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 52
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of the said premisses according to the Settlement made upon the Marriage of the said Samuel Bellingham with Elizabeth his Wife. And it is hereby Decreed That the said Complts. Do hold and Enjoy the said Estate accordingly, And it is Further Ordered That the said Defts. Do come to an Account with the Complts. before Sir Richard Holford Knight One of the Masters of this Court for what Rents and profits they or their Agents have received out of the said premisses or without their wilfull Default might have received, Jn Taking of which Account the said Master is to make unto the said Defendts. all Just Allowances, and to pay them their Costs of this Suit, and what the said Master shall Certify to be in the Defts. hands of the Rents and profits of the said Estate, The said Defendts. are hereby Ordered and Decreed to pay the same unto the Complaints. at Such time and place as the said Master shall Appoint, and for what the said Defendants shall do in pursuance of this Decree They are Hereby saved harmless and Indemnifyed: Nos autem Tenorem Jrroculamenti pracdict ad Requisiconem praefat Quaerentium, Duximus Exemplificand per presentes, In cujus rei Testimonium has literas nostras fieri fecimus Patentes. Teste mieipsa apud Westmonasterium Nono die Februarii anno Regni nostri quarto. Trevor: High Lord. Exalatur [Examinatur] p Nos Thomas Gery, Robert Legard, Magros in Canc. January the Seventh 1711 Received and ac- cordingly Entred and Examined.
p Addington Davenport Regist! 21
Edward Watts & ux plts
John Shelton & ? Edward Hull Defts
The Case
Samuel Bellingham having Comunicacon with one Eliz. Savage 30 Mar 1695 vid to make her his wife did agree & consent if she would be married to him, he would settle & invest her in all his Estate & Inheritance wch he had at Boston in New Engld upon her & her heirs for ever to be at her own disposall whether sole or married without the Consent of her husband and Vide Deed of the sd Sam" Bellingham did pfect & settle the Settlemt Dated ye 16 day of aprill 1695
sd Estate & Inhitance by certain Deeds for that purpose made upon Defts In trust for the benefit of sd Eliz. Savage & her heirs if the intended Marriage took effect Wch Marriage in a few
21 Suff. Deeds, L. 26, f. 92. [A copy of this decree by "Elisha Cooke Cler," and endorsed " - -- & Townsend, Boston May 1708," is in Suff. Early Court Files, No. 7402, Paper No. 3.1
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days after was solemnized and abt a year after the Intermarriage she went over Sea to New Engld to take possion of the s! Estate & did lett set & take the rents & pfits of ye same without any Controul of defts or others but she continuing in New Engld for Vide will. above a years time & being often sick was p"vailed upon there by some of her Acquaintance in Nov! 1697 to make a will & therein Setled the Estate
And abt Jan!y 1697 [1698] she dyed without Issue After whose decease it was supposed the Estate descended to plt Rebecca Watts her Sister & sole heiress which she claimed by the Marriage Settlem! but is prvented of enjoying the same By Defts prtending they were Trustees, not only till the Marriage took effect but for the future according to any Will or Writing the sd Eliz. Belling- ham should make & she having made a Will as afores! in the same it is inserted yt after her husbands death the sd Estate shall go to Edw! Watts als Bellingham & his heirs for ever who is a Minor ab! 7 years old & Son to plt and in case he dyes without issue then to Sam" Watts his bro! & a Minor also
This Will came in queon & was by Order of the High Court 15 July 99 of Chancery & determined Null & void To which Defts p"tend yt plt Wats to make void vide the first de- cretall order dated the sd Will agreed with Bellingham privately yt he should be plt in Chancery & yt Wats & his wife as Defts should plead or Demurr to the Bill upon the Statute of 34 H. 8 Cap. 5 & then would agree & pay MẸ Bellingham one half part of the pfits of the Estate & after his decease the like to his daughter by a former Venter 22 Therefore Defts beleive yt that Hearing in Chancery was by agreemt & think the will she made is a good will to settle the Estate as she hath appointed in her will upon the Infants & they in trust for them and thereby Defts think in their Conscience they ought not to decline their Trust reposed in them by the Mar- riage Settlem! & say they are bound to see her Will pformed & executed. And the Infants not being menconed in that Bill or the Court being acquainted or made privy yt the Infants were to have the Estate beleive the Court will not Nullifie the sª Will but Confirme & Settle the Trust in them.
