Read Ebook: The Romance of Wills and Testaments by Vine Hall Edgar
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After the plague, the fire. That naturally does not loom large in wills, but references may be found. Thus Edmund Calamy, "minister of the gospel," whose will was dated October 4, 1666, and proved November 14th, gave to his "dear and loving wife," Anne Calamy, "all the ground whereon my house stood which was lately burned down, called or known by the name and sign of the Rose, and was situate and being in St. Nicholas Lane, London, and all the timber and all the materials which did belong to the same that yet remain unburned, ." "And as for the manner of my burial, my desire is to be buried in the ruins of Aldermanbury Church; and in regard of my many children my will is that, besides mourning unto my relations, nothing be given at my funeral, not doubting that my friends and acquaintances, who shall come to perform their last office of love to me, will not come out of expectation of anything, but out of pure love and respect to the memory of their deceased friend." This Edmund Calamy was committed to Newgate on January 6, 1663, the first Nonconformist who suffered for disobedience to the Act of Uniformity. Set free by order of the King, he was driven through the ruins of London, and the sight, it is said, broke his heart. He died on October 29, 1666, and was buried in the ruins of his church, "as near to the place where his pulpit had stood as they could guess."
Lastly, Thomes Rich , devised a messuage and premises in Lime Street, St. Andrew Undershaft, the rents to be distributed as to 40s. yearly to the minister of the parish to preach there two sermons, one on New Year's Day, the other on the third Tuesday in September, in thankfulness to God for the preservation of the parish from the Fire.
Appended to the will of Thomas Appletree, a lengthy document, is the following memorandum: "Be it remembered that on Saturday the one and thirtieth day of March last past before the date hereof Thomas Appletree, of Dadington, ... Esq., lying sick in his bed, his said brother William Appletree said thus unto him:--Brother I know you have made your will, pray where is it? His answer was:--It is in the little trunk at my bed's feet."
In this case the survivors seem to have been more anxious than the dying man that the will should not be mislaid. They were not subject to the delicacy of feeling of Mr. Weller in a later age. "Samivel," said Mr. Weller accosting his son on the morning of the funeral, "I've found it, Sammy. I thought it wos there." "Thought wot wos where?" inquired Sam. "Your mother-in-law's vill, Sammy," replied Mr. Weller. "In wirtue o' vich, them arrangements is to be made as I told you on last night respectin' the funs." "Wot, didn't she tell you were it wos?" inquired Sam. "Not a bit on it, Sammy," replied Mr. Weller. "We wos a adjestin' our little differences, and I wos a cheerin' her spirits and bearin' her up, so that I forgot to ask anythin' about it. I don't know as I should ha' done it indeed, if I had remembered it," added Mr. Weller, "for it's a rum sort o' thing, Sammy, to go a hankerin' arter anybody's property, ven you're assistin' 'em in illness. It's like helping an outside passenger up, ven he's been pitched off a coach, and puttin' your hand in his pocket, vile you ask vith a sigh how he finds hisself, Sammy."
The danger of a will's loss or destruction preys upon some minds, a subject which must be recurred to in the last chapter of this book. Various expedients to facilitate the finding of the will are adopted. Dr. Thomas Cheyney, Dean of Winchester, whose will was proved in 1760, began a codicil thus: "Whereas by my last will ...." Lord St. Leonards, the lawyer, made every effort for the safety of his will, it being carefully kept in a strong-box and securely guarded, as was thought; but when he died in 1875, and the box was duly opened, the will was missing after all.
"Thackeray," says G. W. E. Russell in "Seeing and Hearing," "did not traffic very much in wills, though, to be sure, Jos. Sedley left ?1,000 to Becky Sharp, and the opportune discovery of Lord Ringwood's will in the pocket of his travelling-carriage simplified Philip's career. The insolvent swindler, Dr. Firmin, who had robbed his son and absconded to America, left his will 'in the tortoiseshell secretaire in the consulting-room, under the picture of Abraham offering up Isaac.'"
