Some people eat, sleep and chew gum, I do genealogy and write...

Monday, September 18, 2017

Women, Property, Inheritance and Genealogy -- Part One: Some background

Elizabeth Tanner Will 1763
I could write a book or a series of books about any one of the topics in the title of this post. Wait a minute! I have written (or helped write) a series of books about genealogy (search for my name on, but that still leaves women, property, and inheritance. We do have a book about probate. See the following entry:

Eakle, Arlene H., and James L. Tanner. 2015. The ins and outs of probate for genealogists research guide. Morgan, UT: Family History Expos.

There is also a book used as a textbook at Brigham Young University entitled as follows:

Salmon, Marylynn. 1992. Women and the law of property in early America. Chapel Hill [u.a.]: Univ. of North Carolina Press.

At the end of this post, I will provide a list of additional books on these subjects. But now it is time to write more specifically about women, property, and inheritance.

The first word that comes to mind when talking about the history of laws in America is diversity. Unfortunately, this term has come to have two radically different definitions: differences in the laws from one city, county or state to another and the employment of different racial, gender and ethnic individuals by law firms. The diversity I am writing about is the difference in laws between different jurisdictions. In fact, every one of the original U.S. Colonies had their own and substantially different laws concerning women, property rights, and inheritance. These differences have been carried over into substantial differences in the laws throughout the 50 states and 3,142 counties or county equivalents. 

To get some idea about the scope of jurisdictional diversity in the United States here is a short analysis of the counties and county equivalents in the United States today from Wikipedia:  List of United States counties and county equivalents.
Instead of counties, Louisiana is divided into 64 parishes which are functionally similar to counties. Alaska is divided into 19 organized boroughs and a single Unorganized Borough. The United States Census Bureau has divided the Unorganized Borough of Alaska into 10 census areas for federal census and planning purposes. The 38 cities in the state of Virginia are independent cities, which are not considered part of a particular county, and the states of Maryland, Missouri, and Nevada each have one independent city which is not considered part of a particular county. The Census Bureau and the Office of Management and Budget consider the 64 parishes, 19 organized boroughs, 10 census areas, 41 independent cities, and the District of Columbia, though not the Unorganized Borough, to be equivalent to counties for statistical purposes.
By USA Counties.svg: U.S. Census Bureauderivative work: Abe.suleiman (talk) - USA Counties.svg, Public Domain,

Unknowingly, genealogists tend to think of the past as an extension of the present rather than the other way around. I am also guessing that most genealogists view the past with more uniformity than actual historical reality would suggest. This is particularly true about women's rights, property rights and the customs, processes, procedures, laws, and regulations affecting inheritance. Genealogists, like most of the population, also tend to view subjects such as women's rights in the light of recent developments and attitudes. They also tend to view the changes that have occurred most recently as "progress" and additionally filter all writing or discussion on the subject through a heavy-handed censoring mechanism based on vague concepts of "political correctness." Subsequently, there is a danger in writing about a combination of the subjects that anything I write will be controversial.

Never being one to shy away from controversy, I am determined to launch off into a discussion of the interrelationship of these three subjects.

The issue of diversity jurisdiction was addressed in the United States Constitution, Article 3, Section 2, Clause 1:
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
This provision of the United States Constitution was amended by the 11th Amendment:
Amendment XI
The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.
I mention this because genealogical research extends back in time before the formation of the United States and any application of the United States Constitution.  At the time of the formation of the United States, the framers of the U.S. Constitution were concerned about the diversity of laws between the various colonies. The United States Supreme Court was set up as the ultimate arbiter between the states. From a genealogical standpoint, it is important to understand both the extent and pervasiveness of the diversity that existed between the colonies with regards to the laws pertaining to women, property, and inheritance.