By means of wch Trust that Defts pretend to there is a Stop & an Objeccon put upon the Estate to discourage & dishearten sev-
22 [See Suff. Deeds, L. 30, f. 62; Chamberlain MSS., i. 107, 113; Suff. Early Court Files, No 6949, Paper 5 for evidence that an agreement was made with Dr. Samuel Bellingham April 25, 1699, by which payments were made to his daughter; supra, p. 499, note 18; infra, pp. 581-583.]
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vide Defts eral Purehasors who live in New Engld & in London who offer to buy the sd Estate but refuse the Same
first answer till Defts disclaime their right of Trust in & to them- selves & likewise to the Interest they elaime on behalf of the In- fants named in the Will & all others wtsoever And to make the Title the more obscure the Defts have also put a Stop to Plts from receiving the rents & pfits of the Estate & have sent Letters of Attorny into New Engld to their Agents to take & receive the rents of the Estate for & upon acco! of the sd Edw! Wats ais Bel- lingham the Minor during his Nonage.
ffor remedy of wch plts in Trinity Terme last Exhited their Bill of Compit agt Defts but omitted to make the Infants Defts in the sd Bill, and Defts pmised they would answer fairly & make a full Disclaimer by wch means the Objeccons yt any pson should make might be the better satisfied, If their Trust determined upon Solemnizacon of sª Marriage But quite contrary have drawn an Answer & Disclaimer denying as to themselves or to their own use or benefit they claime any thing out of the sd Estate but Insist if there be any such Deed or Deeds To then soe form Trust for any other pson or psons they would not prjudice them or have any such pson prjudiced Defts having heard there were such Deeds in Trust some how for the sole & sepate use of the sd Eliz. Bellingham And yt she has pusuant thereto made some Will by wch plts son Edwd & other psons are entitled to
Vide the Defts the Estate in Bill menconed or some pt thereof or last Answer
Something out of ye same as p answer will appear"
Then follow six questions, the seventh not appearing. On a separate sheet are seven questions substantially the same as those annexed to the Case, but more succinctly stated. Under caeh of these Cowper has written his answer, and signed his name thereto, 9 May, 1702. For convenience, I have added in brackets to the answers of Cowper, those of Counsellor Danyell found on a separate sheet, signed and dated 17 June, 1702.23
Qu. 1. Whether Defts Trust that vested in them before the Marriage took effect be not now determined.
[ Cowper] The conveyance to ye Trustees is not good in Law ; but supposing it good & yt ye est. in Law vested in ye Trustees, J conceive, yt ye Trust being limited to & for such pson as she by any writing Pporting to be her last will should appoint, & in ye meantime only in trust for her & her heirs; ye Trust subsists for ye benefit of those to who she has appointed it; her Ptended Will being good as an appointmt of ye Trust though not as a Will.
23 Chamberlain MSS., i. 73, 75, 81, 83.
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[Danyell] I conceive that the will is not determined by the Stat but the trust remaines.
2. Whether pls have not a legall Title to said estate & Jnhitance by vertue of Marriage Deeds of settlem! Considering p !! Rebecca was only sister & heiress to the sd Eliz : Bellingham Notwithstand- ing the sd Will.
[ Cowper] This answd before.
[Danyell] The plts haue no legall title to the p"mises if the will stand in force but the same remaines in trustees.
