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
{ 256 } 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
{ 257 } 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