CHAPTER X

STRIFE

Thomas Penistone, in the preamble to his will quoted in “The Way of

All Flesh,” insists on the confusion or disputation an intestacy

might cause. The regular formula, occurring over and over, is that

the will is made for avoiding controversies after death; or, as one

John Nabbs says (1665), “the unhappy controversies usual in default

of such settlements.” Robert Collyer, whose will was proved November

8, 1665, makes a peculiarly interesting addendum as to the law in his

day: “the reason why I trouble not myself with witnesses is because a

will so made by a man himself, although many imperfections in regard

of form and the like may be in it, yet it is as good in law as if it

were published and declared before many witnesses; which if people did

but take notice of, many wills would be made that are not and much

contention prevented; which I heard Serjeant Maynard plead for law in a

case between Master Christopher Coles and Master Walter Bartellott at

Westminster Hall.”

There is a pathetic fallacy in this expectation. Some controversies may

be avoided, but bitter disputes too often are aroused—disputes about

the will’s validity, the meaning of its provisions, the capacity of the

testator, the legality or interpretation of a bequest, its justice or

injustice, and so on interminably. Such a work as Theobald’s “Law of

Wills” illustrates, by the thousands of decisions it brings together,

what questions and queries arise on the legal and interpretative sides

alone.

Some seem to foresee trouble, or “fuss in the way of quarrel,” as one

testator puts it. A clause is frequently inserted barring disputants

from any benefit. George Spence (1587) expresses this well: “I will

that if any person or persons shall not be content with such gifts as

given to them by virtue of this my will and testament, shall be clearly

and utterly voided out of the same, and they shall have no commodity

or profit by virtue of the same.” And Anthony Wayte, of Clapham, whose

will is dated September 10, 1558, believes in an original remedy—a

short way with disputants. “If any dispute as to the meaning of my

will, I will two or three unlearned husbandmen of my parish of Clapham

to interpret my meaning as they or two of them shall think in their

conscience.” It is a delightful touch of sarcasm and sagacity.

It was no wonder that Sir George Hervey, of Thurleigh, Bedfordshire,

who died about 1536, took his friends and even his servants into his

confidence, acquainting them with the tenor of his will. For it was

found, when the will was taken from its place of custody in a coffer

“standing in the house of one Richard Holt, draper, dwelling in Watling

Street,” that he had left his estates, his manors, and lands in

Huntingdon, Bedford, Buckingham, Hertford, and Oxford, to his reputed

son Gerard, to the exclusion of his generally recognised son and

daughter, Nicholas and Elizabeth. Needless to say the will was called

in question, but the affidavits of Sir George’s friends and servants,

in whom he had confided, secured its admission to probate.

Thus one witness said that “about ten or twelve days before the death

of the said Sir George, this deponent was eftsoons in hand again with

the said Sir George, that he should be good unto Nicholas Hervey;

to whom the said Sir George answering this deponent, showed of a

displeasure that was grown between him and the said Nicholas, and said

that he had given him a dash with a pen, and that he should never have

groat of him, and this deponent saith also that he was present when the

late Abbess of Elstow went unto the said Sir George instanted and moved

the said Sir George to be good unto the said Elizabeth, whereunto the

said Sir George utterly refused to do her any manner of good, saying

that she was not his daughter.”

Thomas Smith Panuwell, of Tonbridge, seems not to have had much faith

in peaceableness and honesty: to his will is appended the following:

“As the above written was copied from a will written by me some time

before the above date, (1779) but not witnessed as I lay very ill of

a fever, I was dubious and revolving it in my mind whether it was

authentic, I had it written afresh by an attorney in form of law;

... but as I am now sensible my brain was then in perplexity through

weakness, the authenticity of this will might be questioned and

possibly for the benefit of trade by the man who wrote it, I hereby

declare it is my will, now it has pleased the merciful Almighty to

raise me from the jaws of Death and bless me with opportunity to

endeavour to attain through a sincere repentance and reform the

salvation of my spirit; and I am in perfect and sound mind and memory.

Witness my hand and seal this 20th day of February, 1780.”

Few cases in the courts are more interesting than doubtful or disputed

wills. But, however romantic, there is much that is sordid and

miserable in probate actions, much lamentable bitterness of spirit. It

may be hoped that when these cases are heard the testator has drunk

deep of the Lethean stream. But the controversy may begin before the

testator’s death, and cruel such wrangling is.