3. There are severall persons treating wth plts to buy the Estate. How can plts make a good title & clear Objeccons
[Cowper] This question is too general, but J do not see how ye Jnfants claim under ye will can by any ordinary course of Law or Equity be cleared or bound during their minority, - nor other- wise than by Act of Parlt
[Danyell] I cannot see the plts in themselves can make any legall title without the Judgmt of the Court vpon the mariage settlemt
4. The estate consists in divers ffarmes at Boston in New Eng- land & Defts as Trustees Confederating wth the Ex!'s who are their Agents & alive in New England receive the rents of sd Estate under prtence of sd Trust & Will Whether proper for plts to im- power some friend in New England to bring an Ejectmt or Ejectmts agst the Pticular Tenants or what is the best way to recover possion of the p"misses wch the Trustees or Exec!'s have receđ or shall receive the Rents of, and in whose name must the Ejectmts be brought.
[Cowper] If they are in possa who are either not bound or not to be reached bye ye Decree; ye Ejectmt must be according to ye forms of ye Colony & in ye name of such pson Lessor of ye PI. who has ye legal title, who for ought J see, is ye Heir of Samuel Bel- lingha, or himself if living.
[Danyell] I cannot see that any Ejectmt can bee brought but in Trustees' names the plts cannot bring any in his owne name but as heir at law in right of the wife but the settlemt will bee a barr if pduced & as there is a privity betwixt the Exec's & trustees of the settlemt tho concealed I beleive it will haue little effect till settled in Chancery or by act of Parlement
5. Whether proper to amend Bill & make the Jnfants by a Nominall Guardian Defts wth the Trustees & Ex's That thereby when Cause [is] heard the Judgmt of the Court may be known whether the Trustees Exec!s & Infants have any property by vertue of Will Notwthstanding a ffeme Covert Or proper for a Bill to be brought by some Guardian for the Children agst the now
521
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CHAP. XII]
pIts, Trustees & Exec!'s to have the Judgmt of the Court who has a legall right & title to the p"misses in queon & thereby the valid- ity of the Will come to be determined
[Cowper] You can have only a Decree nisi agt ye Jnfants, & they will have time after they come of age to shew cause agt any Decree obteyned agt e'm during their Minority
[Danyell] As to this & former questions the whole matter is not before the Court & the proper remedy to haue an end is for the Jnfant p Guardian to Exhibite a bill agt plts trustees & other Exec's & pduce the settlemt & take the opinion of the Court
6. If the Court determine the Will to be Good by vertue of Marriage settlem! the Estate being wholly ffreeliold Whether the Trustees shall have the power to take the Rents & profitts thereof till the Minors come of age Or the Exec!'s & Guardian named in the sd Will.
[Cowper] I think ye Guardian, as ye Will is worded
[Danyel]] Whether the Court will direct the trustees or Execrs to receive the rents or pitts dureing minority J cannot determine for if the Court finds any miscariage or abuse in them it will bee in Discretion to appoint another receiver
7. If the Order pass according to the Minutes contrary to plts Counsells Amendmts wt damage will it be to plts, Or what det- rim! will it be to pits if Defts Counsell see the Marriage Deeds 24
Sr Your Advice & hand is humbly desired hereto
[Cowper] This is partly answd before, ye Da! will be in letting ye Defts Councill See ye Jnfants have an equitable right to ye Estate by virtue of ye appointmt of ye Trust made by Eliz : B.
9 May. 1702. Wm Cowper.
J cannot see that this order can any wise determine this cause let it passe either way but am of opinion that the Deed of Settlemt must bee pduced
17 June 1702
Jo! Danyell.
Indenture between Edward Hull and John Shelton and Edward and Rebecca Watts.25
This Indenture made the Fifth day of September : in the first year of the Reign of Our Sovereign Lady Anne by the Grace of God
24 [Hull and Shelton must have seen the deeds before they signed the conveyance of September 5, 1702, as it recites verbatim the indenture tripartite of April 16, 1695, which was recorded in Boston May 13, 1702. A clause was inserted in the indenture of September 5, by which Edward and Rebecca Watts, whose signatures were also appended thereto,
