In the year 1914 the Lincoln Record Society issued to its
members Volume I of Lincoln Wills registered in the District
Probate Registry at Lincoln. (fn. 1) The present volume continues the
same series of wills from the beginning of the year 1527 (old style),
where the previous volume stopped. A few earlier wills, which have
been found since Volume I was issued, are printed at the beginning;
and a few more, which have come to light while the present book has
been in the press, are added at the end.
The principles laid down in the preface to Volume I have been
followed. Accordingly, this volume gives abstracts of all the
wills that have been found for the period which it covers, namely,
25 March, 1527, to 31 May, 1530. A good deal of common form, and
many unimportant bequests have been omitted. Sometimes, when
the testator is more than usually verbose, the will has been drastically
shortened. An instance of this occurs at line 15 from the foot
of page 119 to line 9 on page 120. Though a will may be thus
shortened by omission, the printed abstract preserves the actual
words of the original. Where, for the sake of brevity or clearness, it
has been necessary to depart from this rule, and to use words
not found in the will, the substituted words have been enclosed
in square brackets as in the thirteenth line of Richard Herde's will on
page 19. Where the substitution is of some length, the brackets
have been printed in heavy type in order that they may the more
easily catch the reader's eye, as on pages 119 and 120.
Though there is nothing in this volume quite equal in point of
antiquarian interest to the wills of Richard de Whitewell and
Geoffrey le Scrope in Volume I, there are many wills which illustrate
the manners and customs of the Tudor period, while there is scarcely
one that will not be of value to the genealogist.
§1. The last will made when death is imminent (fn. 2)
As in the earlier period, most of the wills are made when the testator
sees death close at hand. It is so near that a testator can give a list
of the 'dettes that I awe at the hore of death.' (fn. 3) Once the interval
between the date of the will and its probation is only four days (p. 34).
The usual period is a few weeks; and the little more or the little less
seems almost to tell us the length of the testator's last illness.
Sometimes he recovers, unexpectedly it may be, and this may
account for a longer interval in a few cases—five years (pp. 3, 4),
ten years (pp. 9, 11), twelve years (pp. 8, 9), twenty-eight years
(pp. 2, 3), etc. Or perhaps he is a provident person who makes his
testament in days of health,
quia nichil certius morte, nichil incertius hora mortis,
to use a phrase, coined seemingly by Bracton, (fn. 4) which caught men's
fancy, and is often quoted in the centuries which follow. Men,
however, are superstitious, and in the sixteenth century, and no
doubt earlier too, it is considered unlucky to make a will except
when death is close at hand, for he who makes his will before
he falls sick will surely not live long. (fn. 5) Some who make their
testaments betimes are evidently influenced by the dread of some
imminent peril, such as the outbreaks of the plague which occurred
frequently in the reign of Henry viii, and caused enormous loss
of life. Thus:
I Henry Chambres off Horncastr', beyng of a hole mynde and perfyte
remembraunce, preventyng by the grace of God the incerten stroke of dethe and
the sodan knokkyng and flagicion of allmyghtty God, now beyng in good
helthe, makyth my last will and mynde (p. 15).
I Thomas Chambers of Bolyngbroke, off good helth and prosperite, loved
be God, but dredyng the howre uncerten off deth, makyth my testament wherin
is conteynyd my last wyll (p. 36).
I William Preston, hole in mynde and saff in body, dredyng the perell of
dethe, makes my last will, [etc.] (p. 77; cp. p. 143).
I Thomas Spurre of Myddell Rasen, concernyng man to be mortall,
makyth my last testament (p. 171).
The intervals between the date of the will and probate in these
cases are seven and a half years, ten days, two years, and four
§2. The last will a religious instrument
The wills in our period are religious instruments still, as they will
be till comparatively modern days. They begin with an invocation
of the Holy Trinity; then they commend the soul to God, blessed
Mary, and all the saints or the whole company of heaven. Directions
are nearly always given for the burial of the body; and also for the
payment of the mortuary, principal, corse-present, or soul-scot to the
parish priest. Often, too, there is a payment for tithes negligently
or, perhaps conveniently, forgotten; for the man is going to make his
last account, and the old system of the collection of tithes in kind has
given him opportunities, which maybe he has used, of defrauding the
parson of his due. Much money is at times directed to be spent
on the funeral with its elaborate services—placebo, dirige, commendation, and mass of requiem. (fn. 6) Perhaps a trental of masses is to
be sung by thirty priests on the day of burial (fn. 7) for the souls of
the testator and his kindred (p. 139). Money is to be spent also in
payments to priests and poor people with a view to securing a good
attendance at the funeral; and a dole of bread or money is to
be given to the poor who are present. Sometimes provision is made
for a tomb or a lairstone in the church (p. 164). The cost of a funeral
must often have been large, and occasionally enormous. In 1594
George Wilmer of Westham in Essex, appoints a sum of five hundred
pounds for the 'christianlike accomplishment' of his funeral, (fn. 8) and
that at a time when the religious ceremonies at the burial of the dead
had been reduced to a minimum. Some people, however, are opposed
to suchlike extravagance. One testator directs
that ther shall be no peny dole dolte for me at my buryall, nor none assemble
for that cause to be had, at the churche where I shall be buryed, of pore folkes;
and I will that warnyng shall be gyffyn theroff (p. 90).
