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There's No Place Like Home: Homestead Exemption and Judicial Constructions of Family in Nineteenth-Century America

Published online by Cambridge University Press:  18 August 2010

Alison D. Morantz
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Extract

In 1871, former slave Lettie Marshall sued the estate of B. G. Marshall, her former master, arguing that she was entitled to farm two hundred acres of his land in Fort Bend County, Texas. Her claim was based on a “homestead exemption” provision of the Texas Constitution, which exempted the homestead of a “family” from “forced sale for debts” and vested continued occupancy rights in surviving “family” members after the death of the family head. After Emancipation, Marshall and her family had become sharecroppers on B. G. Marshall's estate and continued to farm the land until his death. At trial, Marshall portrayed herself as B. G. Marshall's “confidential servant” whom he treated “like she was one of the family.” As proof that their bond transcended a mere contractual relationship, she noted that he had entrusted her with overseeing a “squad of eight or ten hands,” and that upon occasion she “lent him money” and even “lived in the same house with Marshall, who was a cripple, and … waited on him, ” when her legal status no longer obliged her to do so. Not only did she fulfill “all of the duties and relations to him of mother, sister, and daughter,” but Lettie Marshall, her husband, and their descendents were the only named beneficiaries of his will.

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Articles
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Law and History Review , Volume 24 , Issue 2 , Summer 2006 , pp. 245 - 295
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Copyright © the Board of Trustees of the University of Illinois 2006

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References

1. Howard v. Marshall, 48 Tex. 471 (1878)Google Scholar.

2. See Iken v. Olenick, 42 Tex. 195, 198 (1875)Google Scholar, cited in Thompson, Seymour D., A Treatise on Homestead and Exemption Laws (St. Louis: F. H. Thomas and Company, 1878), 86Google Scholar, construing Norris v. Kidd, 28 Ark. 485 (1873)Google Scholar. In a few exceptional states, the benefits of the act were at least temporarily extended to all citizens. The statutes of Wisconsin, Minnesota, and Alabama are rare in that they seem never to have restricted the homestead right to heads of households. The issue of whether a bachelor or single woman could claim the right may never have been directly posed to the high court, however, since all of the published appellate case law involved the claims of spouses, widows, or widowers. Although three other states-Texas, Georgia, and Arkansas-passed statutes to similar effect in the immediate aftermath of the Civil War, all reinstated the household headship requirement by 1874 (in Texas and Georgia through a supreme court holding that the statutory revisions were unconstitutional, and in Arkansas through constitutional amendment). Alabama seems to have been unique in permanently (and belatedly) amending its provision in 1886 to grant the right to “every resident of this state.” Al. Code of 1886, 2507.

3. In some states, however, mechanics' liens could be enforced on homestead property, forming an exception to this rule. See, e.g., Johnson County Sav. Bank v. Carroll, 109 Ia. 564, 564-65 (1899) (citing Sect. 2975 of Iowa Code)Google Scholar; Bagley v. Peffer, 76 Minn. 226 (1899)Google Scholar; Farnsworth v. Hoover, 66 Ark. 367 (1899)Google Scholar; Utley v. Jones, 92 N.C. 261 (1885)Google Scholar; Thompson v. Wickersham, 68 Tenn. 216 (1877)Google Scholar.

4. Tennessee Constitution, Art 11, §11 (1870) (emphases added). See also Laws of 1870, c. 80, § 1 (statute implementing constitutional provision).

5. See Macrae v. Macrae, 57 S.W. 423 (Tenn.Ch.App. 1899) (citing above provisions)Google Scholar.

6. Barney v. Leeds, 51 N.H. 253 (1871)Google Scholar.

7. Thompson, , A Treatise on Homestead and Exemption Laws, vi–viiGoogle Scholar.

8. Thomson West's editorial staff has attempted to include in its online database all published state case opinions prior to 1900. Although a few cases could not be obtained, the staff estimates that the percentage of omitted decisions probably is less than two percent. (Discussions with Bryan Bochler, Team Coordinator for Cases, Thomson West, June 17, 2005.) A fairly broad search in Westlaw's “AllStates-old” database [homestead w/15 exempt! & da(before 1/1/1900)] retrieves 4054 cases. Some of these cases, perhaps ten or fifteen percent, contain merely incidental references to homestead exemption. on the other hand, a search that excludes references to “exempt” [da(bef 1/1/1900) & homestead w/5 (act rule law bill statute) % exempt!] yields 1288 records, of which a surprising number, perhaps as many as half, actually refer to homestead exemption (as opposed to government land grants generally known as homestead acts) even though they do not actually contain the word “exempt” or “exemption.” In light of these countervailing factors, four thousand is probably a reasonable approximation of the number of cases. The two earliest homestead exemption appeals date from 1849; the frequency of high court appeals reached several dozen per year by the late 1850s; and by the 1870s state high courts were hearing more than a hundred appeals annually.

9. Thompson, , A Treatise on Homestead and Exemption Laws, 496Google Scholar.

10. For example, nineteenth-century appeals involving fugitive slave laws, state and federal land grants (known as the homestead acts), and miscegenation numbered only in the dozens or hundreds. Even divorce-despite its widespread liberalization and a transfer of jurisdictional authority to state appellate courts beginning in the 1790s-generated no more than eight thousand appeals during the entire nineteenth century. See generally Phillips, roderick, Putting Asunder: A History of Divorce in Western Society (New York: Cambridge University Press, 1988), 155–58Google Scholar. A broad Westlaw search, intended to exclude only those uses of the word “divorce” outside the context of marriage [da(bef 1/1/1900) & divorce! & (wife husband marriage married)] generated 8461 cases. Casual scrutiny suggests, however, that many of these cases contain merely tangential references to divorce. Therefore, the true number of divorce cases is most likely well under 8,000.

11. For full-length treatises from the nineteenth century, see Thompson, , A Treatise on Homestead and Exemption LawsGoogle Scholar, Smyth, John H., The Law of Homestead and Exemptions (San Francisco: S. Whitney & Co., 1875)Google Scholar, and Waples, rufus, A Treatise on Homestead and Exemption (Chicago: T. H. Flood, 1893)Google Scholar. Also see Woerner, J. G., A Treatise on the American Law of Administration (Boston: Little, Brown, and Company, 1889), §§ 94–104Google Scholar(treatise that devotes considerable attention to homestead exemption) and Prather, William Lambdin Jr, The Economic Effects of the Homestead and Exemption Laws, With Special Reference to the Development of the Homestead and Exemption Laws in Texas (1903) (unpublished master's thesis, University of Texas, in collection of Lillian Goldman Library of Yale University)Google Scholar. Leading reference texts for lawyers, such as legal restatements and encyclopedias, also included detailed annotations on homestead exemption. See, e.g., Dillon, J. F., Annotation, “The Homestead Exemption,” American Law Register 10 (1862): 641–56Google Scholar; Annotation, “Exemption of Proceeds of Voluntary Sale of Homestead,” American Law Reports 1 (1919): 483–88Google Scholar; Annotation, “;Homesteads,” Corpus Juris Secundum 29 (1922): §2Google Scholar; Annotation, “Time As of Which, and Extent to Which, Homestead Exemption Attaches to Property received in Exchange for Homestead,” American Law Reports 83 (1933): 54–62Google Scholar. For law journal articles, see Haskins, George H., “;Homestead Exemptions,” Harvard Law Review 63 (1950): 1289–1320CrossRefGoogle Scholar; Note, “State Homestead Exemption Laws”, Yale Law Journal 46 (1937): 1023–41CrossRefGoogle Scholar. Although a few recent studies of married women's property law have adverted to its existence and offered some brief commentary, homestead exemption is still a subject virtually untouched among legal historians. For modern works of legal history that make note of the existence and/or remedial purposes of the statutes, see, e.g., Chused, richard H., “Married Women's Property Law: 1800-1850,” Georgetown Law Journal 71 (1983): 1359-1425, 1402Google Scholar; Siegel, reva, “Home as Work: The First Women's rights Claims Concerning Wives' Household Labor, 1850-1880,” Yale Law Journal 103 (1994): 1073-1217, 1139CrossRefGoogle Scholar; Siegel, reva, “The Modernization of American Status Law: Adjudicating Wives' rights to Earnings, 1860-1930,” Georgetown Law Journal 82 (1994): 2127-2211, 2135–36Google Scholar. Paul Goodman has written the only political history of the movement, which links the spread of the statutes to broader social and economic trends. See Goodman, Paul, “The Emergence of the Homestead Exemption in the United States: Accommodation and resistance to the Market revolution, 1840-1880,” Journal of American History 80 (1993): 470–98CrossRefGoogle Scholar. See also, McKnight, Joseph W., “Protection of the Family Home from Seizure by Creditors: The Sources and Evolution of a Legal Principle,” Southwestern Historical Quarterly 86 (1983): 369–99Google Scholar(discussing the statute's early origins in Mexico and Texas).

12. Smyth, , The Law of Homestead and Exemptions, sect. 5–6Google Scholar.

13. See, e.g., Kerber, Linda, No Constitutional Right to Be Ladies (New York: Hill and Wang, 1998)Google Scholar; Skocpol, Theda, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge: Harvard University Press, 1992)Google Scholar; Muncy, robyn, Creating a Female Dominion in American Reform, 1890-1935 (New York: oxford University Press, 1991)Google Scholar; Kessler-Harris, Alice, In Pursuit of Equity: Women, Men, and the Quest for Economic Citizenship in Twentieth-Century America (New York: Oxford University Press, 2001)Google Scholar; Gordon, Linda, Pitied but Not Entitled (Cambridge: Harvard University Press, 1994)Google Scholar; Dauber, Michele Landis, “;Forum: The Sympathetic State,” Law and History Review 23 (2005): 387–442CrossRefGoogle Scholar.

