Introduction

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Institute of Historical Research

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C.W. Foster (editor)

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1918

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9-25

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'Introduction', Lincoln Wills: volume 2: 1505-1530 (1918), pp. IX-XXV. URL: http://www.british-history.ac.uk/report.aspx?compid=53688 Date accessed: 31 October 2014.


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INTRODUCTION

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 months, respectively.

§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. 358).

§5. Manuscript sources

The existing Lincolnshire wills are preserved in the following depositories:

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 Society).

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).

§6. Procedure

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 not sign.

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 note).

§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.

§11. Primogeniture

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 present volume:

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. 175, 176).

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 or archdeacon.

§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 lay courts.

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.

§17. Mortuaries

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 pay mortuaries.

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 marks3s. 4d.
ii from 30 to 39 marks6s. 8d.
iii 40 marks or over10s. 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 dwelt.

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 this statute:
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.

§19. Conclusion

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.

Footnotes

1 Publications, vol. v.
2 For the history of the law relating to wills and testaments and to intestacy in England, see Professor Maitland's account in The History of English Law, ii, pp. 314–363. For the Roman canon law, see the Decretals, liber iii, titulus, xxvi, De testamentis et ultimis voluntatibus, and titulus xxvii, De successionibus ab intestato; also the Liber Sextus, liber iii, titulus xi; also the Clementines, liber iii, titulus vi. For the Roman Civil Law, see Dr H. J. Roby's account in The Cambridge Medieval History, ii, pp. 78–88.
3 Wills, bundle M., no. 287.
4 Bracton's Note Book, ed. Maitland, i, p. 90; iii, p. 142. Bracton, De Legibus, f. 27. See below, p. 215.
5 Cp. Henry Swinburne, A Briefe Treatise of Testaments & Last Wils, ed. 1637, p. 43.
6 In 1338, Nicholas of Huggate, provost and canon of Beverley, leaves 200l. for the hire of sixty chaplains who shall celebrate for his soul continuously for a whole year, each of them being sworn to say daily Commendation, Placebo, and Dirige (The Chapter Act Book of the Collegiate Church of St. John of Beverley, ed. A. F. Leach, vol. ii, pp. 122–123: Surtees Society).
7 For a note on trentals, see vol. i, p. 247.
8 History of the Wilmer Family, by Foster & Green p. 96.
9 Hist. of Eng. Law., ii, p. 314.
10 Ibid., p. 356.
11 Shakespeare, Henry VI, part ii, 3, 3.
12 32 Henry VIII, cap. 1, as amended by 34 and 35 Henry VIII, cap. 5.
13 Swinburne, op. cit., p. 108.
14 Tractatus de Legibus et Consuetudinibus Regni Angliae, liber vii, cap. I, quoted by Maitland, op. cit., ii, 328.
15 32 Henry VIII, cap. 1, as amended by 34 and 35 Henry VIII, cap. 5.
16 12 Car. 11, cap. 24.
17 Op. cit., ii, p. 315.
18 Blackstone, Commentaries, 12th ed., ii, pp. 378–9.
19 Hist. of Eng. Law, ii, 348–9; Blackstone, op. cit., ii, 491, 492.
20 Statute 4, Will, and Mary, cap. 2.
21 Hist. of Eng. Law, ii, pp. 349–356.
22 This disposition, since it is so common, is not always given in the printed abstracts.


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