25 Suff. Deeds, L. 22, f. 120.
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of England Scotland France & Ireland Queen Defender of the ffaith &c./ And in the year of our Lord One thousand Seven hundred and two/. Between Edward Hull Citizen and Haber- dasher of London & John Shelton Citizen and Sadler of London of the one part, - And Edward Watts of S'. Botolphs Algate London Sawyer and Rebecca his Wife of the other part. Whereas by or by means of a Certain Indenture Tripartite bearing date on or about the Sixteenth day of April in the year of our Lord one thousand Six hundred Ninety five made or mentioned to be made, Between Samuel Bellingham late of the Parish of St. Anns Westminster in the County of Middx Esqr. deceased, Son and Heire of Richard Bellingham late of Boston in Massachusetts Bay in New England Esq". deceased of the first part, Elizabeth then Savage of the said Parish of St Anns Westminster Widow of the Second part, And the said Edward Hull and John Shelton of the third part, for and in Consideration of a Marriage then intended to be had and Solemnized between the sd. Samuel Bellingham and the said Elizabeth Savage & for a Competent and Sufficient main- teynance of the sd. Elizabeth Savage in ease the said intended Marriage should take effeet, and in Pursuance of Certain Mar- riage Artieles bearing date on or about the thirtyeth day of March then last past, made or mentioned to be made between the said Samuel Bellingham of the first part, the said Elizabeth Savage of the Second part, and the sd. Edward Hull & John Shelton of the third part, The sd. Samuel Bellingham Did grant bargain Sell alien release enfeoff & Confirm (or so mention to doe) unto the said Edward Hull and John Shelton & their Heirs All that Mes- suage pareel of Land or Tenement Seituate lying and being at a place or Town Called Wynnysymet within ye Colony of Massa- chusetts Bay aforesaid, and then in the Tenure or occupation of one Richard Smith or his Undertenants or Assignes, and sometimes Called Smiths Farme, And also one other Messuage parcel of Land or Tenement at Wynnysymet aforesd. then or late in the Tenure or Occupation of one Jeremiah Beleher his Under Tenants or Assigns And also one other Messuage or Tenement with the appurces : at Wynnysymet aforesd. then or late in the Tenure or Occupation of one Samuel Townsend or his Vndertenants, Jn which last mentioned Lands or Tenements one Penelope Belling- ham Mother in Law of the said Samuel Bellingham then had an Estate for life or some other Estate determinable by her
gave Hull and Shelton a warranty to indemnify them for any costs, damages, suits, etc., which might inure by reason of the execution of that instrument.]
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death. And also all those or that parcel or parcels of Land near the great pond of Enon in the Colony aforesaid Contain- ing by Estimation Eight hundred Acres more or less together with the same pond, And also one peice or parcel of Pasture Land containing two Acres more or less adjoining to Angeloes House, and near then one Mr : Colbornes Lands lying at the South End of the said Town of Boston, And also one peice or parcel of Land being a side of a Hill, adjoining to a Hill formerly belonging to one Mª : Cotton in the said Town of Boston And also one peice or parcel of Marsh Land adjoining to the Lands late then before of one James Everil in the said Town of Boston And also all the right title interest Estate claim and demand then of him the sd. Samuel Bellingham in and to One Messuage or Tenemt in the said Town of Boston formerly the Dwelling house of his said Father Richard Bellingham and then or late in the possession of the said Penelope Bellingham together with all the Grounds Cellars Shops and other appurces whatsoevr. thereunto apper- taining or belonging And all & Singular other the Messuages Farmes Lands grounds Tenements & hereditaments whatsoever then of him the said Samuel Bellingham in possession reversion remaindr. or Expectancy or whereof or wherein he the sd. Samuel Bellingham then had any Estate of Freehold or Jnheritance in possession or Reversion Scituate lying & being in or near the sd. Town of Boston or in the said Province or Colony of Massachu- setts Bay or Else where in Her Majestyes Territory and Domin- ion of New England Together with all woods wood grounds waters Ferryes rights royalties and Jurisdictions whatsoever to the sd. Messuages Lands Farms and premisses belonging or in any wise appertaining And the Reversion and reversions remainder & remainders rents issues and profits of all and Singular the premisses And also all the Estate right title