USA > Massachusetts > Suffolk County > Chelsea > Documentary history of Chelsea : including the Boston precincts of Winnisimmet, Rumney Marsh, and Pullen Point, 1624-1824, vol 1 > Part 46
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VOL. I .- 29
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450
HISTORY OF CHELSEA
[CHAP. X
dwelling house in Boston, & lands joyning, & other buildings adjacent, as also the farme now occupied by Samuell Townsend, during her naturall life, as also the household stuffe left her in the house, together with the ballance of Mr Stoddards accot, which is forty six pounds thirteen shillings, to be at her dispose, with two cowes she had, & 5" lent her, & three pound odd moneys in stuffe for a goune, delivered by the trustees, provided allwayes that she shall not make any strey or wast of wood or timber, & at her chardge, from time to time, & at all times, keep the houses & fences tenantable & in good repaire." 25
Thus it appears that after many years of litigation in the lower courts, the General Court, on the King's recommenda- tion, set aside Governor Bellingham's will and committed the administration of his estate to his son, Samuel Bellingham, meantime making provision for the support of his widow. As the decision of the court of last resort this would seem to have settled the matter; but Mr. James Allen, the principal trustee, was able, aggressive, and persistent, and the General Court, in taking original jurisdiction of the probate of wills which by law it had committed to the County Court,26 gave him an opening of which, as we shall see, he availed himself thirty years afterwards; and thereby controversy was con- tinued for more than eighty years.
25 Mass. Col. Rec., 142, 143. [Compare her agreement with the Trustees, supra, p. 398. According to the inventory of the Governor's estates (supra, p. 427), this was a liberal allowance.]
26 [See infra, p. 528, note 4.]
451
APPENDIX
CHAP. X]
APPENDIX
" ATT a Court of Assistants held at Boston 2ª of march 1674[1675] 1st Jur mr Joseph Belknap & Richard wharton Atturneys to & in behalfe of Nicholas Rice plaintiffe in an Accon of Appeale from the virdict of the Jury & Courts Judgment in the County Court at Boston in January last agt mr Jnº Oxenbridge James Allen Anthony stoddard & Humphry Davy trustees & executors to the last will & Testament of Richard Bellingham Esq" de- ceased = After the Courts Judgment reasons of Appeale and evidences in the Case produced were read Comitted to the Jury & remajne on file wth the Reccords of this Court the Jury brought in their verdict they found for the plantiffs A reuersion of the former Judgment & Costs of Courts three pounds twelve shillings & ten pence:"=1
This record tells but little; but from the proceedings on the appeal it appears that the trustees sued Nicholas Rice, tenant of the Rice farm (Shurtleff farm), for the rent which the Governor by his will had given to Mrs. Bellingham for life.2 The case hav- ing gone against him in the County Court, he appealed to the Court of Assistants, where the judgment was reversed, as appears above. Though the reasons are full of irrelevant verbiage I print them as they set forth the objections to the Trustees' right of action, as claimed by the heir-at-law. The Reasons allude to some
1 Records of the Court of Assistants, i. 24.
[Other papers in this case follow, yet the file is incomplete, and it does not appear whether by this verdict the jury intended to overrule the decisions of September, 1673, or whether this case was differentiated in some particulars from the other rentals at Winnisimmet. The reasons of appeal point out technical flaws in the proceedings; the following re- ceipt suggests that the flaw pointed out by Wharton in the evidence of John Deacon may have been more than technical: "Reseuied of Nicho- las Rice for the years 1667 1668, 1669 1670 for his Rent each yeare ten pounds for halfe the farm I say reseiued 26. 11: 1670 by mee Ri. Belling- ham." (Mass. Archives, C. 128; also supra, p. 439. At the July term of the County Court, in 1674, the Trustees sued Edmund Chamberlain of Malden for two years' rent of a parcel of marshland. They recovered, and no appeal was taken. (Suff. Co. Court Records, 244.) Presumably this was a part of the Island End Marsh.]