No hiding-place is too unlikely. When Lord Hailes died in 1792 no will was to be found. The daughter and only child had given up hope of possessing the mansion-house, but when her servants were locking it up and closing the shutters, from behind a panel there fell the will which secured her the estate. Harris Norman, a pedlar, who died worth over ?11,000, left a will which was found in a silk hat; and lately a curious story was told in the Probate Court of a will found in a clock. The deceased's husband, it was stated, made a search for a will, but was for some time unsuccessful. As the greater part of his wife's property consisted of freeholds, in which under an intestacy he would take but a curtesy interest, it was with anxiety that the search was made. Eventually, at the back of a clock on the mantelpiece, the will was found, betrayed by the stopping of the clock. Not unnaturally a charge of forgery was set up. It is certainly dangerous, for more than one reason, to hide a will securely away. In this case the judge pronounced in its favour. "What more likely than after the deceased had been worried to make a will for little Hilda , she thought that she would leave her property to her husband? Was it likely that she would tell any one? Was it not likely that she would put it in some place--as in the back of the clock--which would not be opened for some days after her death?"
"Memorandum, that on the three and twentieth day of July, 1595, this will was found in the little black trunk of the said Elenor Clarke standing at her bed's foot, being found locked and opened in the presence of us John Worsopp, William Payne, John Smithe." The heirs of Charles William Minet, who died in 1874, a descendant of a family which had fled from France at the persecution of Protestants in 1686, were not so fortunate. No will could be found, and his manor-house was sold. But in 1905, on a death in another branch of the family, some neglected cases were examined, and in one of them lay the will. It showed that the estate had been settled in tail, and it was accordingly repurchased, that the testator's intentions might not be frustrated.
But intentionally or unintentionally, a will may be destroyed. The romance of wills breathes from this codicil to the will of a West Indian merchant. "Grenada, 20th March, 1795. I Simpson Strachan, of said Island, and in the town of St. George Northant, do make this codicil to my last will and testament dated 1786, the day and month I do not at present recollect nor can I have recourse to said will by reason of its being buried under ground to prevent its being burnt by the enemy." Sometimes a happy chance may preserve the tenour of a will. The estate of a testatrix who died in 1872 being at the time valueless, her will was not proved. But recent improvement in certain property made probate a necessity. The original will, however, had been destroyed in a fire, and only the copy of a copy remained. This copy, though imperfectly transcribed, was admitted to probate, subject to obvious emendations.
At other times a more serious problem is presented. A will may be destroyed by the testator, or in his presence, but not necessarily so as to revoke or annul it. Upon this point interesting actions turn from time to time, and curious family histories are disclosed. It is very difficult to decide in some cases whether the deceased himself destroyed the will or whether at the time he approved of its destruction; the time and temper lost, the publicity involved, show how foolish it is to die intestate. If one wishes the estate to devolve under the statutes for the distribution of intestates' property, it is still possible to make a will stating that this is the testator's desire.
For the purposes of poetry, drama, and fiction, this theme is obvious but not negligible. There is a remarkable similarity between the atmosphere of Sir Arthur Pinero's dramas and George Crabbe's poems. Each, too, has chosen in one instance the criminal destruction of a will to build upon, and while Crabbe's poem, "The Will," is slight and Pinero's drama, "The Thunderbolt," is subtle, yet poet and dramatist are worth comparing.
In "The Will" a father wishes to disinherit his unworthy son and leave his estate to a worthy friend. The friend dissuades him, but keeps the first will in case the father should revive it.
"The Will in hand, the Father musing stood, Then gravely answered, 'Your advice is good; Yet take the paper, and in safety keep; I'll make another will before I sleep, But if I hear of some atrocious deed, That deed I'll burn, and yours will then succeed. Two thousand I bequeath you. No reproof! And there are small bequests--he'll have enough; For if he wastes, he would with all be poor, And if he wastes not, he will need no more.' The Friends then parted: this the Will possess'd, And that another made--so things had rest."
Until the father died.