This is also an important principle that needs to be understood by any historical researcher including genealogists. For example, I began this post with a screenshot of a will executed by one of my ancestors in Rhode Island in 1763. Here is a quote from an article entitled, "Married Women's Property Laws" from the Law Library of Congress website:
During the nineteenth century, states began enacting common law principles affecting the property rights of married women. Married women's property acts differ in language, and their dates of passage span many years. One of the first was enacted by Connecticut in 1809, allowing women to write wills. The majority of states passed similar statutes in the 1850s.29 Passed in 1848, New York's Married Women's Property Act was used by other states as a model: 
AN ACT for the effectual protection of the property of married women.
Passed April 7, 1848.
The People of the State of New York, represented in Senate and Assembly do enact as follows:
Sec. 1. The real and personal property of any female who may hereafter marry, and which she shall own at the time of marriage, and the rents issues and profits thereof shall not be subject to the disposal of her husband, nor be liable for his debts, and shall continue her sole and separate property, as if she were a single female.
Sec. 2 The real and personal property, and the rents issues and profits thereof of any female now married shall not be subject to the disposal of her husband; but shall be her sole and separate property as if she were a single female except so far as the same may be liable for the debts of her husband heretofore contracted.
Sec. 3. It shall be lawful for any married female to receive, by gift, grant devise or bequest, from any person other than her husband and hold to her sole and separate use, as if she were a single female, real and personal property, and the rents, issues and profits thereof, and the same shall not be subject to the disposal of her husband, nor be liable for his debts.
Sec. 4. All contracts made between persons in contemplation of marriage shall remain in full force after such marriage takes place.30
I have left in the footnote references. Note, I have a copy of the will executed by my female ancestor in 1763. This quote from the Library of Congress seems to indicate that Connecticut was the first state or one of the first states to enact laws allowing women to execute wills in 1809. I think we have to be careful as genealogists to sift out historical reality from present-day political correctness. By the way, the statement made by this article from the Library of Congress is the commonly accepted position with regards to early women's rights in America. It is also the reason why I begin this discussion by referring to the issue of jurisdictional diversity.

Stay tuned for future installments.

Sunday, September 17, 2017

Expand Your Searches with the Olive Tree Genealogy

Since 1996, Canadian, Lorine McGinnis Schulze has been online on the Olive Tree Genealogy website publishing a huge portal to free Ships' Passenger lists, Naturalization Records, Palatine Genealogy, Canadian Genealogy, American Genealogy, Native American Genealogy, Huguenots, Mennonites, Almshouse Records, Orphan Records, church records, military muster rolls, census records, land records and more. The Olive Tree Genealogy has a 3-step Genealogy Finder. Quoting from Lorine's website:
  • First the free transcribed genealogy records - there are over 1,900 now. Look for your family ancestors in free genealogy records marked with the Olive Tree Genealogy logo.
  • Second the Genealogy tutorials and help files - Genealogy Help on finding your ancestors in census records, land records, ships passenger lists, birth, marriage and death records, and more.
  • Third the Genealogy Resource Guides. Genealogy How-to-Guides help you easily find your ancestors as you search ships passenger lists, Huguenots, Native Americans, Canadian Immigration, Palatines and more.
Lorine is also one of the major genealogical bloggers in the world with her Olive Tree Genealogy Blog:
As people become more involved in genealogical research and begin to realize the huge resources online, it is almost inevitable that they come across the bright spots on the internet such as the Olive Tree Genealogy website. She also has an Olive Tree Genealogy YouTube Channel and has written a number of books. 

Saturday, September 16, 2017

What about missing marriage records?

In a recent post, I discussed some of the law in the United States concerning common-law marriage. After receiving a comment to the post, I realized that there were some major unanswered questions about the impact of common-law marriages on genealogical research. The main issue here is the effect of a marriage on property ownership.Common-law marriages fall into the category of undocumented marriages and could be considered to be quasi-legal. Here is a statement regarding the property rights of women before 1839.
Under the common law legal doctrine known as coverture, a married woman in Great Britain's North American colonies and later in the United States had hardly any legal existence apart from her husband. Her rights and obligations were subsumed under his. She could not own property, enter into contracts, or earn a salary. See Wikipedia:Married Women's Property Acts in the United States."
In other words, when a woman got married all of her property belonged to her husband. There were some exceptions. Common law provided that a woman owned a "dower" interest in the property of her husband's estate upon his death. A woman could relinquish her dower interest in real property by executing a disclaimer deed. Failure to execute the disclaimer date resulted in the wife's dower interest being preserved and enforceable upon the death of her husband. For example, if the husband sold a piece of real estate during coverture (the existence of the marriage) without the wife's consent, then the wife could enforce her dower interest in the property after her husband's death.

