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 53
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APPENDIX
CHAP. XII]
Edward Hull and John Shelton with Edward Watts and Rebeeca his Wife Sign Seal and deliver the withinwritten Jnstrument as their Act & Deed and that he the Deponant together with Bryan Smith & John Foye Jun" : abovementioned sett to their Names as Witnesses thereto -. Paul Dudley. - Suffolke ss - Memorandum That on the Twenty third day of June Anno Dom' 1703 at Wyn- nysymet within the Township of Boston in the County aforesaid peaceable and quiet possession and Seizen of the Several Mes- suages Lands Tenements and Appurtenanees within Specifyed and mentioned to be in Wynnysymet aforesd. was made & delivered by Nathaniel Newdigate Attorney to the withinnamed Edward Hull and John Shelton to Joseph Hiller Attorney to the within- named Edward Watts and Rebeeea his Wife aeeording to the Ten- ure and true meaning of the withinwritten Jndenture - And on the day following Vizt: the Twenty fourth day of June 1703, quiet and peaceable possession and Seizen of the Several Lands Tenemts. Messuages & appurces : within Specifyed and mentioned to be within the Town of Boston aforesd. was made given and Delivered by the said Nathaniel Newdigate Attorney as aforesaid to the aforesd. Joseph Hiller as Attorney to the aforesaid Edward Watts and Rebeeea his Wife aeeording to the Tenure and true mean- ing of the withinwritten Jndenture/ Jn the presence of us whose names are hereunto Subscribed. Paul Dudley Joseph Hiller Junr :/. Witness to the Livery and Seizen of that in Boston besides the abovenamed Benja. Elliot. /- Suffolk ss. At an Ad- journment of an Inferiour Court of Common Pleas holden at Boston on the first Tuesday of February 1704. [1705] John Foye Jun". One of the Witnesses to the withinwritten Jnstrument personally appearing made Oath yt. he was present & did see the Subseribers thereof Edward Hull John Shelton Edward Watts and Rebecca Watts Execute the same as their Aet and Deed, and that he the Depont. and Riehard Foster and Bryan Smith Subseribed their Names as Witnesses of the Execution thereof at the same time/- Attest™ : ADDINGTON DAVENPORT Cler/- February 9th. 1704. Re- eeived & aeeordingly Entred and Examined. -
₽. ADDINGTON DAVENPORT. Registr :
.
528
HISTORY OF CHELSEA
[CHAP. XIII
CHAPTER XIII
THE BELLINGHAM WILL CASE REOPENED
C CHAPTER ten shows an apparently deadly assault on Governor Bellingham's will by his son and heir, Dr. Samuel Bellingham, living in England,1 and acting by his attorney, Richard Wharton. This was by petition to the General Court in 1674,2 and resulted adversely to the respond- ents, the executors and trustees under the will. The General Court was the highest judicial tribunal in the colony. From its decisions there was no appeal; for there was not then, as now, a supreme court authorized to settle the constitution- ality of legislative acts. The Great and General Court had the diverse powers of making and interpreting laws; and after its mandates all other courts kept silence, although, as in this case, they were contrary to usage, and even to positive law.3 By usage original jurisdiction over wills and administra- tion on estates was vested in the county courts, with appeal to the General Court.4 But in the case of Samuel Belling- ham vs. James Allen and others the plaintiff began by peti- tion in the highest court. This was irregular if not illegal, and the General Court at once should have sent the plaintiff
1 [Samuel Bellingham was on the Continent in 1674.]
2
Supra, pp. 441-447.
3 Mass. Col. Laws (revision of 1672), 157.
4 [Richard Wharton entered a protest at the probate of Governor Bel- lingham's will, December 19, 1672. His protest was disregarded. (Supra, pp. 410, 411.) Suits involving the validity of the will were tried in the County Court, and appcaled to the Court of Assistants. The latter accepted the will as valid. (Supra, p. 425, note 13; pp. 439, 440.) Apparently no provision was made by law (edition of 1672 Title " Appeals ") for an appeal to the General Court except in capital offences. When Richard Wharton petitioned the General Court in 1674 he acted in accord with a provision of the law (edition of 1672, Title " Courts," § 1) that the General Court was " the chief Civil Power," and might act " both in matters of Counsel, make- ing of Lawes, and matters of Judicaturc . . . by receiving and hearing any Complaints orderly presented against any person or Court." See also the reference to the General Assembly in the King's letter, supra, p. 445.]