2 See, supra, p. 398, the agreement between the Trustees and Mrs. Bellingham.]
452
HISTORY OF CHELSEA
[CHAP. X
objections to Samuel Bellingham's power of attorney to Richard Wharton, and therefore, as well as for one or two facts which the power contains, I print that also.3
[ Lease from Wharton to Rice
This Indenture made the first day of January, 1672, between Richard Wharton, of Boston, Merchant Attourny to Doctor Sam- uel Bellingham, Son & heire to Richard Bellingham, Esq" on the one part & Nicholas Rice of Winissimet husbandman, on the other part Witnesseth, that the saide Richard Wharton, as an Attourny aforcsaide hath & doth, by these presents grant set & to Farme Lett unto the saide Nicholas Rice all that Farme & all those uplands Meadow & pasture now in his possession, & occupation, with all houses outhouses & Edifices upon the same late belonging to & the Estate of the saide Richard Bellingham, Esq! deceased To have & to hold the premisscs with all priviledges & appurtc- nances to the same now belonging to him the saide Nicholas Rice for [and] during the full terme & time of one whole yeare to com- mence from the five & twentieth of March next ensuing to him the s! Nicholas Rice his heires adm!s & assigne, and that the saide Nicholas Rice doth for himselfe adm!s & assignes Covenant & engage to pay to the sª Richard Wharton or the Attourny of the sª Samuel Bellingham for the time being the Sume of twenty pounds in good sound & Merchantable provisions at price currt at the Town of Boston, within the aforesaide time to the accepta- tion of the saide Wharton, or Attourny of sª Bellingham, and that hee the s! Rice his adm!'s or assignes shall not commit or suffer any wast, and at the Expiration, of the sª term, render and deliver quiet possession of the sd premisses to the saide Bellingham his Attourny or assignes. In Witness whereof the party's hereunto haue interchangably Set theire hands & Seales this first of Janu- ary, 1672
Witnesse John Blake
Ri : Wharton . Attourny to m' Sam !! Bellingham -
?
Thomas Bendish
& a Seale.
Peter Lorphelin
Ownd in Court, Janur : 29, 1674. by
m! Wharton attests. Isª Addington Cler.
3 [The papers included in brackets have been discovered since Judge Chamberlain wrote, in Suff. Early Court Files, No. 1353, Papers Nos. 2 and 3. They are endorsed: " Ri: Whartons Leas to Rice & Rices Letter of Attourney."]
453
APPENDIX
CHAP. X]
This is a true Coppie of the Originall on file as Attests . Isª Addington Cler.
Power of Attorney from Nicholas Rice
Know all men by these presents that I Nicholas Rice of Redding sometimes Tenn! to Richard Bellingham, Esq' late Governor & since to Doctor Sam !! Bellingham, his onely Sonn, as by a lease (bearing date the first of January, 1672) of a Farme at Winis- simet hired of Richª Wharton, Attourny to Doctor Sam! Belling- ham may appeare & for as much as the s! Rich! Wharton, as Attourny to the sª Doctor Bellingham, did upon the day aforesaide by a Writing under his hand & Seale warne advise & require mee the sª Nicholas Rice & the rest of the Tennts at Winnisimet to detaine & keepe in our hands all the rents issues & profits of the respective Farmes in our possession, obligeing to warrant & secure us for soe doing as by the sª Writing may more fully appeare : And Whereas m' John Oxenbridge decd m" James Allen, mª Stod- dard & m" Davy have comenced an action, at the County Court of Boston, agt mee for the rent of sª Farme hired of sd Wharton, as aforesd & the s! Wharton, having given his Obligation, to the Con- stable of Redding (by w !! I was Attached in the Action, afores!) for my appearance to answer the same Now for the Reasons aforc- saide I doe hereby request Authorize & impower my Loving bro: Joseph Belknap of Boston Glover & the s! Richard Wharton or either of them to appeare answer & make plea to the sª Action, in my behalfe as being Tenn! to & Sued for the rent of a Farme I possessed as afores! in the right of Doctor Sam"' Bellingham ; also in all that refers to the premisses to bee my Attourny's & to doe all that is necessary for my defence in the aforesd case or any other action, that may bec brought agt mee upon the grounds or reasons afores! And I doe further request the s! Wharton, according to his afore recited Obligacon, in case of Judgement agt mee to Satisfy & discharge the same, or else wth the sª Joseph Belknap if they see cause to appeale from the same & to do whatever else may to them, seeme most expedient in the premisses & I doe hereby promiss to ratify & confirme the same. Witness my hand this, 27, of January Anno Domini. 1674.