14. For tractability's sake, I have narrowed the scope of my study in three ways. First, since the doctrine reached full maturity in the latter nineteenth century and that is also the period in which the statutes probably peaked in economic influence, I have confined the study to decisions published before the year 1900. Second, from among the vast array of primary sources, I have tried to isolate those that best highlight the family-oriented features of the legislation and their interpretation by state jurists. Finally, I have decided to tell a national story. My goal is to sketch several salient contours of the doctrine in broad analytic strokes, suggesting that the ways judges mediated these doctrinal fault lines resonates with historical significance. Although I may well have missed important variations across regions and across decades, my hope is to inspire other scholars to explore the interpretive themes raised in this article and undertake the detailed research necessary to develop a more nuanced, finely grained portrait of the doctrine's evolution over time and within individual states.

15. See Smyth, , The Law of Homestead and Exemptions, sect. 5–6Google Scholar.

16. Goodman, , “The Emergence of the Homestead Exemption in the United States,” 472Google Scholar.

17. Under traditional English law, an individual's title to land was protected from claims of unsecured creditors. Through the early eighteenth century, many American colonies recognized similar exemptions. However, beginning in the late seventeenth century, most colonies began treating land as the legal equivalent of chattel property for the purpose of satisfying debt. See Priest, Claire, “Creating an American Property Law: Alienability and Its Limits in American History,” mimeo on file with authorGoogle Scholar.

18. See Prather, William Lambdin Jr, The Economic Effects of the Homestead and Exemption Laws, 5Google Scholar.

19. Ibid., 5. Also see Goodman, , “The Emergence of the Homestead Exemption in the United States,” 477Google Scholar.

20. Goodman, , “The Emergence of the Homestead Exemption in the United States,” 478Google Scholar.

21. See Ibid., 477; Balleisen, Edward J., Navigating Failure: Bankruptcy and Commercial Society in Antebellum America (Chapel Hill: University of North Carolina Press, 2001)Google Scholar; Warren, Charles, Bankruptcy in United States History (Cambridge: Harvard University Press, 1935), 52-55, 60CrossRefGoogle Scholar; Chused, Richard H., “Married Women's Property Law: 1800-1850,” 1400–1Google Scholar.

22. Goodman, , “The Emergence of the Homestead Exemption in the United States.”Google Scholar

23. See Ibid., 478-79, and accompanying notes.

24. Ibid., 472. The ten Southern states passed their first homestead exemption laws in the following years: Texas in 1839; Georgia in 1841; Mississippi in 1841; Alabama in 1843; Florida in 1845; South Carolina in 1851 (repealed seven years later); Louisiana in 1852; Tennessee in 1852; Arkansas in 1852; and North Carolina in 1859. The remaining four states-Missouri, West Virginia, Kentucky, and Virginia-did not pass their first laws until 1863, 1864, 1866, and 1867, respectively.

25. See, e.g., Foner, Eric, A Short History of Reconstruction (New York: Harper & row, 1990), 45–48Google Scholar; See Goodman, , “The Emergence of the Homestead Exemption in the United States,” 491Google Scholar.

26. Goodman, , “The Emergence of the Homestead Exemption in the United States,” 492Google Scholar.

27. Ibid.

28. Ibid.

29. Ibid.

30. Ibid.

31. For a brief overview of the Abolitionist movement's involvement in homestead exemption, particularly insofar as it intersected with agitation for land reform, see Ibid., 483-84. An intriguing exchange of letters published in an Abolitionist periodical from August through october of 1849 suggests that Abolitionist support for homestead exemption was widespread but not universal. The disagreement seems to have rested partly on differing expectations about the law's redistributive consequences. An editorialist who adopted the penname “T.” argued that the homestead exemption would unjustly secure to the proprietor the very “portion of the property which, in justice and equity, belongs to the poor laborer who remains unpaid” and predicted that “it will be found in practice that such a law will most frequently rob the poor-the laborer, who possessed nothing-and give to the person who already possesses at least a house and a lot, perhaps of a value of several thousand dollars.” See T., “Slavery and Homestead Exemption,” The National Era, August 16, 1849, 137Google Scholar. In later issues, three readers took issue with T's claim, predicting instead that homestead exemption would have the salutary effect of breaking up large, monopolistic land holdings, with their attendant social ills. See Millard, Charles E., “Slavery and Homestead Exemption,” The National Era, September 20, 1849, 149Google Scholar; H., “;Homestead Exemption,” The National Era, September 20, 1849, 152Google Scholar; and Harry, the Lesser, , “;The Homestead Scheme,” The National Era, October 5, 1849, at 169Google Scholar. Millard and H. described the ability to preserve one's homestead as a God-given and inalienable right. Millard and Harry the Lesser also opined that protecting homesteads was crucial to encouraging poor laborers' upward mobility and that statutes would help protect women and children from villainous alcohol vendors who encouraged alcoholism among male breadwinners for personal gain.

32. See Goodman, “The Emergence of the Homestead Exemption in the United States,” 483–84Google Scholar; The National Era, Febraury 8, 1849, 23Google Scholar(reprinting the resolutions adopted by the Free Soilers of Wisconsin at their state convention, including a resolution stating “that the principle of homestead exemption is humane and just, and should be maintained inviolate”).

33. Millard, , “Slavery and Homestead Exemption.”Google Scholar See also Harry, the Lesser, , “The Homestead Scheme.”Google Scholar

34. It is certainly suggestive that the first wave of homestead exemption laws were passed at the same time as the first wave of married women's acts, which protected wives’ property from the debts of their husbands. See Chused, , “Married Women's Property Law: 1800- 1850,” 1400–3Google Scholar. Moreover, in several state constitutional conventions-Texas, Wisconsin, Michigan, Alabama, Arkansas, Georgia, and North Carolina-married women's property rights and homestead exemption were combined into a single article. See Paulsen, Jane W., “Community Property and the Early American Women's rights Movement: The Texas Connection,” Idaho Law Review 32 (1996): 641-89, 671Google Scholar(noting that married women's property rights and homestead exemption were proposed as a package in Texas and combined into the same article), and Goodman, , “The Emergence of the Homestead Exemption in the United States,” 489Google Scholar(noting that both reforms were combined in a single article in the latter six states). Yet homestead exemption does not appear to have been a major component of the mid-Victorian feminist agenda. For example, during the years 1870 and 1874, a leading suffragist periodical with a substantial feminist readership, The Woman's Journal, contained only two references to the homestead exemption statutes, both fleeting and critical in tone. To date, there is apparently no scholarship assessing systematically the extent of early women's rights activists' involvement in the homestead exemption movement.

35. See Goodman, , “The Emergence of the Homestead Exemption in the United States,” 489Google Scholar.

36. Ibid.

37. All but two states-Pennsylvania and rhode Island-have either statutory or constitutional homestead protection. See Ponoroff, Lawrence, “Exemption Limitations: A Tale of Two Solutions,” American Bankruptcy Law Journal 71 (1997): 221-47, 222Google Scholar and accompanying notes. Florida's unlimited exemption has become particularly controversial in recent years, since it may permit individuals to convert nonexempt assets into exempt assets in anticipation of bankruptcy. See Fla. Const. Art. IV, § 4 (amended 1984), construed in Butterworth v. Caggiano, 605 So.2d 56 (Fla. 1992)Google Scholar.

38. Although more than twenty articles with “;Homestead Exemption” in the title have been published in law journals since 1950, most confine themselves to summarizing recent cases or analyzing a particular state statute. See, e.g., Shames, Leslie A., “Calling a Fraud a Fraud: Why Congress Should Not Adopt a Uniform Cap on Homestead Exemptions,” Bankruptcy Developments Journal 16 (1999): 191–220Google Scholar; Kenner, Matthew J., “Personal Bankruptcy Discharge and the Myth of the Unchecked Homestead Exemption,” Missouri Law Review 56 (1991): 683–704Google Scholar; Klein, Phyllis A., ““A Fresh Start with Someone Else's Property’: Lien Avoidance, the Homestead Exemption and Divorce Property Divisions under Section 522(f) of the Bankruptcy Code,” Fordham Law Review 59 (1990): 423–52Google Scholar; Brown-Steiner, Terrence C., “Federal Tax Liens and State Homestead Exemptions: The Aftermath of United States v. Rodgers,” Buffalo Law Review 34 (1985): 297–327Google Scholar.

39. See, e.g., Lloyd, Ross, Esq., “Bankruptcy: Ex-Husband Uses Bankruptcy Homestead Exemption to Cut off Ex-Wife's Interest in Marital Home,” Real Estate Law Report 20 (August 1990): 2–4, 2Google Scholar.

40. Compare, e.g., Shames, Leslie A., “Calling a Fraud a Fraud,”Google Scholar with Brown, William Houston, “Political and Ethical Considerations of Exemption Limitations: The ‘opt-out’ as Child of the First and Parent of the Second,” American Bankruptcy Law Journal 71 (1997): 149–219Google Scholar.

41. Tracing the doctrinal evolution of the homestead exemption from the antebellum period to the twentieth century, and determining the degree to which the modern statutes differ from their nineteenth-century ancestors, is a task that has not yet been attempted, and I will not do so here.

