Florilegium urbanum - Death - Borough probate of wills and testaments

TRANSLATION

1. Concerning testaments

Let is be known that the entire city of London is held of the lord king in free burgage, without any mesne lord. And, according to the usage of the city and its suburbs, all the lands and tenements, rents and services within that city and suburbs, whether as direct possession or as reversion, are devisable by man or woman to whomever they wish and in whatever fashion they wish. They can also devise that new rents be taken from their tenements, as seems best to them, by their testaments and their last will. Those who are freemen of that city can devise their tenements in mortmain, as appears from the charter the king gave them. Also, those who hold tenements jointly with others can devise whatever belongs to them, without making any division. But underage children cannot devise, nor can a married woman devise her tenements, whether with permission of her husband nor in any other way, while she is still married. A husband cannot devise his tenements to his wife in any [more permanent] form than for the woman's lifetime, nor can the wife make any greater claim without risking losing everything. A husband cannot devise tenements [he holds] by right of his wife, nor tenements that the husband and his wife have jointly purchased; but if the husband and wife hold tenements jointly for themselves and the husband's heirs, the husband may at least devise their reversion.

All testaments by which any tenements are devised can be enrolled in the husting court of record, at the request of anyone who may receive benefit from those testaments. Testaments that should be enrolled are brought or sent before the mayor and aldermen in full husting; there the testament is read out aloud by the sergeant, and then proved by two well-known and reputable men, who are individually examined under oath concerning the circumstances surrounding the testament, the state of mind of the testator, and about his seal. If the evidences are found satisfactory, commensurate with law, and in agreement with each other, then the testament will be enrolled in the husting record, and a fee will be paid for the enrollment. No nuncupative testament, nor any other testament, can be entered into record unless the testator's seal is appended to the testament. On the other hand, testaments that are found satisfactory and legal are considered in force, regardless of whether enrolled or part of the record. Testaments within the city must, by city custom, be judged in force and executable (with regard to the wishes of the testators) based on the extent to which the terminology of such testaments is defective or not, according to the common law.

2. Verdict of the aldermen concerning the testament of Osbert de Suffolchia

On 15 May 1303 by the unanimous assent and consent of John le Blount, mayor of London, Elias Russel, Adam de Rokesle, Richard de Gloucestria, William de Betonia, Thomas Romayn, John de Wengrave, John de Vinetria, Richer de Refham, Ralph de Honylane, Nicolas Picot, John de Armenters, John de Dunstaple, Nicholas de Farndone, Henry de Gloucestria, Walter de Finchingfeld, and Hugh Pourte, aldermen, it was agreed, and each one queried individually as to his opinion stated, that the blood heirs of Osbert de Suffolchia are excluded from any hereditary claim to a tenement that belonged to Osbert in Cordwainer Street, in the parishes of St. Mary-le-Bow and St. Mary Aldermary, [devised] by Osbert's testament, proved and enrolled in the London husting on 8 May 1284. Except for Walter de Finchingfeld and Henry de Gloucestria, who were not entirely in agreement; but they said that everything of the testament that was enrolled was the testator's will, and proper and valid, etc.

Afterwards, on 19 February 1305 it was agreed and by unanimous consent decided, by John le Blount mayor of London, John de Wengrave, William de Leyre, Walter de Finchingfeld, Richer de Refham, John de Dunstaple, Hugh Pourte, Adam de Fulham, Adam de Rokesle, John de Vinetria, Salomon le Cotiller, aldermen, and Roger de Paris, sheriff, that Ralph Godchep, John de Wrytele, Stephen de Uptone, and William le Barber spicer, parishioners of St. Mary-le-Bow, sworn on the Holy Evangels, are to sell those houses for as much money as they can, under the supervision, and with the approval and consent of John, the mayor. And that with the money received from the same, divine services are to be held for the souls of Osbert and his wife Anne and those of all the faithful deceased, as specified by the terms of the testament; the remainder of the money, beyond [the costs of] that chantry, are to be well and truly applied towards [the upkeep of] the fabric of London Bridge.

3. Concerning the probate of testaments. [1344]

It is agreed and enacted that all testaments of burgesses of the town [of Bristol] in which lands, tenements or rents are bequeathed, are to be proved in full hundred court before the mayor and two reputable men sitting with him. This [is to be done] by two witnesses examined before them in the following way, viz.: concerning the date; whether they heard with their own ears that this was the last will of the testator; whether the testator was of sound mind; and whether he set his seal [on the testament]. Such testaments that are proved in the above manner are henceforth to be copied in full onto paper, and the paper is to be [kept] in the treasury where the common seal is placed, under the mayor's seal. So that those whom the testament concerns may subsequently have recovery on the basis of such a record, should they need or wish to have it through judicial process, and they may call it to warranty should the original testament be lost or in any way carried off maliciously, to prevent them from having recovery of their property. If a testament is proved in the manner described, it is to be entered into the paper record. Such testaments are henceforth to be endorsed with the date and place of probate, by the hand of the common clerk who may take 40d. for making the endorsement; and they are to be sealed with the mayoral seal, etc. All other testaments, not proved in the correct manner described above, are to be considered void and forever worthless and invalid. If witnesses default, this default is to be written on the document by the clerk, so that they not be accepted [by the court] at any future time through false witnesses.