"Unhappy Youth! e'er yet the tomb was closed, And dust to dust conveyed in peace reposed, He sought his father's closet, searched around, To find a will: the important will was found. Well pleased he read, These lands, this manor, all Now call me master! I obey the call! Then from the window looked the valley o'er, And never saw it look so rich before. He viewed the dairy, viewed the men at plough, With other eyes, with other feelings now, And with a new-formed taste found beauty in a cow. The distant swain who drove the plough along Was a good useful slave, and passing strong! In short, the view was pleasing, nay, was fine, 'Good as my father's, excellent as mine!' Again he reads,--but he had read enough; What followed put his virtue to a proof. 'How this? to David Wright two thousand pounds! A monstrous sum! beyond all reason!--zounds! This is your friendship running out of bounds. Then here are cousins, Susan, Robert, Joe, Five hundred each. Do they deserve it? No! Claim they have none--I wonder if they know What the good man intended to bestow! This might be paid--but Wright's enormous sum Is--I'm alone--there's nobody can come-- 'Tis all his hand, no lawyer was employed To write this prose, that ought to be destroyed! To no attorney would my father trust: He wished his son to judge of what was just, As if he said, My boy will find the Will, And, as he likes, destroy it or fulfil. This now is reason, this I understand-- What was at his, is now at my command. As for this paper, with these cousiny names, I--'tis my Will--commit it to the flames. Hence! disappear! now am I lord alone: They'll groan, I know, but, curse them, let them groan.'"
Needless to say, Wright inquires for the will, and is told that there is none. After expostulation and discreet delay, the friend is satisfied that the will is destroyed: to the son's consternation a copy of the first will is produced, and David Wright becomes the lawful heir.
In "The Thunderbolt" the simple theme is drawn out with quiet but subtle skill. An elder brother dies, rich and with one child only, a natural daughter. The family, upon whom nature has showered neither excellence nor wealth, assembles with all the gloom and all the curiosity appropriate to the occasion. It appears that there is no will forthcoming; the daughter therefore will have no share in the estate, the brothers and a sister being entitled between them. But when all is thought to be settled and safe, when each has devised a new scheme and scale of life, a brother breaks in upon the smug conclave announcing that there was a will, but that he had destroyed it. His story breaks down, and the act is traced to his wife who nursed the deceased on his death-bed, accidentally found the will, and after his death deliberately destroyed it. The poor daughter finds that her father has not forgotten her; the selfish family is thunderstruck. Such is the character, and hence the name, of the play.
In Sir Arthur Pinero's drama no lawsuit follows, all parties agreeing in a compromise. But in real life probate actions are a rich source of intimate dramas and revelations. From them innumerable details emerge: threats and cajolery, rights and wrongs, loves and hates, stand out with all their tender or terrible insistence. In fiction inevitably they find a place. In "Mr. Meeson's Will" Sir Henry Rider Haggard has discovered an extraordinary theme, but he has not shown the art which made the ordinary theme of "The Thunderbolt" a subtle and telling play. Mr. Meeson is outraged by his nephew's plain-speaking, which reminds him of his unrighteous dealings, and in a rage cuts him out of his will. The girl on whose behalf the nephew was to be disinherited is, by a strange course of events, thrown with Mr. Meeson on a deserted island, with two sailors and a child only besides. In terror of death, which swiftly overtakes him, Mr. Meeson would revive his former will, but there is nothing with or upon which to write it. The only possible method is to tattoo the dying man's desires upon human flesh, and this is done by one of the sailors upon the back of the tortured girl. She is rescued by a passing ship; and on returning home a probate action, such as never yet had been, was fought out to a triumphant conclusion.
FOOTNOTES:
WILLS NOT FULFILLED
"Fallax saepe fides, testataque vota peribunt; Constitues tumulum, si sapis, ipse tuum." ANCIENT EPITAPH.
It is impossible for a will to be always and in all events binding. If Virgil's will had been scrupulously observed, his fame would have been grievously curtailed; for the "AEneid" should never have been published. It is said that he gave directions for its burning, and that his executors, Varius and Tucca, received his manuscripts on condition that they published nothing he had not edited himself.
"For Poetry is nothing if not perfect," and the three years which he was to devote to its polish and perfecting were not granted in his allotted span. But Augustus, and Virgil's executors, were wiser than he himself, though the touch of the vanished hand could not mould its beauty to perfection. It was unfinished: but only as Turner's "Canal at Chichester," or Schubert's "Symphony," are unfinished.
There are such occasions: but it is easy to understand with what desire the testator desires his wishes to be fulfilled. His will, he feels, should be inviolable. "Finally," says George Ludewig Count von der Schulenburg in 1774, "as I hope that this my disposition and last will will be strictly and inviolably observed by my dear children, provided they do not mean to merit my paternal displeasure and the wrath and punishment of the supreme Being, so on the other hand I heartily wish them every fatherly blessing and the grace of the Almighty, and do earnestly recommend them to His omniscient guidance."
