W2A-017 Marriage and property-0.txt
FORMS OF PROPERTY TRANSFER

Arsenberg and Kimball's and Connell's accounts do not recognise the possibility of different forms of property transfer within marriage settlements. In our documents, however, we find three forms of property transfer: (a) in fee simple, i.e. with immediate effect; (b) in trust for life (grantor's life interest) and (c) in trust for life and thereafter to future issue. In fee simple transfer (39 cases), the land and sometimes other named property, e.g. stock, is directly (from the signing) transferred from A to B, subject in most cases to specified conditions for the transferor's rights of residence.

In a life trust transfer (64 cases), the transferee obtains an effective interest in the property on or after the transferor's own or spouse's death. The transferor has limited his interest in the property to a life estate and while remaining the legal owner, cannot transfer the land to another party. While several forms of language are used to indicate an 'in trust' transfer, the following example is quite typical. On the basis of a marriage between his son Martin and Sarah Cronin, William Coppell agreed to 'assign unto the said Martin Coppell and Sarah Cronin the said holding of land, together with the livestock, farm implements and furniture thereon' after the deaths of William Coppell and his wife, Winifred.

Factors such as size of farm or the period when the settlement was executed seems not to have influenced the decision to utilise either a fee simple or a life trust transfer. Fee simple transfers were more likely, however, when the transferor had or was about to reach pension age and or when the property was being handed over to a son as sole owner. Considerable differences were also evident in the treatment of in-marrying men and women. Thirty of the incomers were men and while they represented a failure to keep the name on the land, the marriage settlements guaranteed their legal rights to the property. By contrast we find no reference to property rights for more than half of the in-marrying females.

In the third form of transfer, property is passed on in trust for life but there is also a reference to a third generation. This form comes closest to the strict marriage settlement. For both the landed gentry and West of Ireland farmers the objective is to keep land in the family. The gentry's problem was to protect the property from dissolute sons. Widow's relatives were the most often perceived threat to the farmer's property. In 9 of the 113 marriage settlements reference is made to the future issue of the marriage. Thus, on the 12 December 1917 Thomas Casey, in consideration of his approaching marriage to Margaret Wilkenson and of her fortune of £ 140 (£ 80 had been paid and the balance was to be secured by a promissory note from the future father-in-law payable in twelve months), transferred his lands to her in fee simple, to the use of himself during his lifetime; to her if she should survive him and, following both their deaths, to the eldest child of the marriage. In the event of there being no children, the lands were to pass after Margaret's death to Thomas Casey's heirs. In somewhat similar fashion, Thomas Kearney made a settlement on his son, John, his future daughter-in-law Julia Crawford and their issue. Terms similar to the Casey settlement are present, but a further clause was added to the effect that should Julia survive her husband and leave 'no lawful issue'," the lands should remain her property 'until she shall receive the sum of three hundred pounds plus the sum of twenty pounds for each year of her marriage... But upon tender to her of the said sums of money, she shall be obliged to leave the said house and to deliver up quiet and peaceable possession of the said lands'."

WHO TRANSFERRED TO WHOM

Only 36 marriage settlements involve a property transfer which fits the ideal model, that is, father to son. For example, a marriage settlement in March 1916 relating to the marriage of Walter Cullen and Kate O'Brien stipulated that the Kate's father pay Walter's father £ 120 and that the latter's father transfer his lands to Walter. Walter, in turn, agreed to support, maintain and clothe his mother Celia and his brother 'in a manner suitable to their station in life'." All the stock on the farm was to become Walter's property on his father's death, with the exception of one heifer and one bullock which were to be given to his brother (for his own use) provided he had not already received them during his father's lifetime.

The second largest category of property transfer (13 cases) was between mothers and their sons. As in the following instance, the mothers were almost invariably widows. Mary Markey, widow and farmer, agreed, on the grounds of a forthcoming marriage between her son James and Mary Cryan, to grant and assign to James her lands, containing 62 acres, from and after her death, and also all stock, crops, farm implements and furniture that may be on the lands at that time. She and James also covenanted with Margaret Markey, daughter and sister, to maintain her in the house in a fit and proper manner until she got married or chose to leave the house, and also to pay her £ 60 and give her a calf and the grazing of the calf on the lands free of charge as long as she remained in the house. The fact that a further 51 transfers all involve a kinship connection such as aunt to niece, uncle to nephew, brother to sister etc. bears witness to the preoccupation with keeping land in the family.

