A CAVALIER ATTITUDE: AN ESSENTIAL PRIMER ON COLONIAL VIRGINIA GENEALOGY
I’ll use this column to collect excerpts from accounts of social history that illustrate the laws and customs of colonial Virginia. Most of the citations (with abbreviated titles) are from the “Tobacco Road” bibliography. Position held by author is as listed on book.
Genealogists studying colonial Virginia families should be conversant with the literature on the subject, especially that pertaining to social and legal concepts impacting women. If you read these 8 sections, you’ll have the basic grounding necessary for further exploration.
A portion of law might be cited in academic literature to support a point, but the entirety of the act may not be quoted. If there’s any doubt what a Virginia statute declared, Hening’s Statutes should be consulted. Statutes enacted in the 18th century may reference previous law or common law.
[1]
Because there is misunderstanding CONCERNING WHAT CONSTITUTED A WIDOW’S DOWER RIGHTS when Edward Dale penned his will in 1694, I thought it best to quote the actual statute in force, enacted by the Virginia Assembly in 1673:
“An act for establishing the dowers of widdows.
WHEREAS many doubts have arisen concerning the estates of persons dying intestate, and of what parte thereof ought to appertaine to the widdow; for cleareing whereof, Be it enacted by the governour, councell and burgesses of the grand assembly, and the authority thereof, that where persons dye intestate, the widdow shalbe endowed with the third part of the reall estate to bee equally divided as to houseing, ffenced grounds, orchards, woods, and other valuable conveniences, dureing her naturall life, and the third part of the personall estate, if there be but one or two children, but if there be any number of children more, how many soever, in that case the personall estate to be devided amongst the widdow and all the children share and share alike; and in case the husband make a will that he hath in it his power to devise more to his wife then what is above determined, but not lesse.”
[Hening/2:303. The law didn’t grant widows the right to sue if a husband violated the law until 1705. At the same time it reclassified slaves as personal property, greatly diminishing the attractiveness of such suits.
Two early cases heard by the Virginia Assembly on 5 Mar 1654/5 dealt with a widow’s rights in real estate:
(a) John Bromfeild vs. Elizabeth Crumpe. It being found that the will of Richard Buck, from which Bromfeild’s claim to the land descends, gave Bridget Bromfeild, late wife of John Burrowes, and Buck’s children only a life interest; therefore, the widow Crumpe can continue her possession of the premises.
(b) Capt. Streeter vs. Wm. Burbage. Streeter had married the relict of Capt. Thomas Burbage. Lands of decedent to be divided in quantity and quality into thirds, with Streeter’s wife to choose which half of the plantation at Nasemond, and which thirds of the other lands she wanted, for life only; with Wm. Burbage to take the remainder as heir-at-law.
Hening/1:405]
A few words about chancery courts, which were important to women’s property rights, are in order. Virginia, but not all British colonies, had courts of equity, or chancery courts. “Equity had emerged to mitigate the harshness of common law and to insure justice in cases where a plaintiff feared a powerful opponent could corrupt proceedings at law…. [C]ounty courts heard both common law and chancery cases. From 1645 a defendant in Virginia could request a hearing in equity at any time before proceedings began on an issue. Once in chancery, a case would be kept from common law until the defendant had answered and the commissioners of the court decided whether the case would be heard in chancery or under common law.” [Sturtz/pp. 20-21]
“Virginians … some time before 1674, had adopted a system of ‘bargain and sale’ procedure for land transactions. Both bargain-and-sale and fine-and-recovery transactions required the private examination of the wife to ascertain if she agreed to the sale. If a husband sold land without his wife’s agreement, she could, at his death, return to claim a third of the family’s real estate and possess it during her lifetime. Purchasers would be wary of acquiring land if they realized the seller’s widow might return to haunt them for the ‘thirds’ to which she was entitled during her lifetime. To solve this problem, a buyer could require the seller’s wife to renounce her dower rights at the time the land was sold. In order for the sale to be valid, the wife had to renounce her claims and agree that she did so without compulsion. The courts developed a procedure to examine the wife privately (with her husband absent) to verify that she granted her consent to the sale without his compulsion.”