That this direction is not made in a spirit of parsimony is clear
for he proceeds:
I will that oon hundreth grootes be dolte to on hundreth persons that be
in povertie and age (ibid.).
Another charges his executors that they shall
make no pompouse buryall, but bryng my body to the grounde honestely with
owt any solempe ryngyng of all the bellys, savyng on peale afore dirige and on
other peale at messe, and ellys but on bell be rung continually to I be layd
in the grounde in my long bedde (p. 89).
Two other testators speak of the tomb as their home. 'When I ame
broght whoom' (p. 61); ' they [the executors] to pay my dettes and
to bryng me home as they thynk best for the helth of my soule'
(p. 152). Another desires that his body be brought to 'the holy
moldes' (p. 112).
Besides the ceremonies of the day of burial provision is sometimes
made for services on the seventh and the thirtieth days after
death, and for an obit on the year-day, anniversary of death, or
mening-day. Sometimes the year-day means the first anniversary of
death (pp. 120, 210); but generally the term signifies an obit to be
observed for a term of years or in perpetuity. Hugh Schawe
gives minute directions for the observance of an obit and other days
for the health of the souls of himself and his five wives (pp. 189–91).
In some cases the masses are to be said at Scala Caeli. Testators
seek to secure the prayers of the faithful at the obit, no less than at
the funeral, by payments to priests and doles to the poor, and by
giving directions that those who come shall be entertained with bread
and cheese and beer. Other testators provide for daily masses, and
occasionally a chantry is founded, or pilgrimages to the shrines of
popular saints are ordered.
An account of the various services for the burial and commemoration of the dead was given in Volume I (pp. 245–247), but it may be
of interest to mention here some of the amounts which were paid for
masses for the departed—a mass at Scala Caeli, 4d. (p. 190), 5d. (p. 196);
a trental (30 masses), 10s. (p. 102); yearly stipends of priests, 40s.,
a bonnet, and a shirt (p. 143), 4l. (p. 188), 4l. 13s. 4d. (pp. 18, 55, 90,
140, 178), 5l. (pp. 73, 102, 117, 124, 135, 173, 178), 5l. 6s. 8d. (pp. 12,
40, 81, 87, 125, 145, 146, 155, 160, 170, 190, 203, 214).
§3. The 'last words'
The practice of making the last will only when death is imminent
is reminiscent of a time before the Norman Conquest, when a dying
man made a verbal disposition of his goods almost with his latest
breath. This was probably done as part of a religious service, in
which also he made his last confession. It is not unlikely that the
verbal disposition was accompanied by some kind of delivery of
possession, some actual handing over of the chattels to the legatees.
By the twelfth century it is customary to record the disposition in
writing; and, even when it is made some few days before death, it
seems still to be regarded as the testator's last words, verba novissima,
uttered in advance.
In Anglo-Saxon times the parish priest must needs be present to
receive the dying man's confession and to hear his last words; and
in the two volumes of Lincoln Wills the priest is still in most cases
the first and principal witness. It may further be remarked that the
English Church, in the order for the Visitation of the Sick in the
Book of Common Prayer, still directs the parish priest to admonish
the sick man to make his will, if he has not already done so; though,
it is added, 'men should often be put in remembrance to take order
for the settling of their temporal estates, whilst they are in health.'
§4. Importance of the 'last words'
It seems probable that, from the time when Christianity was
introduced into England, the Church taught that a dying man is
bound to make reparation for his sins by devoting a portion of his
fortune to the relief of the poor and other good works. (fn. 9) In Cnut's
day it is unusual for a man to die without 'last words.' During the
eleventh, twelfth, and thirteenth centuries there is an intense horror
of intestacy. In 1271, Henry de Colebi makes his testament 'nolens
decedere intestatus' (see below p. 215). It is a common opinion that
the man who dies without 'last words,' intestate, dies also unconfessed; and for such an one it is very difficult to obtain burial in
consecrated soil. The best that can be done for him is to distribute
his property for the good of his soul, and to leave him in the hands
of God, Whose mercy is infinite. (fn. 10) Even if the man has died suddenly
without an opportunity of uttering 'last words,' there is grave cause
for alarm. Professor Maitland relates some mediæval stories about
intestacy, of which three may be quoted here:
There were malicious men who did not scruple to assert that Archbishop
Hubert, who had been chief justiciar, had died intestate. A friendly chronicler
has warmly rebutted this hideous accusation. In Henry iii's reign the monks
of St. Alban's believed that an enemy of theirs, Adam Fitzwilliam, a justice
of the Bench, had died intestate. True that his friend and colleague, William
of Culworth, had gone before the bishop of London and affirmed that Adam
made a will of which he, William, was the 'procurator and executor'; but
this, said the monks, was a pious lie. A pious lie—for William was striving
to defend his companion's fair fame against the damning charge of intestacy.