The story of the last days in the life of Elizabeth, mother of John

Stow, is a curious tale at once comic and distressing. John appears

not to have been on the best of terms with his family, and especially

to have irritated his younger brother Thomas. Elizabeth Stow, in 1568,

was living with Thomas and his wife, but one day chanced to go and

visit her son John. She was refreshed with the “best ale and bread, and

a cold leg of mutton was put before her, whereof she ate very hungerly,

and thereafter fell both to butter and to cheese.” On leaving, she

promised John not to slight him, as he was her eldest son. But Thomas

and his wife would give her no rest till she had told them all that

she and John had spoken together. It leaked out that John had insulted

Thomas’s wife, whereupon he “would never let my mother rest” (John

tells the story himself) “till he had forced her to break her will,

wherein she bequeathed me X li., (equal with all the younger children,

except Thomas, which had all indeed) and to put me in nothing at all.”

But she found that her friends would not witness the will, nor did they

until Thomas pretended he had restored the £10, though he put down £5,

in fact. “And so they set their hands to it, and after heard it read,

wherein they found the V li. and would have withdrawn their hands

again, but it was too late.”

Thomas took great offence at John’s insult to his wife: but soon

afterwards he himself thrust her out of doors, and she, getting in

again, “he beat her and threw her again into the street; and all the

neighbours could not get him to take her in again, yet again she was

conveyed into the house, and at X of the clock at night, he being

bare-legged searched and found her and then fell again a-beating of

her, so that my mother lying sick on a pallet was fain to creep up, and

felt about the chamber for Thomas his hosen and shoes; and crept down

the stairs with them as well as she could, and prayed him to put them

on lest he should catch cold. So my mother stood in her smock more than

an hour entreating him for the Lord’s sake to be more quiet: so that at

this time my mother took such a cold that she never rose after, but he

and his wife went to bed and agreed well enough.”

Then began a long wrangling about the will, the minister who attended

her much misliking it, and Thomas and his wife neglecting no device

to keep the poor mother to the will. Her son-in-law, Rolfe, a priest,

also tried to persuade her to do justice to John, but “she always bade

him hold his peace, or else speak softly, for her son’s wife was in

one corner or other hearkening, and she should have a life ten times

worse than death if Thomas or his wife should know of any such talk.”

Soon after this the brothers professed to patch up the quarrel, and

John mustered courage himself to entreat his mother to put him back for

£10, and he read her the 133rd Psalm, asking her to persuade Thomas

to read it too, “which she said she dared not do. The psalm beginneth

thus: ‘Behold how pleasant and joyful a thing it is, brethren, to dwell

together and to be of one mind,’ &c., and this is a special note to

be marked; all the time that I was talking with her, to break me of

my talk she lay as she had been more afeared than of death, lest her

son Thomas or his wife should hear any of our talk. And still she

cried to me: ‘Peace, she cometh; speak softly; she is on the stairs

hearkening,’” &c.

Still the storm raged round the unhappy woman’s couch; her brother,

and the overseer of the will, both protested against its provisions.

But in vain; at last she died, worn out and embittered, we may very

well imagine, by the broils of her last days on earth. Truly a pitiable

tale, but perhaps not unparalleled. We may still read how £5 only was

given to John, for the will is extant. It suggests what feuds and

sorrows lie behind the phrases of many a will.

Such feuds and sorrows struck the imagination of Dickens, when he

visited Doctors’ Commons, where the wills which now rest at Somerset

House were stored in his day. “We naturally fell into a train of

reflection as we walked homewards, upon the curious old records of

likings and dislikings; of jealousies and revenges; of affection

defying the power of death, and hatred pursued beyond the grave, which

these depositories contain: eloquent by striking tokens, some of them,

of excellence of heart and nobleness of soul; melancholy examples,

others, of the worst passions of human nature. How many men as they lay

speechless and helpless on the bed of death, would have given worlds

but for the strength and power to blot out the silent evidence of

animosity and bitterness, which now stands registered against them in

Doctors’ Commons!”

It is curious how quickly a man turns to his will in the event of

coolness or misunderstanding. Cardinal Vaughan has told how his

friendship with Cardinal Manning died down. “We consulted one another

and told one another everything. Well, he had appointed me to be one of

his executors. On one occasion when I was staying with him in London,

we got into a discussion; I could not accept his views, and I suppose,

on the contrary, strongly maintained my own. I saw he was a little bit

put out—but what do you think he did? He went upstairs, took out his

will, and struck his pen through my name as executor.”

