Joseph W. McKnight was at Professor of Law at Southern Methodist School of Law for sixty years. During that period, students attending the law school were fortunate to have him as a professor. He made historic contributions to scholarship in legal history authoring over 100 publications. This article summarizes some of the information contained in an article written for the California Western Law Review.

In 1840, while Texas was still a republic (it did not achieves statehood until 1845), the Congress of the Republic of Texas enacted a law composed of three elements: married women’s property, married women’s capacity (legal status to do business and make contracts), and common property received by gift or inheritance.

The 1840 law provided that all land and slaves of both spouses, and the wife’s paraphernalia acquired before marriage was separate property. The law also provided that all land and slaves, and the wife’s common law paraphernalia acquired during marriage by gift, devise, or inheritance was also separate property.

It might be well to pause for a moment to stop and consider what was considered a “wife’s common law paraphernalia.” In a book written by Joel Prentiss Bishop in 1871, he states, “Our law uses it to signify the apparel and ornaments of the wife, suitable to her rank and station in life; and, therefore, even the jewels of a peeress usually worn by her.” (Author’s note. It’s a good thing he added the part about the jewels).

All other property involved in a marital relationship was considered community property. Stated another way, the law did not contain a definition of community property or as it was known “common property.” It simply said that if property did not meet the definition of “separate” it would automatically considered “community” or “common” in a marital relationship.

The 1840 law was poorly drafted. It created a need for new legislation. For example, although the wife was considered a co-owner of community property, it did not give her any significant authority over the property until the death of her husband. The husband had full authority over the community property except when the family home was sold, in which case the wife had to join in the sale.

The poor drafting could be the result of the fact that there were no available community property laws adopted by states in 1840, with the exception of Louisiana which had an extremely complex code adopted in 1808 and 1825. The Congress of the Republic of Texas therefore attempted to follow Spanish or Castilian law with only an imperfect understanding.

By 1845, when Texas became a state, the elected representatives had a much better understanding to Spanish property law and included in the Texas Constitution what is – today – the present constitutional definition of separate property.

There are many other actions taken by the Texas legislature in later years, but they will be contained in the next article.

Banker Phares is a practicing attorney and founding member of the Estate Planning and Probate Law certification by the Texas Board of Legal Specialization. He is the John and Karen Mast Professor at SFA and teaches in the Department of Economics and Finance.

Banker Phares is a practicing attorney and founding member of the Estate Planning and Probate Law certification by the Texas Board of Legal Specialization. He is the John and Karen Mast Professor at SFA and teaches in the Department of Economics and Finance.

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