USA > Massachusetts > Suffolk County > Chelsea > Documentary history of Chelsea : including the Boston precincts of Winnisimmet, Rumney Marsh, and Pullen Point, 1624-1824, vol 2 > Part 3
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8 Boston Rec. Com. Rep., x. 21, 39.
9 An attested copy of the preliminary agreement between the widow and Edward Lane, dated November 14, 1657, is in Mass. Archives, ix. 31; the report signed November 24, 1657, by Edward Rawson and Captain James Johnson ( for Mrs. Keayne) and William Brenton and Captain Edward Hutchinson (for Mr. Lane) is, in an attested copy, in Chamberlain MSS., iii. 179; the articles of agreement drawn in accord with the latter document, and signed four days later, November 28, have been printed in Suff. Deeds, L. 3, f. 77. The account rendered by Mrs. Keayne in accordance with this agreement is in Mass. Arehives, vol. B. 15, p. 209.
10 Her petition is in Mass. Archives, ix. 32. The decree annulling the marriage is in Suff. Early Court Files, No. 2233, vol. xxvii. p. 47. It was given at the March term of the Court of Assistants in 1658 [1659], because Edward Lane was unable to beget children.
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executorship.11 At the time of his marriage Edward Lane had been in the country but a little over a year and, presumably, had brought with him funds. It was charged by Captain Keayne's widow that he paid legacies more promptly than the provisions of the will required.12 He had also made repairs and alterations on the houses, spending thereby £1,059, of his own estate, he claimed, for which he demanded payment. The widow of Captain Keayne further complicated affairs by assuming the position that, not- withstanding the ammhuent of his marriage with her grand- daughter, Mr. Lane unist abide by his business agreement with herself, and remain exeentor of her husband's estate. This position she continued to hold even when her brother-in-law, John Wilson, and the other overseers of the will, declined further to support her.13 The business was before the General Court during two sessions, and two committees were occupied with it before a final settlement was reached. One suggestion was that Samuel Cole, who had in the meantime decided to marry Mrs. Anna Keayne, Sr., should become the executor, and repay such dis- bursements of Mr. Lane as had increased the value of the estate, on condition that the half of Mrs. Keavne's thirds which was devised at her death to the Library in Boston, should be con- firmed to her.14 In November, 1659, the court decreed that Mr. Lane should be released from the executorship, and repaid for what he had expended to the amount of six hundred and fifty pounds, receiving also the rent for the two past years of the farm and of the Boston house and shop. It then appointed Mr. Simon Bradstreet and Major-General Dennison, uncles by marriage to " Mrs Anne Keayne, Junio"," her guardians, releasing Mr. Lane from this trust. It next dirceted the overseers of Captain Keayne's will "to take the estate into theire hands. & to sell or dispose thereof, for speedy payment of the legatjes." The Court also appointed a committee of six to join with the overseers in interpreting Captain Keayne's intentions as to public and private legacies, and to approve and confirm their acts as to the estate. Shortly thereafter the Court " in consideration of the late Capt. Robert Keaynes libberall guifts to the country in his will " granted to Mrs. Anna Keayne Cole and Anna Keayne
11 Petition of Edward Lane in Mass. Archives, vol. B. 15, p. 212. See also Suff. Early Court Files, No. 2233, p. 51.
12 Answer of Anna Keayne, Sr., in Mass. Archives, vol. B. 15, p. 213.
13 Mass. Archives, vol. B. 15, pp. 211, 213.
14 Ibid., 215. On Mrs. Keayne's death one half of her thirds was pay- able to the Library in Boston, one fourth to Harvard College, and one fourth to Anna Kcayne, Jr.
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five hundred acres of land apiece in the wilderness, on the banks of the Merrimack. This was in November, 1659.15
Within a few weeks, this settlement was overthrown by Anna Keayne marrying Edward Lane a second time. Captain Keayne's estate was then a second time turned over to Mr. Lane by a document signed March 12, 1659/60, by himself, by six out of eight overseers of the will, by four of the committee of six ap- pointed by the General Court, and by Mr. and Mrs. Cole.10 According to later evidence Anna Keayne Lane was present.