4. Concerning the enrolment of citizens' testaments

The same day [10 February 1371] it was enacted and established that from this day forward all testaments of citizens of York in which lands and tenements within the franchise are devised are to be presented by their executors to the mayor and chamberlains then in office in the city, and entered and enrolled by their common clerk in the community register, to remain there in perpetuity to provide greater assurance and reliable evidence to all those who possess those lands or shall possess them in times to come.

5. [Probate procedure at Lynn]

This testament was proved before us, Hugh de Betele mayor of Lynn, John de Swerdestone, Henry de Betele, Robert Braunch, and Peter de Walton, specially elected and deputed for the examination of testaments by the entire community in Lynn's gild hall, on the basis of the customs of the borough of Lynn used in times past, by Richard Wyff and Henry de Swafham clerk. Who were, on 12 February 1343, administered an oath and examined concerning the making and proving of this testament as regards the aforesaid tenement, and who were concordant [in the statements given]. Solemn proclamation having first been made before the entire community of the town of Lynn for three days previously, as is customary, that if anyone believed that execution of the testament ought not to take place with regard to that tenement, they should speak out against the bequest of the tenement by the testament; and at those times and place no-one opposed or said anything against [the testament]. Consquently, we, Hugh de Betele the mayor, have judged it appropriate [to proceed with] the probate and execution of the testament as regards the tenement devised therein, and on the above date appended our seal of the office of mayoralty to the testament, in the presence of [those of] the community then in the gild hall.

6. [Testimonial concerning a nuncupative will, York, 11 October 1484]

To all true Christian people to whom etc., Thomas Wrangwish mayor etc. confirm etc. that our trusty and well-beloved fellow citizen Robert Leche, recently parish clerk of the same city, and William Inglesaynt sherman of the same came in person to the city's council chamber before us, the mayor and aldermen, on the same day this was drawn up. Then and there they publicly took an oath on the Holy Evangelist that each and both of them were present at the time that one Thomas Worcetre lister, formerly of this city, lay on his death-bed in his own residence in North Street inside the city, being sound in mind. At that time was also present dom. John Chalonere, parish priest of St. John Evangelist at one end of Ouse Bridge in the city. [This was] in 1452, the precise date not being recalled. The which dom. John there and then asked and enquired of Thomas Worcetre to whom he intended to pass on and bequeath the messuage with appurtenances in which he then resided. To which Thomas answered, saying for all to hear that "I will and bequeath the same, my messuage with appurtenances, to my wife Ellen, to hold after my death for the term of her natural life. And after her death, I will and bequeath that messuage with appurtenances to my daughter Katherine and to her legitimate heirs; if she dies without legitimate heirs then I will and bequeath the messuage with appurtenances to the church of St. John forever, to pray for my soul and the souls of all Christians." In testimony and witness, etc., the 11th day of October.

Also, Alison Tayt came into the council chamber on Ouse Bridge before Thomas Wrangwish, mayor of the city of York, and the aldermen of that city on 11 October, and then and there offered to take oath upon a book that she had been a servant of Thomas Worcetre and was present in person when dom. John Chalonere asked and enquired to whom he would pass on and bequeath the messuage with appurtenances in which he resided and in which he then lay upon his death-bed. To which he responded, saying for all to hear, as written down in the above testimonial more precisely, that he gave and bequeathed that messuage with appurtenances to his wife Ellen for her lifetime and after her death it was to remain to his daughter Katherine, she and her legimate heirs to have and hold; and if it chanced that Katherine died without legitimate heirs, then he willed and bequeathed the messuage to the church of St. John at the end of Ouse Bridge forever, to pray for his soul and those of all Christians.

DISCUSSION

The presence in many borough archives of copies of wills, whether individual documents or entries within records of wider scope, suggests that it was probably common for borough authorities to have an interest in such documents. For those documents called into play some of the fundamental liberties of burgesses, notably the right to hold and dispose of real estate relatively freely, when unencumbered by predispositions of patrimony, and the dower rights of women. It was to the benefit of those borough authorities whose courts had been granted jurisdiction over disputes concerning burgage tenure to keep on hand copies of documents evidencing ownership of those properties.