Of another enemy of St. Alban, the terrible Fawkes of Breauté, it is written
that he was poisoned; that having gone to bed after supper, he was found
dead, black, stinking and intestate. (Hist. of Eng. Law, ii, p. 358).
There is, however, felt to be a wide difference between the man
who is snatched away by a sudden and unexpected death, 'subita et
inpreparata morte,' and the man who lies upon his sick bed
obstinately refusing to make his confession and to utter his 'last
words,' who will make no response either by word or by gesture to
the appeals of his confessor or his kindred, but 'dies, and makes no
sign.' (fn. 11) Professor Maitland gives an illustration:
In Edward i's time a man was attacked by robbers and he was found by
the neighbours at the point of death; he died before a priest could be brought
to him; he was buried in the high road. Archbishop Peckham took a merciful
view of the case:—It is said that the poor wretch asked for a priest; if this
can be proved, let his body be exhumed and buried in Christian fashion, for he
did what he could towards making a testament. (Hist. of Engl. Law, ii, p.
§5. Manuscript sources
The existing Lincolnshire wills are preserved in the following
1. The Lincoln District Probate Registry of the High Court of
Justice—These wills begin about the year 1500, and particulars of
the several courts in which they were proved is given in Calendars of
Lincoln Wills (vol. i, pp. x-xii, Publications of the British Record
2. The Registry of the Bishop of Lincoln—The earliest will is
dated 1319, and the latest 1537. Abstracts of these wills were printed
by Mr. Alfred Gibbons, in 1888, under the title of Early Lincoln
Wills, and they include the wills of testators who dwelt in those parts
of the ancient diocese of Lincoln, which lay outside Lincolnshire.
3. The Muniment Room of the Dean and Chapter of Lincoln—
There are a very few original wills, such as those of Henry de Colebi
(see below p. 215), Henry Baundeney, 'Illuminator' (vol. i, pp. 4, 5),
and Avice de Crosseby (ibid., pp. 5–7); also a few detached copies,
such as the wills of Christiana de Bennington (ibid., pp. 2–4); and
Geoffrey le Scrope (ibid., pp. 11–19); and a large number of copies,
from about the year 1335, registered in volumes of Chapter Acts.
The Chapter Acts from 1520 to 1559 are now being edited by Canon
Cole for this Society; and in the two volumes of his work which
have appeared already many wills are recorded (Publications, xii, xiii).
4. Lambeth Palace Library—The wills, which extend from
about 1313 to 1644, are registered in the Archiepiscopal Registers,
and a list of them has been printed in the Genealogist (old series,
volumes v, vi). A new calender of these wills by Mr. J. Challenor
C. Smith, f.s.a., is in course of publication in the Genealogist
(new series, vol. xxxiv, p. 53).
5. The Muniment Room of the Dean and Chapter of Canterbury
—A few Lincolnshire wills are registered among the wills proved
before the prior and convent of Canterbury during vacancies in the
archiepiscopal see (see Historical Manuscripts Commission, eighth
report, appendix, pp. 331–335).
6. The Prevogative Court of Canterbury at Somerset House—
The wills are all registered copies, and the earliest Lincolnshire
testament is dated 1388 (Rous 2).
In the earlier half of the sixteenth century the general practice
in the county of Lincoln seems to have been for the executors, when
they proved a will before the official of the ecclesiastical court,
whether registrar or commissary, to exhibit the original document.
A copy was thereupon made by the official unless, as sometimes
happened, the executors brought instead of the original will a copy
attested by a notary. The copy was then registered at Lincoln by
being copied into a volume or register. Thus were there three
documents—the original will, the copy for registration, and the
registered copy. Of the wills printed here the originals, as well
might be expected, are not now forthcoming; the copies also have
disappeared; but the registered copies are preserved in the form of
bound volumes in the District Probate Registry at Lincoln. It will
be convenient to take these three classes in the reverse order, and to
follow their history down to 1670.
1. The registered copies—These begin with a volume entitled
1506 and subsequent years, and are continued in a long series of
registers. All the wills that have been found prior to June, 1530,
have now been printed in Lincoln Wills, volumes i and ii.
2. Copies for registration—Of these copies the earliest that have
been preserved are dated 1538. At first they are often marked R. or
Reg', abbreviations which are sometimes extended into copia
registranda. They are written on sheets of paper of many sizes and
shapes, and in form they are exactly like the registered copies.
Between 1545 and 1575, with a view to saving the labour of copying,
some of the copiae registrandae have been bound up into volumes.
These volumes are much larger than the normal register, and of
course their leaves are of varying sizes. From about 1580 it is often
impossible to distinguish between the copiae registrandae and the
registered copies, and all that can be said is that, if the former are
bound into the registers at all, they are only so used when they are
written on sheets of the same size as the foolscap pages of the normal
register. No copiae registrandae have been found after 1610.
3. The original wills—After 1550 we first find amongst the
copiae registrandae what appear to be original wills. At first they are
few in number, but they gradually become more plentiful. From
1550 to 1575 they have sometimes been incorporated into the
registers in the way described with reference to the copiae registrandae.
