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 54
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The Question being put for a Concurrence, It was carried in the Negative.17
Thursday, July 4, 1706.18 A REMONSTRANCE & Petition of James Allen Clerk, Surviving Feoffee in Trust & Executor of the last Will & Testament of Richard Bellingham Esq! Decd Praying to be heard as to the Matters of Law referring to a Judgemt given by a former Gen11 Court in the Year 1676, Declaring the said Will null & void, Sent up from the Representatives with the Order of that House for a Hearing thereon at the next Session of this Court, were Read, & The following Vote pass'd thereon; Viz,
BEFORE the Council proceed to Consider the above Vote of the Representatives
ORDERED that the Adverse Party be served with a Copy of the Petition, To shew Cause if any [they] have, Why a Hearing should not be granted, Sent down for Concurrence, & Agreed to by the Representves 19
Saturday, July 13, 1706. A Vote pass'd in the House of Repre- sentves upon the Petition of ME Allen, referring to M' Bellinghams Will, Reviving their former Vote granting a Hearing on that Matter : Was Read, & Disagreed to.20
[Tuesday, August 27, 1706. The Petition of ME James Allen with Reference to the Will of Richard Bellingham Esq! late Gov- ernour, and the Order of the Representatives thereon were Read.21]
Thursday, August 29, 1706. The Petition of ME James Allen with Reference to the Will of Richard Bellingham Esq? with the Order of the Representves for Granting a Hearing thereon was read, & on the Question put, Was Disagreed.22
Tuesday, September 3, 1706. A Resolve pass'd this Day in the House of Representatives upon the Petition of M! James Allen ; Viz, That the Will of the late Richd Bellingham Esq! refer'd to in the Petition was legally proved, Being Read at the Board, & Voted that the annex'd Print 23 being a very faulty Copy, & with-
17 MSS. Records as above, 134. [June 30 the court was prorogued to September 5.]
18 [During the year's lull in this contest the inhabitants of Winnisim- met and Rumney Marsh presented to the annual town meeting in Boston a petition for a meeting-house. Infra, chap. xxvi.]
19 MSS. Records as above, 215.
20 Ibid., 223. [July 13 the General Court was prorogued until August 7.]
21 Ibid., 238.
22 Ibid., 239.
23 [See infra, p. 540.]
538
HISTORY OF CHELSEA
[CHAP. XIII
out the Attestation of an Officer, ought not to be received or Con- sidered by the Court: And further Considering that the Probate of Wills & Testaments is by the Charter vested in the Governour & Council, The Couneil therefore Disagree to the Vote of the Representatives.24
Wednesday, November 6, 1706. A Petition of ME James Allen Executor of the last Will of Richard Bellingham Esq! with the Vote of the Representves thereon, Declaring the said Will to be sufficiently proved according to the Law in Foree at that Time, were Read, And Liberty was given to ME Allen & M! Stoddard 25 to offer any further Pleas in Writing for Confirmation thereof.
Thursday, November 7, 1706. PLEAS offer'd by ME Allen & M! Stoddard for Reversing the Aet of the General Court in the Time of the former Government, Deelaring the Will of Richª Belling- ham Esq! to be illegal, & so null & void, were Read.
And ORDERED that ME Joseph Hiller, Attorney of Edward Watts have a Copy thereof, & forthwith make Answer, If he see Cause.
Saturday, November 9, 1706. An Answer presented by Joseph Hiller Attorney of Edward Watts & his Wife to the Pleas offered by Mess!'s Allen & Stoddard referring to the Instrument pretended to be the last Will & Testament of the late Governour Riehard Bellingham Esq! was Read.
And then a previous Vote was put, WHETHER the Couneil would be ask'd upon the Resolve pass'd by the House of Representves Viz, That the Will of the late Richard Bellingham Esq! Decd refer'd unto in the Petition of ME Allen was according to the Law then in Force legally proved, And that the Petitioner ought to have the Benefit of the Common Law notwithstanding any Act pass'd for the Nulling the said Will? And the Previous Vote being answer'd in the Affirmative.