42. Sec. Loan & Trust Co. v. Kauffman, 108 Calif. 214 (1895)Google Scholar.

43. As richard Chused has noted, however, the intra-household effects of these statutes were less straightforward than they may have seemed. It is true that they afforded middle- and upper-class women at least minimal protection against husbands who might otherwise appropriate and dispose of their assets. Yet the statute could also, indirectly, inure to the benefits of husbands. A man secure in the knowledge that his wife would never challenge his authority over household finances-even if she held such authority “on paper”-could effectively protect his property from creditors by transferring title to his wife. Chused, , “Married Women's Property Law: 1800-1850,” 1403Google Scholar.

44. Siegel, Reva, “The Modernization of Marital Status Law: Adjudicating Wives' rights to Earnings, 1860-1930,” Georgetown Law Journal 82 (1994): 2127-2211, 2145Google Scholar; Stanley, Amy Dru, “Conjugal Bonds and Wage Labor: rights of Contract in the Age of Emancipation,” Journal of American History 75 (1988): 471–500CrossRefGoogle Scholar. Antebellum feminist arguments that women's domestic labor justified granting them an equal claim on family assets never bore political fruit. Siegel, Reva, “Home as Work: The First Woman's rights Claims Concerning Wives' Household Labor, 1850-1880,” Yale Law Journal 103 (1994): 1073–1217, 1076CrossRefGoogle Scholar.

45. In at least thirty-three states, the terms of the statute and/or subsequent case law specifies the necessity of joint spousal alienation: Alabama, see Moses v. McClain, 82 Ala. 370 (1887)Google Scholar(construing Code 1876, § 2822); Arizona, see Paragraph 2141, Comp. Laws, quoted in Luhrs v. Hancock, 6 Ariz. 340, 344 (1899)Google Scholar; Arkansas, see Pipkin v. Williams, 57 Ark. 242 (1893)Google Scholar quoting Statute of Acts 1887, p. 90 (March 17, 1887); California, see Moss v. Warner, 10 Ca. 296 (1858)Google Scholar; Colorado see Wright v. Whittick, 18 Colo. 54, 57 (1892)Google Scholar, see also Drake v. Root, 2 Colo. 685 (1875)Google Scholar; Florida, see Florida Constitution of 1868, Art. 9 §1; see also Florida Constitution of 1885, Art. 10 § 1; Georgia, see Frost v. Borders, 59 Ga. 817 (1877)Google Scholar, citing Code 1869, § 2047; Idaho, see Kneed v. Halin, 6 Id. 621 (1899)Google Scholar, citing rev. St. §2921; Illinois, see Hotchkiss v. Brooks, 93 III. 386 (1879)Google Scholar; Indiana, see 2 r. S. p. 337 § 3, quoted in Slaughter v. Detiny, 10 Ind. 103, 103 (1858)Google Scholar; Iowa, see Section 1990 of Code cited in Stinson v. Richardson, 44 Iowa 373 (1876)Google Scholar, see also Lunt v. Neeley, 67 Iowa 97 (1885)Google Scholar; Kansas, see Helm v. Helm, 11 Kan. 19 (1873)Google Scholar, see also Morris v. Ward, 5 Kan. 239 (1869)Google Scholar; Louisiana, see Louisiana Constitution of 1898, Art. 246 (altering earlier rule, illustrated by holding in Allen, Nugent & Co. v. A. Carruth, 32 La. Ann. 444 (1880)Google Scholar; Michigan, see McKee v. Wilcox, 11 Mich. 358, 361; Minnesota, see Williams v. Moody, 35 Minn. 280, 281 (1886)Google Scholar; Mississippi, compare Code § 1983, quoted in Scott v. Scott, 73 Miss. 575, 575 (1896)Google Scholar, with earlier, contrary, rule expounded in Thoms v. Thoms, 45 Miss. 263 (1871)Google Scholar; Missouri, see Greer v. Major, 114 Mo. 145, 154 (1893)Google Scholar citing Section 2689 rev. St. 1879; Montana, see American Savings & Loan Ass'n. v. Burghardt, 19 Mont. 323, 326 (1897)Google Scholar quoting Comp. Stat. 1887, § 323, Div. 1; Nebraska, see Larson v. Butts, 22 Neb. 370, 374 (1887)Google Scholar citing Comp. St. c. 36, § 4, see also Clarke v. Koenig, 36 Neb 572 (1893)Google Scholar; Nevada, see Johns v. Singleton, 15 Nev. 461 (1880)Google Scholar citing Const., art. IV., sec. 3 and Comp. L 186; New Hampshire, see Folsom v. Folsom, 68 N.H. 310, 311 (1895) citing Pub. St. c. 138, §§ 2, 4Google Scholar; North Carolina, see Wittkowsky v. Gidney, 124 N.C. 437 (1899) citing Const. Art. 10 § 8Google Scholar; North Dakota, see Roby v. Bismarck Nat. Bank, 4 N.D. 156 (1894)Google Scholar; oklahoma, see Hall v. Powell, 8 okla. 276, 281 (okla.Terr. 1899) citing St. okl. 1893Google Scholar, tit. “;Conveyances,” c. 21 § 21; South Carolina, see S.C. Const. Art. III, § 28 (1895); South Dakota, see Northwestern Loan & Banking Co. v. Jonasen, 11 S.D. 566, 568 (1899)Google Scholar quoting Comp. Laws, § 2451; Tennessee, see Couch v. Capitol Building & Loan Assn., 64 S.W. 340, 343 (1899) citing Article 11, § 11, Const.Google Scholar; Texas, see Inge v. Cain, 65 Tex. 75 (1885) citing Sec. 22 of Gen. Prov.Google Scholar; Utah, see Nielson v. Peterson, 30 Utah 391, 395 (1906), quoting r.S. 1898 §1155Google Scholar; Vermont, see Welch v. Miller, 70 Vt. 108, 108 (1897) citing V.S. § 2189Google Scholar; Washington, see Anderson v. Stadlmann, 17 Wash. 433, 437 (1897) quoting Section 483, 2 Hill's Ann. CodeGoogle Scholar; Wisconsin, see r.S. 1858, ch. 134, sec. 24, quoted in Ferguson v. Mason, 60 Wis. 377, 386 (1884)Google Scholar; Wyoming, see rev. St. Wyo. §§ 2780-2791 cited in Arp v. Jacobs, 3 Wyo. 489, 495 (1891)Google Scholar. The right apparently did not exist in Kentucky. See Brame v. Craig, 75 Ky. 404 (1876)Google Scholar(holding that ch. 38, art. 13, sect. 9 of General Statutes, although requiring spousal consent for “mortgage, release or waiver” of homestead, did not restrain husband's general right of alienation). The question seems not to have been squarely presented in West Virginia, leaving its status unclear. Compare Ch. 193, Acts 1872-73, Sect. 11, quoted in Moran v. Clark, 30 W. Va. 358, 378 (1887)Google Scholar(stating that if husband wishes to waive the right to claim homestead exemption at the time of contracting a debt, his wife must join him in such waiver) with dicta in Moran v. Clark, 30 W. Va. 358, 378 (1887)Google Scholar(emphasizing right of homestead owner to sell or encumber it) and Speidel v. Schlosser, 13 W. Va. 686, 694, 697 (1879)Google Scholar(opining, in dicta, that legislature did not intend to interfere with “man's dominion over his own property,” nor to make it subject to “the whims of an inconsiderate wife, and the foolish caprice of insubordinate children”).

46. In at least thirteen states, at some point before the turn of the century, the constitution, statutes, and/or case law suggested (and in some instances squarely held) that wives could claim homestead protection on their husbands' property. For Arkansas, see Hollis v. State, 59 Ark. 211, 27 S.W. 73 (1894)Google Scholar; California, see Civ. Code § 1262, quoted in Farley v. Hopkins, 79 Cal. 203, 205 (1889)Google Scholar; Georgia, see Bowen v. Bowen, 55 Ga. 182 (1875)Google Scholar(wife could apply for exemption of her husband's homestead property as long as husband did not object on the record as a party defendant); Idaho, see Wilcox v. Deere, 5 Id. 545 (1897)Google Scholar(wife's alleged filing of homestead held invalid, apparently not because her legal status implied a per se bar, but because couple colluded in attempt to defraud creditors); Iowa, see Boling v. Clark, 83 Ia. 481 (1891)Google Scholar; Kentucky, see Hemphill v. Haas, 88 Ky. 492 (1889)Google Scholar; Michigan, see Comstock v. Comstock, 27 Mich. 97 (1873)Google Scholar; Missouri, see Section 2689, rev. St. 1879, quoted in Greer v. Major, 114 Mo. 145, 154 (1893)Google Scholar; New Mexico, see Laws 1887, pp. 75, 76, §§ 13, 16, quoted in U.S. v. Lesnet, 9 N.M. 271 (1897)Google Scholar; ohio, see Ditty v. Ellifritz, 4 ohio C.D. 465 (1894)Google Scholar citing rev. St. § 5435; South Dakota, see Sec. 2458 Code of 1877, quoted in Hesnard v. Plunkett, 6 S.D. 73, 78 (1894)Google Scholar; Tennessee, see Rhea v. Rhea, 83 Tenn. 527, 527 (1885)Google Scholar; Utah, see r.S. 1898 § 1150, quoted in Nielson v. Peterson, 30 Utah 391, 395 (1906)Google Scholar. Married women apparently did not enjoy such rights in North Carolina, West Virginia, and Illinois. See Finley v. Saunders, 98 N.C. 462, 464 (N.C. 1887)Google Scholar; W. Va. Const. Art., VII, § 48 and Acts of 1872-73, p. 554, quoted in Speidel & Co. v. Schlosser, 13 W. Va. 686, 697-98 (1879)Google Scholar(limiting class of potential claimants to husbands, parents, and infant children of deceased parents), Moran v. Clark, 30 W. Va. 358, 378 (1887)Google Scholar; Kenley v. Hudelson, 99 Ill. 493 (1881)Google Scholar(suggesting in dicta that if husband and wife live together that homestead should be set off to husband rather than wife).

