Wisconsin Historical Law Guide

Contents

Legal Ages at a Glance

General Principles

English common law delivered by Congress

Wisconsin's law is English common law — judge-made law, built up through court decisions rather than written by a legislature. It did not arrive here through a colonial charter, as it did in the older states along the Atlantic. It arrived through an act of Congress.

Wisconsin was settled long before it had any law of its own. A French explorer reached the shore of Green Bay in 1634, and the first lasting settlements grew up at Green Bay and Prairie du Chien under French and then British rule¹. Neither power left a body of private law behind. Both governed the fur trade rather than the descent of land, and no trace of French civil law survives in Wisconsin's statutes or in its deed books.

American law arrived with the Northwest Ordinance of 1787, which organized the country north and west of the Ohio River. The Ordinance itself set the rules for inheritance, wills, and deeds, and those rules applied here from the start. For almost fifty years Wisconsin had no government of its own and was attached to one territory after another: the Northwest Territory to 1800, then Indiana Territory, then Illinois Territory, and then Michigan Territory from 1818¹. On 3 July 1836 the Territory of Wisconsin began its own government under an organic act of Congress². When the state was formed in 1848, its constitution kept the law already running: such parts of the common law as were then in force in the territory, and not inconsistent with the constitution, continued as the law of the state until the legislature altered them³.

One practical consequence is worth knowing at the outset. Wisconsin handled probate — the proving of a will in court — in a county court from the beginning, and land records went to a county register of deeds. Both sets of records sit with county government, and both begin with the county's creation.

A common law steadily rewritten by statute

Congress, and then the legislature, replaced common-law rules with statutes over time. Those dates make useful anchors — each one marks a change you will see in the records:

• 1787 — the Northwest Ordinance divided the land of a person who died without a will equally among the children⁴, gave the widow a third of the land for life and a third of the goods⁵, and barred slavery in the territory⁶, a rule the state constitution of 1848 carried forward⁷. Wisconsin never passed land to the eldest son alone, so there is no moment when primogeniture was abolished here.
• 1839 — the territorial laws were revised and printed as a single volume, the first body of statute law written for Wisconsin alone⁸.
• 1849 — the first state revision, which set the marriage, dower, descent, guardianship, and will rules that governed for decades⁹.
• 1850 — a married woman was given her own property, safe from her husband's creditors, and the power to hold, convey, and devise it as if she were unmarried¹⁰.
• 1872 — a married woman's own earnings became her separate property, and she could sue in her own name to recover them¹¹.
• 1917 — a license became necessary for a valid marriage, and marriage by agreement alone ended¹².
• 1921 — women were given the same rights as men in contracting, holding property, jury service, and the custody of children¹³.

For any given year, the rule in force is the statute where one had been passed by then, and the common law otherwise.

Legal Age of Adulthood

Majority at twenty-one

Full legal age in Wisconsin was 21. The statutes state it plainly: all persons under the age of 21 years are minors¹⁴. The age was the same for men and women, and it stayed 21 through 1950.

The older statutes rarely use the number. They say "full age" or "lawful age" and leave the figure to the common law — a will could be made by a person of full age¹⁵, a deed by a person of lawful age¹⁶. In every such phrase the age meant is 21.

A minor's legal capacity

A minor could own property. What the law limited was the minor's power to dispose of it, and to bind himself by agreement.

• Contracts could be avoided by the minor, except contracts for necessaries — food, clothing, shelter, and the like¹⁷.
• A minor's land was managed by a guardian, and a sale of it went through a court proceeding rather than a plain deed¹⁸.
• A married woman under 21 remained a minor, and could still avoid her contracts¹⁹.

Other ages that differed by sex

Majority was 21 for both sexes, without variation. Two other ages did differ by sex, and are easy to confuse with majority:

• Marriage. A girl could marry younger than a boy, and needed a parent's consent up to a lower age (below).
• Wills. A married woman of 18 could make a will, while a man waited until 21²⁰. This is the one place in Wisconsin law where a woman reached a legal capacity three years before a man. The revision of 1849 did not allow it, because that revision required her husband's written consent. The rule was in force by the revision of 1878, at section 2277, and it stayed in the statute book through 1950.

Marriage

Who was old enough to marry

Marriage was a civil contract, and the capacity to enter it turned on age²¹.

In the territorial period (1836–1848) a male of 18 and a female of 14 could marry²². The first state revision raised the girl's age by a year: a male of 18 and a female of 15 were capable in law of contracting marriage, if otherwise competent²³. That pairing — 18 and 15 — then held for a century, and the same words were still in the statute book in 1950²⁴.

A marriage below the age was not automatically a nullity. It could be set aside by a court where a party was incapable of assenting for want of age or understanding, and only where the couple had not gone on living together afterward²⁵. In practice an ancestor's underage marriage stood.

Parental consent

Consent was required above the marrying age and below a fixed upper age: for a male between 18 and 21, and for a female between her marrying age and 18. That bracket ran from the territorial act of 1839²⁶ through the revision of 1849²⁷ and into the act of 1917²⁸. Two limits on it explain a marriage with no consent behind it. Consent was needed only from a parent or guardian living in the state, and only from a young person who had not been married before. An under-age widow or widower therefore married without one²⁷.

The consent had to be proved, not merely asserted, and the proof was written down. A parent or guardian could appear in person, or send a certificate signed by him and attested by two witnesses, one of whom then swore before the officer that he had seen it signed²⁹. Under the act of 1917 the certificate was verified by affidavit, filed of record in the county clerk's office, and entered on the marriage license docket before the license issued³⁰. That filed consent names the parent or guardian and fixes the young person as under age on the day it was given.

Where a young person had no guardian and nobody had the actual care of him, the 1917 act sent the question to the judge of the court with probate jurisdiction where the minor lived, who could allow the marriage by order after a hearing³¹. That order is a separate court record, and it usually says why no parent could consent.

How a marriage was recorded

What a Wisconsin marriage left behind depends on which of three periods it falls in, and the middle period is the one researchers get wrong.

In the territorial period (1836–1848) a couple took out a license first. The clerk of the district court or a justice of the peace granted it after questioning the applicant on oath about any legal impediment³². The ceremony was performed by a justice of the peace, a judge, or an ordained minister in regular communion with a society of Christians; a minister first filed his credentials of ordination with the clerk³³. Afterward the officiant signed a certificate and sent it, together with the license, to the clerk of the district court within three calendar months, and the clerk recorded it³⁴.

The revision of 1849 dropped the license and moved the questioning to the ceremony. The judge, justice, or minister had to examine at least one of the parties on oath before solemnizing, and could not proceed unless satisfied there was no legal impediment³⁵. No particular words were required, but the parties had to declare in the officiant's presence that they took each other as husband and wife, with at least two witnesses present besides the person performing the ceremony³⁶. The officiant gave the parties a certificate if they asked for one and kept a record of his own. Within one month he delivered a certificate to the clerk of the circuit court, naming the parties and their residences, at least two witnesses, and the time and place. The clerk recorded it in a book kept for the purpose³⁷. A license could still be bought — the clerk's fee schedule prices one at seventy-five cents³⁸ — and couples went on taking one out as a matter of course, so licenses survive across these decades. What changed in 1849 is that a marriage was good without one. Marriages among the people called Friends, or Quakers, were valid in their own form, and the clerk of the meeting made the return³⁹. Because no license stood between a couple and a valid marriage, a couple who agreed to be married and lived as husband and wife could be held married with no ceremony at all⁴⁰.

The marriage act of 1917 closed that door. Marriage could be validly contracted only after a license had been issued⁴¹. The license came from the county clerk of the county where one of the parties lived. The application had to be made five days before the license issued. A judge could waive that wait where a party was dangerously ill, where the woman was pregnant, or at a parent's request, and his order was kept with the license⁴². Before issuing, the clerk took a statement under oath giving the names, any relationship between the parties, age, nationality, color, residence and occupation, the names of the parents or guardians of any party under 21, and any earlier marriage and how it ended⁴³. For a marriage after 1917 the application often tells you more than the certificate.

A marriage contracted without a license was null and void, though the parties could put it right at any time by taking one out⁴⁴. Three savings clauses kept honest couples married. A marriage stood despite the officiant's want of authority, a rule as old as the revision of 1849. It stood despite a defect in the license or in the consent. And where a couple had gone through one of the statutory ceremonies and then lived openly as husband and wife for a year, or until one of them died, a license was simply presumed⁴⁵. So a post-1917 marriage with no license on file may still have been perfectly valid.

Counties were required to report marriages to state officials from 1852, but the requirement was loosely enforced for a generation, and the state-level series is thin before about 1880. County records run from the county's creation, and state-held records stop on 30 September 1907; after that the county register of deeds holds them⁴⁶.