Here is a quote from the Stewart Title Agency in Massachusetts about Dower release. I would suggest that upon reading this explanation you would begin to understand why lawyers, courts, and judges all exist.
The release of "all other interests therein," as appearing in the clause relating to dower and homestead is to be read within the context in which it appears, and it has been held that the language refers only to marital rights and does not extend to convey any other interests in the land, including the fee title. Anttila v. A. E. Lyon Co., 222 Mass. 126, 109 N.E. 950 (1915). 
Although such a deed will not pass the title of the spouse who joins in the conveyance for such a limited purpose, if the parties held title as tenants by the entirety, and the spouse who so joins dies before the granting spouse, the title under the deed will be good, inasmuch as the conveyance by the grantor would not have severed the tenancy by the entirety and the death of the other spouse will allow title to flow through that grantor. It is important to remember, however, that in order for this "cure" to work, it must be established that the spouse who joined and the granting spouse were still married to each other when the spouse who had joined in the conveyance died. If the parties had been divorced, the title (or at least a half interest therein) would remain defective, because the divorce would have "severed" the tenancy, transforming it into a tenancy in common, and thereby destroying the survivorship feature. And, the order of death is crucial, because even if the parties remained married, the death by the granting spouse before the death of the joining spouse would, where the parties had held title as tenants by the entirety, cause the entire title to find its way into the hands of the joining spouse, thereby totally destroying the chain of title of the grantee claiming under the granting spouse.
Now, it is time to go back to common-law marriage. In essence, none of these property rights exist unless there is a valid marriage. So, assuming that two individuals lived together, how does a genealogist determine that there was a marriage? By the way, the quote above from the title agency does not even address the issue of the validity of the marriage.

The idea of the common-law marriage is to provide a method by which individuals who live together as husband and wife for an extended period of time and have "issue" or children obtain property rights. On the other hand, the restrictions on common-law marriages were designed to prevent people from claiming property rights improperly.

Modern law has modified marital property interests considerably. Beginning in the early 1800s, states began to pass women's property rights laws that modified the claims that a wife had on her husband's property particularly upon the death of the husband. During the same time period, laws concerning the acceptance of common-law marriage also evolved. Many states abolished the recognition of common-law marriage entirely. Whether or not a marriage exists turns out to be amazingly complex.

From a genealogical standpoint, absence of a marriage record does not indicate that the couple was not married. We have to assume that any couple shown to have lived together as husband and wife and particularly those that had children were married absent specific records negating the marriage. There is really no other option. However, a record showing, for example, that the wife signed a disclaimer deed indicates clearly that the couple were married. Other indication of marriage, i.e. coverture, can be found in probate files.

It looks like to me that I am going to have to continue discussing this issue. I don't think I'll make it into a series, however.

Friday, September 15, 2017

Common Law Marriage and Genealogy

A common-law marriage is one recognized in some jurisdictions without a license or ceremony. Here is one definition from Black's Law Dictionary as quoted on the website:
What is common law marriage? 
One not solemnized in the ordinary way, but created by an agreement to marry, followed by cohabitation; a consummated agreement to marry, between a man and a woman, per verba de praesenti, followed by cohabitation. Taylor v. Taylor, 10 Colo. App. 303, 50 Pac. 1049; Cuneo v. De Cuneo, 24 Tex. Civ. App. 436, 59 S. W. 284; Morrill v. Palmer, 68 Vt. 1, 33 Atl. 829. 33 L. R. A. 411
The Latin phrase, marriage per verba de praesenti refers to an agreement for a marriage by means of words of present assent.

