A website from the Massachusetts Historical Society; founded 1791.
close

Browsing: Legal Papers of John Adams, Volume 1


Docno: ADMS-05-01-02-0006-0002-0003

Author: Adams, John
Date: 1769-05

Adams' Minutes of the Trial1

Plymouth Superior Court, May 1769

Keen vs. Turner.
Keens Witnesses.
Ed. Thomas. Known Georges Meadow 30 Years. Carted the Grass 2 Years. It was a very good Piece of fresh Meadow. I went in with a full Team without miring. Last August I saw it. The Meadow very much altered. The Meadow wet. Ditching and clearing the Brook could not wholly prevent the Damage.
Wm. Cox. Deposition. Vid.2
Elisha Barker. Both Sides lay open to a Pasture 7 Years. Sold it since the Mill was built.3 Liable to great freshets.4 All a Pond. My { 244 } father who owned the Meadow consented to sett up this Mill. Mills 100 Years. Drand off 10. Apl.
Saml. Tayler. 1764, 5, 6. I got the Hay. One Year it Spoilt the Hay. I understood that Turner said he would stop his Mill one day. But at Night let it go.
Amos Witherel. Subject to freshits, the Water grows the Weeds. I cant tell whether, occasiond by the Mill.
Wm. Hetherd. Ditto.
Mr. Soper. Brook worn away. Meadow much damaged by the Water, coming repeatedly upon it.
Eliazer Hamlen. Boggy Land, bad fodder. Mill set agoing and I saw the Channell fill, and overflow the Meadow. Water has not so good a passage as it might have. Must dig lower than the Bottom of the Brook.
James Cox. The Brook not filled by the natural Stream.
Isaac Keen. Deposition. Vid.5
Fra. Keen. Deposition. Vid.6
Leonard. Our Witnesses. An unfavourable Case.
Coll. Turner. 1738, 9, 40, 41. I hird it. I was told I must be carefull and watch my Time. Once I went after a Rain and my Cocks7 were half leg deep in Water. It is rather wetter, than it was when I cutt it. It was miry from End to End. A great deal more Grass now { 245 } than when I had it. Next the Brook as good. The rest not. The Brook might be easily cleared so as to convey all the Water off.
Aaron Sole. Of Opinion the Meadow is betterd by the flow. I have some Meadow that grows worse without overflowing. The Saw Mill went Winter and summer many Years.
Barker. Very full. The flow an Advantage. Ton to an acre last Year, glad to cutt by Halves.
Mr. Hatch. Viewed it, and the Brook. My opinion that the Brook cleard out and Meadow ditched, the flow would be a great Advantage. Offer to clear it out. Answerd that would not Answer any Purpose. 2 Men in a day would clear the Brook, and by stopping a few Places in the Banck, one Rod would not be flowed.
Seth Briggs. Logs across the River, almost buried in sand. A bridge about 30 Years, furrd8 with Sand, so that Weeds grow quite across the Brook. A good Crop last Year and good Grass. 4 foot fall, in 40 Rod.
Barnab. Briggs. Juror.9
David McGoon. Offered to help clear the Brook.
Jno. Chapman Jnr.
Mr. Palmer. Such Meadows generally as good again for the water.
Jno. Turner Jnr. 5. Bushells in 24 Hours.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. This deposition is not in the file. “I hired it 2 or 3 yr. ago. 20 or 30 yr. ago. Good crops and good grass next to English.” Paine Law Notes.
3. On the significance of this evidence, see 2 Blackstone, Commentaries *403: “If a stream be unoccupied, I may erect a mill thereon, and detain the water; yet not so as to injure my neighbor's prior mill, or his meadow: for he hath by the first occupancy acquired a property in the current.” Blackstone may not have accurately stated the English law. Compare Wiel, “Waters: American Law and French Authority,” 33 Harv. L. Rev. 133 (1919), with Maass and Zobel, “Anglo-American Water Law: Who Appropriated the Riparian Doctrine?”, 10 Public Policy 109 (1960).
4. Sudden flooding, as from rain or melting snow.
5.
“Isaac Keen of full age testifieth and saith that I have been well acquainted with a certain piece of meadow called by the name of George's meadow, lying upon a brook called Pudding Brook, and a little below the grist-mill called Turner's mill and have been acquainted with said meadow this forty odd years past, and have mowed in the meadow for a great many years past, and then the meadow was hard enough to go in with a cart, and the grass very good, a large burden and very good fodder, and never knew any failure till since the abovesaid grist-mill was set up, and since that I have been across it very often, and I look upon the meadow is much damaged by reason of the above said mill being there, which occasions the meadow to be much overflowed, and very difficult working in it, it being to miery, and the hay that is cut of but very little value, and further saith that the bank of the meadow very much broke away by reason of said stream. Isaac Keen. Sworn to in open court.” SF 142297.
6. This deposition, which substantially duplicates that of Isaac Keen, was also sworn to in open court. SF 142297.
7. Hayricks.
8. “Fur.” “3. To coat or cover with fur or morbid matter. To fur up: to stop up or 'clog' with this.” OED.
9. “A Juror who is a Witness, must be also sworn in open Court to give Evidence, if he be called for a Witness; for the Court and Council are to hear the Evidence as well as the Jury.” 2 Duncombe, Trials Per Pais 384. See No. 12, notes 90–9220, 21, and 22.