The QUESTION was put upon the said Resolve WHETHER they Concur'd therewith or not? And it was Carried in the Negative.
And then an other Question was put; WHETHER any of the Couneil might not draw up & offer to Consideration some Thing in Lieu of the aforesaid Resolve? And it pass'd in the Affirmative.2G -
The result thus far appears that the General Court re- fused to reopen the case; possibly on the ground that, sinee
MSS. Records as above, 241.
25 [Presumably Simeon Stoddard, son of Anthony Stoddard, deceased, a trustee under the will. The print quoted in the appendix was given Samuel Sewall by "S. Stoddard."]
26 MSS. Records as above, 254, 255.
539
CHAP. XIII]
THE CASE REOPENED
the new charter, jurisdiction of wills was vested solely in the Governor and Council. Accordingly it was resolved that some one of the Council, if any should sce fit, might draw up and offer in that body a plan whereby the case might be reheard. I find no evidence of any such action in that body. James Allen was defeated a second time, but this was not the end of the business.
540
HISTORY OF CHELSEA
[CHAP. XIII
APPENDIX
ABOUT this time Rev. James Allen made an appeal to the public in a paper given below. It is a Broadside of two printed folio pages without date. The only known copy bears this endorse- ment of Chief Justice Samuel Sewall: "Given me by Mr. S. Stoddard, Augt. 6, 1706," and is interleaved after No. 121, August 12, 1706, in a volume of the Boston News Letter formerly owned by Sewall, and now by the New York Historical Society. For a copy I am indebted to Mr. William Kelby, Assistant Librarian of that Society.1
'A Copy of the Last Will and Testament of RICHARD BELLINGHAM ESQR.
Late Governour of the Colony of the Massachussetts Bay in New- England. And some Arguments to prove this was the said. Gov- ernours last Will, and was Proved and Approved as such, and ought to continue valid against the Attempts of all that would Nullify the same.
Published by the Reverend Mr. James Allen, one of the Exceutors in said Will named.
Governour Bellingham his [For a copy of the will and its
Will Lib 7 f 271. probate see supra, page 393.]
WHEREAS some persons have endeavoured to destroy and make void the before-going Will, and that upon a pretence that the Gentleman which made the same, was urged to the doing of it. These may therefore Certify all persons whomsoever, and par- ticularly the Gentlemen now Assembled to represent this Province, That the Will, whereof the above is a true Copy, was wrote by the said Governour some years before his Death, and for about two years before his last Sickness it continued in my possession.
I often in that time discoursed the Governour about this Will, and advised him to alter it, and give more to his Wife and Son and others, but he would not hearken to my advice, saying, he knew his Son better than I did; for says he, my Son has Two Hundred Pounds a year of my Estate, and there is now befallen him Fifteen
1 [Presumably this was published at the revival of the case before the General Court in the summer of 1706. See a reference to it in the vote of the Council, September 3, 1706, supra, p. 537.]
541
APPENDIX
CHAP. XIII]
Hundred Pounds a year by his Mother; and if I should give him all this, he would part with it all for a Song, all which he did very frequently repeat, and would admit of no perswasions to make any alterations in it.
After the Governour had taken to his Bed of the Sickness whereof he dyed he sent three several Messengers to me to come and bring said Will, which at last with mnuch perswasions I did, and when I came to him he told me he could not dye till he had finished that Will. I then gave him said Will sitting on his Bed, he sent for Witnesses which he named, saying, they were good honest men; he then called for his Spectacles, read his Will and deelared it to be his last Will : He then called for a Candle and Wax, fixed a Seal to it and afterwards signed and sealed it in form and then sealed it up and delivered it into my keeping as one of the Executors. The day after he dyed, the Will was opened and read before the other Executors, the Witnesses and several others then present, and soon after it was proved and confirmed as appears above; and for some years after acted upon by the Executors in all Cases, as need required; and received and im- proved in all Courts (in which it appeared) as good and valid.
