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3. IN THE MATTER OF ADMINISTRATION OF ESTATES.
There seems to have been no question in Oregon as to the capacity of a single woman to act as an executrix; the first law which mentions administration of estates implies that she may so act but her subsequent marriage is to extinguish her powers and revoke her letters.160 Apparently this section was passed from fear that after marriage, an executrix might be influenced by her husband to administer to his advantage, for the act said, “if any executrix marry, her husband shall not thereby acquire any interest in the effects of her testator or intestate, nor shall the administration devolve upon him”.161 But by 1864, when a new code was prepared, the legislators had arrived at a more trustful attitude toward their brethren and omitted the section making marriage an automatic revocation of an executrix's power.
However incompetent a married woman might be to manage property, as soon as death released her husband from his responsibility of managing it, the widow, even though under twenty-one years of age, might act as executrix of her deceased husband's estate. Letters of administration were ordered to be granted (by a law of 1854) “to the widow, or next of kin, or both” 162 If the deceased were a married woman, administration of her estate was in all cases to be granted to her husband, if competent and willing, unless by force of a marriage settlement, or otherwise she would have made some testamentary disposition of her separate estate, “making it necessary to appoint some other person”.
DISTRIBUTION OF PERSONAL PROPERTY.
In 1849163 the first state legislature made arrangements for the distribution of the personal property of an intestate by declaring that in addition to dower, the widow shall be allowed to keep as her absolute property, “all the wearing apparel of the family, her wheels, looms, and other implements of industry; all yarn cloth, and clothing made up in the family for their own use; all grain, meat, vegetables, and other provisions on hand,
necessary for the subsistence of the widow and family for twelve months, and as many beds with bed. ding, as shall be necessary for herself and the family of the deceased residing with her under her control”. In addition she might take such personal property as she chose, not to exceed the appraised value of $200. The above was to be deducted from the widow's share in the personal estate, if there were any, and was to be exempt from the debts of the deceased.
The language of the code of 1855104 was less explicit, and described the widow's share of the personal estate as "all articles of her apparel or ornament, according to the degree and estate of her husband, and such provisions and other necessaries for the use of herself and the family under her care, as shall be allowed and ordered in pursuance of the provisions of this act”. After the settlement of the husband's debts and funeral expenses, the widow was to have one-half of the residue, the issue the other half, but if no issue, the widow was to have all. But if the intestate were a married woman, her husband was to have the whole of the residue.
Besides this, another statute provided165 that when a person died the widow and minor child or children were to remain in possession of the homestead and all wearing apparel of the family and household furniture of the deceased and were to be entitled to a reasonable provision for their support, which was to be allowed by the probate judge. After the inventory had been made the court was directed to set apart for the use of the widow and minor children all the property of the estate exempt by law from execution. If this should be insufficient, the court was to allow “further reasonable allowance out of the estate, as may be necessary”. When the property had been set apart for the use of the family, if there were no minor children but a widow, the property was to be the property “of the widow'); if there were minor children, one-half was to go to them in equal shares and one-half to the widow. But if the value of the estate did not exceed $300 the whole estate, after payment of funeral expenses and administration, was to go to the widow and minor children.
The code of 1864166 continued this arrangement except that the whole estate was to be set apart to the widow and minor children, when it did not exceed $150 worth of property exempt from execution. The words of the act are, “the property thus set apart, if there be a widow, is her property, to be used or expended by her in the maintenance of herself and minor children". The justices of the state supreme court had to construe this section 107 in a suit brought by the children of a man whose wife had married a second time, and then, her new husband joining with her, sold the house and land given by the county court for the purpose of the maintenance of her first family. The Court said in its opinion“ (The law) provides that it is her property and it follows naturally that she takes a fee-simple estate
capable of alienation as well as of possession and of enjoyment. The statute is a peculiar one, and
, we derive no assistance from the decision of the courts of other states made upon dissimilar enactment. It is evidently framed upon the idea that material affection will be a sufficient incentive to the widow to induce her to apply the proceeds to the use of her children as well as of herself'.
In another decision, the court thought that “this provision to be supported out of the estate was intended to be in lieu of dower' 168
DESCENT AND DISTRIBUTION OF REAL PROPERTY.
The order of descent of real property after the debts of the intestate have been discharged has been modified through several legislative years. The first act169 made the order of descent: first to the children and the chil. dren's children; next to the wife, if there were no issue; third, to the father if there were no wife nor children; fourth, to brothers and sisters and mother, if children, wife and father were lacking; but if mother and nieces and nephews were the nearest survivors, the mother was to inherit to the exclusion of nieces and nephews. The latest law170 made the order (1) children; (2) wife; (3) father and mother in equal proportion; (4) if no father, to the mother; (5) if no mother to the father; (6) if neither father nor mother, to brothers and sisters.
A statute concerned with descent of women's property is that which makes an illegitimate child, heir of the mother only, in like manner as if such child had been born in lawful wedlock, but such child is not to inherit any property, real or personal of the kindred of its mother, unless its parents shall have formally married, when such child shall not be regarded as illegitimate within the meaning of the act, although the formal marriage may be void. 171
4. CONCERNING THE POWER TO MAKE WILLS.
The problem of the settlement of the estates of deceased persons was one of the first which faced the little Oregon community. Accordingly, as the Iowa Territorial Code of 1838-39 furnished a solution, the framers of the First Organic Law of the Provisional Government wrote as follows: "Article 14. The laws of Iowa Territory respecting wills and administrations, shall be the law of this territory, in all cases not otherwise provided for. 9:172 The Iowa Statute became the law, then, for Oregon women until 1849. This law permits173 any person having an estate in lands, or any goods, or chattels, rights, credits, and property of every description whatever to "give or devise the same to any person by last will and testament by him or her lawfully executed”. This law was fairer to married women who held property in their own names, than the law of the first territorial assembly which superseded it. The Oregon statute of September, 1849, declared:174 “Section 1.-Every person twenty-one years of age and upwards of sound mind may, by last will, devise all his estate, real, personal, and mixed and all interests thereing, saving to the widow her dower''.
“Section 2.--Every person over the age of eighteen years
may by last will dispose of his goods and chattels”. But the "fly in the ointment” now appeared for some
“Every” person did not mean “every" here, but "some". For the law declared fur. ther that a married woman might not make a will, unless she had power to do so by her marriage settlement or authority in writing executed by her husband before marriage. Furthermore, a will made by an unmarried woman was revoked by her subsequent marriage.
The Donation Land Law was passed by Congress in 1850, one year after the Oregon act on Wills. The former permitted a married woman whose husband filed on a Donation claim, to take 320 acres, on account of her “wifeship" "to be held by her in her own right”. If either husband or wife should die before the patent had been issued, the survivor and children, or heirs of