Legal Papers of John Adams, volume 1

Adams' Address and Minutes of the Argument

Editorial Note

255 Clap v. Randall: 1769 Clap v. Randall: 1769
Clap v. Randall
Editorial Note Editorial Note
Editorial Note

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


As to the English practice, see 12 Holdsworth, History of English Law 686–689, 695–697; Atkinson, “The Development of the Massachusetts Probate System,” 42 Mich. L. Rev. 425–426 (1943). The basic provision in Massachusetts was the Act of 1 Nov. 1692, c. 14, 1 A&R 43–45, which provided that all lands held in fee might be disposed of by will and that wills were to be submitted to probate under penalty of law. In the event of intestacy administration of both realty and personalty was to be granted and supervised by the judge of probate. Later provisions are summarized in Atkinson, “Massachusetts Probate System,” 42 Mich. L. Rev. 440–447. Atkinson, id. at 445, states that the Act of 17 June 1723, c. 3, 2 A&R 284–285, gave the lands of the deceased directly to the heirs at death, thus removing them from administration. The 1723 act, however, seems to provide only that an administrator de bonis non (i.e. “of the goods not” administered by a previous administrator or executor), appointed for a supplemental administration, was to have no power over unadministered real estate, which descended to the heirs automatically. Subsequent legislation indicates that the provisions of the 1692 act as to administration and distribution of realty by the original administrator were not altered. See Act of 1 Jan. 1735, c. 16, 2 A&R 738; Act of 12 April 1750, c. 20, 3 A&R 495.


Under later Massachusetts law, a probate decree was conclusive in an action at law, except as to matters of jurisdiction, such as lack of notice, which could be collaterally attacked. See Smith v. Rice, 11 Mass. 507 (1814); Dublin v. Chadbourn, 16 Mass. 433, 441–442 (1820); Daniel A. White, A View of the Jurisdiction and Proceedings of the Court of Probate in Massachusetts 26–30 (Salem, Mass., 1822); Alger, “Conclusiveness of Decrees of a Domestic Probate Court in Massachusetts,” 13 Harv. L. Rev. 192–193 (1899). That the probate decree was not conclusive is made more likely by the fact that probate jurisdiction was by the Charter of 1691 vested in the Governor and Council, who created the county courts solely by commission, without legislation. It is thus possible that the probate courts were not considered “courts of record.” See Coke, Littleton 260a.


Act of 14 July 1693, c. 8, §1, 1 A&R 122. For the will, see No. 15, note 1. The declaration set out

“a plea of partition, for that one Samuel Clap late of said Scituate yeoman deceased, in his life time, in a time of peace, in the sixth year of our reign, was seized in his demesne as of fee, of two parcels of land [description], taking the esplees thereof to the amount of three pounds lawful money by the year. And on the eighth day of December 1766, the same Samuel dyed so seized at said Scituate, and intestate, leaving the above named [defendants] his only surviving children, and the plaintiff, his grandson, the only child of Michael Clap late of said Scituate yeoman deceased, who was the eldest son of the said Samuel the intestate, and died on [the] tenth of June 2d. 1760. Whereupon at the death of the said Samuel, the intestate, the premises by the law of our province of the Massachusetts Bay, descended to the plaintiff [and the defendants], the only heirs of the said Samuel the intestate, to wit two fifth parts thereof to the plaintiff, the only child and legal representative of the said Michael, deceased, the eldest son of the said intestate, and one fifth part thereof to [each of the defendants], and they and the plaintiff are accordingly seized of the same two parcels of land in their demesne as of fee, and do hold the same together in common and undivided. Whereof it appertains that the plaintiff [and the defendants] ought to hold, possess, and enjoy their respective parts thereof in severalty.... Yet [the defendants] tho' often requested, do utterly refuse to divide or make partition of the same parcels of land, that so they, and the plaintiff, may hold and enjoy their respective parts and interest in the premises in severalty as aforesaid, contrary to the said law of the said province in that case made and provided, and to the damage of the said Michael Clap as he by his said guardian saith, the sum of forty pounds.” SF 142299.

Under the Province intestacy law (note 1 above) the eldest son took a double share. In England partition lay among coparceners (cotenants by inheritance) at common law, and among joint tenants and tenants in common by statute. See 6 Dane, Abridgment 478–480; 3 Holdsworth, History of English Law 19. The Province Act of 1693, 1 A&R 122, cited above, established the writ of partition as an action at law for all three classes of cotenancy. Note that the declaration used here states the title of the cotenants in the form followed in real actions, although it was apparently the rule in partition that title could be stated briefly, as being “of the inheritance of” the predecessor, since the action was for possession, not property. See Fitzherbert, New Natura Brevium 142 note (London, 1755); 16 Viner, Abridgment 240; see also Perham, American Precedents 313–314 (1802). As to the form in real actions, see Charles Jackson, A Treatise on the Pleadings and Practice in Real Actions 348 (Boston, 1828); No. 17, notes 4–6 4, 5, and 6 ; p. 36, notes 13, 14 29, 30 . Although in form the writ sought damages, it was the rule at common law that no damages would be awarded, and that the judgment was in fact for partition. See 16 Viner, Abridgment 236–237, 240; 6 Dane, Abridgment 491. The procedure followed in this case is to be distinguished from the proceeding by original petition in the Superior Court, provided by Act of 1 Feb. 1749, c. 12, 3 A&R 426–428. The latter was not an adversary proceeding, no provision being made for trial of issues under it. In 1787 the defect was remedied by a provision for pleading and trial to a jury in such cases. See 6 Dane, Abridgment 483.


See the pleadings in both courts and the Inferior Court judgment, in SF 142299. Adams' plea of not guilty in the Inferior Court was probably an informal one designed to implement the sham demurrer which was evidently intended. See p. xlvi above. The plea was in general use for real actions in Massachusetts, and thus would arguably have been proper in partition. See Joseph Story, A Selection of Pleadings in Civil Actions 333 (Salem, Mass., 1805). In this case, however, it might have been subject to the logical flaw that it seemed to deny the refusal to partition. JA's Superior Court plea was in literal translation, “non tenent insimul,” a proper plea in partition. See 5 Comyns, Digest 274; Coke, Littleton 167; compare 6 Dane, Abridgment 491.


Min. Bk. 82, SCJ Plymouth, May 1769, N–5; SCJ Rec. 1769, fols. 183–184.

258 Adams’ Minutes of the Trial<a xmlns="" href="#LJA01d074n1" class="note" id="LJA01d074n1a">1</a>: Plymouth Superior Court, May 1769 JA


Adams’ Minutes of the Trial: Plymouth Superior Court, May 1769 Adams, John
Adams' Minutes of the Trial1
Plymouth Superior Court, May 1769

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.



Zechh. Daman. 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.

Josa. Jacobs. 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 259alter 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.


Swing. 522.5 82. Become a Child.6 Proof of it.


Will itself.

Otis. 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.


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.


As to “Stephens v. Gerard,” see No. 15, notes 17 13 , 18 14 . 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. 983 (K.B., 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. 389 (C.P. 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.


Thus in MS—the result of a natural and amusing confusion of associations.


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 142299.


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.”


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.”


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 [1676]), 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., §4.