws

I found some interesting terms while researching property laws in NY.

Coverture: In English and American law, coverture refers to women's legal status after marriage: legally, upon marriage, the husband and wife were treated as one entity. In essence, the wife's separate legal existence disappeared as far as property rights were concerned. Under coverture, wives could not control their own property unless specific provisions were made before marriage, they could not file lawsuits or be sued separately, nor could they execute contracts. The husband could use, sell or dispose of her property (again, unless prior provisions were made) without her permission. Sir William Blackstone, in his 1765 authoritative legal text, Commentaries on the Laws of England, said this about coverture and the legal rights of married women:

"By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called ... a feme-covert...."

This is from 1765, a time when women did not have the means, the societal approval, or the protection of society's laws to be self-supporting; the husband's job was to support and protect his wife and children. It was the woman's lot in life to find the best possible "feme-covert" to ensure not only she, but her children would be well-taken care of. In exchange, she ran the house and was responsible for meeting the domestic needs of the family.

Dowers: Under English common law and in colonial America, dower was the share of a deceased husband's real estate to which his widow was entitled after his death. After the widow's death, the real estate was then inherited as designated in her deceased husband's will; she had no rights to sell or bequeath the property independently. She did have rights to income from the dower during her lifetime, including rents and including income from crops grown on the land. One-third was the share of her late husband's real property to which dower rights entitled her; the husband could increase the share beyond one-third in his will. Where a mortgage or other debts offset the value of real estate and other property at the husband's death, dower rights meant that the estate could not be settled and the property could not be sold until the widow's death. In the 18th and 19th centuries, increasingly dower rights were ignored in order to settle estates more quickly, especially when mortgages or debts were involved.
In 1945 in the United States, a federal law abolished dower, though in most states, one-third of a husband's estate is awarded to a widow automatically if he dies without a will (intestate). Some laws limit the rights of a husband to bequeath less than one-third share to his widow except in prescribed circumstances.

Curtesy: A husband's right of inheritance. This is a principle in common law in England and early America by which a widower could use his deceased wife's property (that is, property which she acquired and held in her own name) until his own death, but could not sell or transfer it to anyone but children of his wife. Today in the United States, instead of using common law curtesy rights, most states explicitly require that one-third to one-half of a wife's property be given outright to her husband at her death, if she dies without a will (intestate). Curtesy is occasionally used to refer to a widower's interest as surviving spouse in the property left by the deceased wife, but many states have officially abolished curtesy and dower.

Dowry: refers to a gift or payment by a bride's family to the groom or his family at the time of marriage. As an archaic usage, dowry can also refer to dower, the goods a woman brings to a marriage and retains some power over. Less commonly, dowry refers to a gift or payment or property given by a man to or for his bride.

The Lawes Resolutions of Womens Rights: or, The Lawes Provision for Women. London, 1632:
New York State followed English common law in regard to the right of women to retain their property after marriage. This 1632 compilation of laws regarding women states:
Whatsoever the Husband had before Coverture either in goods or lands, it is absolutely his owne, the wife hath therein no seisin at all...
For thus it is, if before Marriage the Woman were possessed of Horses, Sheepe, Cowe, Wool, Money, Plate and Jewels, all manner of moveable substance is presently ... the husbands, to sell, keepe, or bequeath if he die: And though he bequeath them not, yet are they the Husbands Executors and not the wives which brought them to her Husband.

Pretty specific, in 1632!

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