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STATE CC—EEGE LIBRARY

UNITED STATES DEPARTMENT OF LABOR
MAURICE J. TOBIN, Secretary

WOMEN’S BUREAU
FRIEDA S. MILLER, Director

★

The Legal Status of Women in the
United States of America
January 1, 1948
I

REPORT FOR

SOUTH CAROLINA
Individual State material, constituting part of a compilation
to show the present legal status of women in the
United States of America

'sJjTesOj,

Bulletin of the Women’s Bureau,

No.157-39 (Revised)

UNITED STATES
GOVERNMENT PRINTING OFFICE
WASHINGTON : 1949

For sale by the Superintendent of Documents, U. S. Government Printing Office,
Washington 25, D. C. Price 10 cents




THE LEGAL STATUS OF WOMEN IN THE UNITED
STATES OF AMERICA
In response to continuing domestic and international needs,
the Women’s Bureau has prepared a revised edition of its 1938
report on the legal status of women in the United States of
America.
The revised report is based on an examination of the Constitu­
tions, official statutes, and significant decisions of courts of last
resort of the Federal Government and the several States, as well
as pertinent law texts of recognized authority.
This pamphlet presents a digest of the material compiled for
a single State, which has been incorporated in the complete report.
n




LETTER OF TRANSMITTAL
United States Department

of

Labor,

Women’s Bureau,

Washington, September 8, 194-9.
I have the honor to transmit to you a revised report on
the legal status of women in South Carolina. This is one of 54
separate reports constituting a survey of the laws of the 48 States,
the .District of Columbia, the territories of Alaska, Hawaii, and
Puerto Rico, and the United States possessions, the Canal Zone
and Virgin Islands.
The original report for each jurisdiction represents a thorough
search of statutes and decisions of appellate courts construing its
statutes or establishing its judicial policy. Revision covers im­
portant changes by legislative action.
The study was made by Sara L. Buchanan, Attorney, aided by
Mary L. Sullivan, Associate Economist, and Elizabeth Batson,
Editorial Assistant, all of the Bureau staff.
Respectfully submitted. *
Frieda S. Miller, Director.
Hon. M aurice J. Tobin,
Secretary of Labor.
Sir:




hi




CONTENTS
A.—CIVIL RIGHTS
I.—CONTRACTS AND PROPERTY

1. Age of Majority.
2. Contractual Powers of Minors.
3. Property Exemptions from Seizure for Debt—Respective
Rights of Men and Women.
4. Property of Married Woman Owned at Marriage—Owner­
ship After Marriage.
5. Contractual Powers of Married Women.
6. Separate Earnings of Married Woman—Ownership and Con­
trol.
7. Liability of Married Woman for Family Necessaries.
8. Formal Procedure Required for a Married Woman to Engage
in a Separate Business.
9. Married Woman’s Separate Property—Control During Mar­
riage—Liability for Husband’s Debts.
10. Property Acquired After Marriage Through Cooperative Ef­
forts of Spouses—Ownership and Control.
11. Damages Recovered for Injury by Strangers to a Married
Woman’s Person, Property, or Character—Ownership and
Control.
12. Action to Recover Damages for Willful or Negligent Injuries
to the Person or Property of One Spouse by the Other—
Respective Rights of Husband and Wife.
13. Competency of Spouses to Testify For or Against Each Other.
14. Disposition of Separate Property by Will—Extent of Mar­
ried Woman’s Right.
15. Estate of Deceased Husband or Wife—Share of Surviving
Spouse.
16. Provision for the Surviving Spouse During Administration
of the Estate.
17. Disinheritance of Husband or Wife by Will of Deceased
Spouse—Survivor’s Alternative.
II.—MARRIAGE AND DIVORCE

18. Age of Consent to Marriage—Men and Women.
19. Validity of Common-Law Marriage.
20. Health Certificate Requisites Prior to Issuance of Marriage
License—Men and Women.
21. Interstate Cooperation in Marriage Law Enforcement.
22. Grounds for Marriage Annulment—Respective Availability
to Man or Woman.
23. Grounds for Divorce—Respective Availability to Spouses.




v

VI

CONTENTS
III.—PARENTS AND CHILDREN

24. Services and Earnings of Minor Children—Parents’ Respec­
tive Rights.
25. Guardianship of Minor Children—Parents’ Respective Rights.
26. Appointment of Testamentary Guardian for Minor Children
—Parents’ Respective Rights.
27. Inheritance from an Intestate Child—Parents’ Respective
Rights.
28. Support of Children Born Out of Wedlock—Parents’ Respec­
tive Responsibility.
29. Inheritance from Child Born Out of Wedlock—Mother’s
Right.
B.—POLITICAL RIGHTS
30. Domicile of Married Women.
31. Public Office—Eligibility of Women.
32. Jury Service—Eligibility of Women.