[Sturtz/Within Her Power, p. 45.]
Linda L. Sturtz is Associate Professor of History at Beloit College.
“That a married woman lacked a legal identity did not mean, of course, that she lacked all legal rights. The most significant of her rights pertained to property and wealth, and thus to inheritance. Although the state curtailed her rights in marriage, it became her advocate in widowhood. The state or community wished to keep the burden of a woman’s support private, and thus expected a husband to extend his sustaining hand even after death. If the state could not ensure a husband’s character or his marital affection, it could defend its own interests by mandating that a portion of the estate go to the wife regardless of the husband’s wishes.
“The widow’s inheritance share, or dower right, was thus well established in England by the seventeenth century, although its provisions varied from county to county and over the decades. The standard dower settlement gave a widow a life interest in one-third of her husband’s real property; that is, she was entitled to the profits from the land but could not sell or select its ultimate owner. On her death, the property passed into the hands of the husband’s designated heirs. Dower was honored, in some form, in every English community and in each colony. The absence of a will signified a husband’s tacit acquiesence to his widow’s “thirds.” Testator’s who designated less than those “thirds” usually had their wishes thwarted–and their wills contested.
“As judges and legislators evaluating private interrogation procedures often conceded, a husband could cajole or coerce his wife into a dower release that left him free to dispose of her property as he saw fit, thus subverting dower protection.
“On the whole, colonists in seventeenth-century Maryland and Virginia respected the tradition of dower…. A widows thirds in real property were honored, and her thirds of a husband’s personal estate were also ensured.”
[Berkin/First Generations: pp. 15-16.]
Carol Berkin is a professor of history at Baruch College and CUNY Graduate Center.
“Like their neighbors in Maryland, Virginians guaranteed widows a dower share in personal property, although in the first decades of settlement there was apparently some confusion over the exact meaning of a widow’s thirds. Initially, Virginians failed to define dower by statute. They relied instead upon custom or common law to guide executors or administrators, family members, and court officials in distributing the estates of the dead. In 1664 the General Assembly acted to end the resulting confusion by enacting a law to define dower. The statute, ‘An Act concerning Widdows thirds,’ [*] noted that doubts had arisen about the proper way of apportioning dower. To end confusion, lawmakers stated all real and personal property was subject to dower claims. In assigning real property, cleared and wooded lands and housing were to be divided into thirds, with the widow taking her choice among the three parcels first. By this definition the assembly attempted to obviate difficulties over apportioning the widow’s share in cases of intestacy, when the will was unclear, or, one assumes, when the widow renounced the will and asked for her thirds instead.”
[Salmon/Women And The Law Of Property: pp. 151-152. *The Hening citation is to Vol. 2, p. 212; the act of September 1664 clarified previous law concerning what choice widows had in land and housing, stating she was to have her choice.]
MaryLynn Salmon ‘s work has been published in the Studies in Legal History series by The University of North Carolina Press.
“In England, to the seventeenth century, dower extended also to personal property—money and movable goods—and this was brought to the early American colonies. Upon her husband’s death, a widow had an absolute right to one-third of her husband’s personal property (half if there were no children) and a life interest in a similar share of his lands.
This was the law brought to the early colonies from England but, by 1700, throughout Wales and England (except London) and in all the American colonies (except Maryland and Virginia), widows had lost the right to dower in personal property (Salmon, 147-148).
In Maryland and Virginia, however, slavery created a special situation. Slaves were personal property but, if they did not remain with the land to work it, the value of the land was diminished. By retaining dower in personal property, these colonies kept slaves and dower land together. From 1705 to 1792, Virginia redefined slaves as real property like the land itself, so the widow, with only a life interest, could not sell or bequeath slaves by will; at her death they went with the land to her husband’s heirs. Nevertheless, Virginia also continued, like Maryland, to grant dower in personal property (Salmon, 149-156).”