47. There are at least seventeen states in which the constitution, statutes, and/or case law suggest that either spouse could claim homestead on the wife's property: Alabama, see Beard v. Johnson, 87 Ala. 729 (1889)Google Scholar; Arkansas, see Thomson v. King, 54 Ark. 9, 14 S.W. 925, 926 (1890)Google Scholar; California, see Gambette v. Brock, 41 Cal 78, 84 (1871)Google Scholar; Colorado, see McPhee v. O'Rourke, 10 Colo. 301, 305; Kansas, see Kansas & T. Coal Co. v. Judd, 6 Kan. App. 487, 50 P. 943, 944 (1897)Google Scholar; Michigan, see Orr v. Shraft, 22 Mich. 260, (1871)Google Scholar, see also Kruger v. Le Blanc, 75 Mich. 424, 429-30 (1889)Google Scholar citing How. Ann. Stat. §§ 7721, 7723, 7728; Mississippi, see Partee v. Stewart, 50 Miss. 717, 717 (1874)Google Scholar; Montana, see Mitchell v. McCormick, 22 Mont. 249, 56 P. 216 (1899)Google Scholar; Nebraska, see Sec. 2, c. 36, Comp Stat., quoted in Klamp v. Klamp, 58 Neb. 748, 751 (1899)Google Scholar(noting necessity of wife's consent); Nevada, see Comp. L. 186 Sec. 1, quoted in Lachman v. Walker, 15 Nev. 422 (1880)Google Scholar; North Carolina, see Finley v. Saunders, 98 N.C. 462, 463 (1887)Google Scholar(implying in dicta that wife may claim homestead exemption in her own right); ohio, see Hill v. Myers, 46 ohio St. 183, 192 (1889)Google Scholar; South Carolina, see Norton v. Bradham, 21 S.C. 375 (1884)Google Scholar; South Dakota, see Sec. 2449 Comp. Laws, quoted in Hesnard v. Plunkett, 6 S.D. 73, 76 (1894)Google Scholar; Utah, see r.S. 1898 § 1148, quoted in Nielson v. Peterson, 30 Utah 391, 85 P. 429, 430 (1906)Google Scholar(specifying necessity of wife's consent); Washington, see Wiss v. Stewart, 16 Wash. 376 (1897)Google Scholar; Wyoming, see Arp v. Jacobs, 27 P. 800, 802 (1891)Google Scholar. The following states held (or at least implied in dicta) to the contrary: Illinois, see Kenley v. Hudelson, 99 Ill. 493 (1881)Google Scholar(apparently resting holding that married woman could claim homestead exemption on her own property on fact that she was permanently separated from her husband); Indiana, see Holman v. Martin, 12 Ind. 553, 553 (1859)Google Scholar; oklahoma, see McGinnis v. Wood, 4 okla. 499 (1896)Google Scholar; Tennessee, see Turner Bros. v. Argo & Co., 89 Tenn. 443, 445 (1890)Google Scholar and Producers Nat'l. Bank v. Cumberland Lumber Co., 100 Tenn. 389, 390 (1898)Google Scholar.

In two states, high courts judges allowed a married female claimant to claim homestead exemption without recognizing her as the head of a family. In 1899, Montana's high court allowed a married woman to claim exemption on her own property without even adverting to the potential relevance of gender to her headship status. See Mitchell v. McCormick, 22 Mont. 249 (1899)Google Scholar. What makes the latter holding so curious is that just two years earlier, the same court had emphatically rejected the homestead claim of another property-owning wife on the grounds that her husband, not she, was the head of the family, notwithstanding her role as sole family breadwinner. See Watterson v. E. L. Bonner Co., 19 Mont. 554 (1897)Google Scholar. Meanwhile, in Georgia, a married woman could not claim homestead exemption on her own land as the head of a family unless she was living separate and apart from her husband. See Code 1873, § 2019, cited in Bechtoldt v. Fain, 71 Ga. 495 (1883)Google Scholar. See also Camp v. Smith, 61 Ga. 449 (1878)Google Scholar. However, under the Constitution of 1877, a married woman with dependent daughters was permitted to exempt her separate estate as a person “having the care and support of dependent females of any age, who is not the head of a family.” See Johnson v. Little, 90 Ga. 781 (1893)Google Scholar.

48. Under Louisiana law, a wife could claim homestead exemption if and only if the other members of her family were solely dependent upon her for support. See Fuselier v. Buckner, 28 La.Ann. 594, 595 (1876)Google Scholar; Hardin v. Wolf, 29 La. Ann. 333 (1877) (overruled in part by Allen v. Carruth, 32 La. Ann. 444 (1880)Google Scholar; and Taylor v. McElvin, 31 La.Ann. 283 (1879)Google Scholar. The leading cases in Georgia include Lathrop v. Soldiers' Loan & Bldg. Ass'n, 45 Ga. 483, 485 (1872)Google Scholar, Camp v. Smith, 61 Ga. 449, 449 (1878)Google Scholar, Neal v. Sawyer, 62 Ga. 352 (1879)Google Scholar, Robson v. Walker, 74 Ga. 823 (1885)Google Scholar, and Johnson v. Little, 90 Ga. 781, 17 S.E. 294 (1893)Google Scholar. The Arkansas case exemplifying this trend is Rosenberg v. Jett, 72 F. 90 (C.C.E.D. Ark. 1896)Google Scholar, although the court's statements technically qualify as dicta since the court ruled against the wife on other grounds. (oddly, the 1896 opinion also seems to conflict with an earlier opinion, Memphis & Little Rock Ry. v. Adams, 46 Ark. 159, 162-3 [1885].) For TennesseeGoogle Scholar, see Turner v. Argo, 89 Tenn. 443, 444-45 (1890)Google Scholar. In Muir v. Howell, 37 N.J. Eq. 39 (1883)Google Scholar, the New Jersey Chancellor denied the female claimant the benefit of the exemption because the “principles of law on which [her] claim of right rests are disputed” among the states, even though the equities of the case obviously pointed strongly in her favor (she was admitted to be the sole means of support for both her husband and her children). For Montana, compare Watterson v. E. L. Bonner Co., 19 Mont. 554 (1897)Google Scholar(denying homestead claim of married woman supporting four children and indolent husband, on express ground that her husband was still legally head of family) and Mitchell v. McCormick, 22 Mont. 249 (1899)Google Scholar(granting homestead exemption to married woman on her own property without discussing relevance of her gender).

49. Fuselier v. Buckner, 28 La.Ann. 594, 595 (1876)Google Scholar. Also see Taylor v. McElvin, 31 La.Ann. 283 (1879)Google Scholar(also holding that married woman without her own dependents cannot claim homestead).

50. Norton v. Bradham, 21 S.C. 381 (1884)Google Scholar. Also see Bowen v. Bowen, 55 Ga. 182, 182 (1875)Google Scholar, Beard v. Johnson, 87 Ala. 729 (1889)Google Scholar, Partee v. Stewart, 50 Miss. 717, 721 (1874)Google Scholar, Hill v. Myers, 46 ohio St. 183, 192-93 (1889)Google Scholar, Moss v. Warner and Wife, 10 Cal. 296, 297 (1858)Google Scholar.

51. McPhee v. O'Rourke, 10 Colo. 301, 306 (1887)Google Scholar.

52. See Eleanor Flexnor, , Century of Struggle: The Woman's Rights Movement in the United States (Cambridge, Mass.: Belknap Press, 1996), 168, 214Google Scholar.

53. Ariela Dubler has argued that dower-a widow's common law right to a life estate in one-third of her deceased husband's real property-implicitly challenged men's role as household heads. Unless a wife relinquished her dower rights, “behind any land transfer loomed the specter of a widow knocking at a buyer's door many years later to claim her dower rights in a long-ago sold piece of property.” Dubler, Ariela, “In the Shadow of Marriage: Single Women and the Legal Construction of the Family and the State,” Yale Law Journal 112 (2003): 1641–1716CrossRefGoogle Scholar, 1664. See also Kerber, Linda K., Women of the Republic: Intellect and Ideology in Revolutionary America (Chapel Hill: University of North Carolina Press, 1997), 9-10, 123-34, 146-48, 170Google Scholar.

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56. Ulrich, Laurel Thatcher, Good Wives: Image and Reality in the Lives of Women in Northern New England, 1650-1750 (New York: Knopf, 1982)Google Scholar; Boydston, Jeanne, Home and Work: Housework, Wages, and the Ideology of Labor in the Early Republic (New York: Oxford University Press, 1990), 14, 16Google Scholar; Norling, Lisa, Captain Ahab Had a Wife: New England Women and the Whalefisher, 1720-1870 (Chapel Hill: University of North Carolina Press, 2000)Google Scholar.

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58. Waples, , A Treatise on Homestead and Exemption, xcviiiGoogle Scholar.

59. See, e.g., Morris v. Ward, 5 Kan. 239 (1869)Google Scholar; Connally v. Hardwick, 61 Ga. 501 (1878)Google Scholar; McPhee v. O'Rourke, 10 Colo. 301, 306 (1887)Google Scholar; Gunnison v. Twitchel, 38 N.H. 62 (1859)Google Scholar.