Who could not marry

The bars were kinship, an existing spouse, and incapacity of mind. A marriage could not be contracted while either party had a husband or wife living, nor between persons nearer of kin than first cousins, and no insane person or idiot was capable of contracting marriage⁴⁷. The act of 1917 widened the kinship bar to second cousins and added epilepsy to the list⁴⁸. By the 1940s the list had grown to take in the imbecile and the feeble-minded, and first cousins could marry where the woman had reached 50⁴⁹. One further rule voids marriages that look ordinary: from 1935 a divorced person who married again within a year of the judgment made a marriage that was null and void⁵⁰. A marriage within the forbidden degrees, or a bigamous one, was void without any court proceeding⁵¹.

Race was never a bar. Every Wisconsin marriage statute from 1839 to 1950 lists the same three impediments — kinship, an existing spouse, and incapacity of mind — and no racial bar appears in any of them⁵². Marriages across racial lines could be contracted here lawfully throughout the period, and they appear in the ordinary marriage records alongside every other marriage.

Property Ownership

Which men could own land

The right to acquire, hold, and convey land belonged to every free man in Wisconsin, of any race. Slavery was barred from the region by Congress in 1787 and by the state constitution in 1848⁵³, so the disabilities that surrounded land ownership in the slave states have no counterpart here. Black men bought, held, and sold land in Wisconsin throughout the period on the same terms as everyone else, and their deeds sit in the ordinary county deed books.

Immigrants and land

A foreign-born man could own land here without waiting for naturalization. The constitution forbade any distinction between resident aliens and citizens in the possession, enjoyment, or descent of property⁵⁴. The statutes said the same at length. An alien could acquire and hold land by purchase, by will, or by inheritance, and could sell it, mortgage it, and leave it by will. If he died without a will it passed to his heirs, all exactly as if he were a native citizen⁵⁵. A title already conveyed could not be questioned because someone in the chain had been an alien⁵⁶.

This matters in a state settled largely from Germany, Norway, Ireland, Poland, and Bohemia, and the consequence runs against what researchers often expect. An immigrant's land purchase proves nothing about his naturalization, and buying land generated no naturalization record. Land could be bought the year a family stepped off the boat.

Single women and widows

A single woman or widow — a feme sole, "woman alone" — could buy, own, sell, mortgage, sue, and be sued exactly as a man could. A woman transacting freely and alone in the deed books is almost always unmarried or widowed.

Married women before 1850

A married woman was a feme covert, "covered woman," under coverture — the common-law rule that a wife's legal identity merged into her husband's. Her husband took the rents and profits of her land and owned her wages, and her contracts had no force on their own. Her own land could be sold only by a deed she joined in with him.

Married women after 1850

The act of 1850 gave a married woman the property she brought to the marriage and the property she acquired afterward, as her own, and put it beyond her husband's disposal and his debts. It went further than that: she could take property by inheritance, gift, grant, devise, or bequest from anyone but her husband, and hold, convey, and devise it to her own separate use as if she were unmarried⁵⁷. Its purpose was as much to protect the family from his debts as to enlarge her rights, and the courts read it narrowly for decades. The revision of 1858 re-enacted it word for word⁵⁸.

From 1872 her earnings were her own, except what she earned working for her husband, and she could sue in her own name to recover them⁵⁹. The Equal Rights Act of 1921 finished the work, giving women the same rights as men in freedom of contract and in holding and conveying property⁶⁰.

When a wife had to sign her husband's deed

The driver is dower: a widow's life estate in one-third of her husband's land. A life estate is the use of land for the rest of her life, not ownership of it — when she died the land was clear.

Wisconsin used the common-law measure throughout. The widow was entitled to the use during her natural life of one-third of all the lands her husband was seized of — owned and held — at any time during the marriage, unless she was lawfully barred⁶¹. The same measure was still in the statute book a century later, in a section recast for widows of men dying after 31 August 1921 and carrying one change: she took no dower in the homestead, which passed to her by another route⁶². Because dower reached every parcel a husband had held at any time, and not merely what he held at death, a buyer needed the wife to give it up. She did that by joining in his deed. A Wisconsin deed from a married man should carry his wife's signature, and its absence on a deed from a man known to be married is a defect worth noting.

Here Wisconsin parts company with the older states, and the difference is useful for dating and for reading a document. Wisconsin never required a private examination of the wife — the separate interview, apart from her husband, in which an officer satisfied himself she was acting freely. From the territorial period (1836–1848) the rule was that where a wife joined her husband in a deed, or released dower alone, she was barred as if she were single, and her acknowledgment was taken the same as if she were single⁶³. There is no privy examination certificate to look for on a Wisconsin deed, in any period.

One arrangement barred dower before the marriage rather than parcel by parcel. Where a freehold estate for the wife's life was settled on her before the wedding in place of dower — a jointure — her assent to it barred her dower in all her husband's lands. A woman of full age gave that assent by becoming a party to the settlement; a woman under 21 gave it by joining with her father or guardian in it⁶⁴. A jointure is a marriage settlement, recorded like a deed, and it is the reason an otherwise unexplained wife's name goes missing from a whole run of her husband's conveyances.

Curtesy was the husband's version, and Wisconsin's was wider than the common law's, because it asked for no child born of the marriage. Under the revision of 1849, where a man and his wife were seized in her right of an estate of inheritance, he held the land for his life after her death as tenant by the curtesy⁶⁵. It was cut back to match dower at the very end of the period: the husband of a wife dying after 1 September 1947 took a third of the lands she owned at her death and had not disposed of by will⁶⁶. Dower and curtesy both outlasted 1950.

Where a widow's dower was not disputed, the judge of probate assigned it on application. He issued a warrant to three disinterested persons, who marked out her third on the ground and reported back to the court. The report was recorded there, and a certified copy was recorded with the register of deeds of the county where the land lay⁶⁷. A dower assignment therefore appears twice, in the probate file and in the deed books, and it names the widow and fixes the date of her husband's death within a season.

Which children could own land

A child could own land at any age, taking it by inheritance, gift, or purchase just as an adult did. Conveying it was the constraint: a deed had to be made by a person of lawful age⁶⁸. A minor's land was therefore sold, when it had to be sold, by the guardian under a court license, and that proceeding is its own record⁶⁹. Own at any age; convey at 21.

Witnessing a deed

A deed executed in Wisconsin had to be executed in the presence of two witnesses, who subscribed their names to it, and was then acknowledged by the grantor before a judge, notary, or justice of the peace, who endorsed a certificate on it⁷⁰.

The statute set no minimum age for a deed witness. What mattered was competency: the witness had to understand an oath and be able to say what he had seen. Wisconsin's rules on who could testify turned on whether the witness had an interest in the matter, never on his age⁷¹. In practice deed witnesses were adults, because a witness might have to appear years later to prove the deed.

Native nations and state law

Land held by members of the Ho-Chunk, Ojibwe, Menominee, Potawatomi, Oneida, and Stockbridge-Munsee nations was governed chiefly by treaty and by federal law, not by the statutes described here. Land allotted to individuals under the federal act of 1887 was held in trust by the United States, so the ownership and inheritance records for it are federal and will not be found in the county series⁷². State law reached such a person's land when he held it as ordinary fee land, bought and recorded like anyone else's, and those deeds sit in the county deed books.

One state rule shows the line clearly. The property of Indians who were not citizens was exempt from Wisconsin taxation, except for land they held by purchase⁷³. Land bought on the open market was taxed and recorded by the state; everything else lay outside the state's reach. For land held in trust or taken under federal allotment, the ownership and inheritance records are federal, and the state deed and probate series will not hold them.

Inheritance

Land and goods followed different rules

When a person died without a will (intestate), Wisconsin divided the estate under two sets of rules, and they gave the widow different things:

• Land descended to the heirs by the statute of descent, subject to the widow's dower — her life estate in a third.
• Personal property (money, livestock, furniture, and debts owed to the deceased) was gathered by an administrator, the person the court appointed to settle an estate that had no will, and distributed after debts and allowances were paid.

Who took the land

Land descended in equal shares to the children, and to the lawful issue of a dead child by right of representation — the grandchildren dividing the share their parent would have taken⁷⁴. Sons and daughters shared alike, and older and younger alike. This was the rule from the Ordinance of 1787 forward; there is no earlier period in Wisconsin in which the eldest son took everything.

Where the intestate left no children, the order ran outward. The table below starts at 1849, with the first state revision; for a death in the territorial period (1836–1848) the rules of inheritance in the Ordinance of 1787 governed instead. The order changed once in the years the table covers, and the change falls on the childless widow:

The first column is the revision of 1849⁷⁴; the second is the law from 1883 to 1950⁷⁵. Only one line changed, and it is the childless widow. Under the revision of 1849 she held the land for her life and her husband's father took it after her death. By 1883 she took the land outright, and that stayed the rule through 1950. For a death between 1859 and 1882, check the descent statute in force in that year.

Kindred of the half blood — relatives who share only one parent — inherited equally with those of the whole blood in the same degree. The exception was land that had come to the intestate from an ancestor, which passed only to those of that ancestor's blood⁷⁶.

One rule can make an unequal division look like a mistake when it is not. Property a parent had already given a child during his lifetime counted as an advancement — part of that child's share, paid early. It was added back into the estate for the reckoning and then charged against the child who got it, and a child already given more than his share took nothing further, though he kept what he had⁷⁷. A child who appears to be shortchanged in a division may simply have been paid earlier, by a deed you can go and find.