Yet, along with family sentiment, there was an equal concern with having property established on a firm legal footing. This is evidenced by instances where intending spouses were the direct and sole parties to property transfers. Settlements between husband and wife-to-be account for 8 and between wife and husband-to-be for 5 of the property transfers. In an example of the former, a husband-to-be agreed to transfer his lands, farming stock and goods to his intended wife 'as and from the day of his death'." In an example of the latter, a marriage settlement between Delia Hanamy, widow and farmer, and Thomas Feeney, farmer and dealer stipulated that she grant her lands to him while he grant her £ 200. All of the female to male transfers are in fee simple; all of the male to female transfers are either life trusts or'strict settlements'.

RIGHTS OF TRANSFERORS AND TRANSFEREES

Marriage settlements are concerned not only with the transfer of property but also with the future status of the parties to the transaction. In 35 of the marriage settlements reference is made to the future rights (other than those dealing with land) of those who were ceding their property. A standard reservation was for the right to continue to reside in the house and to be entitled to the exclusive use of the room which they occupied. Several other conditions could be added, however. Thus Mary Croke, a widow, reserved not only the right to reside in the family dwelling house and 'to be suitably maintained and clothed on and out of the lands, in a manner suitable to her station in life'," but also the rights of her son and daughters to reside in the house during holidays. Mary Cooney, a widow was not only to be supported, maintained and clothed, retaining exclusive use of a bedroom in the house, but also in the event of a dispute taking place between herself and her son whereby she was compelled to leave the house, then her son was to pay her ten shillings per week. All settlements where the transferor's residential and other domestic rights are listed are in fee simple form.

In 28 marriage settlements reference is made to the rights of those to whom the property was being transferred. Existing accounts of the match make no reference to such rights. For example, as part of a marriage settlement, William Quinney undertook to clothe and maintain his son and daughter-in-law to whom he had signed over his holding of twenty six acres on the basis that they undertook to live with him, to work the holding 'in a proper manner' and that his daughter-in-law's father would pay him the sum of £ 30. In similar manner, Thomas Small made a covenant to 'clothe, support and permit to live in the house on the lands he was assigning, his daughter and future son-in-law'." He and his wife also agreed to assist the new couple 'in the working and management of the lands' and to put into the settlement any further lands they might acquire subsequent to its signing. In these and similar cases the transferor had retained a life interest in and a level of control over the property. Typically, as in the Small case, some form of joint management arrangement was envisaged.

DOWRY PAYMENTS

The dowry has been considered an integral element of peasant marriage. However, in only 68 of 113 marriage settlements is there reference to a dowry payment (usually referred to as a marriage fortune or portion) and in only ten of the 68 cases is the dowry paid by the bride's father to the groom's father. Thus Michael O'Sullivan, registered owner of thirty-four acres, in consideration of the marriage of his son John to Mary Gray and the sum of £ 50 having been paid to him by her father, on the 18th of April 1916 transferred his lands to himself 'for and during his natural life' and after his death to John. The bride's mother paid the dowry to the groom's mother in four settlements and to the groom's father in one. In a further seven cases the groom himself paid the dowry to his future bride's father. An example of this type of dowry payment is found in the marriage settlement where Edward Hastings, in view of the forthcoming marriage of his daughter Mary to James Looney, agreed to transfer his lands (40 acres) and assign his household furniture 'from the date of his death to the said James Looney'," on condition that the latter pay him the sum of £ 100. James Looney was further charged with the payment of £ 30 per annum to Edward Hastings. In six cases the bride-to-be paid the dowry to her future husband's father. The bride-to-be's brother paid the dowry on nine occasions: four times to the groom's mother, twice to the groom's father, twice directly to the groom and in one case the bride and her brother paid the groom and his uncle.

Interestingly, five cases involve direct dowry payment between bride and groom. In three of these the groom paid the dowry to his future wife and in two others the order was reversed. One of the largest recorded dowries was paid by a brother and sister to the sister's future husband and his uncle: on the 9th May 1930, John Harney senior agreed to transfer his lands, 265 acres, dwelling house and outhouses to his nephew, John Harney junior (who had been living with him for several years) and his wife-to-be, Mary Ellen Sherry, providing she paid a marriage portion of £ 1,000, £ 650 of which was to be paid to John Harney Junior and £ 350 to John Harney Senior. The settlement goes on to indicate that John Harney Senior would transfer all his stock (100 sheep, 70 lambs, 14 two-year-old cattle, 3 calves, 3 cows and 1 horse), the furniture in the dwelling house and the farm implements to his nephew and that Mary Ellen Sherry and her brother John covenanted with John Harney Junior to pay the balance of the marriage portion - £ 200 - within 12 months of signing the settlement.