An uninitiated reader of Elizabeth Stow’s will would never have

known what bitterness lay behind that £5 legacy; but sometimes such

bitterness is evident enough. Harry Staple, of Ospring, Kent, whose

will is dated February 19, 1691, is curt and downright: “To the widow

Hall of Ospring and unto my three undutiful daughters, Mary and

Elizabeth and Martha one shilling apiece.” John Braibroke, of Cooling,

in 1535 requested his son Thomas “not to meddle with nothing of my

testament or last will, nor my wife Alice to meddle with nothing that

is or hath been between me and my son Thomas from the beginning of

the world unto the present day.” A startling bequest was that of 3½d.

to a son for the purchase of a rope for his wife, to be used as soon

as possible. And another son to reap trouble was Freeman Ellis, whose

father’s will was proved in 1664.

“Memo. that Freeman Ellis late of the parish of St. James

Clerkenwell ... having a very great love and affection for

Bridget Fanny and Judith Ellis who had always been very

kind and loving to him, and being very much displeased

with his son Freeman Ellis, who had been undutiful to him

and married without his consent and was gone away from his

wife, would and did several times in his life time ... say

and declare that whenever he died he would make his said

sisters ... his executrixes and leave his estate to their

sole ordering and disposing.”

Wives fall under a full share of abuse. A London bookseller, in 1785,

left a legacy of £50 to “Elizabeth whom through my foolish fondness

I made my wife, without regard to family fame or fortune, and who

in return has not spared most unjustly to accuse me of every crime

regarding human nature, save highway robbery.” Robert Frampton also

had unhappy experiences. He describes himself as of Woodley, in the

parish of Sonning and county of Berks, and his will was dated in London

December 18, 1677. “I do devise and bequeath to my wife Ann £1000 to

be paid her out of my personal estate, not being able to leave her

more by reason of her extravagancy in all things, embezzling the money

given her for her apparel and leaving what she bought for that use upon

the score, which I was forced to pay, and her running me into debt a

good sum besides whereof she would never give any account. She hath

also from time to time given her gossips a great part of what bought

for herself the children and necessaries for the house and of the

provisions thereof to the huge increase of my expenses and great damage

of my estate; yea, in all things she hath ever been a profuse imperious

and unkind wife unto me, and sundry times bound herself under a curse

to ruin me if she could and necessitate the children to beg and starve.”

Sir Humphrey Style, in 1658, was more reticent in his misfortune. He

gave to his wife £20 to buy mourning for him if she pleased, and a

further sum of 5s. only “for good reasons best known unto myself, but

not for her honour to be published.” But doubtless the gossips wagged

their tongues no less.

A Spanish lady, not long since, included all her relations in one

condemnation. “Nothing shall come to them from me, but a bag of sand to

rub themselves with. None deserves even a goodbye. I do not recognise

a single one of them.” But not only within the family is animosity

shown. John Bacon Sweeting, of Honiton, surgeon, whose will was proved

November 10, 1803, in a codicil thus complains: “Be it remembered that

whereas I am unhappily so situated as to have Samuel Lott, Esquire, as

possessor of a spot of waste land adjoining some lands which I bought

... and situate on the north side of the Borough of Honiton, and the

said Samuel Lott has set up a claim to a certain space behind the same

which he has refused to leave to be referred to the arbitration of Wm.

Tucker of Croydon, Esquire, from a consciousness, I conceive, of the

injustice of his pretensions, this as a serious man and a Christian I

would not assert if the same conduct had not been notoriously observed

by him wherever he had a prospect of over-reaching his neighbour, and

feeling that this conduct will as [illegible] prevent my selling the

property at a fair and just value, as most people wish to avoid law,

it is my will that the same shall not be sold during the lifetime of

the said Samuel Lott for a less sum than £120, and it is further my

will that if the said Samuel Lott shall encroach any building on the

spot alluded to, that then my said executors shall pull down such

encroachments and defend the act as they shall be advised, and the

expenses paid out of my property.” More recently a testator thus gave

vent to his feelings: “My estate would have been considerably larger

if it had not been for my association with this perambulating human

vinegar cruet and the cleverest known legal daylight robber.”

But a transition to the subject next appearing may conveniently be made

by mention of the will of Robert Halliday (dated May 6, 1491), who

gave 5s. issuing out of an estate in St. Leonard, Eastcheap, to make

an entertainment once a year for persons at variance with one another,

that peace and love might be promoted and prevail.

The Romance of Wills and Testaments · 第 10 / 16 章