Thomas Rigden, of the County of Kent, shows a lively desire that nothing should be done amiss. "June 24th, 1746. This in the name of God, the Father Son and Holy Ghost. I Thomas Rigden, having a very great desire that my last will and testament may be fulfilled after that I am dead, for the good of my wife and children, have taken upon me to write these few lines. Now this is my desire as follows. Now with my free will do I give all that I have or all that I shall leave ... to my wife Alice Rigden, for her use and for the use of bringing up my children. And my desire is by all means that my children may all agree and live in love one with another, which I pray God grant they may all do. So fare you all well, my dear wife and my dear children. This is my last will, and I hope you will fulfil it."
Elenor Clarke , widow of Bartholomew Clarke, of Clapham, whose will was proved in 1594, gave the custody of her son Francis to her brother John Haselrigge, "charging my said brother as he will answer before the Tribunal seat of God to deal honestly and faithfully with him and by him." But how he fared we do not know. "And I charge you Ed. Lascelles my sole executor before God to be punctual," says Robert Knox, for twenty years a captive in Ceylon, "in performing all this that I have given, lest the cries of the widow and fatherless come up to heaven against you, and your lot be a curse instead of a blessing" .
If Bishops and Kings must write with such vehemence, how shall the humble citizen fare? The possibility of the deceased's wishes being neglected or overridden was so real that old writers advise the charitable to exercise their charity in their lifetime, and not to trust to executors or friends. Their faithlessness had even passed into a proverb: "three executors make three thieves." Thus John Stow, in his "Survey of London," remarks how often wills were proved but not performed: "Thus much for famous citizens have I noted their charitable actions, for the most part done by them in their lifetime. The residue left in trust to their executors. I have known some of them hardly performed, wherefore I wish men to make their own hands their executors, and their eyes their overseers, not forgetting the old proverb:
"Women be forgetful, children be unkind, Executors be covetous, and take what they find. If any body ask where the dead's goods became, They answer, So God help me and holydom, he died a poor man."
Jeremy Taylor, in "The Rule and Exercises of Holy Dying," has the same thought and the same proverb in his mind: "He that gives with his own hand shall be sure to find it; but he that trusts executors with his charity, and the economy and issues of his virtue, by which he must enter into his hopes of heaven and pardon, shall find but an ill account when his executors complain he died poor: 'think on this.'"
This interesting proverb was written upon a wall in St. Edmund's Church, Lombard Street, and is thus quoted in Weever's "Funeral Monuments":--
"Man, the behoveth oft to have this in mind, That thow geveth wyth thin hond, that sall thow fynd. For widowes be sloful, and chyldren beth unkynd, Executors beth covetos, and kep al that they fynd. If eny body ask wher the deddys goodys becam, They answer, So God help me and Halidam, he died a poor man. think on this."
Other proverbial lines are quoted by Thomas Fuller, and a fresh turn is given to the thought, in his "Cambridge History." "It is the life of a gift, to be done in the life of the giver; far better than funeral legacies, which, like Benjamin, are born by the loss of a parent. For, it is not so kindly charity, for men to give what they can keep no longer: besides, such donations are most subject to abuses.
"Silver in the living Is gold in the giving; Gold in the dying Is but silver a-flying; Gold and silver in the dead Turn too often into lead."
It is pitiable to think how many elaborate and kindly dispositions never bore fruit, and legitimate to believe that executors are more honest now. But, in spite of failures, English life and customs are largely bound up with bequests. Innumerable gifts meant for perpetuity never took effect or have passed into oblivion; but a goodly number remains, to which year by year additions are made. Picturesque survivals may often be traced to some will, no less than studentships or professors' chairs, almshouses or doles, institutions or the treasures that adorn them. Such a record as Johnson's "Annuities to the Blind" suggests how much one class owes to beneficent testators.