After 1575 they are only bound into the registers when they are of a
suitable size. By 1600 it has evidently become the general practice
for the registrar to retain the original wills, binding them into the
registers when they are written on foolscap or smaller sheets, and
copying them into the registers when they are written on larger
sheets. After 1610 original wills are sometimes bound into the
registers and folded to fit the volume. From 1648 the registers are
composed entirely of original wills, those which are written on sheets
larger than foolscap being folded. For the purpose of binding, the
original wills are often arranged in quires of about six sheets, and
therefore it happens that, after turning over half a dozen leaves, each
containing a will, one comes next to half a dozen blank fly-leaves.
This arrangement is not altogether convenient, for every now and
then a note relating to probate or some other matter has been made
upon a fly-leaf which may now be separated from its proper will by
several intervening folios.
§7. Signature by testator and witnesses
Copies of wills before 1550—It has been stated already that,
with a very few exceptions, there are no original Lincolnshire
wills before the middle of the sixteenth century. In the copies on
which we have to rely for the earlier wills, the testator but seldom
states that he attests the will with his name or seal. Probably the
more important wills were sealed, while a few others were signed.
In two cases only between 1500 and 1530 has a signature been
reproduced in the copy. The names of the witnesses are invariably
given at the end of the text, and as forming part of it, after the
manner of such names in medieval charters. Their signatures or
marks, if any there were, have not been copied.
Original wills—When original wills begin to appear, about
1550, the signatures of testators and witnesses rarely occur.
The testator's seal is sometimes affixed to important wills. By 1590
signatures or marks occur much oftener, that of the testator being
commoner than those of the witnesses. Sometimes, however, the
witnesses sign when the testator does not. By 1610 it is the rule
that both testator and witnesses sign, but there are many exceptions.
From that time onwards the exceptions become fewer.
Copies of wills after 1550—By 1570 it has become more common
for the testator to state that he has set his name or, more often, his
mark or seal to the will, but very often the signature or mark has
not been copied. One testator, in 1570, says that he sets to his
sheep-brand; but it has not been reproduced. By 1600 it has
become quite usual for the testator to speak of appending his name
or mark, but it is still the practice to omit the signature. The names
of the witnesses are still recorded in the text, their signatures
being omitted. After 1600 the signatures or marks of testator and
witnesses are copied rather oftener than before. In a few instances,
between 1590 and 1610, both the original will and a copy have
survived, and it is instructive to compare them. The two will
occasionally be exactly alike; or the copy will reproduce the
signatures of testator and witnesses while omitting their marks; or,
more often, the copy will omit all signatures and marks, merely
recording in the text the names of the witnesses.
The conclusion which the evidence seems to warrant is that
there is a progressive tendency from the time of Henry VIII to raise
the status of the written document, and a gradual advance from a
time when the signature of the testator is not of much account, and
when it is sufficient merely to record the names of the witnesses,
towards a rule which will make it necessary for both testator and
witnesses to sign. That rule, however, was not fully established
until 1837. The testator's signature is first required by statute in
1540 (fn. 12) ; and then only if the will contains a devise of land in fee
simple. The Statute of Frauds (29 Charles II, cap. 3, sec. 5) first
makes it necessary for the witnesses of such a will to sign their
names, and requires that they shall be three or four in number. In
the case of a will of chattels the signatures of testator and witnesses
are not necessary to its validity until the Wills Act of 1 Victoria
(cap. 26, sec. 9).
§8. Nuncupative Wills
By the twelfth century it had become the general practice to
put the 'last words' into writing at the time of their utterance. It
is not uncommon, however, from that time onwards to find nuncupative wills, that is, wills made by word of mouth in the presence of
witnesses, and afterwards, probably when the testator is dead, reduced
to writing. The testament of Henry de Colebi in 1271 (see below,
p. 215) is a very early instance of such a will. Some early examples
are to be found in Testamenta Eboracensia, (part i, pp. 21, 36, 74,
264, etc.; part ii, p. 217: Surtees Society). The earliest nuncupative wills of the sixteenth century which have been found at Lincoln,
in a search, which after 1530 cannot claim to be exhaustive, belong
to the year 1561 (Register, 1561, ft. 164, 168d., 177d., 251d.).
The statutes of 32 and 34–35 Henry VIII, already referred to,
provide that a will containing a devise of land must be in writing;
but men are left free to make a verbal disposition of their goods and
chattels until the Wills Act of 1 Victoria (cap. 26, sec. 9), which
provides that no will shall be valid unless it shall be in writing, except
as regards two classes of persons, viz., 'any soldier, being in actual
military service; or of any mariner or seaman, being at sea.' These,
by section 11 of the Act, may make a will by word of mouth.
Nuncupative wills are sometimes written in the first person
singular, recording the testator's verba ipsissima; but generally, as in
the case of Henry de Colebi's testament (see below, p. 215), they are
expressed indirectly in the third person. A nuncupative will of
10 January, 1597–8, has the following title:
Wordes spoken by George Evorce at and before his deceasse in the hearinge
of Richard Henson and John Betridge as followeth. (Bundle M.).