The widow's share of the goods

The widow's portion of the goods changed before 1950, and the change matters when you are reconstructing a family from a division.

Under the revision of 1849 the residue — what was left after allowances and debts — was divided among the same people who took the land, except that the widow received the same share as a child⁷⁸. A widow with three children therefore took a quarter; a widow with five took a sixth.

By the 1940s the fraction no longer shrank with each extra child. Where a husband or wife died leaving children, the survivor took a child's share if there was only one child — a half — and one-third in every other case. Where no children survived, the survivor took the whole of both the land and the goods⁷⁹.

Getting the fraction right can make or break a family reconstruction, because under the earlier rule the size of the widow's share tells you how many children the court counted.

The widow's allowance

Before any of that, the widow received property outright. Under the revision of 1849 she was allowed her own apparel and ornaments and her husband's, household furniture worth up to $250, and other personal property of her own choosing worth up to $200. She took all of this whether he died without a will or she had rejected what his will left her⁸⁰. The widow and children were also allowed a reasonable sum for their maintenance while the estate was being settled, and where the whole estate came to less than $150 the court could assign all of it to them⁸¹.

The allowance grew over the period. By the 1940s she took all the household furniture, with no limit on its value, together with the family pictures and the provisions and fuel on hand, and $200 of her own selection. The maintenance allowance now ran until the shares were assigned, and the court could give the widow and the minor children up to $1,000 more out of what was left⁸².

The allowance is a separate item in the probate file, it is often itemized, and it usually names the widow and the children living at home.

The homestead — the family dwelling and the land around it — passed outside all of this, free of judgments and claims against the estate. It went to the surviving husband or wife outright where no children survived, and where children survived, to the survivor until death or remarriage, and then to the decedent's heirs⁸³. A widow living on in the family home while the children hold the rest of the land is following this rule, not holding dower.

Guardians for minors

Guardianship worked the same way from the territorial period (1836–1848) onward. The territorial judge of probate could approve a guardian chosen by a minor of fourteen, appoint one for a child under that age, take security from every guardian, and call for an account when the minor turned twenty-one⁸⁴. The state statutes carried all four rules forward.

The judge of probate in each county appointed guardians to minors resident in the county⁸⁵. A guardian was appointed chiefly because a minor had property to manage; where a child inherited nothing, often no guardianship record was created at all. The court could appoint separate guardians of the person and of the property⁸⁶, so look for two records rather than one.

The father, if living, and after his death the mother while she remained unmarried, were entitled to the custody of the child and the care of his education⁸⁷. Note the condition on the mother: her remarriage could displace her, and a guardianship opened shortly after a widow's second wedding often has no other explanation.

At fourteen a minor could nominate his own guardian, and if the judge approved the nominee he was appointed⁸⁸. Where the minor lived more than ten miles from the place the probate court sat, the nomination could be certified to the judge by a justice of the peace or the town clerk⁸⁹. Both rules survived through 1950, and by then a child who had been given a guardian before turning 14 could petition at 14 to have that guardian removed and nominate a replacement⁹⁰. A guardianship record in which the child chooses is therefore evidence the child had reached 14, which brackets a birth year.

The guardian gave bond, returned an inventory of the minor's real and personal estate, accounted on oath within a year of his appointment and afterward as the court directed, and held the estate until the minor reached 21⁹¹. That final accounting at 21 is one of the most valuable documents in Wisconsin genealogy. It dates the minor's coming of age, which brackets a birth year, and it frequently reveals a female minor's married surname.

Children born outside marriage

A child born outside marriage was always the heir of his mother, and inherited her estate as if he had been born in lawful wedlock⁹². If he died intestate without lawful issue, his estate went to his mother, or to her heirs⁹³.

Inheriting from the father required an act on the father's part, and each route left a document.

• Written acknowledgment. A child was the heir of the man who acknowledged himself the father in writing, signed in the presence of a competent witness⁹⁴.
• The later marriage of the parents. Where a man who had children by a woman afterward married her, the children were legitimated if he recognized them; the issue of marriages declared null in law were legitimate as well⁹⁵.
• Adjudication or admission. From 1917 a man adjudged the father in a paternity proceeding, or who admitted it in open court, stood in the same position as one who had acknowledged the child in writing⁹⁶.

The limit on all of this is worth stating, because it explains gaps in an estate file. Acknowledgment let the child inherit from the parent, not through the parent: it gave him no claim on the estate of his father's or mother's kindred. Under the revision of 1849 he reached that wider family only where his parents had married and gone on to have other children, and his father had then acknowledged him or taken him into the family as his own⁹⁷. The act of 1917 replaced those conditions with one: he reached the kindred if his parents' marriage had legitimated him in the manner the law prescribed⁹⁸.

Wills and executors

The age to make a will was 21. Every person of full age and sound mind could devise land — leave it by will — and every person of full age and sound mind could bequeath personal property, meaning leave goods and money by will⁹⁹. Wisconsin set no lower age for a will of goods. The figure was 21 for both kinds of property throughout, with two exceptions that had appeared by the 1940s: a married woman could make a will at 18, and so could any minor serving in the armed forces¹⁰⁰.

The married woman's exception took half a century to settle, and the statute books pulled two ways while it did. The revision of 1849 let her make a will of her own real or personal property, but gave it no validity without her husband's written consent, annexed to the will and attested as the will was¹⁰¹. The married women's act of 1850 then let her leave her property by will as if she were unmarried¹⁰², and the revision of 1858 printed both rules in one volume — the consent proviso in its chapter on wills¹⁰³, the free power to devise in its chapter on the rights of married women¹⁰⁴. The married women's chapter is the one the later law followed.

A will had to be in writing and signed by the testator — the person making the will — or by another in his presence and at his direction, and attested and subscribed in his presence by two or more competent witnesses¹⁰⁵. One formality was added later: for a will made on or after 1 January 1896, the two witnesses had to sign in the presence of each other as well as of the testator¹⁰⁶. There was no minimum age for a witness; competency was the test, and a witness who was competent when he signed did not spoil the will by becoming incompetent later.

What disqualified a witness was taking something under the will. A gift to a subscribing witness was wholly void unless there were two other competent subscribing witnesses¹⁰⁷, and where such a witness would have inherited had there been no will, he kept so much of that share as the gift did not exceed¹⁰⁸.

An oral will — a nuncupative will, spoken rather than written — was good only in narrow circumstances. For an estate over $150 it took three witnesses present at the making. The testator had to have called on them to bear witness, and the words had to be spoken during his last sickness at his own dwelling. No probate issued until fourteen days after the death, and once six months had gone by nobody could testify to the words at all unless they had been written down within six days of being spoken¹⁰⁹. Soldiers in actual service and mariners at sea could dispose of wages and personal estate this way without those limits¹¹⁰.

Once the will was proved, the probate court issued letters testamentary — the document authorizing the executor to act. It went to the person named executor in the will, provided he was legally competent, would accept the job, and gave bond¹¹¹. Full age was the requirement, and the statute says what happened when it was not met. Where the person named executor was under 21 when the will was proved, the court appointed someone else to settle the estate under the will during his minority, and he could join as executor once he came of age¹¹². The executor gave bond conditioned to return a true inventory within three months, to administer and pay debts and legacies, and to render a just account¹¹³. One quirk worth watching: an unmarried woman named executrix — a woman executor — lost her authority if she married, and her husband did not take it in her place¹¹⁴, so a change of administrator right after a wedding is often the reason.

Taxation

What was taxed

Wisconsin taxed property, not people, from the beginning. All property, real and personal, within the state was subject to taxation unless expressly exempted¹¹⁵. Personal property was defined broadly enough to reach goods and chattels, money, boats, debts due from solvent debtors, and shares in incorporated companies¹¹⁶.

Land was assessed in the town or ward where it lay, and every person was assessed where he lived for the land he owned there; land owned by one person and occupied by another could be assessed to either¹¹⁷. There is no colonial-style tithable list in Wisconsin, and no annual enumeration of taxable persons that works as a census substitute in the way early Southern lists do.

The highway poll tax

The one head tax on individuals was the highway poll tax, and it is the answer to the question of who counted as a poll in Wisconsin. It went by two names and two forms.

In the territorial period (1836–1848) the obligation was labor rather than money. All male inhabitants between 21 and 50 had to work the public roads two days a year, apart from those the law exempted or the county commissioners excused for good cause, and the district supervisor enrolled the names of all of them¹¹⁸. That enrollment reached every man in the bracket, whatever his color.

The revision of 1849 turned the obligation into a tax and narrowed who owed it. Every male inhabitant of a road district over the age of 21 and under the age of 50 was assessed a poll tax of seventy-five cents, excepting persons of color, paupers, idiots, and lunatics¹¹⁹. The rest of the highway tax was assessed on the value of the real and personal property in the district¹²⁰.