It was also advantageous for townspeople both to have their property transfers enacted in a public setting such as a court and/or to have transactional documents read out in public and copies then deposited in borough archives. If a legal dispute arose in the borough court over an inheritance, the will copy could be retrieved as evidence from records reasonably close at hand, as opposed to the time and cost involved in obtaining an authorized copy from ecclesiastical sources. Yet although probate and enrolment generated a crude kind of land registry, we should not forget that the primary reason for probate was to authenticate the document and allow its execution to proceed; it was not the purpose of probate to pass judgement on whether the property devised rightfully belonged to the testator.

While borough authorities acknowledged the primacy of the Church in the area of will probate, at least as regarded personalty and devise to pious uses, they naturally became involved in this arena. Copies of deeds are found among some of the earliest surviving borough court records, and wills or notices of wills were quick to join them. Because so much has not survived, it is difficult and dangerous to generalize, and what does survive portrays a range of practices. In some towns deeds and wills were transcribed into court records among other notations of legal cases. London's husting rolls provide the best example of this – deeds having been enrolled from 1252; many hundreds of citizens' wills have survived for us in that record. At Colchester entering the wills into the court rolls with all sorts of other records remained the practice throughout the late Middle Ages, making it necessary by the late fourteenth century for successive town clerks to compile a finding tool for what might be found in each annual roll, and on what folio. At Winchester too we hear of wills being recorded together with deeds on a "certain roll" archived in the community chest. At Ipswich, by contrast, a separate record series was spun off from the main court rolls and dedicated to recording matters related to property transfers, and wills were transferred there (from the main court roll) from 1307, although the recording of property transactions is evidenced just a few years after it began in London.

In some towns we find wills copied into volumes of memoranda; Lynn's Red Register, York's Memorandum Book B, Bristol's Great Red Book, and Southampton's Black Book are examples. In these cases it is not clear whether the volumes were serving as official registers of wills, or whether the inclusions are selective and for purposes that are more bureaucratic. In some of these cases wills may have been recorded only where the corporation was itself implicated – such as when bequests were made to the community, or borough government was asked to involve itself in supervising fulfillment of bequests. Some wills were recorded many years after the testator's death, and there does not seem to have been a specific cut-off date; presumably so long as credible witnesses to the making of the will were alive, probate was possible.

The initial focus of borough government interest in wills was insofar as they dealt with burgage tenements. It was unnecessary to transcribe the entire document, and often we find an edited down version, or just selected extracts, or even only an abstract or a notice of the document. In other cases, the entire document appears to have been transcribed. This may have owed something to the inclinations of different clerks, but it also appears that full transcription increasingly became the trend, and was not intended to represent any competition with ecclesiastical courts. A copy of one citizen's will entered into a Winchester volume of memoranda closed with two notices of probate:

This testament has been proved before us, the Deacon of Winchester, and pronounced legitimate by us, and we have committed the administration of all the goods dealt with by the testament to the above-named executors in due legal form. In testimony of which our seal of office has been appended to this document. Given at Wincester on 17 January in the above year [1349].

This testament was proved with regard to the lay fee in the session of the Winchester city court held on 16 March 1362, and it was enrolled etc. In the time of Nicholas de Hanyton, mayor.
[W.H.B. Bird, ed. The Black Book of Winchester, Winchester, 1925, 117.]

As borough courts becaming increasingly drawn into acting as a secondary venue for probate, copying of wills in entirety may have seemed the advisable course. The proving of a testament in a borough court applied to the entire document, not just those clauses related to urban realty. The role of borough courts as a secondary venue – it being expected that probate before Church officials would take place first – is evidenced in local by-laws and customs. Chapters 18-24 of the Norwich custumal concern themselves with this subject; chapter 18 required probate of any will bequeathing real estate within the borough, and enrolment of those parts of the document dealing with the properties. The initial section of Ipswich's custumal dealt with various matters relating to pleas of land, including several chapters related to wills. In particular, chapter 16 prescribed a form of probate similar to that described above at London and Bristol. Even a small town such as Maldon seems to have required a form of probate before its court. Lynn's husting court also had probate powers, but was in the hands of episcopal administration, although the bishop conceded the mayor the right to compile a copy of all business involving tenements in the borough, including wills; the Red Register may have been the outcome of this, or perhaps it was simply part of the ongoing effort of the mayoral administration to usurp episcopal jurisdiction.

The first document translated above is one element of what appears to be a copy, obtained by Bristol authorities at unknown date, of a series of provisions relating to London's constitution. Some of that series are taken from London's Liber Albus or Liber Custumarum, but the clauses dealing with testaments are not found in either of those works. According to town clerk Richard Ricart, who compiled these documents into a reference book – although whether from sources in London or already held in the Bristol archives is unknown – the source was a volume used by Henry Darcy (mayor 1337-39).

