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From the Ancestry Daily News
  Michael John Neill – 7/7/2004


1856 Illinois Probate Guide: The Dower

This week we complete our look at the 1856 Illinois Probate Guide focusing on the dower, which takes up a good portion of the book. Readers who missed last week's column can view it in the previous articles section of this site.

The Warning
A caveat and a few definitions are in order before our discussion continues. The exact definition of many of these terms may vary slightly from one state to another and from one time period to another. Texas in 1950 is not the same as Connecticut in 1650.

A Few Definitions
A life estate is an estate in real property that ends when a person no longer has any life.

Dower is a widow's right to a lifetime interest in one-third of all land owned by her husband. Dower was abolished in most states in varying degrees by passage of various Married Women's Property Acts beginning in the mid-nineteenth century. A 1945 federal law abolished dower in the United States.

An individual who dies intestate dies without leaving a valid will.

The quotes in this column are from the book by Elijah M. Haines, “The Probate Manual, Being a Complete Guide for Executors, Administrators and Guardians, Under the Laws of Illinois, with Practical Forms,” written in 1856. In an upcoming column we will discuss how the book was located. The genealogy stork did not drop it on my desk.

Her Third
"A widow shall be endowed of the third part of all the lands whereof her husband was seized of an estate...at any time during her marriage...unless the same shall have been relinquished in legal form" (page 67).

When a married man sells property the wife is usually required to relinquish her dower. Typically to be done apart from her husband, this relinquishment of dower was to be the wife's own free act. Whether this was the case in practice is another matter entirely. How many women could really refuse? These relinquishments may contain clues, especially if a man sells several parcels of property over time. Viewing the dower relinquishments on all these deeds may result in the discovery of a previously unknown wife.

"If a woman shall be divorced from her husband for the fault of misconduct of such husband, except where the marriage was void from the beginning, she shall not lose her dower...but if such divorce be her fault...she shall forfeit the same" (page 69).

"If a wife voluntarily leave her husband and commit adultery, she shall be forever barred her dower...unless her husband be voluntarily reconciled to her, and suffer her to dwell with him" (page 69).

I Have to Share with My In-Laws?
“If a husband die, leaving a widow, but no children, nor descendants of children, such widow may...have in lieu of her dower...one-half of all the real estate which shall remain after the payment of debts...” (page 69).

The rest will revert to the heirs of the husband, who may not necessarily be the heirs of the wife. A similar provision was applicable to Anne Rampley, whose husband John died intestate in the early 1900s. Anne sued her brothers-in-law, sisters-in-law, and several nieces and nephews to have her portion of the real estate partitioned out. She did not inherit her entire intestate husband's estate, only one half (the law at the time). Since John had no children and no will, half of his estate went to the heirs of his siblings. In certain families, this may have made for an interesting family dynamic.

I Have to Sue My Kids?
In some cases, the widow may have had to sue her children to have her dower assigned. This was not necessarily because she was fighting with her children, but because a court action was the only legal remedy she had.

"If [an heir] shall not...assign and set over to the widow of the deceased, to her satisfaction, her dower in and to all said lands... then such widow may sue for and recover the same" (page 70).

"Every widow claiming dower, may file her petition in chancery, in the circuit court of the county..." (page 70).

In situations like these, court cases may result from the widow's attempt to have her dower specifically assigned, particularly when the husband died intestate. Ages of the children may be given (in order to show they were not minors), or the minor children may simply be listed as such. If a guardian ad litem is appointed, the guardian and the underage individual typically do not have any relationship outside the guardianship. Guardians ad litem are appointed to ensure that the interests of the minor are represented during the case. They are not the same as guardians appointed to oversee the minor's interest in the estate.

"When any of the parties, defendants, are minors, and under age, and without guardian, the court shall appoint guardians ad litem for such minors" (page 71).

“Where the court adjudges that the widow shall recover dower... appoint three commissioners...[to] impartially allot and set off... dower out of the lands...” (page 72).

Makes for Interesting Fractions
Michael Trautvetter died in 1869 in Illinois, leaving no children. His only heirs were his siblings and the descendants of two predeceased siblings. The estate was consequently initially split four ways, one for each of his siblings.

Brother George and sister Wilhelmina were still living. They each received one-fourth of the estate. Simple enough.

Sister Ernestine is deceased as is her husband. Her heirs as a group receive one-fourth of the estate. Ernestine has three children. Each child receives one-third of Ernestine's share---one-twelfth each.

Brother Henry is deceased, but his wife Barbara survives him as do three children. Here is where it becomes slightly more complicated. Before Henry's children receive any of the estate, Barbara receives her dower portion, one-third of Henry's one-fourth share. This results in Barbara receiving one-twelfth of the estate. This means that Henry's three children split the remaining two-thirds of his share. Two-thirds of one-fourth is one-sixth. One-sixth split three ways is one-eighteenth, which is the portion of Michael's estate received by each of Henry's heirs. If Henry's wife Barbara had been deceased the apportionment would have been easier!

We have hit the high points of the 1856 Illinois probate manual, focusing on those things likely to result in records for the genealogist. We left out the list of “infamous crimes” for which an administrator or executor can be removed from office--they would have gotten this newsletter caught in too many spam filters!

Additional Reading:
Devine, Donn, “The Widow's Dower InterestAncestry Magazine, Sept/Oct 1995. (Excellent reading!)

Szucs, Loretto and Sandra Luebking, eds., The Source A Guidebook of American Genealogy, (Provo, Utah: Ancestry, 1997)

Wikipedia (http://en.wikipedia.org/wiki/Life_estate) has definitions for many legal terms, albeit modern ones. Visiting their definition for life estate will link to additional definitions.

Cyndi's List (www.cyndislist.com) has links to legal terms and definitions as well.


Michael John Neill is the Course I Coordinator at the Genealogical Institute of Mid America (GIMA) held annually in Springfield, Illinois, and is also on the faculty of Carl Sandburg College in Galesburg, Illinois. Michael is the Web columnist for the FGS FORUM and is on the editorial board of the Illinois State Genealogical Society Quarterly. He conducts seminars and lectures on a wide variety of genealogical and computer topics and contributes to several genealogical publications, including Ancestry Magazine and Genealogical Computing. You can e-mail him at mjnrootdig@myfamily.com or visit his website at www.rootdig.com, but h e regrets that he is unable to assist with personal research.

Copyright 2004, MyFamily.com.