Wills by married women

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RJM

Wills by married women

Legg inn av RJM » 08 jun 2006 16:47:39

John Brandon recently drew attention to the will of Dame Margaret
Temple. She apparently left money to the poor of Stafford. This is an
unusual will since (I believe) that at that time (c.1617) under English
law, married women were not able to dispose of property in their own
right and her husband was still alive. I am not aware of any other will
by a married woman who pre-deceased her husband prior to the Married
Woman's Property Act in the late 19th century, but perhaps it was more
common than I realise.

Are there any other examples?

John Brandon has not located the actual will (although it is
specifically referred to in the catalogue of the Staffordshire Record
Office).Is it possible that the will was never proved - possibly
because of the legal problem mentioned above? What would be the status
of an unproved will? Would the "executors" implement its terms anyway?

All suggestions welcome.

John Matthews

Gjest

Re: Wills by married women

Legg inn av Gjest » 08 jun 2006 18:13:28

RJM wrote:

John Brandon recently drew attention to the will of Dame Margaret
Temple. She apparently left money to the poor of Stafford. This is an
unusual will since (I believe) that at that time (c.1617) under English
law, married women were not able to dispose of property in their own
right and her husband was still alive. I am not aware of any other will
by a married woman who pre-deceased her husband prior to the Married
Woman's Property Act in the late 19th century, but perhaps it was more
common than I realise.

Are there any other examples?

A quick review of the PRO's will site for the PCC wills (all pre 1859
i.e. preceding the Married Women's Property Act of 1882) reveals many
cases in which a woman testator is referred to as "wife". However,
these are far from conclusive, as the search may bring up instances of
"late wife of..." - for instance, the probate for Cecily, Duchess of
York refers to her as "wife", although she had been a widow for 35
years at the time of her death.

Interestingly, three testators (1776, 1841 and 1848) are described as a
"married woman", which seems less open to interpretation.

I know of one case where a married woman was subject to an independent
administration: that of Ann nee Davis, wife of Richard Bishop, of
Basingstoke, Hants (d 1771); she died in 1757, and administration over
her estate was granted at Winchester in 1758.

Apart from the usual grant of property to trustees (including the
husband) for the wife's sole use during the marriage, a limited class
of property remained the wife's even under the old common law regime -
for instance, choses in action which the husband had not taken into
possession - so technically it would seem it was possible for a married
wife to leave a will.


John Brandon has not located the actual will (although it is
specifically referred to in the catalogue of the Staffordshire Record
Office).Is it possible that the will was never proved - possibly
because of the legal problem mentioned above? What would be the status
of an unproved will? Would the "executors" implement its terms anyway?

That could depend on the probate grant. Sometimes, if a will was
defective in some way, a grant of administration would be made instead,
with the defective will attached together with instructions from the
court that its wishes be carried out so far as was possible, as part of
the administration (so-called "Letters of Administration with Will
annexed"). This is still a feature of modern probate law.

MA-R

Chris Dickinson

Re: Wills by married women

Legg inn av Chris Dickinson » 08 jun 2006 19:31:43

RJM wrote:

John Brandon recently drew attention to the will of Dame Margaret
Temple. She apparently left money to the poor of Stafford. This is an
unusual will since (I believe) that at that time (c.1617) under English
law, married women were not able to dispose of property in their own
right and her husband was still alive. I am not aware of any other will
by a married woman who pre-deceased her husband prior to the Married
Woman's Property Act in the late 19th century, but perhaps it was more
common than I realise.

Are there any other examples?


Yes.

The PCC will of Elizabeth Scott of Crakeplace Hall in Dean in Cumberland is
one such. It is available online (date 1657).

She starts her will:

|I Elizabeth Scott now wife of John Scott of Crakeplace Hall .... doe make
|this my last will and Testament (as power was given me in the covenants
|made at the marriage of my said husband and my selfe) in manner following

It closes with:

|I am pleased to performe this my mothers will, witnes my hand henry
|crackeplace his marke; I am pleased with this my wifes will, witnes my hand
|John Scott

The attached admin makes it clear that Henry, so pleased at his mother's
will, was a minor.


Chris

RJM

Re: Wills by married women

Legg inn av RJM » 09 jun 2006 07:39:50

There is one small loose end that needs to be cleared up. The will of
Elizabeth Scott was proved during the interregnum. I know that church
courts were in abeyance during the Commonwealth. Were there perhaps
other changes to the law which had an impact on the ability of married
women to make a will?

John Matthews

Chris Dickinson wrote:
John Matthews wrote:

snip
Also I wonder about the significance of the endorsement by John Scott.
Is there an implication that the agreement of the husband was required?
snip

I am not aware that there was any problem about married women making wills,
so long as the husband agreed. His endorsement would have been a necessary
part of that agreement; much as, when there is a question in yeoman wills
about legitimacy, the added phrase 'with the licence of the lord' is usually
added. It just ties the legal knot and prevents challenge.

I haven't looked at the will, but Chris Dickinson mentions that there
was an attached admin. This usually happens when there is some
technical deficiency in the will. Could this deficiency be that the
will could not be proved because the testator was a married woman?

No. The will was proved - it is in the PCC records.

This was just an additional legal requirement to deal with the upbringing of
her children. Quite normal. It gave the administration to a Robert Fisher,
described as 'Testamentary Guardian unto Henry Crackplace and Anne
Crackplace minors naturall and lawfull children and principall legataryes in
the will'.

Chris

Chris Dickinson

Re: Wills by married women

Legg inn av Chris Dickinson » 09 jun 2006 15:25:39

John Matthews wrote:

There is one small loose end that needs to be cleared up. The will of
Elizabeth Scott was proved during the interregnum. I know that church
courts were in abeyance during the Commonwealth. Were there perhaps
other changes to the law which had an impact on the ability of married
women to make a will?


Good point. Can't answer that. Might be worth asking on
soc.genealogy.britain.


Chris

Chris Dickinson

Re: Wills by married women

Legg inn av Chris Dickinson » 12 jun 2006 19:34:39

I passed on the query to soc.genealogy.britain and Eve McLaughlin has
replied:

http://archiver.rootsweb.com/th/read/GE ... 1150132041


Chris

RJM

Re: Wills by married women

Legg inn av RJM » 13 jun 2006 06:50:12

Chris Dickinson wrote:
I passed on the query to soc.genealogy.britain and Eve McLaughlin has
replied:

http://archiver.rootsweb.com/th/read/GE ... 1150132041


Chris

A very useful reply and thanks to Chris for obtaining it.

I have done some further research myself. It is suggested by Mary
Ritter Beard in her classic work "Woman as a Force in History" that the
much quoted passage from Blackstone on the property rights of married
women is about the common law. She claims that the equity courts
regularly enforced property (and other) rights for married women. For
most women, the problem was that they could not afford to take a case
to an equity court.

I also wonder to what extent the church courts were interested in
whether the testator owned and had the power to dispose of the property
mentioned in the will. Presumably, these courts were only concerned
with the form of the will. Some other court would rule on these
matters.

John Matthews

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