THE LEGAL STATUS OF WOMEN IN THE
UNITED STATES OF AMERICA
INTRODUCTION
Any conclusion bearing on woman’s status under the laws of
the United States of America must take into account the common
law, on which the fabric of the Nation’s jurisprudence is woven.
The common-law rules of property sprang from various causes,
notably tradition, military or economic exigency, natural male
dominance, and the social status of women. Shifts in these have
effected an almost complete overturn in laws governing the prop­
erty owned by a woman prior to her marriage and that coming
into her individual ownership after her marriage, by gift, inheri­
tance, will, or accumulation from her premarital possessions.
In general, it has been the rule that where specific statutes
abrogating common-law principles have not been enacted, the
common law applies. In the century just past, many of the old
common-law injustices to women have been removed by statute.
The largest remaining area to be reformed to the present-day
trend lies in the matter of ownership and control of property
acquired by the cooperative efforts of husband and wife after
marriage.
The material considered centers largely around the woman in
the marriage relation, since the legal status of the unmarried
woman is practically identical with that of the unmarried man,
with the exception of the discrimination in some States which
bars women from jury duty; or of distinctions, such as variance
between men and women in the statutory age of majority or age
of consent to marriage.




1

SOUTH CAROLINA
SOURCES

Constitution of South Carolina.
Code of Laws of South Carolina, 1942.
Session Laws, 1945, 1947, [1948],
South Carolina Reports.
Southeastern Reporter.
EXPLANATORY NOTE

References to the State Constitution are indicated by paren­
thetical insertions of article and section numbers following the
abbreviation Const., as (Const., art. 17, sec. 9), placed after the
related subject matter.
Code section references are likewise in parentheses, thus (sec.
8575).
Session laws are referred to by year of enactment and page
number, as (1945, p. 62).
Case citations, definitely construing statutes or declaring judi­
cial policy in the absence of express statutory provision, are indi­
cated by numerical footnote references, and appear immediately
after the related paragraphs. Cases showing historical develop­
ment of a statute or policy are followed by the abbreviation
(Hist.).
Subject headings are preceded by numbers, which remain con­
stant for their respective topics through the entire State series.
Cross references among topics employ these numbers for brevity,
as “See Number 6,” which refers to the subject heading “Separate
Earnings of Married Woman—Ownership and Control.”
2




SOUTH CAROLINA
A.—CIVIL RIGHTS
I.—CONTRACTS AND PROPERTY

1. Age of Majority.
The principles of the common law are effective in this State,
unless there has been legislative action repealing or modifying
them. 2 Accordingly, in the absence of a statutory provision, men
and women attain majority at the age of 21 years, by commonlaw rule.
10 Hs^an V' Frate™al Aid. Union (1928), 144 S. C. 84, 88; 141 S. E. 893 ; 67 A. L. R.
1 State V. Charleston Bridae Co. (1919), 113 S. C. 116, 126; 101 S. E. 667.

2. Contractual Powers of Minors.
By rule of common law [see Number 1], a minor’s contracts
and conveyances, in general, are voidable by him within a reason­
able time after he attains majority. An exception to the rule is
that a minor may be liable on his contracts for necessaries. See
Norwood Nat. Bank v. Allston (1929), 152 S. C. 199, 149 S. E. 593.
A minor over 16 years of age may make a valid note, contract,’
or other written obligation for a loan for educational purposes
to the board of trustees of any educational institution in the State
or to the trustees of any educational trust fund in any State,
with the written consent of parents or legal guardian (sec. 8673).
Minors may become stockholders and depositors in cooperative
credit unions, as defined by statute (secs. 7911, 7925).
A minor wife may renounce dower in real estate by a deed
of release (sec. 8579). See Number 15.
.
No executor may assume the administration of any will or
devise unless of the full age of 21 years (sec. 8966).
A minor over 14 years of age may receive, in the discretion
of the probate court, his share of a personal estate of $500 or
less to which he becomes entitled, without necessity of formal
administration (sec. 9028).
See Number 24 as to payment of wages and Number 14 as to
wills.
3. Property Exemptions from Seizure for Debt—Respective
Rights of Men and Women.
Personal-property and homestead-exemptions statutes are au­
thorized by the Constitution of 1895 [art. 3, sec. 28],
Personal Property.

The head of any family residing in the State, whether entitled
to a homestead exemption or not, may hold as exempt from




3

THE LEGAL STATUS OF WOMEN

4

attachment, levy, or sale, personal property to the extent of $500.
Any person not the head of a family is entitled to an exernption not exceeding in value $300 in personal property, consisting
of necessary wearing apparel and tools and implements of trade
(sec. 9090).
Homestead.