60. See, e.g., Morris v. Sargent, 18 Ia. 90 (1864)Google Scholar; Ayres v. Probasco, 14 Kan. 175 (1875)Google Scholar; Coker v. Roberts, 71 Tex. 597 (1888)Google Scholar; Partee v. Stewart, 50 Miss. 717 (1874)Google Scholar; Gleason v. Spray, 81 Cal. 217 (1889)Google Scholar; and Phillips v. Stauch, 20 Mich. 369 (1870)Google Scholar.

61. Chused, , “Married Women's Property Law: 1800-1850,” 1402–3Google Scholar. See, e.g., Citizens’ Bank of Garnett v. Bowen, 21 Kan. 354 (1878)Google Scholar(fact pattern suggesting that married couple deliberately colluded in order to defraud the husband's creditors).

62. See Hemphill v. Haas, 88 Ky. 492 (1889)Google Scholar(wife sued alone to recover homestead property after her husband refused to unite with her in suit); Scott v. Scott, 73 Miss. 575 (1896)Google Scholar(wife sued to set aside husband's conveyance of homestead); Thoms v. Thoms, 45 Miss. 263 (1871)Google Scholar(wife sought, unsuccessfully, to set aside husband's conveyance of homestead); Helm v. Helm, 11 Kan. 19 (1873)Google Scholar(held that married woman, whom husband and purchaser had forced into signing homestead deed by threatening her life, could bring suit to void her signature).

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64. Compare Guiod v. Guiod, 14 Cal. 506 (1860)Google Scholar(property owner automatically relinquished homestead right by releasing possession, and wife was obliged to follow); Mc-Donald v. Crandall, 43 Ill. 231 (1867)Google Scholar(abandonment of homestead automatically triggers forfeiture of homestead rights as long as no family member stays behind); and Scott v. Scott, 73 Miss. 575. 575 (1896)Google Scholar(opining that since husband has “recognized right” to fix family domicile, his departure from homestead strips it of its status as such, leaving him free to convey it unilaterally if he holds legal title) with Morris v. Ward, 5 Kan. 239 (1869)Google Scholar(man cannot defeat his wife's right to bar alienation of homestead by abandoning property). of course, in jurisdictions or time periods in which joint spousal alienation was not explicitly required, courts did not hesitate to withhold homestead exemption rights from wives and widows. See, e.g., Jordan v. Godman, 19 Tex. 273 (1857)Google Scholar(holding that wife's willingness to accompany husband to new home out of state equivalent to abandonment, albeit during period when necessity of joint spousal alienation was not established under state law), and Thoms v. Thoms, 45 Miss. 263 (1871)Google Scholar(man's abandonment of homestead held enforceable since wife's consent not required).

65. Slocum, Jane M., “The Law of Coverture,” The Woman's Journal, September 5, 1874, 289Google Scholar.

66. See Drachman, Barbara G., Women Lawyers and the Origins of Professional Identity in America: The Letters of the Equity Club, 1887 to 1890 (Ann Arbor: University of Michigan Press, 1993), 262–65Google Scholar.

67. Byers v. Byers, 21 Ia. 268 (1866)Google Scholar(emphasis supplied).

68. Basch, Norma, Framing American Divorce: From the Revolutionary Generation to the Victorians (Berkeley: University of California Press, 1999), 8Google Scholar. Indiana's law, for example, was so permissive it soon became “the first divorce mill of the nineteenth century.” Ibid.

69. See Mintz, Steven and Kellogg, Susan, Domestic Revolutions: A Social History of American Family Life (New York: Free Press, 1988), 61Google Scholar; Friedman, Lawrence, Private Lives: Families, Individuals, and the Law (Cambridge: Harvard University Press, 2004), 33–34Google Scholar.

70. Grossberg, Michael, Governing the Hearth: Law and Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1985), 83Google Scholar; Cott, Nancy, Public Vows: A History of Marriage and the Nation (Cambridge: Harvard University Press, 2000), 107Google Scholar; Spurlock, John C., Free Love: Marriage and Middle Class Radicalism in America, 1825-1860 (New York: New York University Press, 1988)Google Scholar.

71. Willrich, Michael, “Home Slackers: Men, the State, and Welfare in Modern America,” Journal of American History 87 (2000): 470–71CrossRefGoogle Scholar. See also Gordon, , Pitied but Not Entitled, 18–20Google Scholar.

72. Waples, , A Treatise on Homestead and Exemption, 70Google Scholar.

73. Thompson, , A Treatise on Homestead and Exemption Laws, 230Google Scholar. Seemingly exceptional cases, in which a married man's homestead rights were jeopardized by the fact that his wife was not living with him when he purchased the property, or subsequently abandoned him, include Riddick v. Turpin, 79 Tenn. 478 (1883)Google Scholar(wife's desertion obliterated husband's homestead rights); Cary v. Tice, 6 Cal. 625, 625 (1856)Google Scholar(wife's absence during husband's purchase of property failed to impress it with character of homestead); and Benedict v. Bunnell, 7 Cal. 245 (1857)Google Scholar(same). Interestingly, Alabama and Pennsylvania reached similar holdings in early exemption cases that preceded the passage of homestead exemption laws. See Allen v. Manasse, 4 Ala. 554 (1843)Google Scholar, and Starrett v. Wynn, 17 Serg. & rawle 130, 17 Am.Dec. 654 (Pa., 1828)Google Scholar. Also, as noted above, in some jurisdictions a married man could alienate the homestead (and, where applicable, circumvent the necessity for joint spousal consent) by relocating to a new residence. See Guiod v. Guiod, 14 Cal. 506 (1860)Google Scholar; McDonald v. Crandall, 43 Ill. 231 (1867)Google Scholar; Burson v. Dow, 65 Ill. 146 (1872)Google Scholar; Jordan v. Godman, 19 Tex. 273 (1857)Google Scholar; Thoms v. Thoms, 45 Miss. 263 (1871)Google Scholar.

74. See Waples, , A Treatise on Homestead and Exemption, 60–61Google Scholar.

75. See Ibid., 66. See also Gates v. Steele, 48 Ark. 539, 542-43 (1887)Google Scholar(opining that the claimant “was a married man, and the head of a family. He owed his wife and son protection and support. The wife, though living separate [for the past eight years with the couple's only son] might have returned to her duty at any moment….[I]t is hard to understand how the voluntary desertion of his wife could alter the legal status of [the husband]”). But see Riddick v. Turpin, 79 Tenn. 478 (1883) (contrary holding)Google Scholar.

76. See Gregory v. Paul, 15 Mass. 30, 32, & n. 1-8 (1818)Google Scholar.

77. See, e.g., Gregory v. Paul, 15 Mass. 31 (1818)Google Scholar, and Starrett v. Wynn, 17 Serg. & rawle 130, 17 Am.Dec. 654 (Pa. 1828)Google Scholar. Also see Rhea v. Rhenner, 26 U.S. 105, 108 (1828)Google Scholar(describing law as “settled” that “when the wife is left without maintenance or support, by the husband, has traded as a feme sole, and has obtained credit as such, she ought to be liable for her debts”).

78. See, e.g., Keiffer v. Barney, 31 Ala. 192 (1857)Google Scholar. Finley v. Saunders, 98 N.C. 462, 464 (1887)Google Scholar.

79. Titman v. Moore, 43 Ill. 169, 173 (1867)Google Scholar. Also see Mix v. King, 66 Ill. 145 (1872)Google Scholar; Alexander v. Alexander, 52 Ill.App. 195 (3d.D. 1893)Google Scholar; and White v. Clark, 36 Ill. 285 (1865)Google Scholar.

80. Kenley v. Hudelson, 99 Ill. 493 (1881)Google Scholar.

81. See Gambette v. Brock, 41 Cal. 78, 84 (1871)Google Scholar.

82. Warren v. Block, 1 Ky.L.rptr. 121, 10 Ky.op. 650 (1880)Google Scholar; Dittey v. Ellifritz, 8 ohio Cir. Ct. r. 278 (1894)Google Scholar; Missouri Acts of 1873, p. 16, § 1; r.S. § 2689; Michaelis v. Michaelis, 43 Minn. 123, 124-25 (1890)Google Scholar; Waples, , A Treatise on Homestead and Exemption, 964Google Scholar. Also see Blandy v. Asher, 72 Mo. 27 (1880) (discussing effect of recent amendments)Google Scholar.

83. Duffy v. Harris, 65 Ark. 251, 254 (1898)Google Scholar.

84. For cases holding that a wife who deserts her family does not forfeit her homestead rights, see, e.g., Duffy v. Harris, 65 Ark. 251 (1898)Google Scholar, Johnson v. Turner, 29 Ark. 280 (1874)Google Scholar; Lies v. De Diablar, 12 Cal. 327 (1859) (abandonment and adultery on the part of the wife will not defeat or impair her rights to the homestead)Google Scholar; Succession of Daniel Christie, 20 La. Ann. 383 (1868) (voluntary abandonment and adultery on part of wife will not impair her homestead rights)Google Scholar; Lindsey v. Brewer, 60 Vt. 627 (1888) (woman who deserted her husband without sufficient cause does not thereby lose homestead rights)Google Scholar.