Docno: ADMS-05-01-02-0006-0003-0001

Editorial Note

The litigation arising from Samuel Clap's will is illustrative of two very important features of the Massachusetts system of distributing decedents' estates: the necessity that wills be executed under conditions of capacity and formality similar to those required in English law; the interaction and conflict between the Province probate court system and the courts of common law in dealing with contested wills.
Clap, a resident of Scituate in Plymouth County, died on 8 December 1766. On 25 October of that year he had made a new will in order to disinherit his eldest living son, William, whom he accused of a variety of unfilial acts. After a life estate to his wife and a token for William, he left the bulk of his realty to another son, Samuel Jr., and the rest of it to his { 246 } grandson, Samuel Randall, at age 21. Clap's daughter, Sarah Randall, was to receive certain household goods, and there were small cash legacies to Sarah's daughters, as well as to Michael Clap, another grandson, whose father had predeceased the testator. Samuel Clap Jr. and Sarah Randall were nominated as executors and were bequeathed all of the testator's bonds and notes under a direction to pay debts, legacies, and funeral expenses.1
In April 1767, before Plymouth County Probate Judge John Cushing, William Clap attacked the will, and it was disallowed. Samuel Clap Jr. appealed in August to the Governor and Council sitting as the Supreme Court of Probate. There, Commissioners appointed for that purpose proceeded to administer interrogatories and take depositions in February 1768.2 At the end of that month a hearing was held in which Adams argued for the will and Robert Auchmuty opposed it. Adams' notes for his own address and his minutes of Auchmuty's argument, which are printed below, show that there were two lines of attack. Clap's testamentary capacity was called in question by a series of witnesses who reported that he had not been himself for the last year of his life, and that on at least two occasions he had given vent to expressions indicative of an unsound mind. Certain unusual features of the will itself were also pointed to as indicative of lack of capacity. In addition, Auchmuty argued that the will was invalid for noncompliance with the formalities of execution. The will was in writing and signed by the testator and three witnesses, as required by the Statute of Frauds, but it was written on several sheets stitched together in a “paper book,” and Clap had left numerous blank pages, which he allegedly planned to fill in later.3 Auchmuty thus con• { 247 } tended that the will offered in probate could not positively be identified as the will attested by the witnesses.
Adams seems to have concentrated his argument on the question of capacity. His review of the depositions is a witty and effective resolution of conflicting testimony in favor of Clap's sanity. His notes also show that he cited authority indicating that only the literal requirements of the Statute of Frauds need be adhered to, and that, the Statute aside, a will such as this one was good. His arguments were apparently convincing. On 2 March 1768 the court ordered that the decree of the probate judge should be reversed and so upheld the will.4 Clap's heirs were not yet out of difficulty, however. The will was soon to be tested at law in the action of Clap v. Randall, No. 16.
1. For the will, see Supreme Ct. Probate Rec. 1760–1830, p. 57–60. The devises to William and the testator's wife are set out in notes 1410 and 1511 below. The date of Clap's death appears in the writ in Clap v. Randall, SF 142299. See No. 16, note 3.
2. See Supreme Ct. Probate Rec. 1760–1830, p. 57–61; SF 129912. In the files one Benjamin Jacob appears as “appellee” in the subscription of two depositions taken at Samuel Clap's request. Ibid. Jacob has not been further identified but may have been a representative of William Clap at the taking of the depositions. Interrogatories were a civil law practice, perhaps adopted on the recommendation of Governor Thomas Pownall, who reorganized the court in 1760. See his Message to the Council, Quincy, Reports (Appendix) 572–579. As to the probate system generally, see p. xliv above; No. 16, note 1.
3. As to the Statute of Frauds, see No. 16, note 127. The blank pages are noted in the copy of the will in Supreme Ct. Probate Rec. 1760–1830, p. 57–60. See testimony of Joshua Jacob, SF 129912, and Thomas Clap, SF 142299; No. 16, note 94. The execution of the will is described in
“The deposition of Elisha Barrel relating to a paper Book purporting [to be] the will of Samuel Clap Lat of Scituate in the County of Plymouth yoman decesd dated October 25 ad 1766, taken upon interrogatories as follows viz. Question. Did you see the said Samuel sine and seal the Last written Leaf of said book and hear him Declare the same to be his Last will and testament. Answer. Yes. Question. Did you with David Jacob and Ja[mes] Jacob subscribe as witness thereto at the same time in his presence, and was he then of sound mind. Answer. Yes as I apprehended. Question. Did you obsarve any blank or clean unwritten leavs in said paper book when you set your hand as a witness there to. Answer. I did not obsarve it. Question. Were all the Leavs stiched to gether as they now are when you signed as a witness as aforesaid. Answer. The book appeared in the same shape as it does now, but whether there was so many leaves I cannot say. Question. Was what now appears in the several leaves of said book wrote before you subscribed as a witness. Answer. I am not abel to say.” Dated 19 Feb. 1768. SF 129912.
4. Supreme Ct. Probate Rec. 1760–1830, p. 61. For Adams' authorities, see note 1317 below. They are further discussed in No. 16, note 72.
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2014.
http://www.masshist.org/apde2/