Now God having inclined the heart of this Worthy Person to Dedicate so valuable an Estate to his Service, and promote Piety and Religion in this Land; will it not be a thing much wondred at by Good men, as carrying a very bad aspeet, to destroy so pious an action by Nullifying a Will so fully and amply expressing it . self, and so Legally proved, approved and confirmed? and which has the Sanction of Heaven upon it, (as all things of that nature have) Gal. 3 15. A mans Covonant or Testament no man disan- nulleth, that is, eannot lawfully do it, Besides sueh proceedings may discourage others for the future for setting a part or portion of their Estates for Publiek and Pious Uses.
Whereas those who shall promote the carrying on and helping forward the pious and good things in this Will expressed, will approve themselves Friends to their Country, Posterity and Religion : And all that favour Justice, Equity and Piety shall bless them.
James Allen
Among the Watts Papers 2 is a draft apparently intended to answer the foregoing; but whether published, I am unable to say. It follows :
2 Chamberlain MISS., i. 95.
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542
HISTORY OF CHELSEA
[CHAP. XIII
That there was a Writing pretended to be the Will of Gov! Bel- lingham is out of Controversy but that it was the sª Governr Bellinghams Will & sufficiently proved according to Law & acted upon for seuall years is absolutely deneyed. (1) For that the sd Govner Bellingham never wrote the sª Will as is pretended by Mr Allens false prints (2) That he was not compos mentis at the time of his Executing the sd pretended Will as by many cred- ible Wittnes & also by Edmond Ranger " one of those that was a Wittnes to it appears That Notwithstanding wt is alledged the pretended Will was determined to be null & void by Act of the Generall Court & so remains & to mencon a such surreptitious will as sacred is ludere cum sacris
That Jn the Jewish Times God never required nor Expected That Laymen should devote the greatest part of his possessions & Temporal Estate to him to the deprivacon of his Right heirs his Children & family & that no religion in the world will justify the scripture Quotacon in this Cas
That this 3ª Article is grosly reflecting upon the honoble Gen- erall Court & scurrilous in point of the honoble Govern! Leveret who took other just measures in disposition of his Estate to his Widdow & Children
That to Establish this Will is to defeat the Right heirs of their Inheritance weh the Church alwaies abhors / And that this estate accord [ing] to Law descended to Sam !! Bellingham Esq! & his · heirs & that the sª Sam !! Bellinghams sole daughter now enjoys part of the sd Estate who being the grandaughter of the s! Gou! Bell : is no stranger -
That the Law of England ever favours Estates by descent & neither decrees in Chancery nor Acts of Parliamt were ever know to set aside Inheritances according to law, upon the false allega- cons of a surreptitious & fraudulent devise and its hoped that the General Assembly will never begin to Establish this pretended Will which they have made void & null
6. That it can never be imagind the Act of this Province for Limitacon of possess! should be thrown away or blotted out of our Laws to make way for the reviving of the sª pretended will that has been dead this 30 years & the Rightfull heirs enjoyed the Estate ever since - And the Jmaginary suggestions about the son & frivolous
3 [Isaac Townsend, son of Samuel Townsend, tenant at Winnisimmet, married a daughter of Edmund Ranger.]
543
APPENDIX
CHAP. XIII]
7. That the opening a door to set aside the Gen! Courts Aet & thereby devest any psons of their Possessions & fixt inheritanees according to the foreeited Law of this Provinee for limitacon of possession would be very inconvenient & a dangerous president & tend to the unravelling the fixt estates of this Country & the contradicting the aforesd law of Limitacon of possessn
Chief Justice Sewall's views are given in a letter to Wait Win- throp, November 10, 1706.4 " As to M' Bellingham's will, M. Allen seems to insinuat it was written by himself, whereas it is M! Allen's own hand; 3 and there is a base reflection upon ME Sam1 Bellingham, a worthy gent. Indeed I have purchased a small peice of land yt was Gov' Bellingham's; but it is not mentioned in ye will at all, and I hold it of the heir. However, it would be mueh more for my interest to have ye Winisimet lands go to settle a minister there than otherwise, thô I should lose my purchase; and vet I eanot see with what face we ean go about now to set up that will, thirty years after its being deelared null by the Gen1 Court that then was. That is most eertain which by contest, & after contest (ex dubio), is made certain. I fear it would be much to the dishonor of God, as things now stand with us, to undo that wch was done in 1676, when parties and witnesses were alive. It would in probability ereate a great deal of trouble to the Prov- inee, and come to nothing in the end. We should be thought unjustly selfish, unwilling ye estate should go to persons in England."