For nearly two hundred years a quaint custom has marked February 2nd at Wotton, in Surrey, in pursuance of the will of William Glanvill. Boys of twelve to sixteen stand bareheaded round the testator's tomb, recite the Lord's Prayer, the Ten Commandments, and the Apostles' Creed, read the 15th chapter of the First Epistle to the Corinthians, and write down two verses therefrom. After these tests five boys are selected, and receive 40s. apiece. As an instance of a school founded by a will, John Neville, Lord Latimer , may be quoted. "After my decease the Master and Vicar shall take all the rents of the parsonage of Saint George Church in York, for the term of forty years, and therewith to find a schoolmaster at Well for keeping a school and teaching of grammar there, and to pray for me and them that I am most bounden to pray for." The school exists, but does the master pray for the worthy founder still?
Personal reasons, lastly, may bring about the breaking of a will. Sir Edmund Bury Godfrey's recommendations for his funeral have been quoted: he desired to be buried in the meanest place, without pomp or pageantry, without numerous attendants either of friends or relations, very early in the morning or very late at night, as privately as possible, without sermon or harangue. But the excitement and notoriety of his end, the passions that it aroused or signified, could not suffer him so to depart. His death and funeral are part of the history of his time. On October 12, 1678, he disappeared: on the 17th he was found dead in a ditch on the southern side of Primrose Hill. The funeral was postponed till the 31st, when his body was borne to Old Bridewell, and publicly lay in state. A solemn procession accompanied it through Fleet Street and the Strand to St. Martin's Church, where it was buried and a sermon preached by the vicar, William Lloyd. Thus was his will wholly set at nought--a remarkable but perhaps a pardonable violation.
DR. JOHNSON'S WILL
"My readers," writes Boswell, "are now, at last, to behold Samuel Johnson preparing himself for that doom from which the most exalted powers afford no exemption to man." There can be few sights more fascinating. In the case of Johnson there is an especial fascination, since for many years he felt, and at times expressed, fear and horror of death in a degree to which most men are strangers. He said "he never had a moment in which death was not terrible to him." But toward the end this horror abated, so that there is a peculiar beauty in the opening of his will, which he made but five days before his death. "In the name of God, Amen. I, Samuel Johnson, being in full possession of my faculties, but fearing this night may put an end to my life, do ordain this my last will and testament. I bequeath to God a soul polluted with many sins, but I hope purified by repentance and I trust redeemed by Jesus Christ."
He calmly anticipates the acceleration with which he advances towards death. But, now as formerly, he will not dogmatise on his salvation; he "hopes" and "trusts." "A man may have such a degree of hope as to keep him quiet," he had observed on one occasion; but on another, "No man can be sure that his obedience and repentance will obtain salvation." He might have prayed, as did Sir Francis South in his will dated November 14, 1631, "beseeching Him for the all-sufficient merits and infinite mercies of His only Son and my alone Saviour Christ Jesus to accept of this my poor sacrifice, and freely to pardon and forgive me my many multiplied sins and transgressions, and in the love of His most blessed Spirit to give me some comfortable assurance thereof during my time in this vale of flesh, that I may joyfully and willingly part with this miserable world to live with Him for ever in His eternal rest."
It was this "comfortable assurance" that Johnson needed. To the last he seems logically to have maintained the distinction between hope and belief, but emotionally to have discarded it. Certainly at the end he was resigned.
Boswell mars the rhythm of Johnson's formal act of faith, and the depths of meaning it conveys , by writing "but I hope purified by Jesus Christ" in place of the fuller form "but I hope purified by repentance and I trust redeemed by Jesus Christ." A namesake, the Rev. Samuel Johnson, whose will is dated November 8, 1777, and was proved on June 3, 1784, has a similar clause in words that strongly recall the theological arguments and vocabulary of the Doctor. "My soul I commit and commend altogether to the mercy of God in Christ Jesus trusting through His merits and powerful mediation to be saved from that eternal punishment whereof I am deserving on account of my sins, and to inherit all that eternal life promised in the Gospel to all them that obey Him: even so, Lord Jesus."
The Rev. Samuel Johnson appears to have made his will betimes. But of Dr. Johnson Boswell has to say: "It is strange to think that Johnson was not free from that general weakness of being averse to execute a will, so that he delayed it from time to time; and had it not been for Sir John Hawkins repeatedly urging it, I think it is probable that his kind resolution would not have been fulfilled." But Sir John was not satisfied with the Doctor's will when made. The deficiencies that he detected therein he attributed to its late execution. We may, however, leave Boswell and others to settle this controversy.
