Lex Test., Page 576. Stephens vs. Gerard, 1. Sid. 315. Page 571, Sackville vs. Brown. Page 576, Chadron v. Harris, Noy 12.2
Randal et als. vs. Clap.
. In the latter Part of his Life, he seemed not so capable, intosticated3
and Passionate. Good Ideas.
Bezaliel Curtis. A good deal of Judgment once. He seemed to be in a hurry, a fury, &c. I did not look upon him the Man he used to be. One time he seemed cool, and calm. At other Times he said that Bill would not catch his Horse and Sam. had promised to do it. Will the Eldest. He said Will had wronged him, and had Creatures and not returned'em.
. Fortnight before he died, Saml. gave me the Will to keep. The old Man told me, he had sent it by Saml. December Court delivered [to]
me. He left Blanks that Coll. Clap might view it and
alter it. He said so.4
I did not see but what his Mind was as usual. He never [ . . . ]
Hawk. Cushing. Unreasonably prejudiced vs. his son Wm. Whenever Wills Name was mentiond he was in a Passion. He would talk about common Affairs, he would talk well eno. I [swore?] to Man it shall be £4000 out of his Pockett.
Abigail Sylvester. I should venture to trade with him as well as ever. In a Passion, always hasty.
He left Blanks to alter when he had occasion for it, he said.
82. Become a Child.6
Proof of it.
. Statute of Frauds, requires the Subscription of 3 Witnesses.7
Many Frauds were found to be committed, concerning Wills. The design that the Witnesses may be able to swear to the Identity of the Writing.
This Method lyable to Fraud and Interpolation.
1. In JA's hand. Adams Papers, Microfilms
, Reel No. 185. The minutes were written with a haste and carelessness unusual even for JA's courtroom jottings, and both words and sense in a few passages are beyond recovery. Among other things, JA's titling of these minutes “Randal et als. vs. Clap” seems to be a misnomer. Sarah Randall and her brothers were defendants below and appellees in the Superior Court. See note 4
above. No other action by this name has been found in the files.
2. As to “Stephens v. Gerard,” see No. 15, notes
. The latter case and the others cited here are presumably drawn from William Nelson, Lex Testamentaria
(London, 2d edn., 1724). This work, at p. 576, first compares the common-law rule of two witnesses for a will of goods and three witnesses for lands, to the varying rules of the civil law, the law of nations, and the canon law. It then cites Chadron v. Harris, Noy
12, 74 Eng. Rep.
, ca. 1605), apparently as holding an unsigned and unsealed will good where three witnesses were produced, two of whom “deposed on the Report of others, but the third had subscrib'd his Name to the Will.” According to the actual report, however, this case involved questions of the validity of a will in which no executor was named, and the power of the common-law courts to issue a writ of prohibition to the ecclesiastical court in a suit by a legatee under such a will, when administration had been granted despite the defect. The citation seems to have been misplaced in the margin of Lex Testamentaria
by the printer, since the immediately preceding paragraph deals with prohibition in a similar matter. Sackville v. Brown, Keilw.
209, 72 Eng. Rep.
1558) was a case in which, according to Lex Testamentaria
571, “the Testator on his Death-bed desir'd another to write
his Will, who took short Notes of it, and went Home to write it in Form, and soon return'd with it written,
but before he came the Testator was dead;
yet this was adjudg'd a good Will within the Statute 32 H. 8 [32 Hen. 8, c. 1 (1541)].” The report confirms this account.
3. Thus in MS
—the result of a natural and amusing confusion of associations.
4. The deposition on interrogatories of Joshua Jacobs in the files of the Supreme Court of Probate substantiates this testimony as to the delivery of the will. SF
129912. “December Court” presumably refers to the sitting of the Inferior Court at Plymouth on the second Tuesday in December. Act of 19 Feb. 1765, c. 20, §1, 4 A&R
737. Since this date was 9 Dec. in 1766, and Clap died on 8 Dec., the witness may mean that Clap informed him of his intent two weeks before his death, but the will was not delivered until later. “Coll. Clap” may be Thomas Clap, perhaps a relative, who was a judge of the Plymouth Inferior Court. Whitmore, Mass. Civil List
96–97. The files include the deposition of one “Thomas Clapp,” 10 May 1769, that in the spring of 1766, Samuel Clap had shown him an old will in a paper book with stitched leaves and many blanks, and had asked him to “write” a new will. This Thomas did. In Oct. 1766, Samuel asked him to write still another will to disinherit his son William, producing as a draft the document now in controversy. Thomas could not comply, because he “was bound on a Jorney ... not because he [Samuel] was not compus mentis.” SF
5. Error for “Swinb.” See Henry Swinburne, A Treatise of Testaments and Last Wills 522 (London, 6th edn., 1743): “What if a Writing be found written indeed with the Hand of the Testator in Manner of a Will, wherein he hath disposed his Goods, and appointed an Executor, but the Writing is neither sealed with the Testator's Seal, nor subscribed with his Name, nor by him acknowledged before Witnesses to be his Last Will? Whether shall this Writing be accounted to be a Draught of the Testator's Will, or the Testament it self? I suppose that the Solution of this Question resteth in the Variety of Circumstances. For if the Writing be unperfect, for that perhaps the Testator doth leave off in the Midst of a Sentence, and without any Date, or if the same be written with strange Characters, or if the same be written in Paper, and great Distance betwixt every Line, divers Emendations and Corrections made betwixt the Lines; if also the same be found amongst other Papers of finall Value or Account; by these Circumstances it seemeth rather a Draught or Preparation to a Testament, than the Testament it self. But on the contrary, if the Writing be perfect or fully finished, having a certain Date of the Day, Month, and Year, and be written with usual and accustomed Letters in Parchment, without Corrections, and with small Distance betwixt the Lines, and also found in some Chest of the Testator, among other Writings of the Testator of great Value and Moment; by these Circumstances it seemeth rather to be the very Testament it self than a Draught only.”
6. Swinburne, Testaments and Last Wills 82 (1743): “Yet if a Man in his old Age do become a very Child again in his Understanding, (which Thing doth happen to divers Persons, being as it were worn away with extreme Age, and deprived not only of the Use of Reason, but of Sense also,) such a Person can no more make a Testament than a Child.”
7. That is, the Province Statute of Frauds, Act of 22 Oct. 1692, c. 15, 1 A&R
46–47 (patterned after the English statute, 29 Car. 2, c. 3 ), which provided that “For prevention of many fraudulent practices which are commonly endeavoured to be upheld by perjury and subornation of perjury ... [§3] all devises and bequests of any lands or tenements shall be in writing, and signed by the party so devising the same, or by some other person in his presence and by his express directions, and shall be attested and subscribed in the presence of the said devisor by three or four credible witnesses, or else shall be utterly void and of none effect.” The Act further provided that no devise in writing should be revoked or altered other than by destruction by the testator, or “by some other will or codicil in writing, or other writing of the devisor, signed in the presence of three or four witnesses, declaring the same.” Id.,