Griffith v. Griffith's Executors: 1798
| Appellant: Martha Griffith | Appellees: Heirs of Samuel Griffith |
| Appellant's Claim: That under Maryland law a widow was entitled to a dower right of one-third her deceased husband's personal property, as well as his real property | Chief Lawyer for Appellees: Mr. Martin |
| Chief Lawyer for Appellant: Mr. Winchester | Justices: William Pinkney, Mr. Duvall, and Chief Justice Goldsborough |
| Place: Maryland | Dates of Decision: May term, 1798 |
| Decision: The court of appeals awarded Martha Griffith one-third of her husband's personal property clear of debts — her dower rights to his real property (land, buildings) were not in question. | |
| Significance: In this landmark decision Maryland allowed a widow a one-third share of her husband's personal estate as her dower-right. Because of this and other property decisions, Maryland women held higher status and had more control over their lives than elsewhere in early America. | |
From the settlement of Jamestown in 1607 until the married woman's property rights acts of the mid-nineteenth century, the most important laws affecting wives were those that regulated their dower rights.
Because the common law stripped women of their property rights when they married, wives became vulnerable when their husbands died. In colonial America the majority of husbands left no wills, leaving their wives unable to support themselves. In these cases, courts granted widows a minimum of one-third of their husbands' real estate, called "widow's thirds." However, a widow could not own the property in her own name; therefore, she could not sell or will it, but could only live off the rents during her lifetime.
During the eighteenth century this practice changed — first in England, then in the colonies. Widows lost their claims to personal property, although they kept their one-third shares of real estate. Only Maryland and Virginia continued to allow widows a one-third share of personal property, a practice that Martha Griffith challenged in 1798.
Wives' Rights
Martha Griffith went to court because her husband, Samuel, left a will that pointedly excluded her from inheriting his personal property. Other heirs contested her claim.
Samuel's will, dated 12 January 1794, contained only one clause relating to his wife. It read: "I desire my wife Martha Griffith, should have the use and benefit of my farm on Swan Creek during her widowhood; provided she claims no thirds of my land in Rumney Neck, and that she commits no waste of timber, which will be left to the discretion of my executors and trustees hereafter named; and after which period the aforesaid farm to be sold, and the money equally divided between my eight children." The rest of the estate went to the children.
At court, Martha's lawyer, Mr. Winchester, cited numerous acts passed by the Maryland assembly allowing widows to claim their dower shares of personal as well as real property. The earliest law, passed in 1638, allowed widows whose husbands died intestate (without a will) "one moiety [half of the] personal estate, after payment of all debts" but if there were no children, the widow inherited everything.
Similarly, by the acts of 1704 and 1715, a widow received one-third of the husband's personal estate after paying his debts, and one-half if there were no children. Under the act of 1729, a widow inherited all the estate if there were no other heirs such as children, grandchildren, brothers, sisters, nieces, or nephews.
Samuel's executors, represented by lawyer Martin, claimed that the acts of the assembly did not apply to such cases. He argued that "The common law of England is the common law of Maryland. The common law of England was adopted in Maryland as it stood at the formation of our government, and it never did deprive the husband of the right to dispose of his personal estate." Maryland women, then, lost their right to personal property when English women did. Martin claimed that the acts of the Maryland assembly were irrelevant aberrations.
The court of appeals agreed with Martha. The court believed that Maryland's 1704 law had specified that widows receive a dower-right to personal property. The bench explained that the colonists who settled Maryland introduced the English common law, which granted widows a one-third interest in personal and real property. Maryland law never reversed this practive.
Justice William Pinkney wrote, "It has for many years . . . been the prevailing idea in this country among lawyers . . . that a husband could not devise [will] away the whole of his personal estate from his wife." He quoted Blackstone's Commentaries: "By the common law of England, as it stood in the reign of Henry II, a man's personal estate was to be divided in three equal parts; of which one went to his heirs or lineal descendants, another to his wife, and the third was at his own disposal." "The shares of the wife and the children were called their reasonable parts," which the husband could not will away from them — this had been the law of England from the time of the Magna Charta (1215).
There were many exceptions to Maryland's leniency toward widows. According to historian Joan Hoff, the number of colonial women who died with enough property to be probated "seldom exceeded more than 10 percent of all the probate records in most counties for the entire period before the American Revolution," and probably averaged no more than seven percent. Although inheritance laws improved somewhat for women after the Revolution, dower laws did not. Hoff writes that the percentages of their husband's estates that widows received declined from the Revolutionary period until the 1820s. After the Civil War, however, many states gave widows total ownership of their dower- right rather than a life interest. In 1945, the federal Administration of Estates Act (Section 45) abolished dower. Today in most states the traditional one-third percentage unconditionally passes to the widow in the event her husband dies without a will. (A widow's corresponding right of inheritance is called a "curtesy.")
For Further Reading
Hoff, Joan. Law, Gender, and Injustice: A Legal History of
U.S. Women. New York: New York University Press, 1991.
Hoffer, Peter Charles. Law and People in Colonial America. Baltimore: Johns Hopkins University Press, 1992.
Kerber, Linda K. Women's America: Refocusing the Past. New York: Oxford University Press, 1991.
Salmon, Marylynn. Women and the Law of Property in Early America. Chapel Hill: University of North Carolina Press, 1986.
Wortman, Marlene Stein. Women in American Law, Vol. I. New York: Holmes & Meier Publishers, 1985.
Source: Women's Rights on Trial, 1st Ed., Gale, 1997, p.312.