Nicholas N Rice & a Seale. his mark
Signed Sealed & Delivered in presence of Joseph Dudley Tho : Woodbridge.
454
HISTORY OF CHELSEA
[CHAP. X
Nicholas Rice acknowledged this Writing to bee his aet & Deed this 28th of January, 1674 before mee Simon Bradstreet Assist
This is a true Coppie of the Originall on file as Attests. Isª Addington Cler.
County Court's Judgment 4
At a County Court held at Boston - January 26th. 1674 [1675] -
M! John Oxenbridge, m! James Allen, m" Anthony Stoddard & m! Humphry Davie Trustees & Exeeuto!'s to the last Will and Testament of Richard Bellingham deceased plaints agt Nicho- las Rice of Reding Defend! in an action of debt for non paiment of fforty pounds for two yeares Rent for a ffarme at Winnisimet payable in March: 1673 . 1674 . wth. all due damages according to Attachm! Dat. Decemb! 1º 1674.
The Attachm! & Evidences in the case produced being read comitted to the Jury & remaine on file with the Records of this Court, The Jury brought in theire Verdict, they founde for the plaints fforty pounds of wch ffive pounds to bee paide in Silver & costs of Court, allowd by the Court, thirty six Shillings & four pence ; Joseph Belknap & m! Richard Wharton as Attourny's &a in behalfe of the Defend! appealed from this Judgemt unto the next Court of Assistants & themselves as principalls in Eighty pounds & m! Jnº Saffin & Tho : More as Sureties in . 40ti apeice, acknowledged themselves respectively bound to the Treasuro! of the County of Suffolke & party's concerned on condicon that the sª Joseph Belknap & Richard Wharton. as Attourny's afores! should prosecute theire appeale from the Judgement of this Court at the next Court of Assistants to Effect.]
Reasons of Appeal to the Court of Assistants"
Joseph Belknap & Richd Wharton Attourneys to, & for And in behalfe of Nicholas Rice Their Reasons of Appeale from ye Judgmt of ye County Court held att Boston January 26 : 1674 : In an action Comeneed agt ye sª Rice by M! Ja Oxenbridge. M! James Allen ME Anthony Stodder & ME Humphrey Davy přtended Trustees & Ex!s To ye last will of Richd Bellingham Esq! Decđ
Records of Suff. Co. Court. 1671-1680, p. 293.
" Chamberlain MSS., i. 35. [Draft presumably by Richard Wharton; endorsement by Isaae Addington; autograph signatures. ]
455
APPENDIX
CHAP. X]
1t Because ME Stodder one of ye y! plis appearing wthout a power to Sue & ye Appellts takeing exeption, & Demanding a Non- suite, according to Law, & practice In other Cases, ye Court were pleased to deny ye plts plea, & respit yt accon, & Call another, till M! Stodder went to looke for a power as he prtended; & haveing Brought wt he could find, & yt alsoe exepted agt, as in suffict ye originall Records were brought forth to furnish him : wch in regard he might have had Coppyes thereof, for his money, & pduced no Licence To Sue fforma Pauperis, neither his case being of any publique importance, & in regard ye Appellts are con- strained to produce & pay for ye Coppies of those records, wch he was accomadated wth as aforesd they humbly leave it to Con- sideracon whether ye Courts pceedings were hecrin agrccable to ye Method of Courts in other Cases; & to yt law Title Strang!s & to those Gen!lle Rules of Justice wch our law appoints to be administred without Ptiallity, & delay : And if this seem not a suffict Reason of Appeal, they humbly offer their pleas in ye form! Court, as Reasons for their Appeale to this.
1! Because ye y! plis had no legall power to Sue -.
2ª - Because they had neither any legall interest in nor Equita- ble title to ye Rent Sued for. yt ye yª plts had no legall power ye appellts thus demonstrate.
