By: John L. Kiener, General Sessions Judge, Washington County
In our last installment, we left Rose Palermo without the right to vote in Tennessee. Her counterparts in the 19th Century would be familiar with Rose’s dilemma. Their rights were limited.
In this regard, Tennessee followed the general provisions of the common law that in most respects presumed that a young woman would marry, have children, and let her husband worry about matters of law and property. As explained in A History of American Law by Lawrence M. Friedman (Published by Simon and Schuster, New York, 1973): “But women were not usually granted actual control over land. Before the Married Women’s Property Acts, properly left to a woman might pass out of the testator’s bloodline, might even fall prey to creditors of the woman’s husband. Among the wealthy, then, there was a definite tendency not to make major gifts in fee simple to a woman. Rather, property was settled on women; or left in truth; or given to women in the form of lesser ‘estates’; life interests for daughters, estates during widowhood for a surviving wife. Almost forty per cent of a group of New Jersey wills, in the period 1810-1813, which contained gifts to a widow, gave her an estate measured by the duration of her widowhood. In New York, seven out of twelve wills probated, in the summer of 1843, contained some sort of non-fee disposition.”
Notice that I do not have the information for Washington County, Tennessee. But this is the kind of information that is available for historians at the Washington County Court House in the Office of the CountyClerk. In tracing your own genealogy, texts such as A History of American Law are helpful in understanding the times in which your relatives lived. Otherwise, you can make some assumptions about ancestors that probably are not true. Your great-great-grandfather was not trying to limit his wife’s (your great-great-grandmother’s) interest in property because their affection for one another had “cooled.” Rather, he was following the legal practice of the time.
In my opinion, our records in WashingtonCounty contain all kinds of information valuable to historians. Turning specifically to Probate, an area in which I perform some judicial duties, Friedman tells us: “Because of their importance to land titles, the wills themselves have been carefully preserved in many counties. (Including Washington County, Tennessee) They exist in an unbroken line from the beginnings of county history to the present. An occasional genealogist tunnels into the caves, in search of a lost forefather. Historians have generally neglected them; but from these old wills, stiff and stereotyped as they are, the voice of social history speaks out. One finds in them an occasional fact of rare beauty, some aspect or insight of the era, trapped in county archives as if in amber.”
Tennessee did not pass a Married Woman’s Property Act until 1913. Beginning in Acts of 1785, the Legislature had attempted to deal with creditor’s rights when it came to marriage contracts or settlements. But Tennessee followed the common law which in the 19th Century provided that the husband, upon marriage, became entitled to the rents and profits of the wife’s real estate during the coverture (the marriage), and to the wife’s chattels and leasehold interests in land. He could by power of attorney collect any of the wife’s choses in action (that is promissory notes and bills – money owed to the wife). The wife could not contract to convey property, had no personal property to convey, and could not file suit unless joined in the action by her husband. Her husband was entitled to the wife’s earnings, and the wife was unable to sue her husband to recover property or for tort damages. This information has been taken from a Summary of American Law by George L. Clark (The Lawyers Co-Operative Publishing Company, Rochester, New York,1947).
Even when Tennessee removed the “Disabilities of coverture” from married women in the 20thCentury, the prohibition against suing one’s husband remained. As explained in Wooley vs Parker (1968), the Tennessee State Supreme Court said: “In this case the Court for the first time had before it (referring to a 1915 case) the women’s emancipation act (Chapter 26, Public Acts of 1913, codified as sec. 36-601, Tennessee Code Annotated) and in considering the question we said: “We must assume that the Legislature had in mind in the passage of the act the fundamental doctrine of the unity of husband and wife under the common law, and the correlative duties of husband and wife to each other, and to the wellbeing of the social order growing out of the marriage relation, and that, if it had been the purpose of the Legislature to alter these further than as indicated in the act, that purpose would have been clearly expressed. ****”We are not warranted in ascribing to the Legislature by anything appearing in this act a purpose to empower a wife to bring an action against her husband for injuries to her person occurring during the coverture, thereby making public scandal of family discord, to the hurt of the reputation of husband and wife, their families and connections, unless such purpose clearly appears by the express terms of the act. It results that, in our opinion, there is no error in the judgment of the Court of Civil Appeals . . .”
Since this decision, interspousal tort immunity is totally abolished in Tennessee by virtue of a variety of cases, including Davis v. Davis (1983). Parker is 19th Century thinking and reflects the law in Tennessee in the 19th Century.
Today, a married woman may acquire, hold, manage and control and dispose of all property, real and personal, as though not married. She can sue without joining her husband in the action, and can separately convey her real estate. However, be careful with the information contained in this paragraph – and ask a lawyer before taking action since law changes rapidly and in an area of real estate, for example, a mortgage by one party may not defeat the other’s statutory share. And in Tennessee, there remain separate legal rules for the homestead, and a statute that reads: “Nothing in (Married Woman’s Property Act) shall be construed as abolishing tenancies by the entirety.” In Tennessee, there remains a unity of real estate in this instance for the protection of spouses. Again, consult your lawyer. This is an article about 19th not 20th Century legal rights.
I am going to quote the following from Tennessee’s Married Women’s Property Act: “(a) Married women are fully emancipated from all disability on account of coverture and the common law as the disability of married women and its effects on the rights of property of the wife, is totally abrogated, except as set out in (statute on tenancies by the entirety quoted previously), and marriage shall not impose any disability or incapacity on a women as to the ownership, acquisition, or disposition of property of any sort, or as to her capacity to make contracts and to do all acts in reference to property which she could lawfully do, if she were not married, but every woman now married, or hereafter to be married, shall have the same capacity to acquire, hold, manage, control, use, enjoy, and dispose of, all property, real and personal, in possession, and to make any contract in reference to it, and to bind herself personally, and to sue and be sued with all the rights and incidents thereof, as if she were not married.” “(b) all of the statutes of limitation that apply in favor of or against a feme sole and her property, shall apply and operate in favor of or against married women and their property.”
Continued Next Week