85. Trawick v. Harris, 8 Tex. 312, 317-18 (1852)Google Scholar. See also Stanton v. Hitchcock, 64 Mich. 316 (1887) (wife of bigamist, who remarried after abandoning her and relocating to another state, had no homestead rights after his death)Google Scholar; Farwell Brick v. McKenna, 86 Mich. 283 (1891)Google Scholar(wife who abandoned husband under circumstances that would not entitle her to a divorce lost homestead rights); Prater v. Prater, 87 Tenn. 78 (1888)Google Scholar(woman who deserted husband without cause and eloped with another man to another state forfeited homestead rights); Bonnell v. Smith, 53 Ill. 375 (1870)Google Scholar(wife's rights are not jeopardized if she is meritorious party in divorce proceeding and there is evidence of domestic abuse); Vanzant v. Vanzant, 23 Ill. 536 (1860)Google Scholar(wife who abandoned homestead prior to divorcing her husband, for fear of personal injuries, did not jeopardize her homestead claim since she was the meritorious party in the divorce action); Barker v. Dayton, 28 Wis. 367 (1871)Google Scholar(wife who left home retained homestead rights since she suffered from domestic abuse); Keyes v. Scanlan, 63 Wis. 345 (1885)Google Scholar(following Barker v. Dayton); Meader v. Place, 43 N.H. 307 (1861)Google Scholar(where husband suspected of having illicit affair with wife's sister, voluntary separation of husband and wife held not to jeopardize wife's homestead claims after husband's death); Hairston v. Hairston, 27 Miss. 704, Miss.Err.App. (1854)Google Scholar(widow did not lose homestead rights by virtue of husband's abandonment); Lamb v. Wogan, 27 Neb. 236 (1889)Google Scholar(where husband abused wife and step-daughters, and deserting wife visited husband during his subsequent illness, her desertion did not jeopardize her homestead rights); Dickman v. Birkhauser, 16 Neb. 686 (1884)Google Scholar(wife who abandons her husband without cause sufficient to make her the meritorious party in subsequent divorce action forfeits her homestead rights); Trawick v. Harris, 8 Tex. 312, 317-18 (1852)Google Scholar(wife who deserted husband and moved to another state forfeited her homestead rights, even though no evidence pointed to her having done so “under circumstances that would have disgraced and branded her with infamy”); Meyer v. Claus, 15 Tex. 516 (1855)Google Scholar(wife who remained in foreign country while husband acquired a home in the state was not entitled to homestead, despite evidence that she was deliberately defrauded by her husband and his mistress); Earle's Ex'ors v. Earle, 9 Tex. 630 (1853)Google Scholar(wife who abandoned husband and lived apart from him held not entitled to homestead, despite evidence of husband's mistreatment); Sears v. Sears, 45 Tex. 557 (1876)Google Scholar(wife who abandons husband, even if some evidence suggests he abused her, loses homestead rights); Cockrell v. Curtis, 83 Tex. 105, 18 S.W. 436 (1892)Google Scholar(wife who abandons husband loses homestead rights).

86. See Zapp v. Strohmeyer, 75 Tex. 638 (1890)Google Scholar; Biffle v. Pullman, 114 Mo. 50 (1893)Google Scholar; Woods v. Davis, 34 Ia. 264 (1872) andGoogle ScholarByers v. Byers, 21 Ia. 268 (1866)Google Scholar; Griffin v. Nichols, 51 Mich. 575 (1883)Google Scholar; Doyle v. Coburn, 88 Mass. 71 (1863)Google Scholar; Redfern v. Redfern and 38 Ill. 509 (1865)Google Scholar; and Blue v. Blue, 38 Ill. 9 (1865)Google Scholar.

87. Redfern v. Redfern, 38 Ill. 509, 510 (1865)Google Scholar.

88. Griffin v. Nichols, 51 Mich. 575, 579 (1883)Google Scholar.

89. See Cooper v. Cooper, 24 ohio St. 488 (1874)Google Scholar, Kunkle v. Reeser, 5 ohio Dec. 422 (ohio Prob. 1898)Google Scholar, and Weber v. Beier, 7 ohio C. D. 781 (ohio Cir. 1897)Google Scholar; Wiggin v. Buzzell, 58 N.H. 329 (1878)Google Scholar; and Shoemake v. Chalfant, 47 Cal. 432 (1874)Google Scholar, Simpson v. Simpson, 80 Cal. 237 (1889)Google Scholar, Burkett v. Burkett, 78 Cal. 310, and Grupe v. Byers, 73 Cal. 271 (1887)Google Scholar.

90. See Arp v. Jacobs, 3 Wyo. 489, 27 P. 800 (1891)Google Scholar; Owen v. Bracket, 75 Tenn. 448 (1881)Google Scholar.

91. Courts did not hesitate to protect ex-wives' homesteads if the divorce decree specifi- cally gave them legal title or occupancy rights. See, e.g., Wiggin v. Buzzell, 58 N.H. 329 (1878)Google Scholar, Stahl v. Stahl, 114 Ill. 375 (1885)Google Scholar; Bonnell v. Smith, 53 Ill. 375 (1870),Google ScholarJackson v. Shelton, 89 Tenn. 82 (1890)Google Scholar; Brandon v. Brandon, 14 Kan. 342 (1875)Google Scholar; Tiemann v. Tiemann, 34 Tex. 522 (1871)Google Scholar; Wickersham v. Comerford, 96 Cal. 433 (1892)Google Scholar; Simpson v. Simpson, 80 Cal. 237, 22 P. 167 (1889)Google Scholar.

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93. Stahl v. Stahl, 114 Ill. 375, 380 (1885)Google Scholar.

94. High courts in four states adopted such reasoning. Rendleman v. Rendleman, 118 Ill. 257 (1886)Google Scholar, Blandy v. Asher, 72 Mo. 27 (1880)Google Scholar, Keyes v. Scanlan, 63 Wis. 345 (1885)Google Scholar, Atkinson v. Atkinson, 37 N.H. 434 (1859)Google Scholar.

95. For opinions that allude to functional concerns, see Blandy v. Asher, 72 Mo. 27 (1880)Google Scholar, Bahn v. Starcke, 89 Tex. 203 (1895)Google Scholar, Vanzant v. Vanzant, 23 Ill. 536 (1860)Google Scholar.

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101. The heyday of vested rights doctrine in the U.S. was roughly contemporaneous with the postbellum development of homestead exemption law, and the theory had underpinnings in classical legal thought. Yet high court opinions did not address the fundamental (and logically prior) question of why or how homestead rights “vested” in single widowers in the first place.

102. Although contemporary jurists did not articulate such a view, an economist might argue (in a neo-functionalist vein) that giving a man “homestead exemption for life” in exchange for marital vows furthered the ultimate goals of the statute by enhancing his incentives to marry in the first place. However, the marginal impact of such incentives was probably relatively minor, since marriage already rewarded a single man by enabling him to claim homestead exemption as long as his wife (or minor children) were alive. Moreover, preserving a widower's right to hold his land exempt from creditors would have come at the cost of reducing widowers' incentives to assume support for other family members after the deaths of their wives.

103. Friedman, , Private Lives, 20–21Google Scholar.

104. Franke, Katherine M., “Becoming a Citizen: reconstruction Era regulation of African American Marriages,” Yale Journal Law and the Humanities 11 (1999): 251–309Google Scholar.

105. Dubler, , “In the Shadow of Marriage,” 1649-1650Google Scholar. To the extent that Dubler's claim is that the desire to protect the state from the burden of female dependency was an important rationale for dower, the argument seems difficult to reconcile with the fact that the longestablished custom of dower became an enforceable legal right in England by the early thirteenth century, centuries before such incentives might have come into play. See Plucknett, Theodore F. T., Concise History of the Common Law, 5th ed. (Boston: Little Brown and Company, 1956), 566–68Google Scholar. See also Lund, Thomas, “Women in the Early Common Law,” Utah Law Review 1997 (1997): 1-62, 36–38 (analyzing English dower claims from the late thirteenth and early fourteenth centuries)Google Scholar. With regard to common-law marriage, Lawrence Friedman has noted that secret and informal marriages were accepted practice in England well before the mid-eighteenth century, when such a motivations also would not have been primary. Friedman, , Private Lives, 18Google Scholar. Besides the desire to protect the reputations of “informal” wives and children, Friedman identifies the shortage of clergy, the necessity of settling claims to property, and the desire to uphold traditional morality by minimizing “illicit intercourse” as important functions of the practice. Ibid., 20-24.

106. Stanley, Amy Dru, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation (New York: Cambridge University Press, 1998), 69CrossRefGoogle Scholar.

107. Ibid., 115, 119.

108. Willrich, , “;Home Slackers,” 460Google Scholar.

109. Witt, John Fabian, “From Loss of Services to Loss of Support: The Wrongful Death Statutes, the origins of Modern Tort Law, and the Making of the Nineteenth-Century Family,” Law & Social Inquiry 25 (2000): 717-55, 744CrossRefGoogle Scholar.

110. Alexander, Gregory S., “Time and Property in the American republican Legal Culture,” New York University Law Review 66 (1991): 273-352, 285Google Scholar.

111. Adams to James Sullivan, letter, 26 May 1776, The Works of John Adams, ed. Adams, Charles (Boston: Little, Brown, 1854), 9:376Google Scholar.

112. Stanley, , From Bondage to ContractGoogle Scholar.

113. Wilson v. Cochran, 31 Tex. 677, 680 (1869)Google Scholar.

114. Howard v. Marshall, 48 Tex. 471, 474.

115. Ibid., 478.

116. See, e.g., Areen, Judith, Family Law: Cases and Materials, 4th ed. (New York: Foundation Press, 1999), 931–74Google Scholar, and regan, Milton C. Jr, Supplement to Judith Areen, Family Law: Cases and Materials (New York: Foundation Press, 2001), 66Google Scholar.