The 'wordes' are given in the third person, and the witnesses do
An early nuncupative will written in the first person may be
indistinguishable from a written will, unless there is an express
statement that it is nuncupative. Moreover the line between the
two classes may not have been always easy to draw. A will
dated 1635, which is not nuncupative in form, has the following note
appended to it:
The said testatrix suddainly failed of sence speech and life before shee coulde
subscribe her hand hereunto. (Lincoln Consistory Court, book 1635, f. 6).
The testator's 'last words' are all-important: whether they are
written down before his death or afterwards is, until comparatively
modern times, a matter of less moment. Just as the medieval
charter did not convey land, but served as a record of a conveyance
effected by livery of seisin, delivery of possession; so, in the case of
the medieval will, the writing was not a dispository instrument
effecting a disposition of the testator's fortune, but rather a record of
a disposition made by word of mouth. Thus we find that a testator
of the year 1524 saying 'I wtterly revoke and disanull all other willes
by me herebefore made and spokon by my moth' (see p. 14, and
§9. Last will and testament
Sometimes a distinction is drawn between a will and a testament.
A testator executes two documents, a testament, appointing a
personal representative executor, like the testament of Roman law,
and disposing of his chattels; and a last will professing to make
a disposition of his land (pp. 23, 26–28, 33, 39, etc.). The will is
usually in the vulgar tongue, even though the testament in the
first quarter of the sixteenth century may still be in Latin. Generally
speaking, however, the last will and the testament are combined, and
the testator will speak of the composite document as 'my testament
and last will,' 'my testament concluding [or including] my last will,'
or 'my testamente in [th]e wheche conteynythe my laste wyll' (p. 114).
But often, as at the present day, the words will and testament are
treated as equivalent terms.
§10. Informal character of the last will
Although the last will usually follows, more or less closely, the
general form which is seen in the text, no particular form of words
is necessary to give it validity. Even at the present day no
particular form is required, and in the sixteenth century it may be
very informal indeed; for it may be anything from a solemn document
couched in approved legal phraseology, attested by seal, and
witnessed by a notary, or an indenture in three parts (p. 80), to a
rough note scribbled upon a scrap of paper, or a few broken sentences
uttered by one who is at 'his last gaspe (fn. 13) ,' or even feeble signs of
assent or acquiscence made in response to the suggestive questions of
the kinsmen or the parish priest. Any of these may be a good
and lawful testament; and in each case the ecclesiastical court will
decide whether or no the evidence is sufficient to prove the dead
man's mind and will.
In the last years of Henry II a strict primogenitary scheme was
established for the inheritance of land, chiefly with a view to
preventing the division of estates in the interest of the feudal system.
The result was that thenceforth there was one law of succession
to land and another law of succession to chattels. The real estate,
to use a modern term, went to the heir; the personal estate might
pass to other persons. About attempts to devise land and about
bequests of chattels something must now be said.
§12. Post-obit gifts of land
At the present day a testator may devise his land to whomsoever
he will. But he has not always had this power. Towards the end of
the twelfth century the king's judges had established the rule
that neither by his charter nor by his last will could a man make a
post-obit gift of land, a gift, that is, which was to take effect after his
death. His gift must take effect at once or it could have no strength
at all. Glanvill gives the reasons for this decision:
As a general rule every one in his life-time may freely give away to
whomsoever he pleases a reasonable part of his land. But hitherto this has
not been allowed to any one who is at death's door, for there might be an
immoderate dissipation of the inheritance if this were permitted to one who
in the agony of approaching death has, as is not unfrequently the case, lost
both his memory and his reason; and thus it may be presumed that one who
when sick unto death has begun to do, what he never did while in sound
health, namely, to distribute his land, is moved to this rather by his agony
than by a deliberate mind. However, such a gift will hold good if made with
the heir's consent and confirmed by him. (fn. 14)
An exception was made in the case of burgage tenements in boroughs,
which could be devised by will according to the custom of the town.
Wills from the thirteenth century to the sixteenth, however,
often profess to dispose of lands and tenements, and the present
volume supplies many instances of such dispositions. These devises
only held good, as Glanvill says, with the heir's consent, and by his
confirmation; but in early days at any rate, considerable pressure
could be brought to bear upon him with a view to gaining his
consent. Especially in the case of a gift to a church, he would
hesitate to invalidate what his father had tried to do for the safety of
his soul; and moreover he might fear that his father's curse might
light upon him.
In 1540, the Statute of Wills (fn. 15) gave a testator power to devise the
whole of his freehold land held in free socage and two-thirds of that
held by military service. When military service was abolished
by statute (fn. 16) , as from 24 February, 1645–6, the restriction as to twothirds disappeared since all freehold land was thenceforth held
in socage. A medieval testament of chattels, like a modern will,
was, to use a term of Professor Maitland's, an ambulatory instrument (fn. 17) ,
that is, it disposed not only of the chattels that the testator was
possessed of at the date of the testament, but of all the chattels that
might belong to him at the time of his death. With a will devising
land the case was different. The will was regarded as a kind of
conveyance, and not as an ambulatory instrument. The devise
therefore affected only such land as belonged to the testator at
the date of the will. Wherefore no after-acquired land could pass
under such a devise unless, after it had been acquired, the testator
had formally re-published his will. (fn. 18) This restraint with regard to
after-acquired land was removed by 1 Victoria (cap. 26).