By these articles the estate was delivered to Mr. Lane " to enjoy to him his heires & assignes for ever" on condition that he should pay the debts and legacies of Captain Keayne, and fulfil the agreement with Mrs. Cole as to her thirds. Moreover, it was provided that Lane should pay Mrs. Cole twenty pounds a year instead of the forty pounds agreed upon in 1657. Also after her death, "in consideration of what ye Estate may possibly fall short & to prevent ye abatement of any legacies in whole or part at p"sent," he was permitted some choice as to the form of payments made to the legatees to whom the thirds were bequeathed. And in case there should in the future be recovered against Captain Keayne's estate debts amounting to the "vallue of one hundred Marks or upward, then ye Overseers will further consider how they may ease Mr Lane in ye paymt therof in case it be prsented to them whilst it is in their power to do it." Edward Lane was to give security to the overseers for the payment of debts and legacies.
The argument of Nathaniel Thomas, attorney of Nicholas Paige, to invalidate this document has been given in full, and reference thereto should be had.17 At the different trials several writings were placed on file. Comparing these the following facts stand forth. Cocke and Wiswall could not produce the original of the agreement of March 12, 1659/60, with its thirteen signatures, but the document presented to the Suffolk County Court was a copy attested by Edward Rawson as Secretary of the Colony, as the agreement had been authorized by a vote of the General Court, and confirmed by its committee. On March 12, 1659/60, the overseers of the will, the committee empowered by the General Court to confirm the action of the overseers, Mr. and Mrs. Cole, Edward Lane, and Anna Keayne Lane met in Mr. Turner's inn adjoining the Keayne mansion, and in the presence and with the consent of all concerned, the agreement in
15 Vol. i. pp. 643-646.
16 Infra, p. 59.
17 Supra, p. 4.
-
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question was drawn as a final settlement of the estate and was then signed. Ama Keayne Lane's signature was not necessary, as her interest was that of a legatee. The document in the progress of its growth had, however, been much blotted and interlined, and was therefore left with Edward Rawson, the Secretary of the Colony, and an overseer of Captain Keayne's will, to make a clear copy of it. This is stated in the testimony of Simon Bradstreet confirmed by Edward Rawson and Thomas Danforth. According to their testimony also, the document in court was an accurate copy of the agreement signed on March 12, 1659/60. It had not been recorded in the registry of deeds, as the earlier agreement of 1657 had been. According to a deposition by Simon Bradstreet it was intended that the copy made by Secretary Rawson should be delivered to Edward Lane as evidence of title upon his giving bonds to carry ont its provisions, but that Lane had neglected to give bonds, and hence, so far as he knew, the agreement had never been delivered to hin. It is nowhere explained how Cooke was able to produce in court a copy of the agreement attested by " Edward Rawson Secretary," if this copy was not delivered to Edward Lane. Edward Rawson deposed that Lane had refused to give bonds. This, then, was the ground for invalidating Lane's, and hence Cooke and Wiswall's, title to the estate. The same attempt on the same grounds had been made by the overseers of the will in 1667 in a petition to the General Court, and had failed.18 Cooke in 1684 introduced copies of testimony taken in court in 1667 to prove that Captain Jolmson, in the name of the overseers, formally delivered possession of the premises to Mr. Lane after the second marriage. Of Edward Lane's possession of the estate there was no question. The overseers stated that Lane retained the estate in his hands after the decree of the General Court in November, 1659. On this point the testimony is contradictory. In December, 1657, when Lane first assumed the executorship, the bonds required of him by the Conrt covered the farm at Runuey Marsh and the mansion house of Captain Keayne in Boston. At no time did either Lane or Cooke and Wiswall deny that they were chargeable for the legacies and debts of Captain Keayne. During his lifetime Laue had undisputed pos- session of the estate, paid Mrs. Cole's annuity according to the agreement signed in March, 1659/60. and paid several legacies of Captain Keayne. Cooke and Wiswall asserted, and no contra- dietory evidence is on file, that the agreement of 1659/60 was honestly fulfilled by Lane and by themselves.19
