eBay Find: The Assignment of Dower to Elizabeth Martindale

This eBay find caught my attention because first, it is an old document signed by Robert B. Duncan, the long serving clerk of the Marion County courts (a position he held from 1834-1850) and second, that the document had a newspaper clipping attached to it.


The document is about two early white settlers in Marion County, Martin and Elizabeth Martindale. The couple staked out their homestead on the northwest side of downtown Indianapolis in the present-day Speedway area (Please note that I may refer to Speedway for the sake of simplicity, not because that was what the area was called at the time). The couple had come to Indianapolis in 1823 by way of New Castle, and before that, Ohio.


As sometimes happens when dealing with records from this time, major life event dates can be uncertain. Barry Sulgrove in his history of Indianapolis, notes that Martin was born in 1788 while Elizabeth was born “about 1799.” Strangely, he also states that the couple was married when Martin was 19, which would have been 1807, when Elizabeth was 8. Other sources, including Find A Grave, indicate Martin and Elizabeth’s birth years as 1791 and 1793, respectively.


Martin was a wheel right by trade, although he did serve as justice of the peace from 1838 until his death in 1843. Little could be found about Elizabeth, although I suspect she was involved in domestic duties typical of that time. The Martindale’s also had several children, and the 1840 census records seven individuals residing in the Martindale household, three males and four females.

1840 Census entry for the Martindale household

Unfortunately, Martin died in 1843, and the eBay document is evidence of one step in the legal process related to his estate. Specifically, this document describes Elizabeth Martindale’s efforts to claim her portion of her late husband’s estate by seeking an assignment of her dower, and is a type of affidavit of publication of notice of Elizabeth' effort in a local newspaper. The document reads as follows:

"Be it understood that on this 13th day of May 1844 personally offered in open court Geo A. Chapman who being duly sworn on his oath say the notice hereto attached was duly published in the Indiana State Sentinel a weekly newspaper printed and published at Indianapolis in the County of Marion and the State of Indiana, three weeks successively the last of which said publication was more than Twenty days before the first day of the present term of this court to wit on the 13th of Feb. 1844, 20th do [essentially a ‘ditto’] and on the 27th of said month and further saith not. Geo. A. Chapman"

The proof of publication was sworn before Robert Duncan, the clerk of the Marion County courts. George Chapman was one of the editors for the Indianapolis Sentinel. The newspaper clipping from the Sentinel pasted to the proof of publication was intended to give parties who might have an interest in the estate of Martin notice that Elizabeth intended to take her dower share of Martin Martindale’s estate, as his surviving spouse. As noted in the proof of publication, the notice was published in the Sentinel for three consecutive weeks in February of 1844.

A widow's dower share was common law concept which would award a portion (one third) of the deceased husband's estate to the widow, for "the maintenance of the widow, and the nurture and education of the children." In Noel v. Ewing, 9 Ind. 36 (Ind. 1857), the Indiana Supreme Court described the dowress as "a favorite under the law-- her right superior to that of creditors," and that "dower is a legal, equitable, and moral right, favored in a high degree by the law, and next to life and liberty held sacred." The widow's dower was recognized in Magna Charta, sec. 8. In the celebrated ordinance of 1787, for the government of the Northwest territory, the right of dower is expressly secured, until altered by future legislation."


While based in common law, there were some modifications by early statute. In Dunn v. Loder, 5 Blackf. 446 (Ind. 1840), the Indiana Supreme Court noted that under an 1831 statute, the widow must first make a demand on the interested parties for an assignment of dower, before filing a petition seeking an assignment of her dower through the courts. Eventually, dower was abolished in Indiana by statute in 1853.

Turning back to Elizabeth’s situation, the proof of publication was submitted on May 13, 1844. On that same day, Elizabeth filed a Petition for the Assignment of Dower with the Marion County probate court (cover of that pleading to the left). The petition was filed against “Miles Martindale and other heirs at law of said Martin Martindale, deceased.” The file for this petition consists of 12 pages of filings and pleadings and are maintained at the Indiana State Archives. The PDF file for these documents can be viewed at the link in the sources at the end of this post.


As part of her petition, Elizabeth identified 340 acres of land that Martin owned in “fee simple,” (again, he had complete and absolute interest) in a property most within Section 36 of Township 16 North, Range 2 East. This lies just west of the present-day Motor Speedway. Some land in Marshall County was also identified by Elizabeth.


The “heirs at law” included the children of Martin and Elizabeth, with Miles being the oldest. The petition also identified David Martindale, Hanna McClaslin, formerly Martindale, now wife of George McClaslin, and Rebecca David, another married daughter, now the wife of Simon David. The other children also identified were John Martindale, and Lucinda, Priscilla, Elizabeth, and Joseph, the latter four who were all minors.


