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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 enjoy. ment 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Section 3 was amended in 1917 to read177 “As tenant by the curtesy or his election thereunder" but these words were repealed in 1919 and the statute is in effect at present in its original form. 178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 The court decided that this earlier law was not repealed by the 1878,
nor by the 1880 statutes, nor was it repealed by a law of 1853 which permitted a married woman to dispose of her realty by will,179 for the court held that the statute declaring an unmarried woman's will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 children 182 “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 children 183 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
force in our own state" for the failure to grant a mother this testamentary privilege equal with the father was not an imposition of a civil disability on the wife; the privilege was one not granted to either parent by common law, which took away nothing from a wife when it created this legal capacity in her husband. Hence the law removing civil disabilities of married women had no effect here; nor did the other law of 1880 which gave the mother full and complete control of the children and their estate in case of the father's death, grant it, for the right to appoint a testamentary guardian is not essential to the full enjoyment of the custody of the children and their estate; it cannot be considered as included in this section of the law and the mother is still without the right to appoint a guardian.
At the next session of the legislature following this decision, the law was amended to read: “Every father may, by his last will in writing appoint a guardian for any of his children
and every mother may by her last will appoint a guardian for her children, provided that the father of such children is dead and has not appointed a guardian or whenever by decree of divorce, custody of the child has been awarded to the mother; provided that nothing in this section shall be construed to deprive either the surviving father or mother of the custody of the persons of his or her children, such surviving parent being competent to transact his or her own business" 185 If no person appeared within five years after the
or rejection of a will, such probation or rejection was to be binding, except in the case of married women, infants, persons of unsound mind, and those absent from the United States, who were given five additional years to request a proving, after their disabilities were removed. In 1893 this period was reduced to one year after probate or rejection for every person.
5. THE AGE OF MAJORITY.
The age at which the feminine portion of the population shall be deemed to have arrived at majority was fixed at eighteen years by the 1864 code.188 An additional determination by the legislature of 1915189 deemed all females “to arrive at the age of majority upon their being married according to the law, or for the purpose of consenting to the adoption of an illegitimate child when it was shown in court that the person to consent to such adoption was the mother of the child”. The following provision was added in 1919 to protect the married minors from exploitation, provided that in the enforcement of laws regulating the hours of labor of minor children any female under the age of eighteen years shall be regarded as a minor and subject to labor laws applying to minor children” 190
This provision suggests a question as to whether its necessity was brought about by the law permitting girls to marry at the age of fifteen years. The fact that the Child Labor Commission was responsible for the introduction of the amendment in the legislature is dependable proof that it was necessary. The Fourteenth Census191 reported 3906 females between the ages of 15 and 19 years in Oregon, as married; the largest number of these in any one age group is probably in the eighteen year group, but the total number is large enough to indicate that the 1919 amendment was well timed.
6. IN THE MATTER OF SUPPORT.
Mrs. Abigail Scott Duniway tells a story in “Pathbreaking" which shows why she and other pioneer women worked unceasingly for many years to change the laws which often placed women at a disadvantage and worked great hardship on her. A woman lived near Mrs. Duniway whose husband had sold their household furniture and disappeared, leaving her and their five small children destitute. With the aid of neighbors, she rented and furnished a house and gave a mortgage on the furniture to the man who advanced the money for its purchase, and then she took in boarders. She was prospering most happily, when her husband returned, took Tegal possession of everything, repudiated the mortgage which she as a married woman had no legal right to contract, and there was nothing left for her but the divorce court and the scattering of her family. She had no redress against this husband who would neither support her nor permit her to earn her and her children's
The act of 1872, the first in the state relative to nonsupport, would have covered just such a situation as this. This law provided,193 that if a married man residing in this state should abandon his wife without support for one year, the wife, after an adjudgment of the fact of abandonment by the county court of her resident county might deal with her separate property as if she were unmarried and might in her own name sue and be sued in relation to her separate property on any contract made by her after the adjudication, and before the return of her husband. If her husband should return during an action in which she was a party, the action was not to abate on this account. The enabling acts of 1878 making the expenses of the family and the education of the children chargeable “upon the property of both husband and wife or either of them" 194 intended as a protection to the family creditor. It prob. ably had another effect, however, that of encouraging indolent husbands to shirk their duties of family maintenance.