18 Vol. i. p. 649.
19 See infra, pp. 50-64, the evidence in the case.
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Next to be considered are Captain Paige's objections to the deed from Lane to Cooke and Wiswall of December 14, 1663.20 At that time, about four years after their second marriage, Edward Lane and his wife decided to separate, the cause being apparently her relations with Nicholas Paige, the father of her children.21 December 2, 1663, Edward Lane, intending, it was said in a supplementary document,22 a "voyage for England suddainly if God pmitt," conveyed to trustees for the use of Anna Keayne Lane the mansion house of Captain Keayne in Boston on the condition that she renounce all claim to the estate of Captain Robert Keayne, and to that of Edward Lane, "Except what maye be heereafter giuen and Bequeathed Vnto hir by the last will & testeament of me the said Edward Lane." 23 Possession was taken in her behalf by the trustees Robert Gibbs and Thomas Brattle. The deed was acknowledged before Thomas Danforth, one of the committee of the General Court who had signed the agreement of March, 1659/60; and also before Samuel Bradstreet, when a clause was added in her favor. Doubtless Samuel Bradstreet was the son of her uncle Simon Bradstreet, who had been appointed her guar- dian by the General Court in 1659, when the first marriage was annulled.24 The deed was recorded immediately in the Suffolk Registry of Deeds by Edward Rawson, her cousin, one of the over- seers of Captain Keayne's will. She herself signed with the trus- tees a supplementary document to the effect that Edward Lane was to retain possession of the house, and receive rents until March 25, 1664.
Twelve days after the signing of this deed and three days after it was recorded, Edward Lane conveyed the remainder of his estate, including the farm at Rumney Marsh, to Richard Cooke and Elder John Wiswall,25 the former apparently an intimate friend, and the latter a tenant of one of the shops built on Captain Keayne's land, next his house, in Boston. The consideration was that Cooke and Wiswall should pay the annuity of £20 a year to Mrs. Cole; also all debts due from Edward Lane to Simon Brad- street and to parties in England, and the necessary expenses of Edward Lane, to an amount not to exceed seven hundred pounds.
20 Suff. Deeds, L. 4, f. 191.
21 Vol. i. p. 641, note.
22 Infra, p. 62.
23 Suff. Deeds, L. 4, f. 167.
24 Simon Bradstreet had a son of that name who died in 1682.
25 John Wiswall was a ruling elder in the First Church, of which
John Wilson, uncle by marriage of Anna Keayne Lane, and an overseer of Captain Keayne's will, was pastor.
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According to a statement made later by Richard Cooke, they also agreed to pay three hundred pounds more in debts or legacies, if required so to do, but this latter agreement does not appear in the deed.20 Lane did not give a warranty, but conveyed the properties " in such Large & ample sort manner & forme, as he ye sd Edward Lane may grant Bargaine sell enfcoffe assigne Sett over, & C'on- firme y" same." He specifically conveyed the rights of Auna Keayne Lane in her grandmother's thirds. He, alone, signed the deed. The intent of Edward Lane was apparently to convey to Cooke and Wiswall all his rights in the property as executor, and also all the rights of Anna Lane his wife, sole heir-at-law of Robert Keayne, leaving the property subject to the life interest of Mrs. Anna Keayne Cole, as defined in the settlement of 1659/60, and the public or private bequests which remained unpaid or became dne on the death of Mrs. Cole. The deed was signed December 14, 1663, acknowledged, February 4, and recorded by Edward Rawson, March 24, 1663/4, the day before Lane had agreed to give final possession of the mansion house to the trustees for the use of Anna Keayne Lane.