interest benefit trust claim and demand whatsoevr. both in Law & Equity then of him the said Samuel Bellingham of in and out of the premisses and every part and parcel thereof To have and to hold the said Messuages Farmes Lands Tenements and Hereditaments, and all & Singular the premisses with their Appurces: unto and to & for the use of the said Edward Hull and John Shelton their Heirs and Assignes forever upon the Trusts and to the intents and purposes therein- aftermentioned Expressed and Declared That is to say In Trust for the sd. Samuel Bellingham and his Heirs untill the said Marriage should be had & Solemnized and from and after the Solemnization thereof Then in Trust for such person and persons and their Heirs for such Estate and Estates, & in such manner and form as the sd. Elizabeth Savage whether Sole or Married, and as
524
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well Sole as Marryed with or without the Consent of her Husband should by any Writing or Writings or by her Last Will & Testa- ment in writing, or any writing purporting her Last Will & T'es- tament to be by her Signed and Sealed in the presence of three or more Credible Witnesses at any time or times Name direct Limitt or appoint, and for want of such Nomination direction limitation or appointment and untill some such direction Limitation or appointment should be made and take Effect. In Trust for and for the Sole and Seperate benefit of the sd. Elizabeth Savage her heirs and Assigns without any controle or intermedling of the said Samuel Bellingham and to or for no other use trust intent or purpose whatsoever And that the said Edward Hull and John Shelton should imploy and dispose of the rents issues and profits of the sd. p"misses & every part and parcel of them in such manner as the said Elizabeth Savage by any writing under her hand should direct and appoint, as by the said Jndenture Tripartite relation being thereunto had, doth and may more fully and at large appear And Whereas soon after the making and Executing of the said Jndenture Tripartite the said Marriage was had and Solemnized between the said Samuel Bellingham and ye sd. Eliza (both of whome are lately dead) And Whereas sinee the death of the said Samuel Bellingham and the said Elizabeth, the sd. Edward Watts and Rebecca his Wife that is to say, in or about Trinity terme, which was in the year of our Lord one thousand Seven hundred did Exhibit their Bill in the High Court of Chancery against the said Edward Hull & John Shelton touching the premisses, alledging the said Rebeeea Watts was Sister & heir to the sd. Elizabeth Bellingham deced and that the said Edward Hull and John Shelton were willing to quit their Trust, but could not be discharged therefrom without the deeree of the said Court, and praying the premisses might be Conveyed to them the said Edward Watts and Rebecca Watts, and upon hearing the said cause on or about the Sixth day of Decr. now last past, It was by the Right Honble the Lord Keeper of the Great Seale of England, amongst other things Ordered and decreed, that the said Edward Hull and John Shelton should be discharged from their Trust and Execute a Conveyance of the premisses to the sd. Edward Watts and Rebecca his Wife Plantiffs in the said eause according to the Settlement made upon the Marriage of the said Samuel Belling- ham with the said Elizabeth (meaning such aforesaid) And that they should hold & Enjoy the Estate accordingly, And for what they the sd. John Shelton and Edward Hull should doe in pur- suance thereof they were thereby Saved harmless and indempni- fyed, As by the said Order and decree (relation being thereunto
--
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had) doth and may more fully and at large appear Now this In- denture Witnesseth that they the said Edward Hull and John Shelton in Pursuance of and in Obedience to the aforesaid Order and decree, as also for discharging of their said Trust, and for and in Consideration of the Sum of Five Shillings of Lawfull money of England to them in hand paid by the sd. Edward Watts and Rebecca his Wife at and before the Sealing and Delivery of these presents, the receipt whereof they the said Edward Hull and John Shelton doe hereby acknowledge Have granted bargained Sold Enfeoffed released Transferred and Confirmed, and by these presents Doe by and with the Consent and direction of the said Edward Watts, Testifyed by his being a party unto, and Signing & Sealing these presents, grant bargain Sell enfeoff release trans- ferr and Confirm to the said Edward Watts and Rebecca his Wife all and Singular the abovementioned or meant to have been Con- veyed