The head of every family residing in the State is entitled to
hold exempt a homestead in lands, “whether held in fee or any
lesser estate,” not exceeding in value $1,000, with the yearly
products from it (sec. 9085).
.
The right to the exemption may be lost by the claimant s re­
moval from the State, as it is conditioned upon two things: The
claimant’s status as the head of a family, and actual residence m
the State.1 But the claimant is entitled to the exemption m any
land he may own, whether he resides on it or not.2
The homestead right may not be waived before the exemption
has been assigned by appraisers, except by deed of conveyance
or by mortgage of the property, and then only as against the
mortgage debt. After the homestead has been set off, and the
exemption recorded, a waiver by deed or mortgage or otherwise
is valid only if executed by husband and wife, if both are living
(sec 9089)
When the head of a family has not sufficient property to con­
stitute a homestead, the wife is entitled to the exemption from
her separate estate. The exemption may not exceed $1,000 m real
estate and $500 in personal property to husband and wife jointly
(sec. 9091). “The head of the family” need not be a husband, or
father, or of the masculine gender.2
The statutory exemptions do not operate against debts lor
taxes, purchase-money, improvements or repairs, or against obli­
gations for supplies or advancements used in production of crops
on the homestead (sec. 9092).
Rights of Widow.

The widow and children of a deceased person are entitled to
the homestead exemption, as the decedent would be if living (sec.
9088) A childless widow is entitled to the homestead exemption
against her husband’s creditors, as the surviving member of her
husband’s family.3 In such case the property is. subject to parti­
tion among the heirs at law of the decedent. Division of the P^OP"
erty is postponed only during the minority of the youngest child
of the decedent.4 If the widow takes dower in her husband’s lands,
she does not share in the partition of the homestead set off to her
and the children.5
Disposition of Homestead by Owner’s Will.

The court has observed that the homestead laws do not affect
in any way the statute of wills relative to property in which a
testator has not claimed his homestead exemption during his life­
time. In such a case, it is said, the head of a family may by will
dispose of his property to persons other than his widow and chil-




SOUTH CAROLINA

dren. If he does, the widow and children could not invoke the
homestead exemption, as against his creditors, and thereby have
a homestead set off to them in property devised or bequeathed
to others.2
But it has been held that when a homestead was set off to a
decedent during his lifetime and the formal assignment duly re­
corded as provided by statute, the property could not be disposed
of m any manner, whether by deed, mortgage, will, or otherwise,
so as to deprive the widow of its use during her lifetime, unless
she has joined in its disposition.®
Insurance.

It should be noted that the legislature made provision for the
exemption to a surviving wife, or wife and children, of certain
proceeds of insurance on her husband’s life, as follows:
When a life insurance policy has been made for the benefit of
any married woman, or for herself with her children or her hus­
band’s children, whether the policy was procured by the wife or
her husband on his life, the proceeds from it are exempt to such
beneficiaries from the claims of the husband’s representatives
or any of his creditors or anyone claiming through them.
However, the amount of the premium paid in any one year on
such a policy, insofar as it exceeds $500, when paid from funds
belonging to the husband, is subject to the demands of his credi­
tors (sec. 7985).
But in a bankruptcy proceeding [In re Cunningham (1926),
15 Fed. (2d) 700], the Federal District Court held this statute
invalid, as in direct conflict with the exemption provision of the
1895 Constitution [art. 3, sec. 28], This provision limits the
exemption allowed the head of a family to a homestead in lands
to the value of $1,000 and personal property to the value of $500,
and further declares that not more than $1,000 worth of real
estate and $500 worth of personal property may be allowed to
husband and wife jointly. The court concluded that the insuranceexemption statute permits an allowance to husband and wife of
more than $500, and that the legislature had exceeded its authority
by enacting the law, since the constitutional provision by its terms
occupies the whole domain of exemptions.
' Ex parte Morrow (1937), 183 S. C. 170, 176; 190 S. E. 506; 110 A. L. K 898
,Dorn v. Stidham (1927), 139 S. C. 66; 137 S, E. 331. (Hist.)
'
Broughton v. Broughton (1912), 93 S. C. 26, 29; 75 S. E. 1027
4 Saunders v. Strobel (1902), 64 S. C. 489; 42 S. E. 429.
5 Glover v. Glover (1895), 45 S. C. 51; 22 S. E. 739
6 Davis v. Milady (1912), 92 S. C. 135, 145; 75 S. E. 363; Ann. Cas. 1914B 267

4. Property of Married Woman Owned at Marriage—Ownership
After Marriage.
See Number 9.
5. Contractual Powers of Married Women.
A married woman has the power to contract and be contracted
with as though she were unmarried (Const., art. 17, sec. 9). This
provision confers on a married woman the power to contract




0

THE LEGAL STATUS OF WOMEN

generally, free from restriction of any kind. It includes the power
to contract a partnership with her husband, or others.1 She has
the right to purchase any kind of property in her own name, and
to take proper legal conveyances for it. She may bind herself by
contract, in the same manner and to the same extent as though
she were unmarried, and such contracts may be enforced against
her in her own name, apart from her husband. The husband is
not liable for the wife’s debts contracted before or after marriage,
except for necessary support of herself and their minor children
living with her (sec. 8575).
.
A married woman may convey her separate property in the
same manner and to the same extent as if she were unmarried.
Deeds, mortgages, and legal instruments of whatever kind are
executed by a wife in the same manner and with the same effect
as if she were unmarried (sec. 8574).
Fiduciary Capacities.