Edward Lane died in about a year, January 12, 1664/5, and in consequence of his early death without leaving a will. Cooke and Wiswall were compelled to pay on his account only abont £493, and of this $75 were for Jegacies under Captain Keayne's will. Thus they obtained the property for less than half the sum which, according to their own statement, they might have been compelled by Lane to pay, and that was probably less than the real value of the property. Bitterness was also felt toward Richard Cooke for the part which he had taken in the affair, from the marriage in 1657 to the publicity of the seandal in the indictment of Mrs. Anna Paige, on her return from England, in 1665.27 The overseers of the will, three of whom were uncles by marriage of Mrs. Paige, consequently petitioned the General Court in May, 1667, to be given the control of the property " that ye true meaning and will of ye deceased, who Soe leberally beqneathed to Publique vses may be fulfilled: and his Relations may not be jniured." They complained that the "Said Lane hath neither giuen Security, nor discharged all ye debts and Legacies according to his Covenant, and ye Expresse Condition of his being be- trusted with the Said Estate; But on ye Contrary hath as wee
.
20 Suff. Prob. Rec., L. 5, ff. 119, 120. This inventory of Edward Lane's estate was not placed on record until May, 1667, when Cooke and Wis- wall's title was already in dispute.
27 Deposition of Mrs. Anna Cole in Suff. Early Court Files, No. 2233; also other evidence in the same case.
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are informed by a fallacious Deed Conveyed the Said Estate to Leift Cooke and Deacon Wiswall, who now stand Seized thereof, and haue refused to deliu" the Same vnto us, or to giue Bond for ye payment of all Debts and Legacies yet due; whereby wee, ye Overseers are vtterly disinabled to discharge the trust Committed to us, by the Will of ye Said Capt Keyne." 28 In a petition of Nicholas and Anna Paige the preceding October, they complained " she is ye only ofspring of Capt Robert Keayne who dyed Seazed of a fare estate desposing of a great part theare of to publiek uses by his Last will wch as to others hath beene at- tended, her Selfe only being bereft of her purtion." 29 Possibly the falling due of the legacies from Mrs. Cole's thirds, payable at her death, may explain this discrepancy.30 However this may be, the General Court in 1666 and 1667 remained unmoved, - if any legacies were unpaid they might be collected through the courts,31 but Mrs. Anna Paige, it was intimated, had suffered no more than she deserved.32
Nicholas Paige and his wife were apparently not more success- ful in the lower courts. When Benjamin Muzzey refused to pay his rent, Cooke and Wiswall were able to collect it by process of law, though Nicholas Paige supported Muzzey and appealed the case to the Court of Assistants.33 At the trial of the indictment of Mrs. Paige in 1666, Nicholas Paige and his wife in their defence " humbly propose to the Honord Court That the said Cooke first release all pretended Right to any part of the Estate which was formerly the Defendants & Referr it to the honord Court or such Comittee as they shall appoynt to Determine, and order him all reasonable Sattisfaction & Interest for Disbursments vpon the said Estate; and the remainder Thereof to the heires in law or Judgment of the Court." Richard Cooke in his answer re- plied to this point : " but I humbly Crave leave to Declare That if any of The relations of Captaine Keayne Desire to have that estate which was his; lett them but give vs all Mr Lanes Dis-
28 Vol. i. p. 649.
29 Infra, p. 63.
80 Supra, p. 1, note.
31 The endorsement on a deposition, given infra, p. 61, implies a trial in the courts of 1667, possibly in aeeord with the suggestion of the Deputies. Cooke and Wiswall remained in possession of the estate. 32 Vol. i. pp. 648, 650. Many papers in the trial of Mrs. Paige for adultery in the spring of 1666 have been preserved in Suff. Early Court Files, No. 2233.