Copyhold lands, and also any estate in freehold that was less
than a life-interest, could pass by any will or testament that
was sufficient to bequeath chattels.
§13. Bequests of chattels; Legitim
Even in the matter of his chattels a medieval testator, unlike a
testator of the present day, could not do what he would with
his own. True it is that in the thirteenth century if he had neither
wife nor child he could leave his goods as he liked. But if he left a
wife, or a child and no wife, he was restrained by the law of legitim,
according to which his goods, after his debts had been paid, were
divided into three equal parts, of which one passed to the wife,
another to his children, while the third, 'the dead's part' was at his
own disposal. If he died without a wife, he might dispose of
one half, while the other went to his child or children; or if he had
no children, the wife took half, and the other half was at his
own disposal. These shares were known as 'the wife's part,' 'the
bairns' part,' and 'the dead's part.' Among themselves the children,
whether sons or daughters, took equal shares. The heir would get no
share unless he brought into account the value of his inheritance,
that is the land to which he had succeeded, and every child who had
been 'advanced' by the testator in his life-time was bound to bring
back the value of the advancement into hotchpot before claiming his
'bairn's part.' 'The bairns' part' was limited strictly to children: if
a child had died, his offspring took no share. The shares of the wife
and children were called their reasonable parts; and the writ
de rationabili parte bonorum might be obtained to recover them. (fn. 19)
This almost certainly was the law throughout England in the
twelfth and thirteenth centuries. In the province of York it was
maintained until 1692 (fn. 20) , and it obtains in Scotland at the present
day. The date when it fell into abeyance in the province of
Canterbury is uncertain. In 1342 the provincial constitutions of
Archbishop Stratford speak of it as 'custom and law'; but in
Elizabeth's day the ecclesiastical courts of the province were no
longer enforcing the old rule, otherwise than as a very exceptional
local custom (fn. 21) .
Some reminiscences of the custom of legitim occur in the
I will that my chyldren partes be knawne what it cumyth too ... ... ... .
Also I wyll that the thyrde parte be disposyd for the helthe of my soule (pp.
I wyll that my goodes be devydyd in thre partes, my wyff to have on
parte, my chylder another, and the thyrd parte I will that my wyff and Gregory
my sonne, whome I make my executors, dispose for the helthe of my soule
(p. 177; cp. p. 123).
I will that all my goodes be devydyd in thre partes, on parte to Alice my
wyff, the secunde parte to my chylder ... ... ...; of the thyrde part my dettes
to be payd [etc.], and the resydewe to be disposyd for the helthe of my soule
and all crysten soulys (p. 206).
An instance may be added from the will of John Thomson of
Caythorpe, dated 16 December, 1545. After leaving fourpence apiece
to his godchildren, and to his daughter Jane 'a panne v shett[s]
v pillowe beres a payre of bead[s] a gowne and a kyrtill and a stone
of hempe,' he continues:
The residewe of my guddes I beqethe in thre partes, the fyrst to my selff,
a nother to my wiff, the third to my childer, and I will that Thomas and John
my sonnes have of my parte ether of them xxs. to mende ther partes and the
reste of my parte devydyd emonges all my children. (Lincoln Consistory
Court, book 1545–6, part i, ff. 64 and 64d.).
A considerable majority of the wills printed here provide that
the residue, which is evidently 'the dead's part,' shall be disposed, in
whole or in part, for the souls of the testator and his kindred and the
rest of the faithful. (fn. 22)
It is not always easy to say whether the residue is the whole
remainder of the chattels or only 'the dead's part,' 'the wife's part'
and 'the bairns' part' having been exhausted in the specific bequests,
or being left unmentioned to follow the custom of the country.
In many of the wills, and apparently in a somewhat increasing
number towards the end of our period, the residue is bequeathed to
wife or children or other relatives without special provision for
the testator's soul. In some of these cases, however, there are
specific bequests for religious purposes earlier in the will, and
the disposition of part of the residue for the spiritual benefit of the
testator is not necessarily excluded when the executors, as almost
invariably happens, are made residuary legatees. Sometimes it
is provided that the residue shall be used for the upbringing of
the children or for the maintenance of the wife.
The usual words of gift are, in Latin, 'do, lego'; in English,
'I give, I bequeath or wyte.' The distinction between a 'devise' of
land and a 'bequest' of goods and chattels is modern. In early wills
men profess to bequeath or wyte their land as well as their chattels.
§14. Jurisdiction in testamentary causes
From a time long before the Conquest the church had claimed
the right to supervise gifts devoted to religious or pious uses; and in
the twelfth century the claim had developed into a jurisdiction
in testamentary causes. In Glanvill's time, at the end of Henry II's
reign, a concordat was in process of being arranged between the king
and the church, by which the jurisdiction in causes of advowson was
to belong to the king's courts, while all testamentary causes were to
be within the jurisdiction of the courts christian, i.e. the ecclesiastical
courts. By the reign of Henry III this arrangement had been
established. From that time therefore we find that testaments and last
wills were, with some local exceptions, proved in the ecclesiastical
courts until all testamentary jurisdiction was transferred by the
statute of 1858 (20 & 21 Victoria, cap. 77) to the probate division of
the king's high court of justice. As was mentioned above, the
jurisdiction conceded to the church related only to the dead
man's chattels; it did not touch his land.
