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 section167 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 children'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. 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 women. "Every" person did not mean "every" here, but "some". For the law declared further 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

the deceased, were to be entitled (provided that other provisions for obtaining the grant had been complied with) to the share or interest of the deceased in equal proportions, "except where the deceased shall otherwise dispose of it by testament duly and properly executed according to the laws of Oregon". But the laws of Oregon did not give a married woman the right to dispose of her separate real property. The irony of "holding" land in one's own right and of having the entire enjoyment of it consist in knowing that it was "designated" to one's name in the surveyor general's records probably appealed to the third and fifth territorial legislative assemblies for the former passed the law declaring that "the wife's portion of the Donation Claim is secured to her separate use and control and in no wise subject to her husband's debts", while the latter amended the act of 1849 on Wills so that Section 3 read: "A married woman may, by will, dispose of any real estate held in her own right, subject to any rights which her husband may have as a tenant by the curtesy" 175 Section 2, of the act on Wills passed in 1849, which permitted "every person" over eighteen years of age to dispose of his goods and chattels remained unchanged and we may presume, since the disability of a married woman to make a will was removed, that in section 2, "every" person meant "every". Section 2 stands today as it was passed in 1853.178 Section 3 was amended in 1917 to read177 As tenant by the curtesy or his election thereunder" but these words were repealed in 1919 and the statute is in effect at present in its original form.178

Meanwhile, by constitutional provision and legislative acts, from 1859 on, married women had been given entire control of their separate property and personal earnings. In 1880 all civil disabilities resting upon woman, which were not imposed upon her husband were removed, and not long afterwards the courts were called upon to decide whether the revocation of an unmarried woman's will by her subsequent marriage was one of the disabilities intended to be removed. The court decided that this earlier law was not repealed by the 1878,

nor by the 1880 statutes, nor was it repealed by a law of 1853 which permitted a married woman to dispose of her realty by will,179 for the court held that the statute declaring an unmarried woman's will revoked was not repugnant to nor inconsistent with the removal of the civil disabilities act "however unnecessary and inexpedient the former might seem to be when she still retained full control and disposition of her property and might make and revoke wills at pleasure". And in another suit, the judge said that the section "does not confer on the wife any new right of action; it merely allows her to act independently of her husband for redress in courts for the infringement of rights which she had already had" 180 In 1907 the legislature amended the act so that the will of every unmarried person is revoked by his or her subsequent marriage.181

One testamentary right which a father had had since 1853 which was not granted to a mother until 1891, was that of appointing a guardian for the minor children182 "whether born at the time of making the will or afterwards". Yet the mother had had, since 1880, an equal share with her husband in the rights and responsibilities of a parent and was as fully entitled to the custody and control of her children183 and their earnings as the father was, and, the statute said, "in case of the father's death, the mother shall come into as full and complete control of the children, and their estate, as the father does in the case of the mother's death". This full control during her lifetime, availed her not at all when, at the point of death, she sought to have her children cared for after her demise according to her wishes. Since statute law did not expressly permit her this testamentary privilege, common law practice prevailed. An illustration of this appeared in a case which came before the Oregon Supreme Court in 1889. A certain widow who died, had appointed a man as guardian of her two minor children, which appointment was contested by the maternal grandmother and other relatives.184 In reviewing the "harsh features" of common law legislation on this privilege as granted to a father and not to a mother, Judge Lord said: "This relic of barbarism is still in