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Development of Rights of Women


Common Law:
The system of laws originated and developed in England and based on court decisions, on the doctrines implicit in those decisions, and on customs and usages rather than on codified written laws. Common Law is the basis of U.S. federal law and of state law in all states except Louisiana.

Personal Property:
Property (as a vehicle) that is movable but not including crops or other resources still attached to land.

Real Property: 
Property consisting of land, buildings, crops, or other resources still attached to or within the land or improvements or fixtures permanently attached to the land or a structure on it.

The estate to which, by common law, a man is entitled on the death of his wife, in the lands or tenements of which she owned.

Life Estate:
An estate in property held only, during, or measured in duration, by the lifetime of a specified individual, and especially the individual enjoying the property. Life estates are not estates of inheritance. 

A tenure of real property held by a lessee under a lease It is also known as a lessee's estate in the property.

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. Dower has been abolished in the majority of the states and materially altered in most of the others.

Historical Development

Unmarried women enjoyed a range of rights, including the right to make contracts, own property and sue or be sued. Yet, they had a limited right of inheritance. Given the times, a woman’s long-term economic prospects were closely tied to those of her future spouse.

At common law, when a woman married, she exchanged a number of rights for the protection of her husband under the principle of “unity of person.” This loss of rights fell into the general categories of: personal and real property, contracts and torts.

At common law, a married women’s personal property became a possession of her husband and upon his death was transferred to his personal representative (see, e.g., Jordan v. Jordan, 52 Me. 320 (1864)), except for her clothing and jewelry, which were returned to her.

EXAMPLE: Agnes and Douglas were married in 1908. Agnes had acquired a few family heirlooms that she brought with her to the marriage. The house they lived in after the marriage contained many antiques from Agnes’s family. As such, under the law at the time, these items became Douglas’s property. When Douglas died in 1918, the antiques were transferred to Douglas’s personal representative for distribution rather than stay with Agnes.

Yet, if the husband failed to take possession of his wife’s personal property, it remained her own and passed to her personal representative, who would be her husband if he survived her. See, e.g., Judge of Probate v. Chamberlain, 3 N.H. 129 (1824).

EXAMPLE: Jeffery and Paula were married in 1925. After the marriage, they moved into the family house along with Paula’s family. The house contained many family heirlooms, including the furniture in the bedroom Jeffrey and Paula used. It had been Paula’s room when she was growing up. Since Jeffrey never took possession of these personal items, they would not become part of his estate if he predeceased her. Rather, they would pass to Paula’s personal representative, who ironically would be Jeffrey if he outlived her.

The rules differed slightly for real property, although these rules were not favorable either. The use of the wife’s interest in land belonged to her husband during the marriage. Accordingly, he was entitled to the rents and/or profits of the land during this time. If the marriage produced a child born alive, the husband became a tenant by the curtesy, as a result of which he was entitled to the rents and/or profits of the land during his life. The land remained the wife’s property; however, the husband could convey his interest. The wife, on the other hand, could not convey hers without his consent. Similarly, there could be no conveyance made between husband and wife. See, e.g., Concord Bank v. Bellis, 10 Cush. 276 (Mass. 1852). Land in which the wife held a life estate was the husband’s in the right of his wife and he once again became entitled to the use, rents and/or profits. Additionally, leaseholds became the property of the husband.

In addition, a woman could not make contracts, either with her husband or with others. Yet, she could contract as her husband’s agent or pledge his credit for necessities. See, e.g., Jordan Marsh Co. v. Hedtler, 238 Mass. 43 (1921).

EXAMPLE: Jack and Linda were married for six years in 1915. He spent most of his time outside of work hanging out with his male friends and other women. He often neglected to give Linda money for food and other necessities for her and their five children. Linda was unable to work herself. In order to provide for her family, she purchased goods from a local market that extended credit based on her husband’s earning capacity. The market’s owner was willing to extend credit to her because he knew he would get paid because a husband was responsible for his wife’s debts.

In the area of torts, there were comparable restrictions. Specifically, a wife was unable to sue or be sued without her husband joining in the action. See, e.g., Cole v. Shurtleff, 41 Vt. 311 (1868). Yet, the husband was responsible for any torts his wife might commit either before or during the marriage.