[Donn Devine, The Widow’s Dower Interest, in “Ancestry Magazine,” Vol. 12, no. 5, 1 Sep 1994.]
*****
In 1705, a Virginia statute memorialized a widow’s right to reject her husband’s will, and sue for her “thirds.” The entire will was not thrown out. The remaining legatees received their inheritance, subject to deductions made when the widow took her “thirds.”
Her “thirds” consisted of revenues (life interest) from a third of the real property, a substantial loss in income. She would, however, obtain outright ownership of a third of the chattels. Slaves were considered personal property in 1694, but in 1705 were classified as real estate, giving widows only a life interest in them.
Prior to 1705, only widows remarrying could make pre-nuptial agreementa with subsequent husbands; as part of the probate reform of Oct 1705, first times brides could also have pre-nuptial agreements. [Hening/ 3:374}
I hope I’ve stimulated readers to investigate this neglected and misunderstood aspect of their ancestors’ lives.
[2]
“Planters who prepared their own testaments were permitted to do as they pleased.
“In 1699 Virginia planter John Washington (himself a youngest son) testified to the custom of the country. ‘I had not the value of twenty shillings of my father’s estate,’ he wrote bitterly. ‘I being the youngest and therefore the weakest which generally comes off short.’
“When every child was given an equal share, the family tended to decline in status.”
[Fischer/Albion’s Seed: pp. 380-381.]
David Hackett Fischer is Warren Professor of History at Brandeis University.
20 Shillings = 1 pound or = 240 pence.
While many planters did mention all of their children in some capacity, they were under no legal obligation to do so. As harsh as it may seem to the modern mind, planters didn’t have to provide for their children.
[3]
“A case in point was the successful but very stormy marriage between William Byrd II and Lucy Parke Byrd. In this relationship, which lasted ten years (1706-16), Byrd acted the role of domestic patriarch. He disposed of his wife’s estate without consulting her, kept all his property in his own hands, and forbade her to even borrow a book from his library without permission. He also interfered in her domestic management, and infuriated her by dictating the smallest details of her appearance even to the shape of her eyebrows, which she was compelled to pluck according to his pleasure. At table one day, he and his male guests entirely consumed the best dish and left nothing for his wife to eat. She did not hide her outraged feelings.
“Lucy Byrd, for her part, was the daughter of Colonel Daniel Parke, a high-born Virginia gentleman who later became governor of the Leeward Islands….
“The most violent quarrels were about the house servants, whom Mrs. Byrd abused with a sadistic cruelty that shocked even her husband, who was no humanitarian. One domestic battle occurred when Lucy Byrd ordered a little slave girl named Jenny to be burned with a hot iron for a minor fault.”
[Fischer/Albion’s Seed: pp. 287-290.]
Lucy Parke Byrd died in England of smallpox in 1716.
William Byrd II was a descendant of Edward III. The Byrds were at the apex of colonial Virginia society and their marriage considered happy.
[4]
The portrait of Maj. Edward Dale that emerges from several contemporary accounts is shocking, but he was probably no worse than many of his class:
“Less frequently, servants and slaves turned the tables and struck back at their owners. William Page of Lancaster ‘did strike at his sd. Master [Mr. Edward Dale] with a howe swearing (God damme hym) if his master stroke hym hee would beate out his braynes,’ for which he was ordered to serve an extra year.”
[Horn/Adapting: pp. 355-356.]
James Horn is head of the School of Historical and Critical Studies at University of Brighton (England).
The term “stroke hym” means whipping. The sense of the story is that Dale was going to whip Page, but Page struck at Dale with a hoe and told him he would beat out Dale’s brains with it, whereupon the court sentenced Page to another year of servitude.