Many genealogists spend an inordinate amount of time searching for a marriage record when no such record exists. The simple reason for this is that the relationship was a common-law marriage.The entire concept of a common-law marriage has a long and very complex history in the United States. In addition, the application of the term, common-law marriage, is subject to misuse and misconception. Here is a rather good summary of the issues involved from Wikipedia:
The term "common-law marriage" is often used incorrectly to describe various types of couple relationships, such as cohabitation (whether or not registered), or other legally formalized relations. Although these interpersonal relationships are often called "common-law marriage" they differ from true common-law marriage, in that they are not legally recognized as "marriages", but are a parallel interpersonal status, known in most jurisdictions as "domestic partnership", "registered partnership", "conjugal union", "civil union", etc. In Canada, for instance, while couples in "marriage-like relationships" may have many of the rights and responsibilities of a marriage (laws vary by province), couples in such partnerships are not legally considered married, although they may be legally defined as "unmarried spouses" and for many purposes (such as taxes, financial claims, etc.) they are treated as if they were married.[2][3] In recent years, the term common-law marriage has gained increased use as a generic term for all unmarried couples – however, this term has a narrow legal meaning. First of all, one can only talk of "common-law marriage" if such marriage was formed in a jurisdiction which actually applies the common law. A 2008 poll in the UK showed that 51% of respondents incorrectly believed that cohabitants had the same rights as married couples.[4] 
Non-marital relationship contracts are not necessarily recognized from one jurisdiction to another, and neither are de facto couples, whereas common-law marriages, being a legal marriage, are valid marriages worldwide (if the parties complied with the requirements to form a valid marriage while living in a jurisdiction that allows this form of marriage to be contracted).
Presently, the following states recognize common-law marriages as listed on
  • Alabama
  • Colorado
  • District of Columbia
  • Georgia (if created before 1/1/97)
  • Idaho (if created before 1/1/96)
  • Iowa
  • Kansas
  • Montana
  • New Hampshire (for inheritance purposes only)
  • Ohio (if created before 10/10/91)
  • Oklahoma (possibly only if created before 11/1/98. Oklahoma’s laws and court decisions may be in conflict about whether common law marriages formed in that state after 11/1/98 will be recognized.)
  • Pennsylvania (if created before 1/1/05)
  • Rhode Island
  • South Carolina
  • Texas
  • Utah
The practical effect of a common-law marriage is that there is no official record of the marriage. More recently, the legal status of common-law marriages has been complicated by recognition of domestic partnerships and civil unions. It is also not uncommon in the United States historically that people would hold themselves out to be married without any formal marriage ceremony recognized by either the state or the church.

Here's an example of the legal requirements for the recognition of the common-law marriage in the state of Utah from the Utah Courts website:
Many people want to get a "common law marriage." Utah does not have common law marriage; instead, you may petition the court to recognize your relationship as a marriage even though you never had a marriage ceremony. If the court approves, the partners will be considered to have been married ever since the following conditions have been met. The parties should be prepared to present evidence that the marriage arises out of an agreement between partners who:
  • are of legal age and capable of giving consent;
  • are legally capable of entering a solemnized marriage; (For example, there are no reasons, such as a close family relationship, preventing the parties from legally marrying.)
  • have lived together;
  • treat each other as though they are married; and
  • present themselves to the public so that other people believe they are married.
The petition to have a relationship recognized as a marriage must be filed during the relationship or within one year after the relationship ends (one or both partners have died or the partners have separated). Either partner may file the petition or both partners may file the petition together. A third party, such as next of kin, may file the petition.
When doing genealogical research it is entirely possible to find records indicating that a couple lived together and had children but no records indicating the marriage ever to place. Historically, it would be very difficult to determine the frequency of these "common-law" marriages.

By the way, all of the states in the United States recognize common-law marriages validly contracted in another state under the laws of comity.

The concept of common-law marriages raises an issue for genealogists who become fixated on a particular date or event and an ancestor's life. For example, if a U.S. Census record shows that a couple is living together with children there is an implication that they were "married" but the absence of a record showing a marriage does not necessarily negate the fact that they were married. Of course, there is an ongoing need to document the event center ancestor's lives but there is also the reality that any given record may not exist.

Thursday, September 14, 2017

Native American Tribal Enrollment and DNA Testing -- Part Two

Over my lifetime, I have often heard the term "blood relative" used to differentiate between a relative who was part of my ancestral line and one that "married" into the family. The technical term for this is "consanguinity" which is defined as the property of being from the same kinship as another person. In that aspect, consanguinity is the quality of being descended from the same ancestor as another person. The idea that relationships were transmitted through the blood dates back into antiquity. Obviously, scientific advancements in DNA testing demonstrate that the relationships between individuals even in the same family are much more complicated than a simple "blood" relationship.

In the series, I am using the example of Native American tribal enrollment to explore the practical uses of DNA testing to establish relationships and a culturally and politically charged environment. In this context, genealogical research, DNA testing, and desires to preserve a cultural heritage can either work together or create irretrievable conflicts. Although I am focusing on Native American tribal enrollment for this example, the discussion applies to the greater issues involved in general genealogical DNA testing.

Let me start with a hypothetical situation. Let's suppose that I take a DNA test supplied by one of the major genealogical DNA testing companies. Let's further suppose that the DNA test shows that I have a certain percentage of Native American ancestry and that I am surprised with the results of the test. For whatever reason, I do not have a family tree associated with the DNA test. In this, I am far from unique. For example, recent news reports indicate that has sold approximately 5 million DNA test packages. However, their latest reports also show that their paid membership is only about 2.6 million. Arguably, there are about 2.4 It's million or so people out there with DNA tests who do not have family trees on See's Company Overview.