529
THE CASE REOPENED
CHAP. XIII]
to the County Court. And such, indeed, appears to have been the first order; 5 but for some unexplained reason it after- wards entertained and decided the question of the validity of the will, irrespective of proceedings in the County Court, if such were instituted. This irregularity entailed upon tlie parties in interest, and later upon the town of Chelsea, a series of expensive lawsuits which lasted more than a century.
Thirty years after, in February, 1705, the contest was renewed by Rev. James Allen, one of the executors and trus- tees under Bellingham's will. The long delay in reopening the case may have been because Mrs. Bellingham, the governor's widow, was still alive; but on her death in 1702 the residuary interest of the trustees in the Bellingham estates at Winnisim- met, if any, arose.6 James Allen was an able man, an English- man, and Fellow of New College, Oxford. Having been ejected from his living on the restoration of Charles II., he came to Boston in 1662, and was colleague-pastor with Daven- port of the First Church, lately under the pastoral charge of Rev. Rufus Ellis, D.D. He was a friend of education, and for some time a meniber of the corporation of Harvard College. With Governor Bellingham he was intimate, since the gover- nor gave him his will for safe keeping, and explained to him the motives which led to the making of that singular instru- ment.7 A devoted friend of religion he was doubtless grieved that the Bellingham estates, instead of being used to set up and maintain religious institutions at Winnisimmet, as the old governor intended, were perverted to the enrichment of aliens not of the governor's blood, the Watts family. Five years before his death in 1710, Allen made a gallant effort to set up the will. His story, best told by himself, leads to the second stage of the controversy in the General Court, in 1705.
To his Excellency Joseph Dudley Esqr: Capt Generall and Gov- ernour in Chief, in and over her Majties Province of the
5 Supra, pp. 442, [443, note 7].
6 [See supra, p. 400, note 13.]
" He was installed teacher of the First Church, December 9, 1668, "at the same time that Davenport was inducted as its pastor." He died September 22, 1710. John Dunton says of him: "He is very humble and very rich, and can be generous enough when the humour is upon him." * Foote, Annals of King's Chapel, i. 65.
VOL. I .- 34
530
HISTORY OF CHELSEA
[CHAP. XIII
Massachussetts Bay; in Councill; and to the lionble house of Representatives now in Generall Court assembled
The Remonstrance and Petition of James Allen of Boston in the County of Suffolke within the sd Province Clerk; surviving ffeoffee in Trust and Execute. of the last will & Testament of the late honble Richard Bellingham Esq". decd. Most humbly Shewth.
That the said Richard Bellingham dyed seized in ffec, of a very considerable Estate, of houses & lands in the sd County of Suffolke; & in and by his last will & Testament, bearing date ye 28th Novr. 1672, disposed thereof as followth. (That is to say), he gauc to his beloved wife, the rent of that ffarme where Nicholas Riee then lived [the Shurtleff farm], to be paid her duly after his deeease ; as alsoe his dwelling hous with the yard & field adjoin- ing, during her naturall life: To his only Son & his sons daughter, during their natural lives the Testator. gave the ffarme Lievt. John Smith then possessed [the Ferry farm]: and the Rents of his other two ffarmes in the occupation of John Belcher & Goodman Townsend [the Carter and the Carey farms], he gives towards the relief of the four Daughters of Coll Goodriek; and deelares that after his owne & his wifes deeease, he gives the ffarme he had devised to her for life, & after the decease of his son & his sons daughter, his whole Estate in Winnisimett, to be an anual Eneouragmt to some Godly Ministers & preachers, as should by his Trustees be judged faithfull to those principles in Church Discipline owned & praetised in the first Church of Christ in Boston, whereof the Testator declared himselfe to be a member : And in his said will did request & appoint Mr. John Oxenbridge, your Petr. Mr. John Russell, and Mr. Anthony Stoddard, to be ffeoffees in trust & Executors thereof; and thereby did desire them to observe the Jnstruccons therein given. Vizt. ffirst That in Convenient time a ministers, & meeting house be built at Winni- simett when sufficient be received out of the rents (2) That Lotts for dwellers & Jnhabitants be given out, & Convenieney of land to the Ministers house. (3) That four or six more or less young students be brought vp for the Ministry as the Estate will bear. (4) That somthing be allowed yearly to any Godly Congregational Minister who shall be willing to settle in that place. (5) That his Trustees. take eare of his beloved wife to give her Counsell as she needed, and help her as farr as they could, in the quiet Enjoymt. of her Estate. & receiving of her Rent (6) That the Trustees meet twiee a year at the least, as often else as they ean or is need and that they be allowed what is meet for each meeting (7) That they allow anually as they shall think fitt
4
531
THE CASE REOPENED .