“In 1671, Richard Price attempted to sit in a seat in St. Mary’s White Chapel church reserved for members of the county court. Price was not deliberately causing trouble, but was following the custom allowing people to sit in unoccupied seats in the church. The privilege was circumscribed, however, by a general sense of the social standing appropriate to the occupation of certain seats. Price was evidently not considered qualified to sit with the justices, for one of the pew’s occupants, Edward Dale, attempted to keep him out and was pushed back in his seat by Price for his trouble. The county court duly punished Price for behavior ‘tending to the dishonor of God Almighty and contempt of His Majesty’s ministers, offence of the congregation, and scandall to religion.’”
[Upton/Holy Things and Profane: p. 194.]
Dell Upton is professor of architectural history at University of California/Berkeley.
The case found its way to the General Court of Virginia. On 26 Mar 1672 Price was ordered to ask Dale’s forgiveness in the Lancaster County court, or pay Dale 2,000 pounds tobacco and caske and court costs.
From Dr. Joseph Lyon Miller, in an article in “William and Mary College Quarterly Historical Magazine,” Vol. XVII, No. 3, January 1909, pp. 196-202:
“Major Dale was a man who held tenaciously to his opinion, and one who demanded from all the proper respect due to his social and official position–characteristics that are illustrated in the old records at Lancaster Court House. In the fifteen years that he was a member of the county court he was the only one of the justices who frequently dissented from the opinion of others and had his dissensions recorded. February 8th, 1670, he routed the entire court and caused them to adjourn without transacting any business, as besides the date and names of the justices the only record made of the meeting is as follows: ‘Mr. Edward Dale, Clerk of this County & in Commission for the peace, and high Sherf. of this County conceiving himself sufficiently qualified to sett covered in Court wch some of ye sd Justices would not allow of they did thereupon adjourn till ye second Wednesday in the month next.’
I’m not certain what “sett covered” means, but perhaps it has to do with wearing a hat, which sounds rather ridiculous.
“Another that has come down through his descendants related how in his loyalty to the King he transgressed one of the strongest of Virginia’s unwritten laws–the law of hospitality. The story relates that upon one occasion a stranger stopped at Major Dale’s house one day just about the dinner hour. His horse was sent to the stable and he was invited to join the family at the dinner just then served. When they were seated at the table the visitor immediately bowed his head and offered a long puritanical prayer in which he asked rich blessings for Oliver Cromwell, and especial curses for King Charles II. This so incensed Major Dale that he ordered the man from his table, sent a servant for his horse, and told him to hunt his dinner elsewhere.”
[5]
The following account is interesting because William Ball and Maj. Edward Dale served together as burgesses. I refer to the husband of Mrs. Hannah Ball as William Ball because that’s how his will is listed in Lee’s abstracts, but he’s also referred to as Col. William Ball. His son was called Capt. William Ball, and there was a later Col. William Ball. Got it?
“A situation arose in Lancaster County at the turn of the century, embroiling one of the county’s most elite families in an eighteen-year dispute over property. Sometime before 1695, Madam Hannah Ball, widow of Colonel William Ball, began to promise property to her children and grandchildren. Her gift to her daughter Hannah Ball Fox included furnishings and an enslaved girl, both of which were part of the estate Colonel Ball had bequeathed to his sons Joseph and William. Sensing that their inheritance was in jeopardy, the two men began to harangue their dying mother and, after her death, the sister and brother-in-law who had received the gifts. After a bitter lawsuit and dramatic courtroom confrontation, however, Hannah Ball Fox and her husband appear to have extracted the furniture from the estate’s executor–her brother Joseph–and retained possession of the slave girl. In the effort to sort out the legal tangle, the Lancaster justices (minus the two Ball brothers and Captain Fox) called the girl’s enslaved mother Bess to testify. Ironically, Bess was the only witness to Madam Ball’s final instructions for the bequest of the slave child.