It could be worked off rather than paid. The overseer of highways notified those assessed when and where labor would be received in payment¹²¹, and a man who spent more labor or material on the road than his assessment took a certificate for the excess, good against a later year's tax¹²². Within sixteen days of taking office the overseer delivered to the town clerk a list of the inhabitants of his road district who were liable to pay highway taxes, and the supervisors made out a further list for each district¹²³.

Those lists are the closest thing Wisconsin has to a register of taxable men, and the age bracket dates the men on them: a man on a highway list had turned 21 and had not yet turned 50. From 1849 the exception for persons of color means free Black men do not appear, so their absence from such a list proves nothing about where they lived; on a territorial road roll they should be there. The poll tax was abolished in 1919¹²⁴.

One warning about the word: a highway poll list names the men who owed the road tax, while a town's poll list, which the jury section below relies on, names the men who voted.

Who was exempt

Two exemptions leave a trace in the records. The personal property of a person who by reason of infirmity, age, or poverty was unable in the assessors' opinion to contribute to the public charges was exempt¹²⁵, and the property of Indians who were not citizens was exempt except for land held by purchase¹²⁶. When a man drops off an assessment roll while still alive elsewhere in the record, an infirmity or poverty exemption is one explanation, and his fiftieth birthday is another.

The income tax of 1911

In 1911 the legislature created a tax on incomes, adding thirty new sections to the statutes for the purpose¹²⁷. It was administered centrally rather than by local assessors. Exemptions were high enough that most working people paid nothing, so an ancestor's absence from the early income tax rolls says only that he was of ordinary means.

No general sales tax was levied in Wisconsin before 1950.

Taxable ages at a glance

Courts

Jury service

The qualification was short and it tied jury service to the vote: all persons who were citizens of the United States and qualified electors of the state were liable to be drawn as jurors¹²⁸. Each November the county board made up the jury lists from the towns' poll lists, which were their lists of voters. It put down seventy-five names for the grand jury and a hundred and forty for the trial jury, and delivered both to the clerk of the circuit court¹²⁹.

Two things follow. Wisconsin never made land ownership a qualification, so a man on a Wisconsin jury panel need not have owned an acre — and neither did a talesman, the bystander summoned on the spot to fill out a short jury. And because the panel came off the poll list, whoever could vote could sit. That much held through 1950; what the twentieth century added was a set of personal tests. By the 1940s a juror also had to possess his natural faculties, be free of infirmity, be esteemed in his community as a man of good character, approved integrity and sound judgment, and be able to read and write English understandingly¹³⁰.

Because the panel was drawn from the electorate, the suffrage article decided who could sit. A qualified elector was a male of 21 who had lived in the state a year. He also had to fall into one of three classes: a white citizen, a white man of foreign birth who had declared his intention to become a citizen, or a person of Indian blood or descent in the classes the article named¹³¹. The declarant-alien class is the one that surprises people: an immigrant who had filed only a declaration of intention could vote, and so could be drawn as a juror, years before he was naturalized. Black men were enfranchised by an act of 1849 approved by the voters that November, though the result was not acted on until the Supreme Court confirmed it in 1866¹³².

A long list of officers and tradesmen was exempt, along with every person more than sixty years of age. Conviction of an infamous crime — a serious offense such as a felony — disqualified a man altogether. Both rules ran from 1849 to 1950¹³³.

Women as jurors and witnesses

Women could testify from the beginning, on the same footing as other witnesses. Nothing in the Wisconsin rules on who could testify turned on the sex of the witness¹³⁴.

Jury service came in 1921, under a general statute rather than a jury act. The Equal Rights Act declared that women should have the same rights and privileges under the law as men. It named voting, freedom of contract, choice of residence for voting purposes, jury service, holding office, holding and conveying property, and the care and custody of children, and then added all other respects. Courts and officers were to read the masculine gender in the statutes as including the feminine. The one exception was where reading it that way would take from women a special protection or privilege they already had¹³⁵. That exception left the older protective statutes standing.

A second proviso limited the jury change in practice: a woman drawn as a juror was excused from the panel on her own request to the judge, made before the trial began. It was still in force at the end of the period¹³⁶. Women therefore appear on Wisconsin jury lists from 1921, but in smaller numbers than the statute alone would suggest.

Criminal responsibility

No Wisconsin statute before 1901 set a minimum age for a criminal conviction. The common law governed instead, because the constitution of 1848 kept it in force¹³⁷:

• Under 7 — a child was legally incapable of committing a crime.
• 7 to 14 — presumed incapable, a presumption the State could rebut by proving the child knew right from wrong.
• 14 and over — full criminal responsibility, tried and punished as an adult.

Wisconsin created a juvenile court in 1901, and its reach was narrower than the date suggests in two ways. The act applied only in counties of more than a hundred and fifty thousand people, which at the time meant Milwaukee County alone¹³⁸. And a delinquent child meant a child under 16 who broke a law whose penalty was not imprisonment in the state prison, or a city or village ordinance¹³⁹ — so a serious felony charge against a boy of 15 still went to the ordinary criminal court.

The judges of the county's courts of record designated one or more of their number to hear these cases, the court was called the juvenile court, and its findings were entered in a book kept for the purpose and called the juvenile record¹⁴⁰. Anyone interested could demand a jury of six, and the judge could order one himself. Between 1901 and 1929, a child outside Milwaukee County was prosecuted in the ordinary courts, and the case papers sit with the ordinary criminal files.

The children's code of 1929 changed both halves of that. Every court of record in the state got jurisdiction over neglected, dependent, and delinquent children, and the judges in each county designated one of their number to sit as the juvenile court. A delinquent child now meant a child under 18, and the criminal courts shared jurisdiction over those over 16¹⁴¹. The same definitions and the same court were still in place at the end of the period¹⁴². So a juvenile file can exist for any Wisconsin county from 1929, and for a child of 16 or 17 as well.

Two things follow for the records themselves. A commitment file from 1929 on had to include the child's birth certificate, or other documentary proof of the date of birth that satisfied the court — a rare thing to find gathered in one place. And the hearings were private and the record closed except on the judge's order¹⁴³, so access to a juvenile file usually has to be asked for.

Witnesses

A witness of any age could testify, if he or she understood the obligation of an oath and could relate facts. The trial judge examined a child before allowing the testimony. A very young child's uncorroborated word carried little weight, but that was a question of weight rather than competency, and the Wisconsin evidence statutes set no minimum age¹⁴⁴.

Every person was competent to testify whatever his race. The disqualifications that fill the evidence chapters of the slave states have no counterpart in the Wisconsin books¹⁴⁴, and a Black witness could give evidence in any Wisconsin court in any period.

Sources and Where to Verify

Constitutions and Organic Acts

• Ordinance for the Government of the Territory of the United States Northwest of the River Ohio, 1787. The rules of inheritance (equal division among children, the widow's third, the form of wills and deeds) and art. 6 (slavery). Printed among the acts of Congress in the 1839 territorial volume below.
• United States. An Act Establishing the Territorial Government of Wisconsin. 20 April 1836. 5 Stat. 10. Effective 3 July 1836. Printed in the appendix to the Revised Statutes of 1849.
• United States. General Allotment Act. 8 February 1887. Ch. 119, § 5. 24 Stat. 388, 389. Allotted land was held in trust by the United States, which is why the records for it are federal rather than county.
• Wisconsin Constitution of 1848. Art. I, § 2 (slavery prohibited); art. I, § 15 (equal property rights for resident aliens); art. I, § 17 (exemption of the property of debtors); art. III, §§ 1–2 (electors); art. XIV, § 13 (common law continued in force). Original text and amendment history printed together. The Wisconsin Constitution. Wisconsin Legislative Reference Bureau. https://legis.wisconsin.gov/lrb/media/cvuh0vci/wisconsin-constitution2025-2.pdf