CHAP. XIII]
to a Godly Congregational Minister. qualified as above, for his further Support (8) That Every Quarter of the year one sermon be preached to instruct the people in Boston in Church Discipline according to the word of God, and such Competent allowance be given to each of ym. as his Trustees shall judge fitt or sufficient. as in & by the sd last will & Testamt of ye sd Tes- vide ye Will tator, very well proved according to Law & herewth. exhibitted doth more fully & at large appear.
That soon afterwards your Petr. Messrs Oxenbridge & Stoddard took vpon them the Charge and burthen of the said will, and did Execute, vntil the same was contested by Mr. Richd Wharton as Attorny to Mr. Samuell Bellingham, at a Generall Court Es- vide gen11 pecially called in Septr. 1676, when the same was declared null & void in Law: wch Judgmt. or Court judgmt decree of that Espetial honble Court, (with most humble submission) was Erroneous. (1st) Because That Court. at that tyme had not the Jurisdicion or Cognizance of wills ; but the County Court only. (2) That the will was really and bona fide the last will & testamt. of the sd Richd Bellingham deceased and so proved to be; and not all the English Laws could sett aside, or Controul such a will: The Maxim in Law is. That the will of the Giver must be observed That faith & truth must be obeyed & what the last will does say, and Every man is a Law to himselfe as to the disposition of his owne Estate. & property. &cª
That by means of that Judgmt. yor Petr. is vtterly disabled to performe the will, & his incumbent duty: and the pious & Re- ligious intentions of the Testator (long made known before his death) are thereby wholly frustrate & without effect; and the Estate now possessd, or claim'd by strangers, & persons not of the blood of the sd Richard Bellingham; his sd widdow & sonn being both dead.
Yo! Pet! therefore humbly intreats your Excy and this honble Court, to assigne a day when he & the opposite partyes Concerned, may by their Council be heard to argue the mattrs. of Law. refer- ring to the sd. Will, and then your Petr. cannot doubt but this honble Court. will reverse the sd former judgmt and by Act or Decree Enable him, faithfully to discharge his duty, according to Law, and the pious designe of his Testator. James Allen.
In the House of Representatives.
Feb: 22 : 1704 [1705] Read
23. Ordered y! The Praier of this Petition be Granted, and a Hearing Attended the 2ª Wednesday of the Ses-
532
.HISTORY OF CHELSEA
[CHAP, XIII
sion of this Court in May next, the opposite Parties con- cerned to be notified.
Sent up for Concurrence.
Jams Converse Speaker
Fcbry 23th 1704 [1705] In Council.
Read, and not agreed with the Representatives in the above Vote, And Voted That the persons claiming the Estate be forthwith Served with a Copy of this Petition, And that they make their objections and shew cause, if any they have, on Friday in ye first wecke of the next Session of this Court why a hearing of the case therein mentioned as is therein prayed for should not be granted. Jsª Addington Secry Sent down for concurrence.
In the House of Representatives,
Feb!y 23 : 1704 [1705] : Read &
Pass'd a Coneurrence. Jams. Converse Speaker. 1705 June 1 . Read In the House of Representatives.
Ordered That the Praier of this Petition be Granted, & a Hearing Attended, forthwith, if both Parties are pre- parcd for it otherwise on the next Tuesday at 3 o clock afternoon
Sent up for Concurrence Thomas Oakes Speaker
The Answer of Edward Watts to the foregoing Petition
To his Excellency Joseph Dudley. Esqr: Capt. General and Gov- ernor. in Chief in and over her Majties. Province of the Massa- chusetts Bay in New England the Honoble. her Majties. Council and House of Representatives now in General assembly con- vened in and for sđ Province. may 30th. 1705.
The Answer of Edward Watts of the City of London Mercht. and Rebecca his wife Claimers owners & possessors of the Estate formerly Richard Bellinghams Esq". Deccd, to a Petition of James Allen of Boston Clerk.