33 Suff. Early Court Files, No. 742. On the reasons of appeal is the endorsement: "Nieholas Page deliured these reasons to mee the 30th day of August, 1666." The ease was Cooke and Wiswall against Muzzey at the May term of the Commissioners Court.
1
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bursments vpon that Estate in paying Debts & Legacies; & otherwayes expended by him in relation therevnto And vpon Mrs Paige we will Then Deliver vp all That was captain Keaynes That is in our hands, & will give them 1001 out of said Disburs- ments; And if this be not accepted - Then lett all that hear it Judg; what wrong I have Done Mrs Paige." 34 As this offer was not accepted, the inference is that the dispute was over the estate of Mr. Lane, not of Captain Keayne.
Seventeen years' possession from 1667 to 1684 would under ordinary conditions confirm the title of Cooke and Wiswall. That it was during this period considered beyond question seems ap- parent from the fact that in 1678 John Dowlettle paid $250 for one fourth of the large farm exclusive of buildings, and in 1680 Elisha Cooke paid £150 for Wiswall's half of the small farm.35 But early in 1684 the Colony's charter was known to be in danger,3º and in the legal confusion which must necessarily follow its amuhnent possibly the niece of Joseph Dudley might win her case. Thus the most interesting feature of the trial of 1684, as disclosed by the papers preserved, was the quoting of the laws of England, ignoring the customs and statutes of the colony, and the attempt to discredit the registry system of Massachusetts, and compel the production in court of original documents.
During the trial Nicholas Paige tried to keep from the jury all the papers on which the defendants depended to prove the title of Lane. In the margin of the Suffolk County Court record it is written that " Wm Stoughton, Joseph Dudley & Peter Bulkley sat in Court ye three first days of May," 1684,37 Joseph Dudley, being the unele of Mrs. Paige. On May 3, Nathaniel Thomas, attorney to Nicholas Paige, secured in this court two orders ex- elnding the papers by which the estate of Captain Keayne was placed in Edward Lane's hands in 1657, and again in 1660. If these orders were sustained, Lane's title, as it would appear before the court and jury, must depend solely on his position as husband of Anna Keayne. To meet this the attorneys contended that a husband could not by his sole act alienate his wife's lands, and then denied that Edward Lane had married Anna Keayne a second time, though for four years, 1660 to 1663, she was
34 Suff. Early Court Files, No. 2233. See also supra, p. 12-14, the accounts presented by Cooke and Wiswall, and by Anna Paige.
85 Suff. Deeds, 1. 11, ff. 202, 310. The deeds were recorded promptly.
80 October 26, 1683, Randolph arrived with a writ of Quo Warranto. In November the Deputies and Assistants disagreed as to whether it was best to fight the case in the English courts. December 14, 1683, Randolph left Boston for England on his return.
Suff. Co. Court Rec., 1680 to 1692, p. 173.
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publicly regarded as his wife, and her two children were recorded in the Boston town records as his children. It was claimed that all proof of a second marriage should be excluded.38
Thus at the September term of the Court of Assistants in 1684, three appeals lay, - that of Elder Wiswall and Elizabeth Cooke against the ruling out of documents at the April term of the County Court, that of Nicholas Paige and his wife from the verdict in the same case and court, and the attaint of the Jury for the verdict at the March term of the Court of Assistants. The latter suit was for the farm at Rumney Marsh, the former for the pasture in Boston. In all three appeals the verdict was against Nieholas Paige and his wife. The trials do not seem to have been hurried, - Cooke and Wiswall charged for attendanee seven days at the April term of the County Court, and at the September term of the Court of Assistants, six days as defendant and five days as appellant, and in the trial by attaint in the same court, three days.39
Thus far Wiswall and Cooke had defeated Nicholas and Anna Paige, but a ehange was impending. The Colony's charter was vacated, and Joseph Dudley was appointed President of New England. May 15, 1686, Sewall wrote: "Gov! Hinkley, Major Richards, Mr. Russell and Self sent to by Major Dudley to eome to Capt. Paige's, where we saw the Exemplification of the Judg- ment against the Charter with the Broad Seal affixed." Five days later Joseph Dudley assumed the office of President.