Lastly, the petition also identified members of the Pugh family, who were local to the area around Speedway and were neighbors to the Martindale family. One of the Martindale’s daughters, Charlotte, had married into the Pugh family, but had pre-deceased her father. The potential interest she or her children may have had in Martin’s estate was the reason for their inclusion. The petition further reported that Elizabeth had attempted through what may have been informal means, to obtain an assignment of dower:

“And your petitioner further showith that on the Eleventh day of January 1844 your petitioner demanded of the said residual heirs to assign to her, her dower in the real estate of the said Martin Martindale deceased and that the same has not been set off or assigned to her wherefore she prays you honorable court to appoint three commissioners to assign and set off to your petitioner her dower in the said land above specified and your petitioner will pray.”

Accompanying these documents is a one-page notice, dated the 11th of January, 1844, signed by Elizabeth Martindale in which she demands an assignment of her dower in the real estate of her late husband. A certificate of service appears on the bottom of the demand, identifying the Martindale children, and the spouses of the married daughters. Presumably, the parties in interest declined to assign or set off Elizabeth' dower share, which necessitated her seeking an assignment through the courts.

Certificate of Service for Martindale's initial demand for her dower.

What is important to remember about this notice is that Elizabeth was not the administrator of the estate of Martin Martindale. That role fell to James Johnson, a neighbor to the Martindale’s who owned several large parcels of land in the Speedway area, adjacent to the Martindale property. Separate from Elizabeth’s petition for the assignment of dower, Johnson was responsible for addressing any debts or liabilities related to the estate. Apparently, Martin died in such a circumstance, which was not an uncommon one less than five years since the Panic of 1837.

Indiana State Sentinel, February 20, 1844

At the same time Elizabeth’s dower notice appeared, Johnson was running notices regarding the sale of lands owned by Martin “for the purpose of making the same assets in the hands of said administrator for the payment of debts and demands outstanding against said estate…” Interestingly, the purpose of a notice which appeared in the Indiana State Sentinel on February 20, 1844, was to provide notice to David Martindale, a son of Elizabeth and Martin. The notice directed David to appear at the Marion County Courthouse the second Monday of June, 1844, and “show cause, if any he can, why said real estate shall not be sold and made assets for the purposes aforesaid.” As reported in Elizabeth’s filings, David was residing in Missouri, and the publication of Elizabeth’s intent to pursue a assignment of her dower in the newspaper would have acted to put him on legal notice of his mother’s efforts.


For her dower, Elizabeth would be entitled to 1/3 of Martin's assets. The probate court appointed three commissioners, including Johnson, to consider her petition and the requested assignment. The use of commissioners for this purpose was standard in dower cases and Elizabeth’s efforts to obtain an assignment of dower were successful. On August 15, 1844, the probate court affirmed an assignment of 80 acres to her, described as the west half of the north east quarter of section 36 in township section sixteen north, range two east. The remainder of the land was likely sold at auction by Johnson in 1845, as advertised by an ad in Indiana State Sentinel:


Indiana State Sentinel, January 2, 1845

The 1855 Colton map shows that Miles Martindale retained a parcel to the north of the land assigned to his mother for her dower share, which is highlighted in yellow, along the Crawfordsville Road (hash marked road) in in Section 36.


The 1850 census (below) shows Elizabeth as living residing with members of her family, including Jacob Pugh, whom her daughter Lucinda had married (as had her deceased daughter Charlotte), along with her other children Priscilla and Joseph.


In 1860, Elizabeth was noted as part of the household of a David Benedick (likely a misspelling of Benedict). Benedick’s wife was Priscilla (misspelled as Percilla), who was likely the former Priscilla Martindale, Elizabeth’s daughter. Strangely, the 1866 Warner map of Indianapolis indicates the owner of the land Elizabeth had previously held as the “Heirs of E. Martindale,” even though Elizabeth was still alive. This may suggest she was residing on the land with other family members.


The 1870 census show Elizabeth as the only member of her household, with the occupation of “keeping house.” She still owned some land, whose value was noted as $8,000 on the census records. Elizabeth died in 1876, and her Find a Grave page includes a photo of the gravestone (the grave is located at Old Union Cemetery northwest of Speedway). I could not locate an obituary. It does not appear Martin has a gravestone, although he is likely interred at Old Union , as there are many members of the Martindale family in that cemetery. Another Elizabeth Martindale died in Indianapolis in 1874, which resulted in some confusion during research. This may have been Martin and Elizabeth’s daughter, a minor when her father died.


eBay can produce some interesting items, many which have more stories associated with them than at first glance. This post is not intended as a history of the Martindale family, although their history and place in the history of Indianapolis may be worth a deeper dive. Instead, this post was intended to explore the circumstances surrounding Elizabeth Martindale’s efforts to obtain an assignment of her dower, a process which was not uncommon in mid-19th century Indianapolis.



Sources


Indiana State Sentinel, February 6, 13, 20, an 27, 1844, January 2, 1845


Proof of Publication, Elizabeth Martindale Assignment of Dower


Elizabeth Martindale v. Miles Martindale, et al., Marion County Probate Court, Indiana State Archives.

Marion County Court Case - Elizabeth Mar
.
Download • 3.75MB

United States Census Records, 1840-1870, Indianapolis Central Library, Ancestry.com Library Edition.


Legal research and citations noted above.


Journal of the Indiana State Senate, during the thirty-sixth session of the General Assembly, commencing December 1, 1851

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