In England the probate of wills of personalty was within the jurisdiction of the ecclesiastical courts, although many related questions, both of administration and distribution, had to be tried at law or in equity. The ecclesiastical courts had no power over wills of realty, because the common law claimed exclusive jurisdiction of title questions. Such wills were proved only if an action at law was brought to test the devisee's right.
One result of this division of jurisdiction was that the validity of a will might be brought again into question in an action at law despite presumably conclusive probate proceedings. In Massachusetts the confusion was relieved somewhat by Province statutes which gave to the judges of probate many powers in the administration and distribution of both real and personal estates.1
Title was still a question for the common law, however, and in Clap v. Randall,
the validity of Samuel Clap's will, previously allowed by the Governor and Council sitting as Supreme Court of Probate (No. 15
), was reopened and argued anew, apparently without objection. The action may have been permitted either because lack of notice to the plaintiff, or his guardian, was held to relieve him from the bar of the prior probate decree, or because the English practice of not giving conclusive effect to such a decree was followed.2
The action was a plea of partition brought by the guardian of Michael Clap, minor son of Samuel's deceased eldest son, against the testator's three surviving children, Sarah Randall, William, and Samuel Jr. Under the will, Michael had received only a £60 legacy, apparently because the testator had made inter vivos
gifts to his father. The lands in suit had gone to Samuel Jr. and Samuel Randall, Sarah's son. William Clap, who had contested the will in probate, had been virtually disinherited. Michael's declaration ignored the will completely, setting forth that Samuel had died intestate while seized of the lands and that Michael and the defendants, Samuel's only heirs, were thus tenants in common in the premises. Although in form the writ sought money damages for failure to partition, the suit was brought under a Province statute permitting a cotenant to compel division of lands in an action at law.3
The case came on for trial at Plymouth Inferior Court in April 1769, where Adams entered a plea of not guilty for the defendants. Daniel Leonard's demurrer was overruled and judgment entered on the plea. On appeal to the Superior Court at Plymouth in May 1769 the lower court pleadings were waived and Adams averred that the defendants “and the Plantiff do not hold the said Premises together in common and undivided, as the Plantiffs have above declared.” The case went to the jury.4
Adams' minutes of the evidence and arguments, printed below, indicate that the validity of the will was the principal question argued. Witnesses for the plaintiff testified both as to Samuel Clap's mental state and to the informal character of the document itself. The authorities cited by Leonard are on these points, and James Otis, also arguing for the plaintiff, directly raised the Statute of Frauds. That Act required only that a will be written, signed, and witnessed, but Otis apparently argued that its policy of preventing frauds through proof of the testator's actions should be extended to bar a will with blank pages, which would give great opportunities for later changes.
Adams, as he had in Clap's Will,
brought forward authority dating from before the Statute of Frauds, to the effect that wills with defects other than those covered by the Act were good at common law. His principal source seems to have been Nelson's Lex Testamentaria,
a treatise of doubtful value in which two of the three cases which Adams cited are misstated in his favor, revealing the pitfall, not unknown today, that awaits one who relies upon secondary sources. No objection seems to have been made to Adams' authority, however, either because no one in the Province had the original reports from which Nelson's work could be refuted, or because Adams' position was accepted as good law despite dubious precedent. The jury returned a verdict for the defendants, and Samuel Clap's estate was finally at rest.5