Given the general limitation of property rights against women, it was not surprising women could not make a will. See, e.g., Marston v. Norton, 5 N.H. 205 (1830); Dudley v. Staton, 257 N.C. 572 (1962). Additionally, neither could a woman testify, either for, or against, her husband in civil or criminal suits.

Despite these limitations, marriage did give the wife certain benefits under the common law. For instance, she became entitled to dower, a life estate in one-third of the land of which her husband held the fee at any time during marriage. The husband also was responsible for the wife’s antenuptial (made or occurring before marriage) debts.

Furthermore, each party to a marriage had a prescribed role. Specifically, a husband was expected to support his wife financially and the wife had the duty to render services in the home. In concert with these traditional roles, women were required to take their husband’s name after marriage. This requirement eased over time, thereby allowing women to keep their given surnames or create a hyphenated last name combining the two names. This evolution allows one freedom to choose any name as long as the choice is not offensive to public policy. See, e.g., In re Application of Bobrowich, 2003 N.Y. Misc. Lexis 52 (2003).

Historical roles started to change in the late 1960s as a result of the women’s liberation movement. Additionally, as more women started entering the workforce, they gained more economic power to challenge the status quo.

Women’s Right to Own Property

Over time, a women’s right to own property became an area ripe for revision. Acquisition of property (either before or during) a marriage and its subsequent distribution upon death or the dissolution of the union can have a major impact on one’s wealth.

An intermediate step to giving women more equity in property rights came from the courts under the principle of equity. Without statutes as a guide, courts modified the common law by developing the idea of a trust (to carve out a separate estate for the wife’s sole use) as a means to guarantee that wives maintained some type of property rights.

As developed in English law, either the husband or another party could set up this type of estate in equity. The main requirement was that the intention to separate the property had to be stated explicitly.

EXAMPLE: Dorothy and Neal married in 1901. Although he came from a good family, he was a closet alcoholic. As such, he had a tendency to squander his family’s money. Dorothy, too, came from a family that was fairly affluent. Dorothy’s father wanted to leave his estate to her; however, he also wanted to make sure that Neal could not get his hands on her money. Accordingly, Dorothy’s father added language to his will that indicated his property was for her sole use, thereby eliminating Neal from his curtesy right. In order for the court to honor the will’s request, it created a separate estate in equity for Dorothy’s benefit. This application would also prevent the property from being available to settle any of Neal’s debts.

Given the limited application of estate in equity in the U.S., states entered the fray by enacting statutes that were favorable to a woman’s property rights. To modify the common law position against women’s property rights, states enacted the Married Women’s Property Acts, which gave married women the right to acquire, own and transfer all kinds of property, to make contracts, to engage in business or be employed and keep her own earnings, and to sue or be sued. See, e.g., Estate of Nickolay, 249 Wis. 571 (1946).

New York passed its landmark Married Women’s Property Act in 1848. See N.Y.-McKinney’s Dom.Rel.L. § 50 (1977) and N.Y.-McKinney’s Gen.Obl.L. §§ 3-301 to 3-315 (1978). Specifically, the Act stated:
An act for the more effectual protection of the property of married women: 

§ 1 - The real property of any female who may hereafter marry, and which she shall own at the time of marriage, and the rents, issues, and profits thereof, shall not be subject to the sole disposal of her husband, nor be liable for his debts, and shall continue her sole and separate property, as if she were a single female. 
§ 2 - The real and personal property, and the rents, issues, and profits thereof, of any female now married, shall not be subject to the disposal of her husband; but shall be her sole and separate property, as if she were a single female, except so far as the same may be liable for the debts of her husband heretofore contracted. 
§ 3 - Any married female may take by inheritance, or by gift, grant, devise, or bequest, from any person other than her husband, and hold to her sole and separate use, and convey and devise real and personal property, and any interest or estate therein, and the rents, issues, and profits thereof, in the same manner and with like effect as if she were unmarried, and the same shall not be subject to the disposal of her husband nor be liable for his debts.