Yet it is strange that any should jeopardise the fortunes of others, and frustrate his own desires, by tarrying to set his house in order: it can be explained only by neglect or superstition. Dr. Johnson did not take to heart his lines in "London":--
"Prepare for death, if here at night you roam, And sign your will before you sup from home."
It is curious that it should sometimes be a case for jocularity if a man make his will betimes. Possibly this light-heartedness is assumed as a cloak to hide from ourselves the gravity of our inevitable end. If this be so, it is not surprising to find Dr. Johnson convulsed with hilarity when his friend Langton made his will. But the story is an extraordinary one. "He now laughed immoderately, without any reason that we could perceive," says Boswell, " ... called him the testator; and added, 'I dare say he thinks he has done a mighty thing. He won't stay till he gets home to his seat in the country, to produce this wonderful deed: he'll call up the landlord of the first inn on the road; and, after a suitable preface upon mortality and the uncertainty of life, will tell him he should not delay making his will.... He believes he has made this will; but he did not make it; you, Chambers, made it for him. I trust you have had more conscience than to make him say, 'being of sound understanding'; 'ha, ha, ha! I hope he has left me a legacy. I'd have his will turned into verse, like a ballad.' ... Johnson could not stop his merriment, but continued it all the way till he got without the Temple-gate. He then burst into such a fit of laughter, that he appeared to be almost in a convulsion; and, in order to support himself, laid hold of one of the posts at the side of the foot pavement, and sent forth peals so loud, that in the silence of the night his voice seemed to resound from Temple-bar to Fleet-ditch."
Johnson had not wife or children of his own to provide for, but he had many friends. As already hinted, some of these he offended by the omission of their names. For this reason also he displeased Lucy Porter. Boswell says that she should have considered that she had left nothing to Johnson, though her will was made in his lifetime. But it is fair to remark that she mentions few names in all, and that her will was not executed until September in the year of Johnson's death.
Thus even so simple a document as Johnson's will occasioned searchings of heart, a result that some strive heroically or pathetically to avoid. "I again desire that all things may be composed with peace honour and honesty," wrote Dorothy Eve, of Canterbury, in 1691. A merchant, James Clegg, whose will was proved the same year as Johnson's, declared that he made his testament "to explain my last will for the distribution of what shall result to be my property and to me belonging at the time of my decease, in such manner that I hope not to embroil those persons who will have the pleasure of surviving me." Wills that stir the passions and sting the memory are indeed of frequent occurrence. Wills that satisfy every friend must surely be few.
To what an extent the remembrance of friends may be carried is illustrated by a will made a few years after Johnson's death. While Johnson bequeathed books to less than a score of friends, Martha Shorte, in a list which must long have engaged her thoughts, bequeaths mementoes to more than a hundred beneficiaries. "The small trifle," she says in one place, "is only to denote that all my kind neighbours lived in my memory." In some cases it may be surmised, or at least the suspicion will cross the mind, that her friends were not unaware of her testamentary tendencies. To one, for instance, she gives "two mahogany stools that she used to like," to another, "an old inlaid Chinese cabinet that she always admired," to another the "yew-tree card-table which she admired." But there is a danger in lavish remembrance: for if one be omitted where many are comprised, the sting is so much the more sharp.
Johnson left the residue of his estate to his negro servant, Francis Barber. Even this raised dissent. Sir John Hawkins, says Boswell, seemed not a little angry at this bequest, and muttered a caveat against ostentatious bounty to negroes. Barber had once been a slave, but had received the gift of liberty under his master's will. The latter years of his liberty Johnson hoped to provide for.
Simpson Strachan, the merchant whose will was buried for fear of the enemy, may illustrate the case of Barber. "My will and my intention is that my negro man ... in virtue of his faithful services be made free of all slavery whatever, and I do hereby order and ordain and request my executors to pay all the expenses attending his freedom from my estate, and that they give him the sum of ?330 currency to his own use and behoof as a reward for his fidelity and attachment to me." Most would agree with Boswell that a faithful servant, in lieu of near relations, is peculiarly entitled to enjoy
"A little gold that's sure each week, That comes not from his living kind, But from a dead man in his grave, Who cannot change his mind."
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