The husband or widow of an intestate person is first in order
for appointment as administrator of the decedent’s estate. But
if a widow remarries after such appointment, the probate judge
has power to revoke the administration or to join one or more
of the husband’s next of kin in the administration with her.
If no husband or wife survives the decedent, or the survivor
does not apply, the appointment of an administrator will be made
by the probate judge from the decedent’s relatives in the order
named: (1) The children or their legal representatives; (2) the
father or mother; (3) the brothers and sisters; (4) such of the
next of kindred as may be entitled to a share of the estate, at the
court’s discretion; (5) the creditors of the decedent, or such
other persons as the court may appoint (sec. 8968).
Married women can qualify as administrators, since the execu­
tion of an administration bond is a contractual act, and they have
the power to contract.2
There is no distinction as to sex in statutory provisions for
appointment of general guardians. See Number 25 as to parents
rights.
Liability for Damages and Costs.

In an action brought by or against a married woman, judgment
may be given against her for costs or for damages, or both, in
the same manner as against other persons, to be levied and col­
lected from her separate estate and not otherwise (sec. 657, subSGC. 5) .

An execution may issue against a married woman and direct
the levy and collection of the amount of the judgment against her
from her separate property, and not otherwise (sec. 740). The
provisions of this and the preceding section cited are directory
merely, and do not prevent a personal judgment against a mar­
ried woman, in view of her freedom of contract.3
When judgment is recovered against a wife, it may be enforced
by execution against her separate estate as if she were single.




SOUTH CAROLINA

7

Neither the husband nor his property can be held liable in such
case (sec. 400).
[In the statutes which prescribe the cases wherein arrests may
be made under civil actions, it is provided that “no female shall
be arrested in any action” (sec. 500, subsec. 4). The constitu­
tionality of this provision was upheld in Harrison v. Caudle
(1927), 141 S. C. 407, 415, 139 S. E. 842. Another section of the
civil code provides:
“No civil or criminal process shall be served on Sunday, except
for treason, felony, or breach of the peace. Nor shall any female
be arrested in any civil action, except for a willful injury to per­
sons, character or property: Provided, however, That civil process
in attachment proceedings may be served on Sunday” (sec. 3523).]
1 Burwell v. S. C. Tax Commission (1924), 130 S. C. 199; 126 S. E. 29; 38 A. L. R.
1256.
2 Ex parte Nurnberger (1894), 40 S. C. 334; 18 S. E. 935.
3 Clinkscales v. Hall (1881), 15 S. C. 602.

6. Separate Earnings of Married Woman—Ownership and Con­
trol.
All the earnings and income of a married woman become her
separate estate, and the same provisions of law apply to such
property as to her other separate estate (sec. 8573). See Number
9 as to separate property provisions and Number 11 as to capacity
to sue for recovery of earnings.
7. Liability of Married Woman for Family Necessaries.
A married woman has the right to purchase any species of
property in her own name, and to bind herself by contract, as
if unmarried, and her contracts may be enforced against her in
her own name. The husband is not liable for her debts contracted
either before or after the marriage except for the necessary sup­
port of herself and of their minor children living with her (sec.
8575).
The husband is held responsible for the support of his wife
and children, and may be compelled to pay a fair and reasonable
sum for the purpose, if possessed of sufficient means or able to
earn such means. But where the father of a child is dead or in­
capable of supporting his child, or cannot be found in the State,
the mother becomes likewise liable for the child’s support (sec.
256-45).
8. Formal Procedure Required for a Married Woman to Engage
in a Separate Business.
There is no requirement for court decree, record of the hus­
band’s consent, or inventory of her separate property when a wife
engages in business.
9. Married Woman’s Separate Property—Control During Mar­
riage—Liability for Husband’s Debts.
The real and personal property which a married woman owns
at the time of her marriage, or acquires afterward by gift, grant,
inheritance, will, or otherwise, constitutes her separate property,




8

THE LEGAL STATUS OF WOMEN

and she has all the rights incident to such property which an un­
married woman or a man would have (Const., art. 17, sec. 9).
Such property is not liable for her husband’s debts (sec. 8572).
See also Number 5.
Estates by the Entirety.