4 6 Coll. Mass. Hist. Soc., v. 148.
" The original is not now to be found in the Probate Office.
5-14
HISTORY OF CHELSEA
ICHAP. XIV
CHAPTER XIV
SUITS FOR THE BELLINGHAM ESTATES RESUMED
THE result of the proceedings in the General Court for reopening the Bellingham will ease would have dis- heartened one less resolute than James Allen. But he seems to have anticipated the issue, for in May, 1705, he devised a plan which foreed Edward and Rebecca Watts to litigate the case before a jury, whatever might be the decision of the General Court. In this he had the assistance of Rev. Thomas Cheever, then, and for many years previously, a resident of Rumney Marsh. They determined that if Allen was not allowed to bring suit, Edward Watts should be compelled to do so. Their plan, simple and effective, was this: for Allen, as executor and trustee under Bellingham's will, to enter and take possession of the estates as though there were no question of his title.1 Nor were the circumstances unfavorable. Ed- ward and Rebecca Watts, the legal claimants, were in London, and the estates in the possession of tenants, neighbors and parishioners of Cheever at Rumney Marsh,2 interested parties
H [The estates contested in . the courts were the Townsend farm and Governor Bellingham's mansion house in Boston, in both of which Mrs. Penelope Bellingham had held a life interest. In the inventory of Samuel Townsend's estate, taken January 9, 1704/5, was the item, - " Rent oweing from the Estate for 3 years," that is, sinee the death of Mrs. Bellinghamn. Title to the Bellingham estates was then under litigation in the English eourts. At Winnisimmet Joseph Hiller demanded the rents as agent of Edward and Rebeeea Watts, Nathaniel Newdigate as agent of Hull and Shelton. (Supra, ehap. xii.) The deed from Hull and Shelton to Edward and Rebeeea Watts was not proved in Massachusetts by the oath of two witnesses, and recorded at the Suffolk Registry of Deeds, until February, 1704/5, the date of James Allen's petition to the General Court. Because of these disputes over the rent of the farm, the estate of Samuel Townsend was still unsettled in May, 1708. Suff. Prob. Ree., L. 15, f. 413; L. 16, f. 460.]
2 [The church at Rumney Marsh, of which Rev. Thomas Cheever be- eame the pastor, was not gathered until 1715; no member of the Townsend family joined it. Thomas Cheever was, however, their near neighbor. They attended the North Church in Boston. Its pastor, Rev. Cotton Mather, often urged the establishment of a church at Rumney Marsh.]