§15. Courts of Probate
The wills printed here were proved in the consistory court of the
bishop of Lincoln, the court of the archdeacon of Lincoln, and the
court of the archdeacon of Stow. The records of the last mentioned
court form a distinct series. The wills proved in the respective
courts of the bishop and of the archdeacon of Lincoln are, however,
generally indistinguishable. The same person often filled the office
of registrar to both bishop and archdeacon, and the lesser officials
also were common to both; it is therefore impossible in many cases
to tell the capacity in which they are acting, whether for bishop
§16. Who may make a will
It has been stated above (p. xix) that the statute of 32 Henry VIII
first authorised an owner in fee simple to make a will of his lands.
That statute was explained by 34 and 35 Henry VIII (cap. 5, sec. 14),
which enacted as follows:
That wills or testaments, made of any manors, lands, tenements, or other
hereditaments, by any woman covert, or person within the age of one and
twenty years, idiot, or by any person de non sane memory, shall not be taken
to be good or effectual in the Law.
This was the law until 1837, when the statute of I Victoria (cap. 26)
enacted as follows:
That no will made by any person under the age of twenty-one years shall
be valid (sec. 7).
That no will made by any married woman shall be valid, except such a
will as might have been made by a married woman before the passing of this
Act (sec. 8).
It will be observed that the statutes of Henry VIII relate only to
land, whereas the act of Victoria covers chattels also. With regard to
chattels the medieval doctrine in England was that a wife could not
make a will without her husband's consent which could be revoked at
any time before he had suffered the will to be proved. In the
fourteenth century the church attempted to enlarge the right of the
wife to make a will, a claim which led to a struggle between the lay
courts and the courts christian, the victory ultimately falling to the
Prior to the act of 1837 the doctrine was that boys of the age
of fourteen and girls of the age of twelve were capable of making
wills of chattels. The English ecclesiastical courts, to which the
jurisdiction in wills of chattels belonged, adopted these ages
from the Roman civil law; and herein they were upheld by the
King's Bench, which persistently refused prohibitions against allowing
wills made at such early ages.
By a very ancient custom a gift or offering was due to the parish
priest on the death of a parishioner. This gift was known as the
soul-scot, principal, corse-present, or mortuary. Its nature and value
were regulated by local custom, but it commonly consisted of the
best horse, best beast, best garment, or other chattel: hence the
name principal (Lat. principalium). It seems often to have been
presented at the door of the church with the corpse: hence the
name corse-present or corpse-present. Almost every will in our
period gives directions for the payment of a mortuary. These
directions, when they consist of nothing more than such words as
'the mortuary that is due,' or 'my mortuary after the manner [or
custom] of the town [or country or holy church]' have often been
omitted in the printed abstracts. The following specific gifts occur
as mortuaries—the best beast, the best quick good—33 times; the
best horse (5, 74, 152)—3 times; the best horse and the testator's
harness, i.e. armour (p. 22)—once; a 'done' (dun) mare (p. 166)—
once; a cow (pp. 70, 158)—twice; the best cow (p. 165)—once; the
best garment (pp. 69, 87), the best indument (p. 90)—thrice; the
best thing, the best good—23 times.
These specific offerings come to a sudden end with the close of
the year 1529 (old style), because on the first of April, 1530, a new
statute (21 Henry VIII, cap. 6), became law. This act, after reciting
in the preamble that there was doubt and ambiguity about mortuaries,
which were often 'over-excessive to the poor people and other
persons of this realm,' and were exacted from 'travelling and way
faring men,' ordained rules which may be summarized as follows:
1 No mortuary shall be demanded in respect of any person who had
movable goods under the value of ten marks at his death.
2 No mortuary shall be payable except where it has been the custom to
3 No more than one mortuary shall be demanded in respect of each
person, and that one in the place where he usually dwelt.
4 Mortuaries shall be paid according to the following scale:—Where
the value of the chattels of the deceased, after payment of debts, is
provided that in places where mortuaries have hitherto been accustomed to be paid of less value than is aforesaid, no person shall be
compelled to pay more than has been accustomed.
|i from 10 to 29 marks||3s. 4d.|
|ii from 30 to 39 marks||6s. 8d.|
|iii 40 marks or over||10s. 0d.|
5 No mortuary shall be demanded from a married woman or a child,
nor from a way-faring man except in the place where he usually
6 It shall be lawful nevertheless for parsons, vicars, and other spiritual
persons to receive any sum of money or other thing which shall by
any person dying be bequeathed to them, or to the high altar of their
church. (The Statutes at Large, ed. Keble, pp. 371, 372).
