WILLS BY WORD OF MOUTH
After various bequests, including the interesting one of $100 “unto
the redemption of the poor English captives in Constantinople,” the
will of James Peckett, merchant, made in Smyrna, May 3, 1634, breaks
off suddenly, and we read: “The aforegoing is as much as was delivered
by Mr. James Peckett, who afterwards falling weaker in body and his
memory decaying, it was propounded unto him whom he should make choice
of for to be his executors in trust, whereupon he nominated Mr. Richard
Chambers of London, Merchant, and Mr. Lawrence Greene, Consul for
the English nation in Smyrna, and afterwards for his overseers, not
knowing who to nominate through his weakness there was propounded unto
him whether he would accept of Mr. Rainsbrow and Mr. Thomas Moody of
London, merchants: unto the which he answered ‘Yea.’”
This will is, therefore, a mingling of the written and unwritten
testament. The nuncupative will, the will by word of mouth, was common
in former times; but since the stricter methods of the Wills Act, 1837,
it has been mainly in abeyance. Attempts are still made from time to
time to establish the words of dying men. A recent action in the Court,
to legalise some strangely made codicils, reminds us of James Peckett’s
acquiescence and of older methods. “Don’t you want to leave something
to me?” the testator was asked. He answered, “Yes,” the question was
put, “How much?” and a codicil straightway prepared.
The prevalence of such wills, without even the necessity of a written
record signed by the testator, must have led to much abuse. But not
always were testators so complaisant. Roger Potter, of Mildenhill,
Suffolk, a bachelor “in the time of his last sickness (viz.) upon or
about the 12th day of November 1664, did make and declare his last
will and testament nuncupative as followeth. He being moved to make
his will, he answered ‘With all my heart.’ And then, being asked or
demanded whom he would make executor, he replied ‘Executrix,’ and named
Mall, meaning as was understood by those present Mary Potter, his
brother’s grandchild, whom he especially regarded. And then being moved
what he would give to any of his friends, he expressed an unwillingness
to do any more, saying ‘Why do you urge me?’” So, too, Reginald Greene
“on a Sunday, being the fifth day of July A.D. 1635, ... being then
very sick but of good and perfect mind and memory, with an intent to
make his last will and testament nuncupative spake these words, or the
like in effect, as followeth, viz.: He gave all his goods chattels and
debts unto his cousin John Greene ... and his son John Greene. Judith
Springatt being present did desire that she might be remembered in his
will and to have a legacy therein: he replied ‘No, no,’ and said he had
been always beholding to his cousin John Greene and that he and his
boy, meaning his said son John Greene, should have all that he had.”
How often a dying man may have fallen a prey to the designs of friends
or foes one could not hazard a guess: it is remarkable, on the other
hand, what powers of resistance a man in his last sickness may show.
Two instances have just been given, but still more interesting is the
final will of Henry Akerman, a victim of the plague. What perturbation
of mind for a dying man to suffer! “Memorandum that at or upon the
VIth day of August A.D. 1603, and between five and six of the clock in
the afternoon of the same day, or thereabouts, Henry Akerman, of the
parish of St. Giles Without Cripplegate, London, being weak in body and
visited with the sickness, but of perfect mind and memory, did, with
an intent absolutely to revoke all former wills before by him made,
make and declare his last will and testament nuncupative in manner and
form and by the words following, or the like in effect, viz.: ‘Whereas
this day I did unadvisedly make a will in writing by the procurement
of some of my friends, and named therein John Dardes and Jarvice Pitt
to be my executors, I do now upon better consideration clean revoke
that will, for that I distrust and find that I had done my children
wrong thereby. And therefore now I make Mary my well beloved wife my
executrix. And I give will and bequeath my goods and chattels, and
whatsoever else hath pleased God to bless me withal, to be equally
divided betwixt my said wife and my children according to the custom of
the City of London’: and these or the like words in effect he spake in
the hearing of divers credible witnesses.”