“As a new generation of Ball descendants and their slaves came of age in the early years of the eighteenth century, conflict erupted again. William Ball, son of Joseph, sued his aunt Hannah Fox for detaining the slave girl, whom he claimed belonged to him according to the original terms of his grandfather’s will. Madam Ball’s deathbed instructions to give Bess’s daughter to her own daughter clearly exceeded her rights to lifetime use of the estate and contradicted the terms of her husband’s will. The court ruled, therefore, that, under constraint of her husband’s will, Madam Ball could not have lawfully bequeathed the slave girl to her daughter.”
[Brown/Good Wives: pp. 288-289.]
Kathleen M. Brown is associate professor of history at University of Pennsylvania.
The Ball family was important, not only for their status in Lancaster Co., VA, but because William and Hannah (Atherold) Ball were great-grandparents of George Washington, first president of the United States.
First, a review of probate history:
(a) William Ball made his will 5 Oct 1680. It was recorded 11 Nov 1680. He bequeathed his daughter Hannah, wife of David Fox, 5 shillings as an overpayment for both of her portion and deserts. This isn’t an instrument of “estoppel.” In simplest terms, Ball was saying: “I’ve already treated you fairly and I’m giving you this token of 5 shillings in my will to remind you of that.” It’s not an acknowledgement of her inherent claim on his estate. In reality, this clause had no legal force at all. Ball undoubtedly hoped these words would deter his wife and daughter from misappropriation of his property. However, as seen above, the two Hannahs had other plans.
The point is, when the Ball brothers took the matter to court, they didn’t base their suit upon the contention that their sister, Hannah (Ball) Fox, had bargained away her “share” of her father’s estate by receiving 5 shillings. She had no “share” in her father’s estate. Rather, the brothers argued that their mother had no right to give away property their father had already left to them, and ultimately won the case with that argument—but it took 10 years to cycle its way through the court. In the interim, Hannah (Ball) Fox had the labor of the slave.
(b) Mrs. Hannah (Atherold) Ball made two written wills, and, allegedly one oral (nuncupative) will. Mrs. Hannah Ball was living 15 Nov 1694. The first written will was made 5 Dec 1694, and the second on 25 Jun 1695. Both written wills were probated on 9 Oct 1695, and recorded on 12 Oct 1695. On 12 Mar 1695[/6], Bess, a slave belonging to Mr. William Ball, was ordered to appear in next court to prove an oral (nuncupative) will of Mrs. Hannah Ball, deceased. It didn’t happen.
At the next court on 8 Apr 1696, the issue of the oral will was apparently dropped. The justices noted that Mrs. Ball’s will of 5 Dec 1694 bequeathed to her daughter Hannah furniture “amongst other things” and ordered they be delivered to Hannah’s husband, Capt. David Fox. That’s where the matter lay until 24 Nov 1698, when the court tossed out a lawsuit between Joseph Ball and Hannah’s grandson William Ball over a share of Mrs. Hannah Ball’s estate based on the written will of 25 Jun 1695, on the grounds that the later will didn’t name Joseph Ball as an executor.
It seems the Balls used every legal strategem available to obtain property they thought was owed them, but the court rejected the written will of 25 Jun 1695. The court also rejected the oral will of 12 Mar 1695[/6]. The justices accepted Mrs. Hannah Ball’s first written will of 4 Dec 1694 as the “true” will. The litigation turned into a slugfest when on 12 Mar 1695[/6], the same day that the “oral will” was scheduled to be proved, David Fox, husband of Hannah Jr., punched the attorney representing the executors of Capt. William Ball and called him many “oppbrius” names–probably because the oral (nuncupative) will they tried to slip in was rejected. This was because an oral will can’t follow a written one, of which there were two.
In the end, as seen above, Hannah (Ball) Fox successfully made off with the furniture and curtains but had to cough up the slave, who was caught between the warring parties.
According to a Lancaster County court record of 9 Aug 1704, the issue was that Bess was willed to a son of William Ball, and therefore Bess’s children belonged to that son as well. Hannah (Ball) Fox made off with Bess’s daughter Hannah, and finally, after 10 years, Hannah the unhappy slave was returned to Hannah (Ball) Fox’s nephew William Ball.