Apparently Nicholas Paige and his wife thought that Elisha Cooke would be powerless in the courts against the influence of the " President," Joseph Dudley. Consequently, at the' first court which met in Suffolk County after Joseph Dudley took his seat as President, they brought an aetion in a new form, ejectione firmae, hitherto unknown in the colony, Elisha Cooke asserted. In this suit they prevailed. The case was tried in " his Majesty's Court of Pleas and Sessions of the Peace," held in Boston for Suffolk, July 27, 1686, William Stoughton being the President of the court.4º The case was entitled " Daniel Turel Plant. versus
38 Vol. i. p. 641, note 13: Suff. Early Court Files, No. 2233, papers on pp. 64 and 65.
39 Supra, pp. 11, 12.
40 " Stoughton and Dudley were warm friends, and commonly co- operated ... July 26, 1686, Dudley, with the concurrence of the Coun- cil, placed Stoughton at the head of the courts, where he remained during the Presidency of the former. He was Dudley's chief confidant." Sibley, Harvard Graduates, i., 198. "Trials were by juries, as usual . . . but, as the jurors were returned by the marshal, very different ver-
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Giles Dyer in Ejectione firmae from two messnages or Tenements scituate lying and being in Runiney Marsh, and one acre of Pasture Land in Boston, . . . Capt. Nathaniel Thomas attourney to Capt. Nicho : and Dame Anna Paige the Lessors of the Plant. appearing; and Elisha Cooke in behalf of m's Eliza Cooke, Is" Lewis; John Wiswall sen" John Wiswall Jun" and John Floyd Tenants in Possession were admitted defend's . . . " Jndgment was ren- dered at the adjourned session of the court, August 5, 1686, the jury returning a verdict for the plaintiff ; the defendants appealed, giving bonds for two hundred pounds. The appeal was tried at the " Court of Appeals, Grand Assize and generall Goal delivery holden at Boston in ye county of Sulfolk . . . Novemb! 2º 1686."' Joseph Dudley was President and Wm Stoughton Deputy President of the court. The verdict of the jury was in confirmation of the judgment in the lower court. Elisha Cooke et al. appealed " to his majestic in Councell, which appeale was allowed by the court upon condition, that the said Appellants forthwith give bond with sufficient sureties to the vallew of one thousand pounds sterling unto the said Capt" Nicholas Paige . . . to prosecute the sd Appeale to efeet . . . within nine months next comeing, (or such farther time as his majestic shall please to allow) " " At the last session of the Conneil before Sir Edunind Andros four days later took his seat therein as Governor, the appellants were called and declined to give the bonds required. Two days later the marshal put Captain Paige in possession of the farm.42
diets were given from what would have been given under the former administration." Hutchinson, Hist. of Mass. (ed. 1795), i. 315, 316. See also ibid., i. 306; ii. 103. Jurors " were now selected by the Marshal and one Justice of the county, pricking their names upou a list returned to them by the Seleetmen of the several towns." Washburn, Judicial Hist. of Mass., 86. June 2, 1686, Nathaniel Page and John Winchcomb were appointed Marshals for Suffolk County. W. H. Whitmore, Mass. Civil List. July 21, John Richards and Simon Lynde were appointed " to assist iu holding county courts for Suffolk." Ibid. The other judges at this term of court were dohn. Pynchon, Wait Winthrop, Edward Randolph, Richard Wharton, and John Usher. For the jury in this case, and also on the appeal, see Sewall, Diary, ii. 47. The judges of the Court of Appeals were Dudley, Stoughton, Wharton, Randolph, Winthrop, and Usher, with Peter Bulkley, Bart. Gedney, and Edward Tyng.
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