545
CHAP. XIV] SUITS FOR THE BELLINGHAM ESTATES
and doubtless sympathizing with Allen, and not unwilling to recognize him as their landlord. In pursuance of their plan, Allen executed a power of attorney, in the handwriting of Thomas Cheever, as follows : 3
To all People, unto whom these presents shall come James Allen of Boston in the County of Suffolk in New-England Clerk, sendeth Greeting. Know ye that I the sd James Allen as Sur- viving ffeoffee in Trust, & Executour of the last will & Testament of the Honble Richard Bellingham Esq Decd, have assigned, or- dained, substituted & made, & by these presents do assigne, ordaine, substitute & make John ffloyd sen! 4 of Winnisimmett side in ye precincts of Boston aforesd Ycoman, to be my deputy, assignee, or Attorney,
for me, in my name, & in my sª Capacity, to ye uses & bchoofs in ye sd will mentioned, to enter into all & singular, ye Messuages, houses, lands, tenements, & hereditaments of ye sd Richard Belling- ham Decd scituate lying & being in ye sd County of Suffolk, whereof he died siezed in ffee, or wherein at ye time of his death he ye sd Richard Bellingham had any estate, interest, property or demand; & to account with any person or persons whatsoever for or concerning the rents issues or profits of all or any the sd Messuage, houses, ffarmes, lands, or tenements beforementioned. Likewise for default of payment of any rent, or rents which now is, or hereafter shall become due to me as ffeoffee & Ex! aforsd, to sue & prosecute for ye same to full effect, & to take & use all law- full wayes & meanes for ye obtainment & recovery of ye sd lands, or rents thereof. And my person in the Courts of this Province to represent, and to act, transact, do, prosecute, say & accomplish all & every matter or thing lawfull, which doth any way relate to ye enforcement, & making valid & effectuall the sd will, accord- ing to the intents, purposes & true meaning of the same; and to present for that designe any memoriall, petition or Remon- strance to the Great & Gencrall Court or Assembly of the Province of the Massachusetts-Bay, & to implead any person or persons defending, or which shall, or may oppose the same. And also witlı full power to retain, imploy, & improve any Councell' at law, Advocate, or Attorney to appear in & negotiate under him ye affair & concern of ye sd will, or whatsoever doth or may relate unto the
3 Chamberlain MSS., i. 89 [the original document with autograph sig- natures and endorsement. On the back is the further endorsement, " Watts ũ. Townsend January 1706."]
+ [Supra, p. 189.] VOL. I. - 35
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HISTORY OF CHELSEA
[CHAP. XIV
premises. And Generally to do, execute, perform, & accomplish all & every matter, cause, & thing needfull & required in ye premises, as if I my self were personally present; hereby devolv- ing on ye sd John flloyd
my full & whole power given, granted, & derived to me in & by the sd last will & testament of ye sd Richard Bellingham Deceased. And I do promise to ratify & allow of what my sd Deputy or Attorney shall lawfully do or cause to be done in ye premises by virtue hereof, as witnes my hand & Scal this twenty second day of May anno Dom : 1705.
James Allen. scal
Signed sealed & Delivered Suffolk ss: Boston 1 June 1705 in presence of Reuerent James Alen appeared be- Mary Allen fore me the subscriber one of her Elkanah Pembrooke Majesties Justices of the peace in sª County and acknowledged this Letter of attorney to be his act and deed.
Samuel Lynde
Watts begins the Fight in the Court of Common Pleas
This vigorous action by Allen renewed the war. The agent of Edward and Rebecca Watts probably received instruction' from London, and September 14, 1705, commenced a suit against Abigail and Jonathan Townsend for the Townsend farm, but was nonsuited for non-appearance.5
The next year, August 28, 1706, Edward and Rebecca Watts sued Elkanah Pembrooke, shopkeeper, John Cotta, tailor, and William Payne, joiner, for rent of an estate not described. Payne and Cotta were subtenants of Pembrooke, and he tenant of James Allen, who was called on to defend the suit. The plaintiffs recovered judgment for £38 debt, and £5 5s. costs,
5 Records of the Court of Common Pleas, 1701-1706, p. 284. [The writ of attachment to answer to a plea of trespass and ejectment was dated September 14, 1705; the case was nonsuited at the October term of court. The writ is in Suff. Early Court Files, No. 6588; it will not be reproduced, as that of August 28, 1706 ( infra, p. 559) copies it verbatim. The endorse- ment reads : " Boston, September ye 14th 1705. By Vertue of this Writt I have attached the Dwelling house of the withinnamed Abigail Townsend lyeing in Winissimitt which was owned to be her Estate and the house of the within named Jonathan Townsend lyeing in Winissimitt and have left a summons att the house. Giles Dyer Sheriff "]