Mrs. Hannah Ball’s problem was that she bequeathed property to which she had no title–she just gave Hannah property which her husband had willed to Joseph and William. The court ruled Mrs. Ball had exceeded the bounds of her “life interest.”
But that’s not the end of this story. Those wondering why they can’t locate the graves of their ancestors might find the following helpful:
“Col. [William] Ball was buried on his plantation on Narrow Neck Creek, and his wife [Hannah] was laid beside him 15 years later. The graves were unmarked. In 1754, their grandson, Joseph Ball II, wrote to his cousin Joseph Chinn: ‘I would have you … go down to the plantation where my grandfather and grandmother lived and are buried …. If you find that, then stake it out at the four corners with sound locust stakes that you may be sure to find it again, for I think to find a stone to put over them.’
“Apparently, cousin Chinn never found the site. The gravesite of the great-grandparents of America’s first president remains unknown.”
[Jett/Lancaster County: p. 64.]
Carolyn H. Jett served with The Lancaster County History Book Committee in assoc. with The Mary Ball Washington Museum and Library, Lancaster, Virginia.
The assumption is that Edward and Diana Dale were buried at St. Mary’s Whitechapel churchyard, but it’s just as likely they were buried on Edward Dale’s plantation. Few tombs dating to the 17th century survive in Virginia.
[6]
“These cavalier immigrants founded the dynasties that would later be called the First Families of Virginia, but they were not chronologically the first in the colony. Most arrived within a decade of the year 1655. The founder of the Carter family came in 1649, as did the first Culpeper, Hammond, Honywood, and Moryson. The first Digges arrived in 1650, together with the first Broadhurst, Chicheley, Custis, Page, Harrison, Isham, Skipwith, and Landon. The first Randolph emigrated from Northamptonshire about 1651, the first Mason in 1652. The first Madison was granted land in 1653, the first Corbin in 1654. The first Washington, a younger-son of an Oxford-trained clergyman who had lost his living to the Puritans, crossed the ocean in 1657, as did Colonel William Ball, the ancestor of George Washington’s mother, and the first Fairfax in 1659. Of seventy-two founders of Virginia’s First Families whose dates of migration are known, two-thirds arrived between 1640 and 1669.”
[Fischer/Bound Away: p. 37.]
“Southern planters gained their greatest satisfaction from managing, englarging, and improving upon their estates. Their self-esteem was very much tied up with the land, and they hoped to make their family seats as luxurious as those of the English upper ranks. They wanted to be respected for their financial accomplishments. One observer noted that Virginians possessed an ‘extraordinary Ambition to be thought well of’ in England.”
[Salmon/Women And The Law Of Property: p. 10.]
[7]
“Equity provided various means for families to evade common-law rules regarding women’s subjection to coverture. Perhaps most importantly, it enabled married women to establish a separate estate to be held independently from her husband’s control prior or during marriage. The couple could agree to a “jointure”–a settlement made before the wedding in which the bride gave up her right to claim dower in her husband’s estate when he died in return for accepting instead the property designated in the document. This still did not give her active control over the property during the marriage.
“Equity allowed for the creation of separate estates and provided the means for a couple, or their parents, to negotiate an agreement outlining what property the wife could keep. The property could then be placed in trust, with the wife designated either an active trustee or passive beneficiary.
“Although a widow as a feme sole possessed some control over property, she lost this power once she entered a new marriage, leaving her a window of opportunity before remarriage to assert some control over her property. While this legal framework applied to widows in England, widows in colonial Virginia encountered the possibility of remarriage more frequently than women elsewhere in the Anglo-American world because the high death rate of seventeenth-century Virginia and inbalanced sex ratio, … left more young widows contemplating the prospect of remarriage than did widows in England or New England during this period.
In 1679 [Virginia widow] Elizabeth English agreed to marry Robert Henley, but reserved to herself ‘liberty’ to make a will ‘when or to which I shall think fit’ to dispose of the land she had inherited from her first husband. She specifically mentioned that she made the agreement even before the banns were published for her wedding to Henley.