117. Two unusual fact patterns, however, generated greater controversy. For example, Texas and Michigan were forced to choose which of two putative widows could claim survivorship rights in a decedent's homestead. The Texas Supreme Court summarily rejected the homestead claim of a decedent's mistress and her children, thundering that “[w]e are not disposed to put a premium upon lewdness and crime, by cutting out the rights of a lawful wife and legitimate children, to bestow gratuities upon an adulteress, and her illegitimate offspring.” See Robinson v. Crump, 35 Tex. 426 (1872)Google Scholar. Michigan's high court, however, decided (over strong dissent) that the homestead claim of a bigamist's second wife trumped that of his first wife, since the latter had never actually lived with him on the premises. See Stanton v. Hitchcock, 64 Mich. 316 (1887)Google Scholar. Miscegenation also created special doctrinal problems for Texas in the 1870s. Two similar cases reached the high court, both involving African American women who had spent most of their lives in monogamous relationships with (now-deceased) white men. In the 1871 case, the court went to great lengths to give Leah Foster the benefit of homestead exemption, even though she had never been legally married and miscegenation was outlawed in Texas during the relevant time frame. observing that the couple had spent several years in ohio, where there was “no legal impediment to marriage,” the court declared that such a marriage would be legally presumed to have taken place, and the couple's subsequent removal to Texas would not dissolve the earlier marriage. Bonds v. Foster, 36 Tex. 68 (1872)Google Scholar. In 1878, however, Chief Justice roberts af- firmed the district court's denial of survivorship rights to Phillis oldham and her children, even though the couple had cohabited for twenty-nine years, jointly raised several children, and always held themselves out as man and wife. No reference was made to the earlier case. See Oldham v. McIver, 49 Tex. 556 (1878).

118. See Ellis v. White, 47 Cal. 73 (1873)Google Scholar, Cantrell v. Conner, 6 Daly 224, 1875 WL 9540 (N.Y. Sup. Ct. 1875)Google Scholar(involving exemption of personalty rather than homestead). Similarly, under an antebellum statute exempting farm horses for heads of farm families, a widow with three sons who went to live with her parents was deemed the head of a family, even though her father could also properly be considered the head of the household. However, in In re Romero's Estate, 75 Cal. 379 (1888)Google Scholar, the California high court denied two children survivor's rights in their homestead of the man they claimed to be their father, and who also claimed them as his children, since they were born when their mother was married to (albeit probably separated from) another man and thus could not legally presumed to be his issue.

119. See Bell v. Keach, 80 Ky. 42 (1882)Google Scholar, Lane v. Phillips, 69 Tex. 240 (1887)Google Scholar, Myers v. Ham, 20 S.C. 522 (1884)Google Scholar.

120. See Rock v. Haas, 110 Ill. 528 (1884)Google Scholar.

121. See, e.g., Grossberg, , Governing the Hearth, 76Google Scholar.

122. See Friedman, , Private Lives, 44–45Google Scholar.

123. See Ellis v. White, 47 Cal. 73 (1873)Google Scholar, Cantrell v. Conner, 6 Daly 224, 1875 WL 9540 (N.Y. Sup. Ct. 1875)Google Scholar, Bell v. Keach, 80 Ky. 42 (1882)Google Scholar, Lane v. Phillips, 69 Tex. 240 (1887)Google Scholar, Myers v. Ham, 20 S.C. 522 (1884)Google Scholar.

124. See, e.g., Guiod v. Guiod, 14 Cal. 506, 507 (1860)Google Scholar(describing “natural dependence” of wife and children on the husband as “not only essential to the peace and happiness of the family itself, but to the well-being of society”).

125. Hill v. Franklin, 54 Miss. 632, 633 (1877)Google Scholar.

126. Moyer v. Drummond, 32 S.C. 165, 167-68 (1890)Google Scholar.

127. Although Justice Gould endorsed this view in Howard v. Marshall, 48 Tex. 471 (1878), the Texas Supreme Court never followed such a narrow definitionGoogle Scholar.

128. See, e.g., Marsh v. Lazenby, 41 Ga. 153 (1870)Google Scholar(bachelor supporting aged mother held head of family because paupery statute imposes mutual support obligation on parents and children); Dendy v. Gamble & Copeland, 64 Ga. 528 (1880) (man supporting indigent sister and her children cannot claim exemption because there is no legal duty of support)Google Scholar; Decuir v. Benker, 33 La. Ann. 320 (1881) (mother living with three healthy adult daughters held not head of family because although her obligation of support was “natural” and “actual,” it was not “necessary”);Google ScholarHill v. Franklin, 54 Miss. 632 (1877)Google Scholar; Betts v. Mills, 8 okla. 351 (1899)Google Scholar.

129. Moyer v. Drummond, 32 S.C. 165, 169 (1890)Google Scholar(“We are inclined to agree … [that] the whole theory and policy of the homestead [law] is founded upon the principle that there is a natural and moral obligation on the head of a family to provide for the support of his wife and children and other persons dependent on him, towards whom he stands almost in loco parentis….”) (internal citations omitted). See also Calhoun v. Williams, 73 Va. 18 (1879)Google Scholar; Harbison v. Vaughan, 42 Ark. 539; Holnback v. Wilson, 159 Ill. 148 (1895)Google Scholar; Graham v. Crockett, 18 Ind. 119 (1862)Google Scholar; Bunnell v. Hay, 73 Ind. 452 (1881)Google Scholar; Arnold v. Waltz, 53 Ia. 706 (1880)Google Scholar; Brooks v. Collins, 74 Ky. 622 (1876)Google Scholar; Lancaster v. Slavin's Trustee, 10 Ky. op. 739 (1880)Google Scholar; Bosquett v. Hall, 90 Ky. 566 (1890)Google Scholar; Wade v. Jones, 20 Mo. 75 (1854)Google Scholar; Smythe v. Kane, 42 Mo. App. 253 (1890)Google Scholar; Barney v. Leeds, 51 N.H. 253, 267-68 (1871)Google Scholar; Moyer v. Drummond, 32 S.C. 165 (1890)Google Scholar; In re Summers, 23 F.Cas. 379 (Tex. 1869); Connaughton v. Sands, 32 Wis. 387 (1873)Google Scholar; Calhoun v. Williams, 73 Va. 18, 25-26 (1879)Google Scholar; Burns v. Jones, 37 Tex. 50 (1873)Google Scholar; Roco v. Green, 50 Tex. 483 (1878)Google Scholar(legal or moral obligation is sufficient); Wolfe v. Buckley, 52 Tex. 641 (1880)Google Scholar, Barry v. Hale, 2 Tex.Civ.App. 668 (1893)Google Scholar.

130. Compare, e.g., In re Lambson, 14 F.Cas. 1047 (S.C. 1877)Google Scholar(man held not head of family because no natural obligation to support adopted son) with Wolfe v. Buckley, 52 Tex. 641 (1880)Google Scholar(adoption, “if made in good faith,” would create “such legal relation of parent and child as would constitute a family”); Brooks v. Collins, 74 Ky. 622 (1876)Google Scholar(mother living with adult children held head of family because debtors have natural and/or legal obligation to support their adult or infant children) with Decuir v. Benker, 33 La. Ann. 320 (1881)Google Scholar(mother living with three healthy adult daughters held not head of family because although her obligation of support was “natural” and “actual,” it was not “necessary”); and Roco v. Green, 50 Tex. 483 (1878)Google Scholar(adult daughter has duty to support aged mother) with Woodworth v. Comstock, 92 Mass. 425 (1865)Google Scholar(adult daughter living with mother held not head of family, presumably because of absence of support obligation).

131. See Holnback v. Wilson, 159 Ill. 148 (1895)Google Scholar(stating, in dicta, that a single man living with dependent siblings would qualify as household head); Graham v. Crockett, 18 Ind. 119 (1862)Google Scholar(man, living with sister, who “appear[ed] to direct and control affairs” held head of family, although both owned property and shared household expenses); Bailey v. Comings, 2 F. Cas. 367 (E.D. Mo. 1877)Google Scholar(man whose widowed sister had periodically lived with him held head of family); McMurray v. Shuck, 74 Ky. 622 (1869)Google Scholar(adult bachelor supporting minor siblings, including a sister, held head of family); Lancaster v. Slavin's Trustee, 10 Ky. op. 739 (1880)Google Scholar(unmarried brothers living with minor nephew held not head of family because no legal obligation to support him and his parents were still alive); Moyer v. Drummond, 32 S.C. 165 (1890)Google Scholar(man living with sickly sister held head of family); Connaughton v. Sands, 32 Wis. 387 (1873)Google Scholar(man supporting siblings held head of family); Dendy v. Gamble & Copeland, 64 Ga. 528 (1880)Google Scholar(man living with widowed sister and her three children held not head of family because had no legal duty to support them), Whalen v. Cadman, 11 Ia. 226 (1860)Google Scholar(man living with adult brother and brother's wife held not head of family). See also Wade v. Jones, 20 Mo. 75 (1854)Google Scholar(man living with widowed sister and her children held head of family for purposes of personal property exemption).

132. See Blackwell v. Broughton, 56 Ga. 390 (1876)Google Scholar(man living with adult daughter and her three children held head of family); Doolin v. Dugan, 12 Ky. L. rptr. 749 (1891)Google Scholar(father living with adult, self-supporting daughter held head of family); Woods v. Perkins, 43 La. Ann. 347 (La. 1891)Google Scholar(man living with self-sufficient eighteen-year-old son, whose other minor son lived away from home, held head of family); Dorrington v. Myers, 11 Neb. 388 (1881)Google Scholar(man living with married son and his wife, and wife and children of a second son away in mining country, held head of family); Bank of Vesailles v. Guthrey, 127 Mo. 189 (1894)Google Scholar(man living with adult children held head of family, even though adult son might more plausibly be considered the head); Childers v. Henderson, 76 Tex. 664 (1890)Google Scholar(widowed daughter living with father at time of his death held part of his family). But see Burns v. Jones, 37 Tex. 50 (1873)Google Scholar(dicta that survivorship rights could not vest in adult married children who lived with decedent at his death).