11
547
CHAP. XIV] SUITS FOR THE BELLINGHAM ESTATES
and December 6th took out execution for the same which was satisfied 22 January, 1707.6
But the following suit of the same date had a different result. The writ containing important information is given in the appendix.7 Allen was successful before the jury, but Edward Watts appealed to the Superior Court: 8
At the Superior Court of Judicature holden at Boston on the first Tuesday in May, 1707. - Edward Watts of the Parish of St Buttolph Aldgate in the Citty of London in the Kingdom of England Sawer & Rebecca his Wife Appellants agt James Allen of Boston in the County of Suffolk Clerk Appellee, from the Judgment of an Inferiour Court of Common pleas held at Boston January 7, 1706 [1707] In a plea of Tresspass & Ejectment Com- menccd & prosecuted by the said Edward Watts & Rebecca his Wife against Abigail Townsend & Jonathan Townsend of Winni- simmett in the Township of Boston At which sd Infcriour Court the sd James Allen was Admitted Deft in the Room & Stced of Abigail & Jonathan Townsend his Tenants, for withholding from the Plants the possession of a Certain farm or tract of Land lying at Winnisimmett According to Writ bearing date August 26, 1706. At which said Court Judgment was Rendered for the Defendt Costs of Suit.
Both Parties Appeared the Writ Judgment Reasons of Appeal & All things touching the same being fully heard the whole was Committed to the Jury who were Sworn According to Law to try the same & Returned their Verdict therein upon Oath that is to say they find for the Appellee Confirmation of the former Judgment & Cost of Courts
Its therefore Considered by the Court that the sd James Allen
6 [Two suits apparently are here confused. The writ of August 28, 1706, was a writ of trespass and ejectment; the case was nonsuited at the January term of court, 1706 [1707]; both defendant and plaintiff defaulted. By writ dated September 2, 1706, the attorney of Edward Watts sued Pembrooke on a bond for £500 given September 21, 1705, to abide by the award of certain arbitrators on the title to a house and other differences. This latter case was appealed and judgment rendered at the November term of the Superior Court in 1706, as stated in the text. The house in controversy was the mansion house of Governor Bellingham in Boston, with the shops belonging to it. See infra, pp. 551-558.]
Infra, p. 559.
8 [For the Reasons of Appeal, drawn by Paul Dudley, and the defend- ant's answer, by John Valentine, see infra, pp. 562-567.]
548
HISTORY OF CHELSEA
[CHAP. XIV
shall Recover of the sd Edward Watts & Rebecea his Wife Costs of Courts. 2d Jury."
In this action for the Townsend, or Cary farm, Allen was sueeessful. But I do not suppose that the estate was held to the uses set forth in Bellingham's will, nor can I explain how the judgment in Allen's favor was rendered nugatory. A year later, October 15, 1707, Edward and Rebeeea Watts brought another aetion which possibly may have been for this same farm. All I can find is the following record : 10
Another Suit by Edward and Rebecca Watts vs. Allen in which they prevail
At the Superior Court of Judieature at the term beginning at Boston on Tuesday, May 4, 1708. - Edward Watts of the Parish of St Buttolph Aldgate in the Citty of London in the Kingdom of England Sawer & Rebecca his Wife Plantiffs against James Allen of Boston in the County of Suffolk Clerk Deft. As p Writ dated the 15 of October 1707. This Action was entered at a Superiour Court at Boston the first Tuesday of Novembr last past : Where the Jury found specially if the General Court had power to disanull m" Bellinghams Will We Reverse the former Judgment & find for the Plantiffs the Land in Con- troversie & Cost of Courts if they Could not make Voyd his Will then We find for the Deft Costs.11 Whereupon the Court Advised to this Terme
Its Considered by the Court that the sd Edward Watts & Re- becea his Wife Recover of the sd James Allen the premisses Sued for & Costs of Courts taxed at Seventeene pounds four shillings & six pence.
The original papers in this case eannot now be found, and all that we know about it is what is contained in the foregoing record, by way of recital. Unlike the preceding action against
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