Sheweth
That true it is, as the Petitioncr setts forth That Riehard Bellingham late of Boston aforesd Esqr. Deced, dyed seised of a very Considerable Estate in Houses and Lands, and there was also a sort of a last will & Testament to the purport of what the peti- tioner setts forth, which was pretended to be the sd Bellingham's, thô for very wise and just Reasons declared and adjudged to be void and of none Effect by the General Court of this Country Anno 1676. the Judgment of which Court yor. Respondent hopes
533
THE CASE REOPENED
CHAP. XIII]
this great and General Assembly will not suffer now to be called in Question, much less Revers'd, and therefore yor. Respondent opposes the petitioners being heard vpon his Petition. and whereas yo! Petitioner in his first Reason saith That that Court at that ` time had not the Jurisdiction or Cognizance of Wills but the County Court only. Yor. Respondent answers, That true it is, the County Courts at that time had the Cognizance of Wills &c: But from whence did they derive it, but from the General Court, who therefore had power in extraordinary Cases when they saw occasion to Exert that power themselves, it being too great a thing for any Jnferiour Court to make void a Will that might have the Common proof attending of it: omne majus continet in se minus, is a known Rule in Law,8 Besides, this pretended Will of Mr. Belling- hams had Laboured so long in the Jnferior. Courts without any Effect or Jssue, That the General Court were Resolved to take it into their own hands, & make a final Jssue thereof, especially having directions so to do from ye Crown of England, and with all submission yor. Respondent humbly offers, that the General Court under the first Charter, except in some few things had the same powers and authority that the present General Assembly hath, as being the supreme and Legislative power of the Country.
2 Whereas the Petitioner urges, that the sª Will was really and bona fide the last Will and Testament of ye sd Richard Belling- ham Esq". deced and so prov'd to be and not all the English Laws could sett aside or Controul such a Will. Yor. Respondent answers. (1) That there are many things absolutely Necessary to make a last Will and Testament good according to Law, for thô the sd Bellingham might towards his Death sign that Jnstrument called his Will, yet if he were then non Compos, and understood not what he did, but managed and Jmposed on by others, or if the Writing it self had not the nature of a Will in it, the General Court had very great and good Reason for what they did.
(2) It shall not now be with the Petitioner to say the sd will was a good Will &c. when a General Court has passed upon it
8 This is bad law, and the maxim that the greater always contains the less is misapplied. I discover no trace in the Inferior Court Records that the questions raised by the will had been passed upon, or that any attempt was made to carry out the order of the General Court of October 7, 1674. [ See supra, p. 425, note 13 and pp. 429-440; - and note 4 to this chapter; also p. 443, note 7.] Six months later, May 12, 1675, the case was again before the General Court, and neither then nor afterwards was any allusion of record to any action on the case in the court below. Nor have I found any mandate from the Crown directing the General Court to enter- tain and determine the case; but the statement in the petition serves to establish the fact as given by Richard Wharton, ante. [See the letter from the King, supra, chap. x. p. 444. ]
.
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HISTORY OF CHELSEA
[CHAP. XIII
and determined it to be no Will; and that no doubt with due regard to the Laws of England; and with a just value of Last Wills and Testaments.
3. Yor. Respondent opposes the hearing of this matter for the great Jnconveniency of it (1) Jn General, 'That the Acts of the General Courts of this Country, should after so long a time be reexamin'd or Revers'd.
(2) ffor that since this Judgment of the General Court in 1676. there have been so many purchases Mortgages and Con- veyances of that Estate, that an unspeakable mischief and Confusion would Ensue now to Reverse it.
4. Yor. Respondent prays it may be Consider'd how strange & unreasonable it will be for this great and General Assembly to raise a Will to Life again that has been buryed near thirty Years : or rather in truth to make a Will at this day, for the sd Mr. Bellingham. for no doubt of it, the petitioner in the day of it made the strongest Efforts that could be made to support the Will, & yet all fail'd., & certainly if his proof would not serve him then, it can never be supposed to do so now.
5. Yor. Respondt. opposes a hearing for that the Petitioner really petitions that a Will be made for the sd Bellingham, for he prays for a power to dispose of his Estate so, & so, whereas in the very Jnstrument. which the petitioner would have a Will, Mr : Bellingham devises not one jot of his Estate to his ffeoffees nor could they by Law (had that Will stood to this Day) ever have medled with any of the real Estate of Mr. Bellingham without the Consent of his heir at Law.
6 ffor that by the Law of this Province now in being for the Quieting of men's Possessions, not only all Actions in Courts of Law, but also all Processes are forbidden after the time limitted by that Act, and Yor. Respondents and those they Claim under having been at all times in the peaceable possession of the sd Estate, therefore hope this great and General Assembly will sup- port and maintain their own Laws, by allowing no further pro- ceeding in this matter. And vpon the Whole yor. Respondents hope This great and General Assembly will do that Justice and Honor. to the former General Court of this Country as to Ratify and Confirm their Judgment in reference to Mr: Bellingham's pretended Will by Dismissing the petitioner.
and yor Respondent shall ever pray Boston. 1. June. 1705. Paul Dudley 9 Presentd pro Respondentibus.
9 Paul Dudley [H. C. 1690], attorney for the respondents, was a son of Governor Joseph Dudley, studied law at the Temple, London, was attorney-
535
CHAP. XIII] THE CASE REOPENED
Friday. prº June. 1705. Jn Council Read.