Codes and Compilations

• The Revised Statutes of the State of Wisconsin, Passed at the Second Session of the Legislature, Commencing January 10, 1849. Southport: C. Latham Sholes, 1849. The essential volume for this guide (marriage ch. 78, divorce and legitimation ch. 79, guardians ch. 80, dower and curtesy and aliens ch. 62, descent ch. 63, wills ch. 66, letters testamentary ch. 67, intestate distribution ch. 68, conveyances ch. 59, sale of minors' lands ch. 64, taxation ch. 15, highways ch. 16, jurors ch. 97, evidence ch. 98, clerks' fees ch. 131). Chapters 15 and 16 begin at pages 138 and 167, and chapters 59 to 98 at pages 326 to 516. Digital images. Internet Archive. https://archive.org/details/esrp680529595
• The Revised Statutes of the State of Wisconsin, Passed at the Annual Session of the Legislature Commencing Jan. 13, 1858, and Approved May 17, 1858. Chicago, Ill.: W. B. Keen, 1858. The second revision, in force from 1 January 1859 by its own ch. 191. It renumbers the whole of the 1849 code (conveyances 59 to 86, dower and curtesy 62 to 89, descent 63 to 92, wills 66 to 97, letters testamentary 67 to 98, intestate distribution 68 to 99, marriage 78 to 109, guardians and wards 80 to 112, taxation 15 to 18, highways 16 to 19) and adds ch. 95, on the rights of married women, and ch. 110, on the registration of marriages, births and deaths. Digital images. HathiTrust. https://babel.hathitrust.org/cgi/pt?id=nyp.33433007185147
• Statutes of the Territory of Wisconsin, Passed by the Legislative Assembly Thereof, at a Session Commencing in November 1838, and at an Adjourned Session Commencing in January, 1839. Albany, N.Y.: Printed by Packard, Van Benthuysen & Co., 1839. The territorial law for 1836–1848, with the acts of Congress and the Ordinance of 1787 printed at the front, the Ordinance at pages 14 to 19. The marriage act begins at page 139, the roads act at page 110, the conveyancing act at page 177, and the probate act at page 298. The acts are unnumbered and cited here by title: the act regulating marriages, the act concerning conveyances, and the act for opening and repairing, or vacating, public roads and highways. Digital images. Internet Archive. https://archive.org/details/statutesterrito00martgoog
• Wisconsin State Law Library. Continuous Revision of Wisconsin Statutes: a History. Lists the successive revisions of 1849, 1858, 1871, 1878, 1887 and 1898, which carry the sections cited here forward to the twentieth-century numbering. https://wilawlibrary.gov/learn/statutory-revision.pdf
• Wisconsin Statutes 1947. Madison: Wisconsin Revisor of Statutes, 1947. The compilation in force at the close of the period covered here, and the anchor for every rule stated above as it stood in the 1940s (majority and guardianship ch. 319, marriage ch. 245, dower and curtesy ch. 233, descent ch. 237, wills ch. 238, probate allowances ch. 313, distribution ch. 318, jurors ch. 255, women's equal rights sec. 6.015, children's code ch. 48). The legislature posts it chapter by chapter, so the link below opens ch. 319 and the chapter number in any citation can be swapped into the address. Digital images. Wisconsin State Legislature. https://docs.legis.wisconsin.gov/document/statutes/1947/319

The rules above are taken from the volumes themselves: the territorial statutes of 1839 and the revision of 1849 at one end, the statutes of 1947 at the other, and the session laws for the pivotal acts in between. Wisconsin recompiled its statutes in 1858, 1871, 1878, 1887, and 1898, and each recompilation renumbered the sections without changing most of the rules, so a citation to a section number will belong to whichever revision was current in the year you are working in. Two useful volumes for the middle decades are Sanborn and Berryman's Annotated Statutes of Wisconsin (Chicago: Callaghan, 1889), which prints the revisers' notes to the revisions of 1858 and 1878 beneath each section, at https://babel.hathitrust.org/cgi/pt?id=mdp.35112203481280, and the revision of 1878 itself, at https://babel.hathitrust.org/cgi/pt?id=nyp.33433007185154. Taylor's revision of 1871 is at https://catalog.hathitrust.org/Record/100671107. The Annotated Statutes of 1898 has not been digitized; the 1906 supplement to it stands in, at https://babel.hathitrust.org/cgi/pt?id=mdp.35112105420550.

Session Laws

• Acts and Resolves Passed by the Legislature of Wisconsin, in the Year 1849, Together with Memorials to Congress. Madison: David T. Dickson, Printer to the State, 1849. Ch. 137, extending suffrage to colored persons, approved by the voters 6 November 1849. Digital images. HathiTrust. https://babel.hathitrust.org/cgi/pt?id=wu.89096039185
• Acts and Resolves Passed by the Legislature of Wisconsin, in the Year 1850, Together with Memorials to Congress. Madison: David T. Dickson, State Printer, 1850. Ch. 44, the married women's property act, approved 1 February 1850 by Governor Nelson Dewey. Digital images. HathiTrust. https://babel.hathitrust.org/cgi/pt?id=uc1.b3830958
• Laws of Wisconsin, 1872. Ch. 155, giving a married woman her own earnings and the right to sue in her own name, published 3 April 1872. Digital images. Wisconsin State Legislature. https://docs.legis.wisconsin.gov/1872/related/acts/155.pdf
• Laws of Wisconsin, 1901. Ch. 90, the first juvenile court act, limited to counties over 150,000 population. Digital images. Wisconsin State Legislature. https://docs.legis.wisconsin.gov/1901/related/acts/90.pdf
• Laws of Wisconsin, 1911. Ch. 658, the income tax act. Digital images. Wisconsin State Legislature. https://docs.legis.wisconsin.gov/1911/related/acts/658.pdf
• Laws of Wisconsin, 1917. Ch. 218, the marriage act; a license becomes a condition of a valid marriage, marriage by agreement alone ends, and the paternity routes to inheritance are widened. Digital images. Wisconsin State Legislature. https://docs.legis.wisconsin.gov/1917/related/acts/218.pdf
• Laws of Wisconsin, 1919. Ch. 443, abolishing the poll tax. Digital images. Wisconsin State Legislature. https://docs.legis.wisconsin.gov/1919/related/acts/443.pdf
• Laws of Wisconsin, 1921. Ch. 529, the Equal Rights Act, creating sec. 6.015. Digital images. Wisconsin State Legislature. https://docs.legis.wisconsin.gov/1921/related/acts/529.pdf
• Laws of Wisconsin, 1929. Ch. 439, the children's code; juvenile courts in every county, and the age of delinquency raised to 18. Digital images. Wisconsin State Legislature. https://docs.legis.wisconsin.gov/1929/related/acts/439.pdf
• Laws of Wisconsin, 1941. Ch. 290, amending the introductory paragraph of sec. 237.01, on the descent of property. Digital images. Wisconsin State Legislature. https://docs.legis.wisconsin.gov/1941/related/acts/290.pdf
• Laws of Wisconsin, 1943. Ch. 11, amending secs. 238.01 and 238.05 to let a minor in the armed forces make a will; the act prints both sections as amended, with the new words italicized. Digital images. Wisconsin State Legislature. https://docs.legis.wisconsin.gov/1943/related/acts/11.pdf

The legislature's own digitized run of session laws begins with 1858; the volumes for 1849 and 1850 are linked above and sit elsewhere. Reference works often date a married woman's power to make a will to an act of 1859. No such act appears among the general laws of that session. The power to devise is section 3 of the act of 1850, repeated as ch. 95 of the revision of 1858, which took effect on 1 January 1859, while the chapter on wills in both revisions kept the older rule requiring a husband's written consent.

Court Cases

• Gillespie v. Palmer, 20 Wis. 544 (1866). Confirmed that the referendum of 1849 had extended the vote to Black men.
• Schneider v. Payne, 205 Wis. 235 (1931). Applies the descent rule giving the land to a surviving widow where the intestate left no lawful issue.
• Schoenung v. Gullet, 206 Wis. 52, 238 N.W. 852 (1931). A minor may disaffirm a contract other than one for necessaries.
• Wallace v. Newdale Furniture Co., 188 Wis. 205, 205 N.W. 819 (1925). Marriage does not remove a minor’s power to disaffirm.
• Williams v. Williams, 46 Wis. 464 (1879). A dower action turning on the validity of a marriage, and a useful illustration of how marriage was proved before the act of 1917.

Secondary and Reference Works

• Lightner, J. A. C. “Common Law Marriages in Wisconsin.” Marquette Law Review 6, no. 2 (1922): 82–86. https://scholarship.law.marquette.edu/mulr/vol6/iss2/5
• Stimson, Frederic J. American Statute Law: An Analytical and Compared Digest of the Constitutions and Civil Public Statutes of All the States and Territories Relating to Persons and Property, in Force January 1, 1886. Boston: Charles C. Soule, 1886. Digests every state’s statutes side by side, citing Wisconsin to the Revised Statutes of 1878 as amended by Sanborn and Berryman’s Supplement of 1883; used here to bracket two Wisconsin changes that fall between the revisions read for this guide. Digital images. Internet Archive. https://archive.org/details/americanstatutel01stim
• Stout, Claude D. “The Legal Status of Women in Wisconsin.” Marquette Law Review 14 (1930). A three-part survey written while the pre-1948 rules were still in force. Part 1, no. 2 (February 1930): 66–80, https://scholarship.law.marquette.edu/mulr/vol14/iss2/4; part 2, no. 3 (April 1930): 121–69, https://scholarship.law.marquette.edu/mulr/vol14/iss3/3; part 3, no. 4 (June 1930): 199–211, https://scholarship.law.marquette.edu/mulr/vol14/iss4/3
• U.S. Women's Bureau. “The Legal Status of Women in the United States of America: Report for Wisconsin.” Bulletin 157-48 (Rev.). Washington: Government Printing Office, 1949. States the law as of 1 January 1948 from the Wisconsin Statutes of 1947, with section numbers, and is a useful index to the closing decades of this guide; the statutes themselves are cited above. Digital images. FRASER, Federal Reserve Bank of St. Louis. https://fraser.stlouisfed.org/files/docs/publications/women/b0157-48-rev_dolwb_1949.pdf
• “Significant Events in Wisconsin History.” Wisconsin Blue Book. Madison: Wisconsin Legislative Reference Bureau, 2025. The timeline of settlement and of the governing units before statehood. Digital images. Wisconsin State Legislature. https://legis.wisconsin.gov/lrb/media/dkbbrx0n/2025170-historical-timeline.pdf
• Wisconsin Court System. “Articles on Wisconsin.” The court's own history series, including its account of the married women's property legislation. https://www.wicourts.gov/courts/history
• Wisconsin Historical Society. “Marriage Records Research Tips.” The Society's own guide to the marriage series: counties were required to report marriages to state officials from 1852, the requirement was loosely enforced until about 1880, and the state-held records end 30 September 1907, after which the county register of deeds holds them. https://legacy.wisconsinhistory.org/Records/Article/CS1580
• Wisconsin Historical Society. Research guides to county probate, guardianship and land records, which describe what each series contains and which office held it. https://legacy.wisconsinhistory.org/Records/Article/CS88

