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Mar 25

A Will of One’s Own

Posted on March 25, 2019 at 9:55 AM by Chester County Archives

Sometimes what appears typical at first glance is actually quite extraordinary. Take the will of Hannah Pennell, which she wrote in 1771: “I Hannah Pennell of Marple in the County of Chester & Province of Pennsylvania Being weak in Body But of Sound Mind & Memory do Make this my last will & Testament . . . I give & Bequeath To My Husband Joshua Pennell the Sum of Fifty Shillings out of the Money arising from the Sale of Lands Left to me By My Mother . . . I Likewise Leave My Said Husband the Feather Bed & Bed Cloathes which was My Mothers during his Natural Life.”

Why is this will so unusual? It was written by a married woman in 1771, and was only accepted as valid because of her husband’s consent. In a statement Joshua Pennell, Hannah’s husband, wrote: “Whereas my late Wife Hannah Pennell did . . . make & publish . . . her last Will & Testament thereby devising sundry Legacies . . . and thereof appointed a certain William Fell to be sole Executor Now these are to certify & make known that I the Subscriber do give my full & free Consent that the sd. Writing shall & may be proved & established in due form of Law.”

Statement from Joshua Pennell filed with Hannah Pennell's 1771 will. 

In 1771, under normal circumstances, married women in Pennsylvania could not write a valid will. If a woman was in the middle or upper class, and thus had property, marital status was the determining factor in whether or not there were estate proceedings. There were probate filings for wealthy single or widowed women, but rarely for married women. Before the Married Women’s Property Act was passed in 1848, it was extremely unusual for there to be an estate filing for a married woman. The exceptions occurred when, as in Hannah Pennell’s case, the husband agreed, or the wife held property that had been legally placed out of her husband’s control, such as with a trust or prenuptial agreement. 

The Chester County Courthouse in West Chester, PA. Circa 1885. Accessed from the Library of Congress Prints and Photographs Division. 

What happened to married women who went ahead and wrote wills without the permission of their husbands? Elizabeth Worrell’s 1784 will, in which she gave directions about her real estate, some of which she had inherited from her mother, was ruled “Void in Law.” Elizabeth Irwin wrote her will in 1830, when her husband was still alive. She left various bequests, including land to her son John, whom she also named as one of her executors.  When she died in 1836 as a widow, her son Nathaniel filed a caveat, or protest, against the will. In requesting a hearing on the will, John wrote the court that he “offers for probate the will of Elizabeth Irwin devising certain real estate; admitting that at the date thereof, she was feme covert [a married woman], but averring the fact that the will was in truth confirmed by her after the death of her husband, and thus legally published at a time when she was competent to execute it.” The will was ruled invalid, so her estate was treated as if she had died intestate (without a will). Her two eldest sons declined to serve as administrators; instead they requested that Nathaniel be appointed. Elizabeth’s stated wishes were thwarted by her children.  John not only lost his sole claim to the land that his mother wished him to have, but he was not put in charge of settling the estate.

It wasn’t until the 1848 Married Women’s Property Act that married women in Pennsylvania were given the authority to write wills.(1)  The act was limited in scope, however, as it only allowed married women to control and dispose of property that they held separately. Property owned jointly with husbands did not fall under the act. This limitation meant that it remained unusual for a married woman to leave a will. The 1848 act was just one of a series of property acts that were passed in Pennsylvania and other states. Later Pennsylvania statutes clarified and expanded the rights of married women to separately control property and to write wills. Today “any person 18 or more years of age who is of sound mind may make a will.”(2)

1) 1848, April 11, P.L. 536, § 6 to 10 

2) 20 Pa. C.S.A § 2501

You can read an overview of the history of the Married Women's Property Acts on the Library of Congress website. 


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