In the House of Representatives
June 1º 1705 Read. twice
June 14: Ordered That a previous Hearing be Attended before this Court, on this answer & M! Allen Serv'd with a Copy thereof the Board to appoint the time.
Sent up for Concurrence Thomas Oakes Speaker
June 20th. 1705. Jn Council Read and on the Question put, It was carryed in the Negative Jsª Addington Secry
The two preceding papers are to be found in the Massachu- setts Archives.1º The minutes appended to the foregoing papers show the legislative action of the two houses thereon. They were afterwards extended on the records of the General Court; and as these contain some additional facts of interest, I now give them entire, though there are some repetitions.
Extracts from the General Court Records
February 23, 1704 [1705] 11 A PETITION & Remonstrance of James Allen Clerk surviving Feoffee in Trust & Executor of the last Will & Testament of the late Hon :ble Richard Bellingham Esq Praying to be heard upon a Judgement of the General Court Sitting in September 1676, declaring the said Will null & void, Was sent up from the Representatives 12 with the Vote of that House thereupon ; Viz, That the Prayer of the Petition be granted, And a Hearing attended upon the second Wednesday of the Ses- sion of this Court in May next.
general, and finally chief-justice of the highest court of the Province. He was a learned naturalist, and a Fellow of the Royal Society. By will he founded the Dudleian Lectures at Harvard.
10 Vol. xvii. pp. 150-154. [The original documents with the official en- dorsements.] In several instances I have not found the documents pre- sented to the General Court, or the orders passed thereon, either extended on the records or preserved in the Archives at the State House, and several now printed owe their preservation to the copies made (from originals now lost) for the use of parties in court, and in some cases passed into private hands. These papers are printed in Acts and Resolves of the Province of the Mass. Bay (1895), viii. 464, 605. There are two copies of the records of the General Court at the State House, though not always identical in date or pagination, - one in the office of the Secretary of State and the other in the State Library.
= 1 [This note has been placed as an appendix to this chapter.]
12 [These extracts are from the Council Records; no record of the pro- ceedings in the House of Representatives now exists.]
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HISTORY OF CHELSEA
[CHAP. XIII
Wch being read, The Council disagreed with the Representatives in yº Vote,
AND VOTED that the Person claiming the said Estate be forth- with served with a Copy of the Petition, And that they make their Objections and shew Cause if any they have on Fryday in the first Week of the next Session of this Court, Why a Hearing of the Case therein mentioned, as is therein prayed for, should not be granted.
And was Coneur'd by the House of Representatives.13
In the Council, Friday, June 1, 1705.14 An Answer to the Petition of James Allen Clerk for a Hearing upon a Judgement given by the General Court Anno 1676, for Making void & null the Instrument said to be the last Will of the late Riehard Belling- ham Esq! Deed Containing Objections to a Hearing of the Case aeeording to an Order at the last Session, was presented Read & sent down to the Representatives. . .
The Petition of James Allen for a Hearing upon a Judgement given for the Nulling the Instrument said to be the Will of Richard Bellingham Esq! was sent up from the Representatives, with their Vote thereupon, Viz, That the Prayer of the Petition be granted, & a Hearing be forthwith attended if the Parties be ready, or otherwise on Tuesday next: - Upon Reading whereof & Debate thereon, A Message was sent by Elisha Hutchinson, John Foster, Penn Townsend Esq!s & the Seery. to the Representatives, to lay before that House the Consideration how far it is proper for this Court to enter into that Cause, The whole Matter referring to Wills & Instruments &e by the present Charter being in the Government of the Governour & Couneil, And the Judgement now petition'd to be reversed being of near thirty Years standing under another Constitution, The Members of that Court & the Persons eoneerned being almost all dead, The Alterations sinee made of the Estate & the Statute of Limitation having Effect, Besides the Train of Consequences attending the Unravelling of Matters determined by the Supream Court within the Government at that Time.15
June 20, 1705. Upon Reading a Vote pass'd in the House of Representatives 16 Ordering That there be a previous Hcaring before this Court on the Answer made to ME Allens Petition refer-
13 MSS. Records of the General Court (1703-1709), 107, 108.
14 [March 3, 1704/5, the General Court was dissolved; May 30, 1705, a
new Court met. ] -
15 MSS. Records as above, 120.
16 [For this vote of the House, June 14, see the endorsement on the Answer of Edward Watts, supra, p. 535.]
1
537
THE CASE REOPENED
CHAP. XIII]
ring to M! Bellinghams Will, MẸ Allen to be served with a Copy thereof, And the Board to appoint the Time.
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