Citations

1. “Significant Events in Wisconsin History,” Wisconsin Blue Book (Madison: Wisconsin Legislative Reference Bureau, 2025), giving 1634 for the first European to reach Wisconsin and listing the governing units before statehood — Northwest Territory 1787–1800, Indiana Territory 1800–1809, Illinois Territory 1809–1818, Michigan Territory 1818–1836, and Wisconsin Territory 1836–1848; digital images, Wisconsin State Legislature (https://legis.wisconsin.gov/lrb/media/dkbbrx0n/2025170-historical-timeline.pdf : accessed 12 August 2026) ↩ ↩
2. Act of 20 April 1836, 5 Stat. 10, “An Act Establishing the Territorial Government of Wisconsin,” effective 3 July 1836; the act is printed in the appendix to The Revised Statutes of the State of Wisconsin, Passed at the Second Session of the Legislature, Commencing January 10, 1849 (Southport: C. Latham Sholes, 1849); digital images, Internet Archive (https://archive.org/details/esrp680529595 : accessed 6 August 2026) ↩
3. Wis. Const. of 1848, art. XIV, § 13, “Common law continued in force”; The Wisconsin Constitution, Wisconsin Legislative Reference Bureau (https://legis.wisconsin.gov/lrb/media/cvuh0vci/wisconsin-constitution2025-2.pdf : accessed 6 August 2026) ↩
4. Ordinance for the Government of the Territory of the United States Northwest of the River Ohio (1787), p. 14, the article headed in the margin “Rules of inheritance,” printed among the acts of Congress in Statutes of the Territory of Wisconsin, Passed by the Legislative Assembly Thereof, at a Session Commencing in November 1838, and at an Adjourned Session Commencing in January, 1839 (Albany, N.Y.: Printed by Packard, Van Benthuysen & Co., 1839); digital images, Internet Archive (https://archive.org/details/statutesterrito00martgoog : accessed 6 August 2026) ↩
5. Ordinance of 1787, rules of inheritance, p. 14, reserving to the widow a third of the real estate for life and a third of the personal estate; Statutes of the Territory of Wisconsin (1839) ↩
6. Ordinance of 1787, art. 6, p. 19; Statutes of the Territory of Wisconsin (1839) ↩
7. Wis. Const. of 1848, art. I, § 2, “Slavery prohibited” ↩
8. Statutes of the Territory of Wisconsin (1839). The advertisement to the volume names the revising committee — Morgan L. Martin, Marshall M. Strong, and James Collins of the Council, and Edward V. Whiton, B. Shackelford, and Augustus Story of the House of Representatives — and Whiton certified the printed text at Albany on 15 June 1839 ↩
9. Revised Statutes of 1849. The volume was prepared by commissioners M. Frank and Charles S. Jordan under an act of July 1848 ↩
10. Acts and Resolves Passed by the Legislature of Wisconsin, in the Year 1850, Together with Memorials to Congress (Madison: David T. Dickson, State Printer, 1850), ch. 44, “An act to provide for the protection of married women in the enjoyment of their own property,” approved 1 February 1850 by Governor Nelson Dewey; digital images, HathiTrust (https://babel.hathitrust.org/cgi/pt?id=uc1.b3830958 : accessed 6 August 2026) ↩
11. Laws of Wisconsin, 1872, ch. 155, § 2, “An act to enable married women to transact business, make contracts, and sue and be sued, and to define the liabilities of husbands and wives,” published 3 April 1872; digital images, Wisconsin State Legislature (https://docs.legis.wisconsin.gov/1872/related/acts/155.pdf : accessed 6 August 2026) ↩
12. Laws of Wisconsin, 1917, ch. 218, “An act … relating to the regulation of marriage and marriage licenses, and to promote uniformity between the states in reference thereto and providing penalties,” published 17 May 1917; digital images, Wisconsin State Legislature (https://docs.legis.wisconsin.gov/1917/related/acts/218.pdf : accessed 6 August 2026) ↩
13. Laws of Wisconsin, 1921, ch. 529, “An act to create new section 6.015 of the statutes to remove discriminations against women and to give them equal rights before the law,” approved 11 July 1921; digital images, Wisconsin State Legislature (https://docs.legis.wisconsin.gov/1921/related/acts/529.pdf : accessed 6 August 2026) ↩
14. Wisconsin Statutes 1947 (Madison: Wisconsin Revisor of Statutes, 1947), sec. 319.01(1), “All persons under the age of twenty-one years are minors”; digital images, Wisconsin State Legislature (https://docs.legis.wisconsin.gov/document/statutes/1947/319 : accessed 6 August 2026) ↩
15. Revised Statutes of 1849, ch. 66, §§ 1, 4, p. 353 ↩
16. Revised Statutes of 1849, ch. 59, § 1, p. 326 ↩
17. Schoenung v. Gullet, 206 Wis. 52, 238 N.W. 852 (1931), holding that a minor may disaffirm a contract other than one for necessaries ↩
18. Revised Statutes of 1849, ch. 64, pp. 341–43, on the sale of lands of minors and others under guardianship and the securing of the proceeds for their use ↩
19. Wallace v. Newdale Furniture Co., 188 Wis. 205, 205 N.W. 819 (1925), holding that marriage does not remove a minor’s power to disaffirm a contract ↩
20. Wisconsin Statutes 1947, secs. 238.01 (devise of land) and 238.05 (bequest of personal property), each opening “Every person of full age and any married woman of the age of 18 years and upward.” The clause is older than the printed history line, which shows only the most recent amendment: Laws of Wisconsin, 1943, ch. 11, sets the two sections out as amended and italicizes the new words, and the only new words are those admitting a minor in the military or naval forces — the married-woman clause stands in roman as existing law. For the earlier end, Frederic J. Stimson, American Statute Law (Boston: Charles C. Soule, 1886), § 6450, lists Wisconsin among the states where a married woman may devise her separate property as if single, cites the provision as “Wis. 2277,” and notes that in those states a married woman of eighteen may make a will though she is not of age until twenty-one; Stimson’s table of authorities gives Wisconsin as the Revised Statutes of 1878, cited by continuous section number, so the rule stood in that revision. It is not in the Revised Statutes of 1849, ch. 66, § 1, p. 353, which required the husband’s written consent ↩
21. Revised Statutes of 1849, ch. 78, § 1, p. 391 ↩
22. Statutes of the Territory of Wisconsin (1839), “An act regulating marriages,” § 1, p. 139 ↩
23. Revised Statutes of 1849, ch. 78, § 2, p. 391 ↩
24. Wisconsin Statutes 1947, sec. 245.02, “Who may contract,” repeating the words of the Revised Statutes of 1849, ch. 78, § 2 ↩
25. Revised Statutes of 1849, ch. 79, § 2, p. 393 ↩
26. Statutes of the Territory of Wisconsin (1839), act regulating marriages, § 1, p. 139 ↩
27. Revised Statutes of 1849, ch. 78, § 7, p. 392 ↩ ↩
28. Laws of Wisconsin, 1917, ch. 218, § 3, creating sec. 2339n-5, which fixes the consent bracket at eighteen to twenty-one for a male and fifteen to eighteen for a female ↩
29. Statutes of the Territory of Wisconsin (1839), act regulating marriages, § 4, p. 139 ↩
30. Laws of Wisconsin, 1917, ch. 218, sec. 2339n-5 ↩
31. Laws of Wisconsin, 1917, ch. 218, sec. 2339n-5, proviso, allowing the judge of the court of the minor's residence having probate jurisdiction to make an order allowing the marriage after hearing, upon proper cause shown, where there is no guardian or curator and no competent person having the actual care, custody and control of the minor ↩
32. Statutes of the Territory of Wisconsin (1839), act regulating marriages, § 4, p. 139, authorizing the clerks of the district court and any justice of the peace to grant marriage licenses after inquiring of the applicant on oath ↩
33. Statutes of the Territory of Wisconsin (1839), act regulating marriages, §§ 1–2, p. 139 ↩
34. Statutes of the Territory of Wisconsin (1839), act regulating marriages, § 5, pp. 139–40 ↩
35. Revised Statutes of 1849, ch. 78, § 6, p. 391. No section of ch. 78 requires a license; the chapter replaces the territorial licensing inquiry with this examination by the person solemnizing the marriage ↩
36. Revised Statutes of 1849, ch. 78, § 8, p. 392 ↩
37. Revised Statutes of 1849, ch. 78, §§ 9–11, p. 392 ↩
