Will details

 
 
 
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Resources97
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Will details

A man dies 1780s in Virginia leaving a will in which the only specified property (land) went to five sons. No wife or daughters were mentioned, even though he had both. Within months of his death, the widow goes into court to "renounce her husband's will" and "claim her dower rights."  Question: how could she do this?  Is it the same thing as contesting  a will?  Could dower rights trump a legit will?

EE
EE's picture

Resources97, one basic issue needs clarifying here. Are you working from an image copy of the actual will or from an abstract that has been published or provided by another researcher?

The Editor

Resources97
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My apologies. Yes, I am working with the original (microfilm of the recorded document). 

Resources97
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I should also add that no executor was named in the will. 

EE
EE's picture

Resources97: 

Your description of the will suggests that the testator may have penned the will himself, without legal counsel. Even with a more-standard will, if the provision for the widow was less than her dower right, she was entitled to renounce the will and have her dower interests invoked. You did not state the exact year in that decade of the 1780s, but the statutory provisions in effect that year were likely these:  

SOURCE: William Waller Hening,  The Statutes at Large: Being a Collection of All the Laws of Virginia from the First Session of the Legislature in the Year 1619, vol. 12 (Richmond: George Cochran, Printer, 1823), 145, chap. LXI, "An act concerning wills; the distribution of intestates estates, and the duty of executors and administrators, sections xxi-xxiii, "October 1785—10th of Commonwealth"; HTML edition, Freddie L. Spradlin, transcriber, "Hening's Statutes at Large,"  VAGenWeb (http://vagenweb.org/hening/vol12-07.htm#page_145).  

"Widow dissatisfied with will, when and how she may renounce.

"XXI. When any widow shall not be satisfied with the provision made for her by the will of her husband, she may within one year from the time of his death, before the general court, or court having jurisdiction of the probate of his will as aforesaid, or by deed, executed in the presence of two or more credible witnesses, declare that she will not take, or accept the provision made for her, by such will, or any part thereof, and renounce all benefit which she might claim by the same will, and thereupon such widow shall be entitled to one-third part of the slaves whereof her husband died possessed, which she shall hold during her life, and at her death they and their increase shall go to such person or persons to whom they would have passed and gone if such declaration had not been made; and she shall moreover be entitled to such share of his other personal estate as if he had died intestate, to hold to her as her absolute property; but every widow, not making a declaration within the time aforesaid, shall have no more of her husband's slaves and personal estate, than is given her by his will. 

"Widow removing dower slaves.

"XXII. And that if any widow possessed of a slave or slaves as of the dower of her husband, shall remove, or voluntarily permit to be removed out of this commonwealth, such slave or slaves, or any of their increase, without the consent of him or her in reversion, such widow shall forfeit all and every such slave or slaves, and all other the dower which she holds of the endowment of her husband's estate, unto the person or persons that shall have the revision thereof; any law, custom, or usage to the contrary, notwithstanding."  

 

You may wish to study the full act, which covers many more pages and many more matters relating to the settlement of estates. 

The Editor

Resources97
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THANK YOU.  I could not ask for a better answer. I also learned to check "Hening's Statutes" from now on!

bvlittle
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The 1785 act from Hening’s did not take effect until 1 January 1787. However, the right to reject dower was also in effect prior to the 1785 act. The length of time during which the widow could reject the dower varied depending upon the time period.

The most likely reason for rejecting the will was usually not the value of the estate (the amount left the widow in the will was often more than one-third). A dower right was for life; a bequest in a will was typically limited to the time that the widow remained single. If she remarried, she lost everything. Typical phrasing would be something like “I give and bequeath to my dearly and well beloved wife, Mary Doe, the plantation . . . during her life or widowhood, and at her death or marriage I give and bequeath the same to my beloved son . . . ”