1! - Because ye p"tended Will allows not less ya three to make a valid act, but there was none but M! Stodder in Court to make this act valid, nor Could there possibly be three, as ye Will requires for M! Oxenbridge is dead; in whose name ye pcess Issued; & Law & Reason saith yt ye action dyes wth ye pson. & M! Stodder (Thanke him for it) brought ye originall record to tell vs y! M! Russells had Renounced; so yt himselfe & y: Will maker, who also was absent are all yt remaine to make a valid act; And to supply ye want of one, M! Davies name (but not his pson or power) is brought in (But to free him from ye trouble of attendance) ye appellts Say yt ye prtended Will allowes no Supnumeraries. four are ye number ordained, & there is no roome for a fifth, nor for ye Choice of a successor to any of ye four, till some of ym be dead or remoued, & so Judged vncapeable by ye rest; But ME Davies Comission is signed by all ye first four, whereby each owns him- selfe; & every three ownes ye fourth Capeable of acting: therefore none of y !. Decd, or removed nor Judged vncapcble by ye rest. This ordinacon of ME Davyes also Antidates ME Russells Renun- ciacon : Therefore MẸ Davy is a still borne Ex! & although ye other three afterwards own an instrum! yt is originally Illegall, & dead, yet they cañot thereby legitimate, or give life vnto it, & their oversight in Not makeing a new ordinacon, w! there seemed
456
HISTORY OF CHELSEA
[CHAP. X
to be opportunity, instead of owning ye old Illegall one, speaks a great pvidence of god, or a deep designe in ylu to leave such an open door to dept or be driven out at.6
But vpon y: p"sumption y! M" Davy be looked vpon as legitimate, his Consent, or Comission, to M! Stodders prosecucon, in this action appeared not; nor any thing like a Legall power; But instead thereof M! Stodder brought in a paper Called Gen'll Conclusions wch evidences no Authority, but rather brings to light a Conspiracy : & this also without any Legall proofe And this hono'd Court, & Countrey, knowing how often a more Legall instrum! Viz: MẸ Bellinghams Letter of Attourney, was rejected for want of possitive proofe.7 It is humbly hoped yt those y! now in this Court hold ye Scales will weigh m! Bellinghamns, & M: Stodders Case, in ye same ballce And if m" Bellinghams power for want of Cleare & certaine Testimony, were laid by as Illegall; It is hoped yt wt m! Stodder hath produced, haveing neither ye Substance nor Shadow of Authority, or Evidence, wil be much more Condemnd & ye Judgmt yt hath passed therevpon reversed
2ª To prove y! m" Stodder & Compa had neither any Legall interest in nor Equitable title to ye rent Sued for: The Appellts say y! Jn Deacon & his wife (ye onely testimony yt was produced to prove ye y! plis Claime) Do testify yt Rice Lived att a ffarme yt was M! Bellinghams, in ye yeare 72 : & 73 : ye first ambiguity in this oath we shall not as we might insist vpon but allow it as favourable interp"tacon in M! Stodders behalfe as may be, & thence humbly Suggest yt although Rice lived there in those two yeares, it is not thereby proved, yt he either lived there two whole yeares, nor any Considerable Pt of either yeare, for he might live there but two dayes, or at most but three months & ye Evidences be lit- erally true; & ye same Witnesses say yt by agreem! Rice was to pay 20 £ a yeare, but ye Deponts do not declare whether Rice & ye Governo! made yt agreemt or whether ME Allen & M! Stodder agreed between y selvs, to make Rice pay so much, It is Essentiall to every agreemt yt there be two Pties at least, but there appears none in this; however Rice is not sª to be one, And although from ye latter p! of ye Testimony it may pbably be inferd, yt Rice lived there halfe a yeare at least, yet there is so much darkness, & vncertainty, in y & ye pvisoe or Condicon of paying 5 £ in money, yt ye Appellts doubt not, but it will seem Strange to this, where ye form! Jury found a foundacon for their verdit.
6 [Infra, p. 458.]
'[Infra, p. 461 and note 16.]