“By the eighteenth century, prenuptial agreements defined property holding for first-time brides as well as for remarrying widows.”
[Sturtz/Within Her Power: pp. 21-22, 24,34.]
Due to the large imbalance of gender in colonial Virginia, there was tremendous pressure on women to marry. At the time Diana Skipwith married Edward Dale, he absorbed whatever property she had, and he could do with it as he pleased, without consulting her. There is no evidence she possessed land, or that Dale experienced a sudden infusion of wealth upon his marriage.
[8]
“Waste” was a term signifying damage, and it included restrictions against cutting down trees, opening mines, and neglecting the upkeep of buildings and fences.
“[Most] early nineteenth-century cases continued to turn upon a revised definition of waste established in the colonial period. James Kent believed that most states enforced a flexible standard on waste. In his Commentaries he cited cases from Pennsylvania, New York, Virginia, and North Carolina to demonstrate the point, and concluded, ‘If the land be wholly wild and uncultivated, it has been held, that the tenant may clear part of it for the purpose of cultivation; but he must leave wood and timber sufficient for the permanent use of the farm.’ In determining exactly what constituted waste, Kent noted, ‘It is a question of fact for a jury, what extent of wood may be cut down, in such cases, without exposing the party to the charge of waste.'”
[Salmon/Women and the Law of Property: pp. 143,177-178.]
“Waste” is a key concept. In those days barns, outbuildings, fencing, and dwellings were constructed of timber found on the farm. The age of the palatial plantation mansion had not yet dawned. Hogs were not penned, but allowed to roam the woods and forage. A farm needed trees, a water source, perhaps access to a creek or river, to function effectively.
In order for title in property to be legally conveyed, the grantor’s wife had to relinquish her dower in the property. If the purchaser bought the property from the husband without relinquishment of dower, it became the responsibility of the purchaser to satisfy the dower rights–obviously an undesirable position for the grantee. see section (1) above]
I find this episode amusing:
Edward Dale’s 12 Mar 1677/8 gift to his daughter Elizabeth of 500 acres (Lancaster Co., VA Deeds & Wills 4, pp. 290-291), which he had purchased of Thomas Chetwood, contained a clause indemnifying him against being charged with “waste.” Obviously he intended to strip the plantation. Diana Dale didn’t relinquish dower, effectively thwarting her husband’s plans. Sturtz, citing a 1670 example, points out that a woman who didn’t relinquish her dower interest in land legally retained her rights. [p. 46.]
The plantation was abandoned, making it necessary for Elizabeth’s husband, William Rogers, to re-patent the plantation with the Fairfax Proprietary in April 1695. The reason given for the new grant was:
… “the said land being formerly granted to Mr. Thomas Chetwood for five hundred acres by patent dated the ninth of July One Thousand Six Hundred and Sixty Seven and by the said Chetwood sold to Major Edward Duke [?] given to his daughter now the wife of William Rogers and for want of due seating deserted.”
There is no doubt this land was acquired by Dale during his marriage to Diana Skipwith, and that she had dower in the tract. Her refusal to relinquish dower was undoubtedly the reason the tract was abandoned, but it was not the proximate cause of seeking a new grant, which was “for want of due seating deserted.” There was no “due seating” because the tract had been abandoned. Edward Dale died 2 Feb 1695/6, and Diana (Skipwith) Dale died on 31 Jul 1696, so Rogers obtained the new grant while his in-laws were alive.
I’m not going to discuss the concept of “seating” a plantation. Generally it required that a plantation be a minimally functioning farm with some history of occupation. There were various legal requirements for “seating”, often not strictly strictly enforced. It was in the interest of the colony that land be productive, but as a practical matter it didn’t always happen.
[Richard Merryman fired the opening salvo of his legal war with Mary (Dale) Harrison chronicled in the post “A TRAIL OF TEARS” by entering “her” property and cutting down trees.]
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