38. Revised Statutes of 1849, ch. 131, p. 662, the fees of the clerk of the circuit court, which prices “granting and issuing marriage licence” at seventy-five cents and recording the certificate of solemnization at twenty-five — the only mention of a marriage license in the volume ↩
39. Revised Statutes of 1849, ch. 78, § 16, p. 393 ↩
40. J. A. C. Lightner, “Common Law Marriages in Wisconsin,” 6 Marquette Law Review 82 (1922), written five years after the act of 1917 and treating the question as one the act had just closed ↩
41. Laws of Wisconsin, 1917, ch. 218, sec. 2339n-1, “Marriage may be validly contracted in this state only after a license has been issued therefor” ↩
42. Laws of Wisconsin, 1917, ch. 218, secs. 2339n-2 (license from the county clerk of the county where one party resides) and 2339n-3 (application five days before issue; a judge of a court of record may order earlier issue on evidence that a party is dangerously ill, that the female is pregnant, or on the request of her parents or guardian, the order to be delivered to the person issuing the license and retained by him) ↩
43. Laws of Wisconsin, 1917, ch. 218, sec. 2339n-4 ↩
44. Laws of Wisconsin, 1917, ch. 218, sec. 2339n-21, which allows the parties to a void marriage to validate it at any time by complying with the licensing sections ↩
45. Laws of Wisconsin, 1917, ch. 218, secs. 2339n-22 (no marriage void for want of authority or jurisdiction in the officiating person, if otherwise lawful and consummated in the full belief that the parties were lawfully joined) and 2339n-23 (no marriage void by reason of the license, the consent, the clerk's jurisdiction, the competency of the witnesses, the county, or the lapse of thirty days; and where the parties have assumed the habit and repute of husband and wife uninterruptedly for a year, or until the death of either, a license is deemed to have been issued). The want-of-authority rule carries forward the Revised Statutes of 1849, ch. 78, § 15 ↩
46. Wisconsin Historical Society, “Marriage Records Research Tips,” stating that Wisconsin law required counties to register marriages with state officials from 1852, that compliance was uneven until about 1880, and that the state-held records end 30 September 1907 (https://legacy.wisconsinhistory.org/Records/Article/CS1580 : accessed 12 August 2026) ↩
47. Revised Statutes of 1849, ch. 78, § 3, p. 391 ↩
48. Laws of Wisconsin, 1917, ch. 218, § 2, amending sec. 2330, subsec. 1 ↩
49. Wisconsin Statutes 1947, sec. 245.03(1) ↩
50. Wisconsin Statutes 1947, sec. 245.03(2), carrying the act of 1935, ch. 379 ↩
51. Revised Statutes of 1849, ch. 79, § 1, p. 393 ↩
52. The impediments listed in Statutes of the Territory of Wisconsin (1839), act regulating marriages, § 1, in the Revised Statutes of 1849, ch. 78, § 3, in Laws of Wisconsin, 1917, ch. 218, § 2, and in Wisconsin Statutes 1947, sec. 245.03(1), are kinship, an existing spouse, and incapacity of mind; no racial bar appears in any of them ↩
53. Ordinance of 1787, art. 6; Wis. Const. of 1848, art. I, § 2 ↩
54. Wis. Const. of 1848, art. I, § 15, “Equal property rights for aliens and citizens” ↩
55. Revised Statutes of 1849, ch. 62, § 35, p. 337 ↩
56. Revised Statutes of 1849, ch. 62, § 36, p. 337 ↩
57. Acts and Resolves of 1850, ch. 44, §§ 1–3 ↩
58. The Revised Statutes of the State of Wisconsin, Passed at the Annual Session of the Legislature Commencing Jan. 13, 1858, and Approved May 17, 1858 (Chicago, Ill.: W. B. Keen, 1858), ch. 95, §§ 1–3, repeating ch. 44 of 1850 word for word; the revision took effect on 1 January 1859 by its own ch. 191, § 1, which fixes the date and repeals the Revised Statutes of 1849; digital images, HathiTrust (https://babel.hathitrust.org/cgi/pt?id=nyp.33433007185147 : accessed 6 August 2026) ↩
59. Laws of Wisconsin, 1872, ch. 155, §§ 2–3 ↩
60. Laws of Wisconsin, 1921, ch. 529, § 1 (sec. 6.015) ↩
61. Revised Statutes of 1849, ch. 62, § 1, p. 333 ↩
62. Wisconsin Statutes 1947, sec. 233.01, running to widows of men dying after 31 August 1921 and excepting the homestead of which the husband died seized ↩
63. Statutes of the Territory of Wisconsin (1839), the act concerning conveyances, § 11, p. 177, barring a wife who joins her husband's deed or releases dower alone “in like manner as if she were sole,” and directing that the acknowledgment or proof be taken the same as if she were sole. The Revised Statutes of 1849, ch. 59, § 2, p. 326, carries the joint-deed rule forward without adding any separate examination ↩
64. Revised Statutes of 1849, ch. 62, § 15, p. 334 ↩
65. Revised Statutes of 1849, ch. 62, § 30, p. 336, which requires only that husband and wife be seized in her right of an estate of inheritance, and adds no requirement of issue born of the marriage ↩
66. Wisconsin Statutes 1947, sec. 233.23 ↩
67. Revised Statutes of 1849, ch. 62, §§ 8–11, p. 334 ↩
68. Revised Statutes of 1849, ch. 59, § 1, p. 326 ↩
69. Revised Statutes of 1849, ch. 64, pp. 341–43 ↩
70. Revised Statutes of 1849, ch. 59, § 8, p. 327 ↩
71. Revised Statutes of 1849, ch. 59, § 8, p. 327, which requires two witnesses to a deed but fixes no age for them; who was competent to testify is governed by ch. 98, pp. 516–29, whose provisions turn on interest and on the manner of taking testimony rather than on the age of the witness ↩
72. Act of 8 February 1887, ch. 119, § 5, 24 Stat. 388, 389, the General Allotment Act, under which the United States held allotted land in trust for the allottee ↩
73. Revised Statutes of 1849, ch. 15, § 4, subsec. 7, pp. 138–39 ↩
74. Revised Statutes of 1849, ch. 63, § 1, subsecs. 1–5, 8–9, pp. 338–39 ↩ ↩
75. Wisconsin Statutes 1947, sec. 237.01, subsecs. (1)–(4), (7). Subsec. (2) gives the land to the widow or widower where the intestate leaves no lawful issue. The rule was in force well before then: Stimson, American Statute Law (1886), § 3109(A), lists Wisconsin among the states in which, there being no issue, the surviving wife or husband takes all the real estate in fee, and cites the descent section as “Wis. 2270, Amt.” — the Revised Statutes of 1878, § 2270, as amended by Sanborn and Berryman’s Supplement of 1883. Michigan and Nebraska, whose statutes Wisconsin’s resembled, still gave the childless widow a life estate with the remainder to the father, which is the Wisconsin rule of 1849. The court applied the fee rule in Schneider v. Payne, 205 Wis. 235 (1931), and the amendment of 1941 reached only the introductory paragraph of the section, Laws of Wisconsin, 1941, ch. 290, § 2 ↩
76. Revised Statutes of 1849, ch. 63, § 4, p. 339 ↩
77. Revised Statutes of 1849, ch. 63, §§ 5–7, pp. 339–40, treating an estate given by the intestate in his lifetime to a child or other lineal descendant as part of the estate for the division, taken by that child towards his share; a child advanced beyond his share is excluded from further portion but need refund nothing ↩
78. Revised Statutes of 1849, ch. 68, § 1, subsec. 6, p. 363 ↩
79. Wisconsin Statutes 1947, sec. 318.01(1), read with sec. 237.01(2) for the case where no issue survives ↩
80. Revised Statutes of 1849, ch. 68, § 1, subsec. 1, p. 362, setting the furniture at $250 and the property of her own selection at $200 ↩
81. Revised Statutes of 1849, ch. 68, § 1, subsecs. 2–4, pp. 362–63 ↩
82. Wisconsin Statutes 1947, sec. 313.15, subsecs. (1), (2) and (4)(a) ↩
83. Wisconsin Statutes 1947, sec. 237.02 ↩
84. Statutes of the Territory of Wisconsin (1839), the act establishing courts of probate, pp. 298–99, empowering the judge of probate to allow guardians chosen by minors of fourteen years of age, to appoint guardians for those under that age, to take security from all such guardians, and to require an account when the minor reached twenty-one ↩
85. Revised Statutes of 1849, ch. 80, § 1, p. 398 ↩
86. Wisconsin Statutes 1947, sec. 319.01(2) ↩
87. Revised Statutes of 1849, ch. 80, §§ 5–6, p. 399 ↩
88. Revised Statutes of 1849, ch. 80, § 2, p. 398, under which a minor above fourteen “may nominate his own guardian, who, if approved by the judge, shall be appointed accordingly”; where the nominee was not approved, or the minor neglected to nominate, § 3 returned the choice to the judge ↩