The temptation to postpone a will, to refuse to look death in the face,
must have been great when a few dying words were valid. To some how
hard is the Horatian theme: _divitiis potietur heres_!
“I’m growing old, and hence ere long shall fare,
How I should love to be my only heir,”
a Hebrew epigrammatist makes a miser say. Pope depicts the miser
clinging at the last moment to his lands and his cash, only with his
latest breath, reluctantly, making some disposition of his goods.
“‘I give and I devise’ (old Euclio said,
And sighed), ‘my lands and tenements to Ned.’
‘Your money, sir?’ ‘My money, sir, what, all?
Why,—if I must’—(then wept) ‘I give it Paul.’
‘The manor, sir?’—‘The manor! hold,’ he cried,
‘Not that,—I cannot part with that’—and died.”
Nuncupative wills are, in fact, often of a vividness as keen as Pope’s
example. The friends, interested or otherwise, who gathered round the
testator in a moment of peril or in the hour of death, reproduced his
words or actions with quaint exactitude. Sometimes it is in times of
peril. “Memorandum that James Dixon, late mariner to His Majesty’s
ship the _Pearl_, but in His Majesty’s hired sloop the sloop _Jane_,
bachelor, deceased, did on or about the 22nd of November 1718 in the
morning of the said day, he the said James Dixon being in the hole
(_sic_) of the said sloop and then about to engage with a pirate
called the _Adventure_ sloop, did in the presence of several credible
witnesses utter and declare his last will and testament nuncupative or
by word of mouth in the words following, or to that effect: Messmate,
being going to engage which God knows whether of us shall live, but
if it please God it is my misfortune to die first, I desire that you
would take care and demand all my wages prize money and what shall
be due to me from this day, and the longest liver of us to take all;
meaning and speaking to Evender Mackever who was then his messmate on
board the said ship.... And the said sloop _Jane_ about half an hour
after engaged their enemy, and in such engagement the said James Dixon
received a shot, who immediately died.”
Such is the end of the adventurer’s life. At another time we are
present at the death-bed of the village blacksmith. Thus it is deposed
of John Silkwood, a blacksmith residing at Chartham, that he “did on
Thursday the 17th day of February, 1691 (S.A.), lying very sick in his
then dwelling-house in Chartham aforesaid of the sickness whereof he
died, being of perfect mind and memory, and having an intent to make
his will and dispose of his estate, declare the same by word of mouth
in these or the like words following, viz.: taking his wife by the
hand, and putting her wedding ring on her finger, said to her, ‘Thus we
have lived together in love, and all that I have both within doors and
without I give unto you, and make you executrix of my will.’ ...”
Nor did humble folk only thus make or amplify their wills. It is
recorded of Sir Giles Dawbeney, Knight, that on March 3, 1444, he
wrote his will, but made no disposition of the residue. “Wherefore
afterwards, that is to say the XIth day of January, the year of our
Lord 1445, at Barington, to the said Sir Giles lying in his sickness,
whereof he died soon after the same day, Sir Robert Wilby, priest, his
ghostly father, said: ‘Sir, ye have made a testament and bequeathed
many things to divers persons, making no mention who should have the
residue of your goods that be not bequeathed; will ye vouchsafe to say
who shall have it?’ Forthwith the said knight, without any tarrying,
said: ‘My wife shall have it.’ This was his last will.”
It is inevitable that we should again turn to times of plague to
illustrate the theme. Early in the seventeenth century there died of
the plague a certain Thomas Robinson and his wife Joanna, of Uxbridge.
The husband was the first to die. “Memorandum that Thomas Robinson,
late of Uxbridge in the County of Middlesex, deceased, on Good Friday
or thereabouts in the year 1609, being sick of the plague but of
perfect mind and memory, did declare his last will and testament
nuncupative in manner and form following, viz.: he said unto his wife
Joanna Robinson, ‘I give thee all that ever I have, and all is too
little for thee’; or the like in effect, and these words he spake in
the presence and hearing of his maid Isabel and divers others.”