“* * * It would seem that the reason for the peculiar estate
known as estate by entirety no longer exists in this State. This
view certainly accords best with modern conceptions with respect
to the property rights of married women. At least, the separate
estate acts should be given the effect to make her tenant in com­
mon with her husband in a grant to both, in the absence of any
express intention in the deed to convey the whole to the sur­
vivor * * *.”1
1 Green V. Cannady (1907), 77 S. C. 193, 201; 67 S. E. 832.

10. Property Acquired After Marriage Through Cooperative
Efforts of Spouses—Ownership and Control.
In the absence of a statute establishing a different rule, the
common law governs. [See Number 1 for case citations.] By
common-law rule, the property acquired during marriage through
the combined industry of husband and wife belongs to the hus­
band, unless joint ownership is created by contract or deed.
11. Damages Recovered for Injury by Strangers to a Married
Woman’s Person, Property, or Character—Ownership and
Control.
A married woman may sue and be sued as if she were unmar­
ried. When the action is between herself and her husband, she
likewise sues or is sued alone (sec. 400).
Every action must be prosecuted in the name of the real party
in interest, unless another person is authorized by statute or
fiduciary relationship to conduct the suit (secs. 397, 399).
If any person shall utter and publish, either by writing or
verbally, any words of and concerning any female, imputing to
her a want of chastity, such person is subject to a civil action
for damages brought by the female (sec. 8659).12 13
12. Action to Recover Damages for Willful or Negligent Injuries
to the Person or Property of One Spouse by the Other—
Respective Rights of Husband and Wife.
A wife has a right to sue her husband for personal torts.1 2 See
Number 11.
1Prosser v. Prosser (1920), 114 S. C. 45; 102 S. E. 787. (Hist.)
2 Purdue v. Pardue (1932), 167 S. C. 129; 166 S. E. 101.

13. Competency of Spouses to Testify For or Against Each Other.
The relation of husband and wife does not disqualify a person
as a witness in any trial or inquiry; but neither of the spouses
may be compelled to disclose any confidential communication
made by one to the other during the marriage (sec. 692, subsecs.
1 and 2). These provisions apply to both civil and criminal ac­
tions.1 The criminal code provides that neither husband nor wife




SOUTH CAROLINA

9

may be required to disclose “any communication made to each
other during their coverture” (sec. 1012).
1 State

V.

Reynolds (1897), 48 S. C. 384, 387; 26 S. E. 679; 106 A. S. R. 765.

14. Disposition of Separate Property by Will—Extent of Married
Woman’s Right.
Any person owning real property may dispose of it by written
will, if he or she is of sound mind and is 21 years of age or
over (sec. 8915). See Number 17.
A married woman may dispose of her separate property by
will as if she were unmarried (sec. 8574).
Males at 14 and females at 12 years of age may dispose of per­
sonal property by will.12
,
Any widow may bequeath by will the crop or crops standing
or growing on the grounds of her dower, or on other lands planted
for her use (sec. 8918).
_
Lands and personal property purchased or otherwise acquired
by any person after the making of his or her will pass under the
will, and no person is to be considered as having died intestate
with regard to such property (sec. 8910). •
» Posey V. Posey (1848), 3 Strob. 167; Arm. Cas. 1912A, 622.
-Major v. Hunt (1902), 64 S. C. 97, 100; 41 S. E. 816; Ann. Cas. 1912A, 622.

15. Estate of Deceased Husband or Wife—Share of Surviving
Spouse.
When any person dies without disposing of his property by
will, his real and personal estate is distributed, with reference
to a surviving husband or wife, in the following manner:
ABSOLUTE INTEREST

One-third of the estate, if a child, children, or other lineal de­
scendants are living.
One moiety of the estate, if no child or other lineal descendant
survives, but parents, and a brother or sister of the whole blood
or the children of any such brother or sister, are living.
One moiety, if no child or other lineal descendant, no brother or
sister of the whole blood or children of them, are living, but
decedent’s parents, or a parent, survive.
One moiety, if no child or other lineal descendant, nor father or
mother survive, but a brother or sister of the whole blood, or
a lineal descendant of them, be living.
_
One moiety, if decedent leaves no child or other lineal descendant,
no father, mother, brother or sister of the whole blood, but a
brother or sister of the half-blood and a child or children of a
brother or sister of the whole blood, or either, survives.
One moiety, if no child or other lineal descendant, no father,
mother, brother or sister of the whole blood, or child of such
brother or sister, or brother or sister of the half-blood, be liv­
ing, but a lineal ancestor of the decedent survives.
All the estate, if none of the kindred enumerated above survive
the deceased spouse (sec. 8906) (1945, p. 313).