Continuing with my hypothetical situation, let's suppose that the report from my DNA test indicating that I have Native American ancestry motivates me to begin some genealogical research. How far back in time would that research have to go to establish the identity of the Native American connection?

My hypothetical connection to a Native American ancestor could date back hundreds of years and depending on the availability of the records, I may never establish a paper connection with a Native American ancestor. Even if I assume that I already had an extensive family tree on the DNA testing program's website, making a connection to a specific ethnic group such as a Native American ancestor would be extremely difficult. The other hand, it could be as simple as finding out that my grandparents were Native Americans.

As I look at the results of my own DNA tests and compare the results to what is already known from my own family tree, I presently see no way to extend the research to account for reports that I have Italian and West Asian ethnicity.

 This is not an abstract topic. It is part of an ongoing discussion in the Native American community about the role of DNA testing in establishing tribal enrollment. Quoting from an article entitled "Tribal Enrollment and Genetic Testing" from the National Congress of American Indians, American Indian and Alaska Native Genetics Resource Center:
When the NCAI Policy Research Center began developing this resource guide, tribal leaders asked many questions such as, “What is genetic testing? What are good sources of information about genetic testing? What kinds of DNA testing can we use for tribal enrollment? How do we respond to individuals claiming tribal membership based on DNA tests?” This paper was developed to provide tribal leaders with more information on genetic testing related to tribal enrollment. Tribes are sovereign nations and so will decide their own views on genetic testing. This paper provides information to assist in those decisions.
This article outlines some of the challenges of bringing genealogical DNA testing into the real world. The following comment from the same article further illustrates the challenges of assuming that DNA testing will solve ancestral relationships in a general way.
DNA testing has become an umbrella term that refers to many different kinds of genetic testing that provides information about an individual’s genes. Genetic information, or DNA, is found in nearly every cell in the human body. DNA testing technology is constantly changing, and so are the efforts to engage tribes in testing on an individual and group basis. One type of DNA testing called DNA fingerprinting can be used to help document close biological relationships, such as those between parents and children, as well as among other close family members. Other kinds of testing for genetic ancestry use markers to see how similar an individual is to a broader population or group, based on probabilities drawn from databases of research on populations and group genetic characteristics. However, no DNA testing can “prove” an individual is American Indian and/or Alaska Native, or has ancestry from a specific tribe. Genetic testing can provide evidence for the biological relationship between two individuals (e.g., paternity testing), but there are no unique genes for individual tribes or American Indian/Alaska Native (AI/AN) ancestry in general. While research scientists have found that some genetic markers are found mostly only in AI/ANs, these markers are neither unique to AI/ANs nor predictive of AI/AN identity. This section will discuss various types of DNA testing as well as considerations for tribal leaders and members when engaging with testing companies.
This article also is linked to a further discussion entitled "Considerations in Using Genetic Testing for Tribal Enrollment."

What is certain is that the situation I outlined above in my hypothetical would not be helpful or useful in determining the type of information necessary to develop a tribal relationship.

 Stay tuned for the next installment.

To see the previous installment of this series click below.

Introducing MyHeritage DNA Match Review
092017&utm_content=english&utm_term=DNAreviewmatch continues to improve and innovate with its DNA testing and reporting. Their recent blog post entitled, "Introducing the DNA Match Review Page" explains the new additions in detail. My own DNA test results now have 171 DNA matches. In my own case, unfortunately, very few of the close matches have family trees on the website, so the analysis of their relationships are quite limited. In those few instances where there is a family tree, it is helpful to see the Smart Matches, shared ancestral surnames, shared DNA matches, shared ethnicities and a pedigree chart. Here is an example of a shared pedigree:

Since we are dealing with living people, it is important to respect their privacy when appropriate.

Go Ahead Tours, Collaborate to Launch a New Tour Portfolio
It certainly looks like is getting into the tour business. Of course, "visit the homeland" tours have been popular for a very long time. If you do a Google search for homeland tours you will see hundreds of companies and sponsoring institutions around the world offering such tours. Here is one example:
During the past few years, genealogy cruises have also been popular with some of the promoters incorporating "classes" with professional genealogists as an attraction. My own "homeland" tour would take me to Eastern Arizona, which I suppose is not on many of the tour companies' adgendas.