Some of the testators at the end of our period are influenced by
with my mortuary aftyr the acte of parliament late mayd and the custom of
the towne of Boston (p. 190).
for my mortuary accordyng to the statutes of the parliament (p. 200).
to the hygh alter for tithys forgotten xvjs. viijd., wherupon I will that xs. be
payd for the right of my mortuary, the rest for tithys forgotten (p. 186).
Selden in his History of Tythes (287, c. 10), says that a mortuary
is an offering to the church as a satisfaction for the supposed
negligence and omissions that the defunct had been guilty of in not
paying his personal tithes. But in this volume there are numerous
instances of bequests to the high altar, or to other altars, or to
the sacrament for tithes neglected or forgotten, in addition to
a provision for the payment of a mortuary.
§18. Particular bequests
A feature of early wills is the particularity with which a
testator bequeaths his chattels. Chairs, benches, tables, coffers,
ambries, pots, pans, basins, lavers, candlesticks, bed-stocks, pillows,
sheets, counterpanes, towels, cushions, pokers, tongs, plates, dishes,
'on habell muke carte', the 'best stee or lether' (p. 207), are
mentioned separately. Many of these common bequests have been
omitted in the abstracts, but every now and then they have
been printed by way of illustration (e.g. p. 48). The live-stock
is disposed of in like fashion; horses, ambling mares, stags, fillies,
cows, sheep, being specified. One testator 'wytes' his oxen called
Harte and Golding, and his horse called Begger (p. 195);
another bequeaths his mares, Broke and Mope (p. 196); another his
gelding called Blak of the Vale (p. 204). Other bequests include
hounds, greyhounds, and spaniels; stalls of bees and bee-hives;
swans and a swan-mark. Articles of clothing are often mentioned,
coats, tunics, doublets, breeches, jackets, kirtles, gaberdines, and
gowns of muster de villers or kendal or dornick. One man
bequeaths his 'doble stryped bonnet' (p. 172), another his red nyght
bonnet (p. 172). Sometimes the garments are more costly—a gown of
Bruges satin (p. 56), a long gown lined with satin of cypress (pp. 211,
214), a 'gyrkyn of dammaske' (p. 93), or gowns furred or lined with
fox or fitch (pole-cat) (pp. 93, 211). Articles of silver or silver-gilt
also appear—cups, peces, nuts, goblets, mazers, salts, bowls, apostlespoons, crucifixes; also jewelry—rings, signets with armorial
bearings, buckles, triangles, pendents, vices; also girdles—'a
dymysyn gylt with a rede stone and vj perels (apparels) and the
coorse rasyd warke' (p. 51), silver harnessed girdles, 'a gyrdle with vj
pypys sylver and gylte' (p. 26); also strings of beads of amber, coral,
or jet, the gauds or larger beads, which mark the decades of aves,
being generally of silver or silver-gilt.
There are innumerable legacies to the fabrics or repair funds of
the cathedral and parish churches, for the building of steeples; to altars
and gilds; or for the maintenance of roads and causeys and bridges.
One man leaves his red horse to the high altar of his parish church
(p. 182). The bequests to monasteries are not very numerous; but
the friars are often borne in mind. Sometimes the Easter sepulchre
is remembered, or the shrine of St. Hugh's head and the red ark in
the cathedral; and there are bequests for organs and vestments.
Books are bequeathed now and then, and also arms and armour.
Many testators leave legacies to found or to maintain lights before the
sacrament or before the image of a saint, or even for a light in honour
of King Henry. It is a common thing to provide a stock of money
or cattle or sheep for an endowment of a light or of an obit.
When provision is made for a boy's education it is generally in
view of his ordination to the priesthood; for he is to be kept at
school till he is twenty-four or twenty-five years old; and sometimes
ordination is specifically mentioned (pp. 114, 173, 176, 201). One
testator directs that his two daughters shall be sent to an abbey to
learn for half a year (p. 160).
The mention of 'lande of the costom warke' (p. 35) takes us
back to the time when the tenants of a manor did customary services
of ploughing and reaping for their lord by way of rent for their
tenements. Oxgangs, butts, riggs, and stangs of land belong to the
past; and riggs and acres lying 'seperally' or 'sonderly' (pp. 37, 46),
are the testator's strips or selions that lie dispersed in the open
fields, which prevailed throughout the country before the days of the
enclosure acts, and which are still to be seen in the Isle of Axholme
and in a few other districts.
In the neighbourhood of Boston it is a common custom in the
sixteenth century, a custom which has persisted to the present day, to
devise houses and other buildings with the land under them or with
the land which they stand upon, instead of devising the land in the
usual way with the buildings erected upon it (pp. 27, 40, 55, 69, 71,
84, 91, 113, 162, 182, 184, 195).
The old English word ping, thing, is found in the sense of a
piece of land; and the fact that it only appears as part of the name by
which the land is known suggests that it is already an archaism
in the sixteenth century.
And now the time has come for the writer to utter his 'last
words', verba novissima, so far as this volume is concerned, and to
commend it to the favour and consideration of his readers, in
the hope that it may form a stock the increase of which may
presently be seen in histories of parishes and of families, and in
other works illustrative of the manners and customs of the past.