10

THE LEGAL STATUS OF WOMEN

Curtesy.

LIFE INTEREST

The husband has no tenancy by curtesy in this State (sec. 8577).
Dower.

A widow is entitled to dower as at common law, unless she has
an actual jointure from her husband (secs. 8586-8590) or is
barred of such right under the statute. She may bar her dower
right by taking instead the absolute share of the husband’s estate
given to her by the statutes of descent and distribution (secs.
The right of dower may be forfeited by the wife’s having di­
vorced her husband (sec. 8591) ; by her marriage to another dur­
ing the lifetime of her husband, whether divorced from him or
not (sec. 8594) ; by willingly leaving her husband and continuing
with her advoutrer for 5 consecutive years, or by conviction of
adultery, unless the husband condones her action or her convic­
tion (sec. 8583) ; by her voluntary desertion of her husband for
1 year without just cause for complaint, when the desertion has
been established in court after opportunity was given the wife
foy reconciliation (secs. 8584, 8585, as amended, 1948, p. 2076).
If a widow has forfeited her dower, she thereby forfeits her
distributory share of her husband’s real estate (sec. 8912).
The dower right of a wife who has been adjudged insane may
be divested by the probate court to enable the husband to convey
or mortgage his real estate, but security is required of the hus­
band for one-sixth of the value of the land for the wife’s benefit
if she survives her husband (secs. 8597-8602).
Renunciation of Dower.

The wife of any grantor conveying real estate, whether she
is adult or a minor, may by deed of release renounce and bar her­
self of her dower in all the property so conveyed, by acknowledg­
ing as provided in section 8578 [following], upon a private and
separate examination, “that she did freely and voluntarily, with­
out any compulsion, dread or fear of any person whomsoever,
renounce, and release her dower to the grantee, and his heirs
and assigns, in the premises mentioned” (sec. 8579).
Although she has not executed or acknowledged any deed of
conveyance for the purpose, any married woman’s relinquish­
ment of her dower in any real estate, when duly acknowledged
by her in writing and recorded, is effective in law “to convey and
pass away” her dower right (sec. 8578).
Release by Contract.

A married woman can contract to release her claim for dower
during her husband’s lifetime by written agreement and for a
valuable consideration.12
See Number 17 as to election between dower and will.
* Watson V. Watson (1934), 172 S. C. 362, 865 ; 174 S. E. S3.
2 Tuten V. Almeda Farms (1937), 184 S. C. 195; 192 S. E. 163.




SOUTH CAROLINA

11

16. Provision for the Surviving Spouse During Administration
of the Estate.
No provision is made by statute for the surviving spouse during
the administration of the estate, nor for a family allowance.
By proyision of the common law, a widow is entitled to remain
in the chief house of her husband for 40 days after his death,
within which period her dower should be assigned. But even if
dower has not been assigned at the end of her quarantine, when
she remains on the land she may become liable as a trespasser.12 3
Small Estates.

The judge of probate is empowered to receive and distribute
estates in personal property which do not exceed $500 in value,
without formal administration (sec. 9028). This provision for
summary administration applies only where creditors of the es­
tate are not concerned, and involving only the distribution of clear
assets.4
The court has approved the allowance of moderate and reason­
able advances for support of the family, where the estate is in
good faith thought to be solvent, and such allowance was made
before the application of creditors whose demands would make
the estate insolvent. See Darby Estate (1827), 2 McCord 451
(S. C. Chancery Rep.).
3 McCully V. Smith (1830), 2 Baily 103 (S. C. Law. Rep.).
■Lamar V. Scott (1851), 4 Rich. 516 (S. C. Law Rep.).
3 Cave V. Anderson (1897), 50 S. C. 293, 300.
* Mitchell V. Dreher (1929), 160 S. C. 125; 147 S. E. 646.

17. Disinheritance of Husband or Wife by Will of Deceased Spouse
—Survivor’s Alternative.
The husband cannot dispose of his wife’s dower in his real
estate during life, nor can he direct the disposition of it after
his death, by will or otherwise. The widow can be deprived of
it only by her voluntary consent or her own act. But the husband
may make provision for his wife by will, declaring that such
provision is made in lieu or bar of dower, and if the wife accepts
the legacy she loses dower. Or if he makes provision for her,
without expressly declaring, or evidently implying, that the legacy
is given in lieu of dower, the widow will receive both dower and
legacy. If the will clearly intends that the provision for the widow
is not in addition to her dower, she must elect between the two;
she cannot take both.1
The husband has no curtesy right in his wife’s estate (sec.
8577). Nor is provision made by statute for his election against
the provision of the wife’s will.
3 Bomar V. Wilkins (1930), 164 S. C. 64, 68; 151 S. E. 110; 68 A. L. R. 501.