1
457
APPENDIX
CHAP. X]
2ª - To demonstrate y! ye now defendts have no legall interest in, nor Equitable Title to ye Rent Sued for. ye Appellts humbly propose it to ye Consideracon of ye Court & Jury : That ye Rent in Controversy is expressly as ye first Donacon in ye will, given to mrs Bellingham : not to M' Stodder & Compa & if any thing in yes! paper were ye suposed Testato!s mind; it was yt his sª Wife should enioy ye farme & Rent, as appears by ye words following : (The ffarme she hath Dureing her life) & it further appears from ye fourth desire or instruccon yt ye Supposed Testator, never intended either Rent or ffarme to these his Trustees, Dureing his Widdows life : onely yt if she saw need or desired their help, & Councell, he desires they would affoard it her, for ye quiet enioymt of her Estate, & receiving of her Rent. But these Trustees run before they are sent, & without any Comission or request from Mrs Bellingham, or without takeing any notice of her name, or right Sue in their owne, for yt wch if ye will be of any force, belongs to her : & is at her pleasure recoverable by her.8 But if it be answered yt wt they do is in her right, & by a power or right (Though Concealed) Derived from her It is replyed yt ye Law Title Atachmt & Sumons Sec : 4 : page 8 : tells ym yt in such case they should have Sued as Couneellos, helpers, Attourneys, or Assignes, to Mrs Bellingham & its humbly hoped yt from sd law wch was pleaded at ye County Court, this Hono'd Court & Jury will see yt ye yn plts ought to have been nonsuited or Judgmt given agt ym And ye Appellts p"sumeing y they have Just grounds of Appeale Viz :
1! Because of ye extraordinary way of ye Courts proceedings & liberty given To ME Stodder -
2ª Because ye y! plts had no Legall power to Sue -
3 - Because they had neither any Legall interest in nor Equitable Title to ye thing Sued for And thus ye Appellts also humbly con- ceiving they have ffully demonstrated & made proofe of their Reasons : They therefore humbly Comend ye p"mises to ye wise & righteous Consideracon & Judgmt of ye honord Court & Jury, Craveing a Reversion of ye form" Judgmt & Costs of Courts. =
Joseph Belknap Ri : Wharton Attourneys as aforesd
These Reasons were received.ffebr° 25th 167.
P. Isª Addington Clerc
These reasons prevailed and judgment was given against the Trustees in their suit for the rent of the Rice -farm, as appears above.
8 [Supra, p. 398.]
458
HISTORY OF CHELSEA
[CHAP. X
[The Bill of Costs "
In ye Case of Joseph Belknapp & Ri : Wharton Attourneys To Nie : Rice Appellts & Mr J. Oxenbridg Mr James Allen &c: Defendts
The Appellts : Bill of Costs.
For 2 Dayes tyme & travayle from Reding to gett Bayle, £00:04:00
& returne
For Riees attendance 3 dayes at ye County Court & travayle home £00: 06 : 00
For writing a Letter of Attourney
£00:00:06
For Copyes of writings put in to ye County Court & a Copy of his Lease ye originall being in Court £00:04:00
For our attendanee - 5 Dayes £00:10:00
For 2 witnesses 5 Dayes .
£00:09:00
For Copy of ye Case to Mr Addington £00:14:06
For our Attendance 4 Dayes at this Ct £00:12: 00
For ye bond of Appeale & entering £00 : 11 : 00
£04:03:00
fileing 11 Euidences 01 10
3.11: 0
Allowed T. C.10 3 12 10
E R S11
Ri Wharton.
Nomination of Humphrey Davy as Trustee 12
" Wee whose Names are vnderwritten beeing Executors to ye Last will of Richard Bellingham esq" o" Late honn'd Gout in Answere to the trust thereby Comitted to vs & power delegated to choose one or more in the Roome of any one remoued from that trust, considering the Importance of it & not knowing the Day of our change Least the good intent Expressed in the will shold be frustrate by our Neglect heerein and that the piose Ends thereof may bee furthered, Wee desire & heereby Choose mr Humphrey Dauie to bee the next sucksessor in the same power & trust vnto any one of vs whose place shall be first voide by death or otherwise whereby hee shall be Judged vncapable to act accord- ing to the Will
In Testimony wee John Oxenbridge & a seale --
set heereto our hands James Allen & a seale
and seales this 14th of
March 1673
. John Russell & a seale Anthony Stoddard & a seale
9 Suff. Early Court Files, No. 1353, Paper No. 5. Endorsed: "Whartons Costs. Court Assistants. 2d Mareh 1674."
10 Thomas Clarke, one of the judges of the court.
11 Edward Rawson, Secretary.
12 Suff. Prob. Ree., L. 7, f. 355.
459
APPENDIX
CHAP. X]
ME John Oxenbridge m" James Allen & mr Anthony Stoddard understanding that Mr Jnº Russell had renounced 13 his Executors place to the Last will & testament of the Late Richard Bellingham Esq! deceased the three other Executors personally appearing the 6th of february 1673 did acknowledge this writeing as their act & Deed before John Leucrett Gou!