But that “little” Joanna was not to enjoy for long. “Memorandum that on
Sunday, the 7th May, 1609, or thereabouts, Joanna Robinson, late wife
of Thomas Robinson, of Uxbridge in the County of Middlesex, deceased,
being sick of the plague but of good and perfect memory, did make and
declare her last will nuncupative in manner and form following, viz.:
She looked out at the window of her house in Uxbridge, and said unto
Agnes Gyles (wife of William Gyles) dwelling in Fleet Lane, London, she
being then in the street in Uxbridge, this or it in effect, viz.: ‘Here
now I give unto you all that I have’; and then threw out her keys unto
the said Agnes, and said, ‘Look unto it, it is all thine; saving I give
unto Bessie Crippes, my husband’s cousin, half a dozen napkins, a pair
of sheets and a table cloth, and to her father I give my husband’s best
suit of apparel, and to my husband’s sister I give my gown a hat and
a smock, and to my maid Isabel I give my frifado petticoat and some
of my work-a-day clothes besides.’ Then being put in the said street
and hearing the premises William Day, and Elizabeth Day his wife, John
Kirton, Julian Tanner, and many others.”
These wills, spoken by those stricken with the plague and in many
cases carefully recorded, show that the poor creatures were not always
deserted in their sickness. Writers make much of the many devices to
escape contagion, but Nicholas Holmes actually did not hesitate to
take a legatee by the hand. “Memorandum that Nicholas Holmes, late of
the parish of St. Dunstan’s in the West, Gent., upon the third day of
October in Anno Domini 1636, being taken sick of his last sickness
whereof he died, being in perfect mind and memory, did publish and
declare his last will and testament nuncupative in manner and form
following, viz.: he said that he was suddenly taken so sick that he
thought he should die of the sickness, and thereupon he took Mary
Willowe, the daughter of John Willowe of the said parish, clockmaker,
by the hand and said, ‘Mary, if I die I do give thee an hundred
pounds’: and he further said that he did not know how his landlord
might be prejudiced by his death, in case he should die of the sickness
in his house; therefore he said that, if he died of the sickness, he
would give him threescore pieces.”
A landlord who did not turn away one who was sick of the sickness
might merit gratitude, as surely would masters who did not dismiss
their servants. There was no Insurance Act in those days. “The case of
poor servants was very dismal,” says Defoe of the plague in 1665, and
doubtless it was so at every visitation. Servants, it is said, were the
chief frequenters of astrologers and quacks, who hung out their signs
in almost every street. “Oh! Sir,” they would ask, “for the Lord’s
sake, what will become of me? Will my master, or mistress, keep me, or
turn me off? Will they stay here or go into the country? Will they take
me with them, or leave me here to be starved and undone?” Poor William
Aspinall was one of the unfortunates. “Memo. that at or upon the 17th
day of July, 1603, or thereabouts, William Aspinall late servant unto
Richard Leaver of the parish of Allhallows, Barking, in London, being
visited with the sickness, but of perfect mind and memory, made and
declared his last will and testament nuncupative in manner and form,
or to the like effect here following, viz.: he bequeathed his soul to
God, and his body to the earth. And as concerning his master Richard
Leaver before mentioned, he said he had done him the best service he
could, and had dwelt with him a long time, and had served him truly
and honestly to the uttermost of his power; and in requital thereof
his said master had dealt very unkindly with him, and in the time of
his first sickness did forbid him his house and bid him seek lodging
elsewhere, and by no means would in that his first time of need suffer
him to lodge within his doors, which he took very unkindly.” It is
only fair to mention that, on the Friday following, he relented to the
extent of giving to his master and mistress each a pair of gloves, to
be bought at ten shillings the pair.