II.—MARRIAGE AND DIVORCE

18. Age of Consent to Marriage—Men and Women.
No marriage license is to be issued to a female under 14 years
of age, or to a male under 18 years. When either party is under




12

THE LEGAL STATUS OF WOMEN

18 years of age, and resides with father, mother, or other rela­
tive, or a guardian, license may not be issued until the written
consent of such relative or guardian is filed with the probate judge
(sec. 8558).
.
But the common-law rule as to age of consent to marriage has
not been changed in the State, and though a marriage may be
voidable because of want of age in one of the parties, it can only
be declared void in such a case by judicial action when there has
been no cohabitation between the contracting parties.1
1 State v. Sellers (1926), 140 S. C. 66, 79; 134 S. E. 873.

19. Validity of Common-Law Marriage.
The courts of this State are reluctant to declare a common-law
marriage valid unless the proof of such marriage is shown by
strong and competent testimony.1 The facts and circumstances
must show an intention on the part of both parties to.enter into
a marriage contract, and such intention is usually evidenced by
a public and unequivocal declaration of the parties, though it may
rest in attendant circumstances.2
iEx parte Blizzard (1937), 185 S. C. 131, 134; 193 S. E. 633.
2 Tedder v. Tedder (1917), 108 S. C. 271, 276; 94 S. E. 19 ; 2 A. L. R. 438.

20. Health Certificate Requisites Prior to Issuance of Marriage
License—Men and Women.
No certificate of health is required from applicants for license
to marry. A 24-hour waiting period is required between filing of
the application for license and the issuance of license to marry
(1945, p. 62).
Article 8, Regulations of the State board of health for the pre­
vention of the spread of venereal diseases, filed in the office of
the secretary of state, April 24, 1942, provides in section 8 as
follows:
“It shall be a violation of these regulations for any infected per­
sons knowingly to expose another person to infection with any
of the said venereal diseases [enumerated in a preceding section
of the regulations], or for any person to perform an act which
exposes another person to infection with venereal disease” (sec.
5002).
_
.
Violation is made a misdemeanor, and subject to prescribed
penalties, by provisions of the original act [1919, page 30, sec­
tion 6], upon which the regulations are based.
21. Interstate Cooperation in Marriage Law Enforcement.
There is no statutory provision on this subject, and no case
was found in which the point has been decided.
22. Grounds for Marriage Annulment—Respective Availability to
Man or Woman.
The court of common pleas has authority to hear and deter­
mine any issue affecting the validity of contracts of marriage,
and to declare such contracts void for want of consent of either




SOUTH CAROLINA

13

of the contracting parties, or for any other cause tending to show
the invalidity of the contract at the time it was made unless the
parties have confirmed the contract by living together (sec. 8567).
“ * * * The marriage status being a matter of the deepest
public interest and concern, the trial judge has the power, and
it is his duty, to see that such a status is not disturbed except
under circumstances and for causes fully sanctioned by law.”1
Bigamous marriages are declared void by statute (sec. 8568) ;
likewise, prohibited interracial marriages (Const., art. 3, sec. 33)
(sec. 8571).
1 Vogel v. McDonald (1931), 159 S. C. 506, 512 ; 157 S. E. 830.

23. Grounds for Divorce—Respective Availability to Spouses.
[As of January 1, 1948, the date of this report, divorce was
not allowed on any ground. But the Constitution (art. 17, sec. 3)
was amended April 1, 1949, to permit absolute divorce on grounds
of adultery, desertion, physical cruelty, or habitual drunkenness.
Text of the proposed amendment in 1947 Laws, p. 725].
Alimony.

The court of equity has jurisdiction to hear and determine cases
for alimony. Alimony has been granted on one or more of the
following causes:
(1) Where the husband inflicts upon his wife or threatens her
with bodily injury in the form of personal violence actually in­
flicted or menaced, and affecting life or health.
(2) Desertion of the wife by the husband, without just cause.
(3) Where the husband “practices such obscene and revolting
indecencies in the family circle, and so outrages all the sentiments
of delicacy and refinement, characteristic of the sex, that a modest
and pure-minded woman would find these grievances more dread­
ful and intolerable than the most cruel inflictions upon her
person.”1
1 TV JSC

V.

Wise (1901), 60 S. C. 426, 431, 447 ; 38 S. E. 794. (Hist.)