Mr Humphrey Davey also appearing the same tyme did accept of & consent
Edward Tyng Assist.
to this writeinge
Recorded (& compared) 26 . 12. 74 ₽. ffree Grace Bendall Record"]
Samuel Bellingham's Power of Attorney to Richard Wharton 14
Know all men by these presents That I Samuell Bellingham sonn of Richard Bellingham of Boston in New England Esq" doe herein & hereby these presents constitute & appoint my trusty & Respected ffreinde m" Richard Wharton of Boston in New- England Merchant my true & lawfull Attourny in my Name & for my use to demand Sue for obtaine & receive & to use all law- full wayes & meanes to receive all monyes paiments debts & dues whatsoever coming or oweing to mee in New-England or Barbados or any of those remote plantations with all proceeds & jnterest thereof And upon receipt to acquit release discharge or any other lawfull Act or Deed concerning the premisses to doe as if I my selfe were personally present hereby confirming whatsoever my saide Attourny shall lawfully doc or cause to bce done concerning the premisses in full testimony whereof I set to my hand & Seal this sixteenth day of the second month comonly called Aprill in the yeare of or Lord One thousand six hundred & Seventy.
Samuell Bellingham & a seal Signed Sealed & Delivered - in presence of Stephen Williamson Nathaniell Gasely Mat Nellens - Richard Rawlen.
Mathew Nellens witness to this Letter of Attourny did giue his testimony before mee as on the other side
Symon Broadstreete
Endorsed as followeth
13 Supra, p. 397.
Chamberlain MSS., i. 9. Endorsed: " Doctor Bellinghams Letter of Attourny."
460
HISTORY OF CHELSEA
[CHAP. X
Mathew Nellen of London Marrin! maketh Oath that being at Amsterdam in the month of Aprill One thousand six hundred & Seventy hee saw m5 Samuell Bellingham signe seal & deliver the Letter of Attourny within & that hee the Deponant as a witness thereunto did then subscribe his name as it now stands under the saide letter of Attourny
Taken upon Oath ye 13th of September
1671. before mee Symnon Broadstreet Assistant. The 17th of Deeemb! 1622. Capt Stephen Williamson eame & made Oath that m" Samuell Bellingham Signed & Sealed the aboue letter of Attourny
Before mee Elias Stileman Comission! This a true Coppie as Attests ffree Graee Bendall Cler.
This is a true Coppie of the Originall word for word as it stands upon Record on the 165 page of the fourth booke of Records of the Notary publiek of the Massachusetts Colony of New-England & out thenee drawn & examined the 29th day of Aprill : 1673.
Robert Howard Not publ Colonia prediet. - This is a true Coppie as Attests ffree Graee Bendall Cler. This is a true Coppie as Attests . Isaae Addington Cler
The above is certified as a true copy from the records of the Notary Publie of New England; but it will be observed that neither Samuel Bellingham, then at Amsterdam, nor either of the witnesses ever acknowledged it before the Notary Publie.15 I suppose that this is the power which the General Court deeided to be insufficient in 1674.16
'I am unable to say what effect was given to a notarial seal in the Massachusetts Courts in those days; but a common custom in the exe- cution of an instrument to be used in that Colony was for two or more of a ship's crew to witness such execution, and on their coming to Boston, to acknowledge the same before the proper officer. The neglect of this occasioned much delay and trouble in the conveyance of real estate owned by parties living abroad.
16 [This was the power of attorney under which Richard Wharton, December 19, 1672, protested against the probate of Governor Bellingham's will. That declared insufficient by the General Court at the session begin- ning May 27, 1674, was probably the one which follows in brackets, dis- covered since Judge Chamberlain wrote. Although Samuel Bellingham affixed his signature to it April 8, 1673, Ephraim Bendall did not make oath as witness thereto until June 19, 1674. For this reason, presum- ably, the Court deemed that it "was not legally prooved." Yet the Court accepted the letter at its October session (supra, p. 442), although then, so far as appears, proved by only one witness, not, as was customary, by two witnesses. Naturally the Massachusetts courts could not accept a power of attorney to collect debts as an authorization to dispute a will.]
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