89. Revised Statutes of 1849, ch. 80, § 4, p. 399 ↩
90. Wisconsin Statutes 1947, secs. 319.02(1) (nomination at 14, and certification where the minor cannot appear or lives more than 10 miles from the court) and 319.13 (“Minor may change guardian”), the latter not applying to testamentary guardians ↩
91. Revised Statutes of 1849, ch. 80, §§ 7–8, p. 399 ↩
92. Revised Statutes of 1849, ch. 63, § 2, p. 339 ↩
93. Revised Statutes of 1849, ch. 63, § 3, p. 339 ↩
94. Revised Statutes of 1849, ch. 63, § 2, p. 339; carried into the statutes as sec. 2274 ↩
95. Statutes of the Territory of Wisconsin (1839), act regulating marriages, § 3, p. 139; carried into the Revised Statutes of 1849, ch. 79, § 30, p. 398 ↩
96. Laws of Wisconsin, 1917, ch. 218, § 2, amending sec. 2274 to add a father adjudged such under secs. 1530 to 1542 or admitting paternity in open court ↩
97. Revised Statutes of 1849, ch. 63, § 2, p. 339 ↩
98. Laws of Wisconsin, 1917, ch. 218, § 2, amending sec. 2274 so that the bar on claiming through a parent lifts where, before his death, the child “shall have been legitimated by the marriage of his parents in the manner prescribed by law” ↩
99. Revised Statutes of 1849, ch. 66, §§ 1, 4, p. 353 ↩
100. Wisconsin Statutes 1947, secs. 238.01, 238.05, the military exception added by the act of 1943, ch. 11, effective 1 January 1942 ↩
101. Revised Statutes of 1849, ch. 66, § 1, proviso, p. 353 ↩
102. Acts and Resolves of 1850, ch. 44, § 3 ↩
103. Revised Statutes of 1858, ch. 97, § 1, which repeats the consent proviso of the Revised Statutes of 1849, ch. 66, § 1 word for word ↩
104. Revised Statutes of 1858, ch. 95, § 3 ↩
105. Revised Statutes of 1849, ch. 66, § 5, p. 353, which also provides that witnesses competent when they attest do not spoil the will by later incompetency ↩
106. Wisconsin Statutes 1947, sec. 238.06, running to wills made “since the first day of January, 1896” and requiring the two witnesses to subscribe in the presence of the testator and of each other ↩
107. Revised Statutes of 1849, ch. 66, § 8, p. 354 ↩
108. Revised Statutes of 1849, ch. 66, § 9, p. 354 ↩
109. Revised Statutes of 1849, ch. 66, §§ 6–7, p. 354 ↩
110. Revised Statutes of 1849, ch. 66, § 7, p. 354 ↩
111. Revised Statutes of 1849, ch. 67, § 1, p. 360 ↩
112. Revised Statutes of 1849, ch. 67, § 6, p. 361, headed in the margin “Administration in case of minority of executor”; carried into the Revised Statutes of 1858, ch. 98, § 6 ↩
113. Revised Statutes of 1849, ch. 67, § 2, p. 360 ↩
114. Revised Statutes of 1849, ch. 67, § 8, p. 361 ↩
115. Revised Statutes of 1849, ch. 15, § 1, p. 138 ↩
116. Revised Statutes of 1849, ch. 15, § 3, p. 138 ↩
117. Revised Statutes of 1849, ch. 15, § 6, p. 139 ↩
118. Statutes of the Territory of Wisconsin (1839), the act for opening and repairing, or vacating, public roads and highways, § 32, p. 110, requiring all male inhabitants between the ages of twenty-one and fifty years to work the public roads two days in each year — persons exempted by law, or excused by the board of commissioners for good cause shown, excepted — and making it the duty of the supervisors to enrol the names of all such persons ↩
119. Revised Statutes of 1849, ch. 16, § 22, subsec. 1, p. 171 ↩
120. Revised Statutes of 1849, ch. 16, § 22, subsec. 2, p. 171, fixing the rate at not less than three nor more than seven mills on the dollar ↩
121. Revised Statutes of 1849, ch. 16, § 8, p. 169 ↩
122. Revised Statutes of 1849, ch. 16, § 14, p. 169 ↩
123. Revised Statutes of 1849, ch. 16, §§ 20–21, p. 170 ↩
124. Laws of Wisconsin, 1919, ch. 443, whose title ends “abolishing the poll tax,” published 3 July 1919; digital images, Wisconsin State Legislature (https://docs.legis.wisconsin.gov/1919/related/acts/443.pdf : accessed 6 August 2026) ↩
125. Revised Statutes of 1849, ch. 15, § 4, subsec. 8, pp. 138–39 ↩
126. Revised Statutes of 1849, ch. 15, § 4, subsec. 7, pp. 138–39 ↩
127. Laws of Wisconsin, 1911, ch. 658, creating secs. 1087m-1 to 1087m-30, “relating to taxation of incomes, and making an appropriation therefor,” published 15 July 1911; digital images, Wisconsin State Legislature (https://docs.legis.wisconsin.gov/1911/related/acts/658.pdf : accessed 6 August 2026) ↩
128. Revised Statutes of 1849, ch. 97, § 1, p. 510 ↩
129. Revised Statutes of 1849, ch. 97, § 3, p. 511 ↩
130. Wisconsin Statutes 1947, secs. 255.01 (qualifications) and 255.06 (bystanders called from the bystanders, the county at large, or the jury commissioners' list, with no freeholder requirement) ↩
131. Wis. Const. of 1848, art. III, § 1, in its original form. The word “white” and the declarant-alien class were removed by the amendment approved in November 1908, which took effect for such persons in 1912 ↩
132. Acts and Resolves Passed by the Legislature of Wisconsin, in the Year 1849, Together with Memorials to Congress (Madison: David T. Dickson, Printer to the State, 1849), ch. 137, approved by the voters 6 November 1849, as held in Gillespie v. Palmer, 20 Wis. 544 (1866); the chain is recited in the annotation to art. III, § 1 in The Wisconsin Constitution, Wisconsin Legislative Reference Bureau; digital images, HathiTrust (https://babel.hathitrust.org/cgi/pt?id=wu.89096039185 : accessed 6 August 2026) ↩
133. Revised Statutes of 1849, ch. 97, § 2, p. 510; Wisconsin Statutes 1947, sec. 255.02, subsecs. (7) and (8) ↩
134. Revised Statutes of 1849, ch. 98, pp. 516–29, whose provisions on the competency of witnesses turn on interest and on the manner of taking testimony, and nowhere on the sex of the witness ↩
135. Laws of Wisconsin, 1921, ch. 529, § 1; Wisconsin Statutes 1947, sec. 6.015(1) ↩
136. Laws of Wisconsin, 1921, ch. 529, § 2; Wisconsin Statutes 1947, sec. 6.015(2) ↩
137. No section of the Revised Statutes of 1849 fixes an age of criminal responsibility; the criminal chapters set penalties without reference to the age of the offender. The common-law ages therefore applied under Wis. Const. of 1848, art. XIV, § 13, which continued the common law in force until the legislature altered it ↩
138. Laws of Wisconsin, 1901, ch. 90, § 1, “An act to regulate the treatment and control of dependent, neglected and delinquent children in counties having over one hundred and fifty thousand population,” approved 26 March 1901; digital images, Wisconsin State Legislature (https://docs.legis.wisconsin.gov/1901/related/acts/90.pdf : accessed 6 August 2026) ↩
139. Laws of Wisconsin, 1901, ch. 90, § 1 ↩
140. Laws of Wisconsin, 1901, ch. 90, § 2 ↩
141. Laws of Wisconsin, 1929, ch. 439, § 3, creating sec. 48.01, “relating to a children's code for Wisconsin”: subsec. (2) gives all courts of record in the state original jurisdiction over neglected, dependent and delinquent children and directs the judges in each county to designate one or more of their number to sit as the juvenile court; subsec. (1)(c) defines a delinquent child as one under eighteen; subsec. (5)(a) gives the juvenile court exclusive original jurisdiction, with the criminal courts holding concurrent jurisdiction over delinquents over sixteen; digital images, Wisconsin State Legislature (https://docs.legis.wisconsin.gov/1929/related/acts/439.pdf : accessed 6 August 2026) ↩
142. Wisconsin Statutes 1947, sec. 48.01, subsecs. (1)(c), (2) and (3) ↩
143. Laws of Wisconsin, 1929, ch. 439, § 3, sec. 48.01, subsec. (3), requiring a copy of the birth certificate, or other documentary evidence of the date of birth satisfactory to the court, for the supplementary report on commitment, and closing the hearing and the record except on the order of the judge ↩
144. Revised Statutes of 1849, ch. 98, pp. 516–29, whose competency provisions turn on interest and on the manner of taking testimony rather than on the age of the witness ↩ ↩

Note: This law guide was created with assistance from multiple AI tools. Though a diligent effort was made to ensure the accuracy of the information provided, there may be unintentional errors. It's important to check the primary sources as needed to ensure accuracy.