133. Holnback v. Wilson, 159 Ill. 148 (1895)Google Scholar(dictum that single man living with dependent parents would qualify as household head); Parsons v. Livingston & Kinkead, 11 Ia. 105 (1860)Google Scholar(man residing with aged mother held head of family); Roth v. Insley, 86 Cal. 134 (1890)Google Scholar(man residing with aged mother held head of family even after her death); Marsh v. Lazenby, 41 Ga. 153 (1870)Google Scholar(man supporting indigent mother held head of family); Smythe v. Kane, 42 Mo. App. 253 (1890)Google Scholar(bachelor living with mother held head of family); Connaughton v. Sands, 32 Wis. 387 (1873)Google Scholar(man supporting mother held head of family); Barry v. Hale, 2 Tex. Civ. App. 668 (1893) (same)Google Scholar.

134. Wade v. Jones, 20 Mo. 75, 78 (1854).

135. Chamberlain v. Brown, 33 S.C. 597 (1890)Google Scholar.

136. Compare Brooks v. Collins, 74 Ky. 622 (1876)Google Scholar(mother living with adult children held head of family) with Decuir v. Benker, Sheriff, et al., 33 La. Ann. 320 (1881)Google Scholar(mother supporting three adult daughters held not head of family) and Roco v. Green, 50 Tex. 483 (1878)Google Scholar(mother held not head of family since had no moral or legal obligation to support adult daughter).

137. Woodworth v. Comstock, 92 Mass. 425 (1865)Google Scholar(single woman living with mother held not head of family). But see Roco v. Green, 50 Tex. 483 (1878) (dictum that adult daughter could have duty to support aged mother)Google Scholar.

138. See In re Taylor, 23 F.Cas. 730 (S.D. Ga. 1869)Google Scholar(man living with widow whom he treated like a daughter, but never formally adopted, and her children, not entitled to homestead enlargement accorded to heads of families); In re Lambson, 14 F.Cas. 1047 (1877)Google Scholar(man with adopted minor son held not head of family); Bosquett v. Hall, 90 Ky. 566 (1890)Google Scholar(man living with unrelated minors held not head of family because had no legal or natural duty to support them); Galligar v. Payne, 34 La. Ann. 1057 (1882)Google Scholar(woman raising two unrelated minor children held not head of family); Hill v. Franklin, 54 Miss. 632 (1877)Google Scholar(childless widower living with informally adopted daughter and her husband held not head of family); In re Lambson, 14 F.Cas. 1047 (1877) (man living with adopted son held not head of family)Google Scholar; In re Summers, 23 F.Cas. 379 (Tex. 1869)Google Scholar(bachelor living with orphaned minor apprentices held not head of family). But see Rountree v. Dennard, 59 Ga. 629 (1877)Google Scholar(male guardian of minor child held head of family in reliance on statutory provision granting exemption to a “guardian or trustee of a family of minor children”) and Bunnell v. Hay, 73 Ind. 452 (1881) (man living with adopted daughter held head of family, but holding seems to rest at least partly on his status as widower). See also Burns v. Jones, 37 Tex. 50 (1873)Google Scholar(suggesting, in dicta, that wards living with decedent at time of his death could claim survivorship rights in homestead).

139. The Georgia statute specified that a “guardian or trustee of a family of minor children” qualified as a household head. See Rountree v. Dennard, 59 Ga. 629 (1877). Meanwhile, the Indiana high court seemed to rest its holding on the fact that the claimant was also a widower.Google ScholarBunnell v. Hay, 73 Ind. 452 (1881)Google Scholar.

140. See Arnold v. Waltz, 53 Ia. 707 (1880) (woman raising orphaned nieces, whom she never formally adopted, held head of family); Wolfe v. Buckley, 52 Tex. 641 (1880) (widow raising her husband's grandchildren by a former marriage held head of family)Google Scholar.

141. See Harbison v. Vaughan, 42 Ark. 539 (1884)Google Scholar.

142. Bowman v. Quackenboss, 3 Code rep. (N.Y.) 17 (1850)Google Scholar(woman running a brothel held not a head of family unless she had dependents whom she was legally bound to support); Calhoun v. McLendon, 42 Ga. 405 (1871)Google Scholar(bachelor living with hired servants not head of family); 54 Miss. 632 (1877) (widower living with an unrelated married couple not head of family); Garaty v. Du Bose, 5 S.C. (5 rich.) 493 (1875)Google Scholar(bachelor living with servants and employees not head of family).

143. The 1846 edition of Worcester's Dictionary, for example, defined “family” as “persons collectively who live together in the house; household; those who descend from one common progenitor; a race; a generation; a course of descent; a genealogy; house; lineage; race; a class; a tribe; a species.” Bouvier's, Law Dictionary of 1867 opinedGoogle Scholar, “In a limited sense it signifies the father, mother, and children. In a more extensive sense it comprehends all the individuals who live under the authority of another, and includes the servants of the family. It is also employed to signify all the relations who descend from a common ancestor, or who spring from a common route.”

144. See Wilson v. Cochran, 31 Tex. 677, 680 (1869)Google Scholar(opining that “lexicographers, from whom, in our literary education, we derive all our knowledge of the correct import of words, tell us that the word ‘family,’ in its origin, meant servants; that this was the signification of the primitive word. It now, however, has a more comprehensive meaning, and embraces a collective body of persons living together in one house, or within the curtilage, in legal phrase. This may be assumed as the generic description of a family…”).

145. Blackwell v. Broughton, 56 Ga. 390, 392 (1876)Google Scholar.

146. Stanley, , From Bondage to Contract. Additionally, seeGoogle ScholarTomlins, Christopher L., Law, Labor and Ideology in the Early American Republic (Cambridge: Cambridge University Press, 1993)CrossRefGoogle Scholar; ryan, Mary P., Cradle of the Middle Class: The Family in Oneida County, New York, 1790-1865 (Cambridge: Cambridge University Press, 1983)Google Scholar.

147. Hill v. Franklin, 54 Miss. 632, 634 (1877)Google Scholar.

148. See Burns v. Jones, 37 Tex. 50 (1873)Google Scholar(containing dicta to the effect that unmarried or minor children, wards, grandchildren, or apprentices who survived a decedent could continue to occupy the homestead as his family); Roco v. Green, 50 Tex. 483 (1878)Google Scholar(daughter who lived with her elderly mother after death of her first husband, and before marrying her second husband, sought to displace claims of other siblings by claiming survivors' rights after mother's death); Childers v. Henderson, 76 Tex. 664 (1890)Google Scholar(widowed daughter granted survivorship rights in deceased father's homestead, where she lived before his death); In re Romero's Estate, 75 Cal. 379 (1888)Google Scholar(two children who alleged to be biological children of deceased property owner sought to displace rights of “collateral kin” by claiming survivorship rights in father's homestead).

149. Texas Probate Act of 1870, Paschal's Dig., Art. 5437 (cited in Roco v. Green, 50 Tex. 483 [1878]).

150. Kerber, , No Constitutional Right to Be LadiesGoogle Scholar; Kessler-Harris, , In Pursuit of Equity.Google Scholar

151. See Kessler-Harris, , In Pursuit of Equity, 4–5Google Scholar.

152. Gordon, , Pitied but Not Entitled, 2–3Google Scholar.

153. Kessler-Harris, , In Pursuit of Equity, 18Google Scholar.

154. The first three of the five listed definitions are, respectively: “(1) The collective body of persons who live in one house, and under one head or manager; a household, including parents, children, and servants, and as the case my be, lodgers or boarders”; “(2) Those who descend from one common progenitor; a tribe or race; kindred; as, the human family; the family of Abraham”; and “(3) Course of descent; genealogy; line of ancestors; lineage.”

155. The 1798 edition of Samuel Johnson's dictionary contains only four definitions of “family”: “Those who live in the same house; household”; “Those that descend from one common progenitor; a race; a tribe; generation”; “A course of descent; a genealogy”; and “A class; a tribe; a species.” Neither does Worcester's, Dictionary of the English Language, published in Boston in 1846 and 1864Google Scholar, list the nuclear family as a definition. Apparently one of the first legal dictionaries to include the nuclear family as a definition of “family” was Bouvier's Law Dictionary Adapted to the Constitution and Laws of the United States of America, published in 1867Google Scholar. Bouvier defined “family” as follows: “In a limited sense it signifies the father, mother, and children. In a more extensive sense it comprehends all the individuals who live under the authority of another and includes the servants of the family….”

156. Interestingly, many modern scholars of the family seem to be unaware of this fact. See, e.g., Fineman, Martha Albertson, “Progress and Progression in Family Law,” University of Chicago Legal Forum 1 (2004): 1–25Google Scholar, 2 (asserting that “[h]istorically, the term ‘family’ was assumed to be synonymous with the traditional unit of husband, wife, and their biological children”); Ertman, Martha M., “Contractual Purgatory for Sexual Marginorities: Not Heaven, but Not Hell Either,” Denver University Law Review 73 (1996): 1107-68, 1167 (referring to traditional “definition of family [as] the heterosexual dyad with biological offspring”)Google Scholar.