III.—PARENTS AND CHILDREN

24. Services and Earnings of Minor Children—Parents’ Respective
Rights.
The wife and husband are the joint natural guardians of their
minor children and are equally charged with their welfare and
education and the care and management of their estates. The
wife and husband have equal power, rights, and duties, and
neither parent has a paramount right concerning the minor’s
custody, control of his services or earnings, or any other matter
affecting him. Neither parent may forcibly take a child from the
guardianship of the parent legally entitled to his custody. The
welfare of the minor is the first consideration and the court hav­
ing jurisdiction must determine all questions concerning guardian­
ship. None of these provisions is to be construed to relieve the
father of his common-law obligation to support his children, nor
to increase the liability of the mother for such support (sec. 8638).
When any person hires or employs a minor without the consent




14

THE LEGAL STATUS OF WOMEN

of parents or guardian, the employer must pay to the parents or
guardian the full value of the minor’s labor from the time demand
is made for payment of such service. This provision does not apply
to cases where a parent or guardian fails or refuses to furnish the
minor a home and support. The minor then has the right to make
a contract in regard to his own labor and enforce the contract
in his own name and for his own benefit. In such cases the em­
ployer is liable only to the minor (sec. 8668).
25. Guardianship of Minor Children—Parents’ Respective Rights.
See Number 24.
26. Appointment of Testamentary Guardian for Minor Children
—Parents’ Respective Rights.
When either parent is dead the other may, by deed or will in
proper form, dispose of the custody and tuition of his or her
unmarried minor child or children, for the period of minority,
to any person or persons, as provided by statute. But if both par­
ents are living, no such deed is valid unless signed by the father
and mother. This provision is not to interfere with the right and
duty of the proper court to transfer and assign at any time the
custody of the child for its best interest (sec. 8633).
27. Inheritance from an Interstate Child—Parents’ Respective
Rights.
When any person dies intestate, his real and personal property
is distributed, as to his father and mother, in the following
manner:
If the decedent leaves no lineal descendant, but is survived by
husband or wife, brothers and sisters of the whole blood, father
and mother, one moiety of the estate is distributed to the parents
and brothers and sisters to be divided among them so that each
receives an equal share. (The children of a deceased brother or
sister of the whole blood take among them the share which their
parents would inherit if living.)
...
When there is no surviving spouse, the entire distributable
estate is divided among parents and brothers and sisters of the
whole blood and their lineal descendants in the same manner that
the law provides as to the portion of the estate given them when
there is a surviving husband or wife.
_
_
_
If only the parents and husband or wife survive, one moiety
of the estate is distributed to the father and mother; if either
parent is dead, such moiety goes to the living parent.
If no issue, husband or wife, nor brother or sister of the whole
blood (or child of any deceased brother or sister) survive the
decedent, his parents, or the survivor if one is dead, take the
whole estate (sec. 8906).
28. Support of Children Born Out of Wedlock-Parents’ Respec­
tive Responsibility.
When the paternity of a child born out of wedlock has been




SOUTH CAROLINA

15

determined in the manner prescribed by statute, the adjudged
father must give bond, with sureties, in a sum of not less than
$300 nor more than $1,200, in the discretion of the court, for the
annual payment of one-twelfth of the amount of the bond, to
maintain the child until it is 12 years of age (sec. 1726). On
default, the father is subject to court process to compel payment,
“as are defendants convicted of misdemeanors.” Such process may
be stayed, however, except as to costs, upon the annual payment
of such sum of money as the court may direct, not to exceed the
maximum amount provided for in section 1726 of the 1942 Code
[a possible range of from $25 to $100 a year] (sec. 1729).
If the mother refuses to name the father of a child born out
of wedlock, when summoned by a magistrate for that purpose,
and it appears that the child is likely to become a burden to the
county, the magistrate must commit her to jail until she names
the father or gives security that the child shall not become a
charge of the county in which she resides (sec. 1727).
29. Inheritance from Child Born Out of Wedlock—Mother’s Right.
Upon the death within the State of a child born out of wedlock,
his mother inherits his real and personal property as if the child
had been legitimate (sec. 8913). See Number 27 as to parents’
inheritance.
B.—POLITICAL RIGHTS
30. Domicile of Married Women.
“ * * * the husband has an absolute right to establish his
domicile or place of residence wherever he pleases, either with
or without the consent of his wife; and it is equally her duty to
go with him or follow to the place of residence chosen by him.”1
This general rule is subject to modification by the husband’s failure
to provide a proper home for his wife.2
1 Wise
2 State

V.
V.

Wise (1001), 60 S. C. 428, 448; 38 S. E. 794. (Hist.)
Lynch (1936), 180 S. C. 11; 184 S. E. 163.

31. Public Office—Eligibility of Women.
Every qualified elector is eligible to any elective office, unless
disqualified by age, as prescribed in the State Constitution (Const.,
art. 2, sec. 2).
32. Jury Service—Eligibility of Women.
Women are not eligible for jury service (Const., art. 5, sec.
22).1 Only “qualified male electors” are to be placed on the jury
list (sec. 608).
1 State

V.

Mittle (1922), 120 S. C. 626, 533; 113 S. E. 335.




ftU.S.

GOVERNMENT PRINTING OFFICE: 1949-855640