Messuages Farms Lands Tenements hereditaments and prem- isses with their and every of their appurces: As also all and Singular other Messuages Farmes Lands grounds Tenements and Hereditaments whatsoever Conveyed or meant to be Conveyed by the sd. Samuel Bellingham unto the said Edward Hull and John Shelton in the said Colony of Massachusetts Bay or Elsewhere in her Majties Territory and Dominion of New England And the Reversion and Reversions remainder and remainders rents issues and profits of all and Singular the premisses, And Furthermore All and all manner of Estate right title trust use claim and de- mand whatsoever both in Law & Equity, which they the said Edward Hull & John Shelton each or either of them have hath or shall may should or ought to have or have had of to in by from or out of all every and any of the premisses or any part or parts thereof by Virtue or means of the said reeited Indenture tripartite or Otherwise howsoever To have and to hold all and Singular the hereby granted bargained Sold Enfeoffed released transferred & Confirmed premisses with their and every of their Appurces to and to and for the use of the said Edward Watts and Rebecca Watts and her heirs and Assignes in as full ample large and beneficial manner & upon to and for the same uses Trusts intents and purposes as they the said Edward Hull and John Shelton or either of them have hold and Enjoy or should or ought to have had held and Enjoyed the same upon or by Virtue or means of the said Recited Jndenture Tripartite, & to and for no other use trust intent or purpose whatsoever And the said Edward Hull doth for himself his heirs Executors. and Administrs. & every of them by these presents Covenant promise & agree to and with the said Edward Watts and Rebecca his Wife & her heirs and
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Assigns That he the said Edward Hull hath not any wise here- tofore made done or Committed any Act matter or thing whatso- evr. in breach of the Trust vested in him & the said John Shelton or either of them as aforsd. by reason or means whereof all or any of the recited premisses or any part or parcel of them is are or ean or may be Evicted charged incumbered or Impeached in Estate title charge or otherwise howsoever And the said John Shelton doth for himself his heires Executors. & Admrs. and every of them by these p'snts Covenant promise and agree to & with the said Edward Watts and Rebeeea his Wife and her heirs & Assigns that he the said John Shelton hath not any wise heretofore made done or committed any Aet Matter or thing whatsoever in breach of the Trust vested in him the said John Shelton and Edward Hull or either of them as aforesaid, by reason or means whereof all or any of the reeited premisses or any part or pareel of them is are or ean or may be Evicted charged ineum- bred or impeached in Estate title eharge or otherwise howsoevr. And the sd. Edward Watts for himself his heirs Executors. & Ad- minrs. and every of them doth by these presents Covenant and grant to & with the said Edward Hull and John Shelton and each or either of them and their Several and Respective heires Exeeutors. and Adminrs. that they the said Edward Watts and Rebeeea Watts and his her and their Several & respective heirs Executors. Ad- min's. and Assigns or some of them shall and will from time to time, and at all times hereafter well & Sufficiently Jndempnifie and save harmless them the sd. Edward Hull and John Shelton & each or either of them their & each of their Several and respective heirs Exers. & Admin's. of and from all and all manner of process Suit trouble Expenee eharge & damage whatsoever which here- after shall or may aeerue and happen to them or either or any of them for & by reason of the said Edward Hull & John Shelton his their or either of their respeetive making & Executing these presents, Saving and Exeepting their respeetive Covenants herein beforementioned & Contained against their respeetive Jneum- branees Aets and Deeds Jn Witness whereof the partyes first abovenamed to these present Jndentures have interehangeably set their hands & Seals the day and year first abovewritten, Edwd. Hull and a Seal Jnº. Shelton and a Seal Edward Watts & a Seal Rebeeea @Watts her mark & a Seal Sealed and Delivered (being first duly Stampt) m the presence of Riehd: Foster Bryan Smith, John Foye Jun": Suffolk ss. Boston May 8th: 1703. The above- named Riehard Foster personally appearing before me the Sub- seriber one of Her Majties Justiees of ye Peace in the County aforesaid made Oath that he was prsent & saw the withinnamed
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