The will of a sailor about to engage a pirate has been quoted, and
perhaps among sailors the nuncupative will was most prevalent. Often we
may catch a glimpse, particularly vivid, of the rough-and-ready life of
the British tar. “Memorandum that on or about the five and twentieth
day of February, 1683, (English style) John Jacques, late belonging
to the ship _St. Thomas_, (whereof Augustine Fincham is now master,)
bachelor, being of sound and perfect mind and memory, and with an
intent to make his last will and testament nuncupative, did utter and
declare these or the like words following, viz.: being asked by Mary
Anderson, his landlady, how she should be paid what was due to her, the
said deceased made answer, namely: ‘What I have I give to you as soon
as I am dead; do you go and administer and take my wages and that will
satisfy you.’”
Perhaps some novelist might weave his web round this landlady and her
lodger. Another sailor gives all to his landlady, one evidently who
knew how to please. “Memorandum that upon or about the month of October
in the year ... 1665, Richard Blackman, late of the parish of Stepney,
... mariner, deceased, ... made published and declared his last will
and testament nuncupatively or by word of mouth: ... ‘I give leave and
bequeath all and singular my goods chattels debts and estate whatsoever
unto my loving landlady Elizabeth Cooke, the wife of Thomas Cooke
mariner.’”
Witnesses to such wills frequently forgot the adage _de mortuis nil
nisi bonum_. They seem to add touches which are unnecessary and show
the deceased, even at such an hour, not in his most amiable light. But
we owe to them many a curious picture, many an amusing trait of human
nature. At this distance of time the coarser details are humorous
rather than distressing.
In the will of Edward Newby we are not let into any family secrets,
though curiosity is aroused. “Memorandum that on or about the three
and twentieth of March, 1683, (S.A.) Edward Newby late of the ship
called the _Grafton_ upon the seas, bachelor, being of perfect mind and
memory, did, with a serious intent to make his last will and testament
nuncupative, nuncupate utter and declare these or the like words, viz.:
‘If it should please God that I should do any otherwise than well on
shipboard I give all my wages, and whatsoever else belonging unto me,
unto my messmate, (meaning Thomas Foster), and I make him executor of
all that I have. And if it please God that I live to come on shore none
of my relations shall be one penny the better of what belongs to me.’”
In the following we are able to pry a little further into the life of
a mariner, as far back as the sixteenth century. Its vigour smacks of
those adventurous days, if not wholly edifying for one about to take
leave of land and sea for ever. “Memorandum that Thomas Smith, late
whiles he lived of London, gent., being captain at sea of a frigate or
ship called the _Morning Star_, belonging to the Earl of Cumberland,
being the 26th, 27th, and 28th of August A.D. 1594 or thereabouts
chased upon the high seas by a fleet of Spaniards of twenty two sail or
thereabout ... and in great danger of taking, and having escaped that
peril, within a day or two was demanded and asked by some that were
in the frigate what he would have done with his goods and substance,
and how he would have the same bestowed if he should happen to die or
be taken or slain in that dangerous voyage. Whereupon the said Thomas
Smith answered and said that, ‘in case I shall die be taken or slain
in this voyage, I give all that I have to my brother Edward Smith,
for that he hath followed me in these actions and applied himself to
my business, and hath been at the getting of part thereof.’ And being
asked whether he had any other brother, and what he would give him, he
replied that ‘as for my other brother, let him content himself with
that he hath had already, for he shall have no more,’ saying further
that ‘he hath had a great deal of money of me already.’ And being put
in mind of his wife and asked whether he would give her nothing, he
answered cursing her and said that she had played the lewd woman, and
that she hath had enough already, and should suffice herself with that
she had, for more she should not have; adding further, ‘my brother
Edward, if I die, shall have all that I have,’ or the like in effect:
which words the said Thomas did speak and utter in the presence of John
Thomas, William Trigger, James Bell, George Lone, Thomas Foster, and
others.”