London was looked to by many boroughs as a source of advice and inspiration in dealing with constitutional and legal matters. In 1325, for example, the Oxford authorities had asked their London counterparts how the latter would deal with a situation in which someone challenged a bequest of property by claiming part of the property as his by right, while another part was subject to a novel disseisin process, and a third part of the bequest was unchallenged. The reply from London, echoing a provision quoted below, was that a will was proved through the examination of two sworn witnesses and if a challenge against the will was forthcoming, probate could be granted but the challenge would be registered along with the will. The challenger then had the right to bring at some future time a legal action to prove his/her claim, if possible. A dispute over a testament, dealt with in the London eyre of 1276, shows that the city authorities in husting were prepared to annull a will if its bequests unjustifiably circumvented the rights of the heirs. Likewise they were prepared to deny probate if the testator's seal or the evidence of the provers were suspect.

Liber Albus is not silent on the subject of probate of testaments, but it addresses the peripheries more than the core. The legal value of enrolled copies of wills is illustrated:

In cases where reversions or rents are devised by a testament enrolled in the husting record, those reversions or rents are passed on [i.e. in effect] from the time of the testator's death. So that those to whom such rents have been devised may distrain for the rent and make avowry. And those with reversion may sue a writ of waste at will without attornment by the tenants, and can, if necessary, base their case on the enrolments should they not have the testaments themselves in hand.
The same custom is applicable to deeds, indentures and other documents enrolled in the husting record. Such enrolments have always been the practice, so long as the testaments are openly read out and proved in full husting, as is mentioned above.
[H.T. Riley, ed. Liber Albus, vol.1 (1859), 180.]

The final phrase of the last sentence, referring back to some earlier passage, may point to the original source of the Bristol transcription, for the copy made in the Liber Albus omitted any earlier section dealing with testaments.

One of the major concerns was with ensuring that the testament was an accurate representation of the testator's final wishes, and not a document to which he/she did not consent or, worse, a forgery. Thus the requirement, dating back to at least an ordinance of 1302, that:

henceforth no testament is to be granted probated unless the testator's seal is attached or appended. Similarly, not unless both witnesses can expressly testify it is the testator's seal and are well familiar with that seal.
[Liber Albus, vol.1, 403.]

While another clause dealt with the question of disputes surrounding testaments brought for probate:

That, regarding the probate of testaments, if anyone makes any challenge to a testament when it is undergoing probate, the testament is to be granted probate (at least, so long as the witnesses can testify to the last will of the testator) except in regard to that part of the testament challenged by the challenger.
[Liber Albus, vol.1, 407.]

As the second document translated above indicates, the will of the testator was paramount in cases of property he or she had a right to devise, notwithstanding any challenges by heirs. Osbert's testament had made provision for a chantry in St. Mary-le-Bow, although for the benefit of himself and his first wife Joan; his second wife Anne (or Agnes) was then still alive, and was bequeathed Osbert's properties in the two parishes for life, or until she remarried. After that, the properties were to be sold to finance chantries in St. Mary-le-Bow and two other churches. The aldermen of almost a generation later interpreted his wishes slightly differently, while upholding Osbert's broad intent, to the exclusion of heirs who, one assumes, had tried to lay claim to the property following Anne's death.

The third document was part of a set of customs and ordinances compiled by Bristol's recorder (legal expert) in 1344, while the fourth was similarly one of a group of reforms legislated at York in 1371. The fifth is simply a statement describing probate procedure made following the transcription into Lynn's Red Register in 1343 of that part of William de Walton's will concerning a particular tenement. Three days was the norm for giving others a chance to state claims to property devised, although this period could be extended in exceptional cases, such as the probate in 1345 of the testament of Nicholas Page of Norwich, who had acquired Lynn property through marriage; two witnesses – also Norwich men – were produced by the executors, and were separately interrogated as to Nicholas' state of mind when his testament was drawn up, and to the appending of his seal to the document. In fact, Nicholas stated in his document that because his seal was not widely known, he had also arranged for the seal of the deacon of Norwich to be appended as well. Another description of the probate procedure, concerning the will of Thomas de Rigges in 1330, closes with the note that:

Since no-one came to object to the testament that had been thus legitimately proclaimed and satisfactorily proven by trustworthy men, the judgement is for it to be enrolled and seisin delivered to the executors in due legal form.
[Ingleby, op.cit., 1, 56.]

Finally, the investigation into the nuncupative will of Thomas Worcetre, although not a probate proceeding, illustrates the type of examination that borough authorities may have instituted in some cases, whether as part of probate or not. At the same time it shows the kind of problem that could arise when a will was not enrolled in the borough records. The investigation was part of the city council's attempt to mediate a dispute over ownership of Worcetre's former residence, between Worcetre's daughter, Katherine Bassingburne, and sherman Henry Faucet (in the person of his widow and executrix). In September 1484 the king, whom Katherine had petitioned for justice, ordered the mayor to settle the dispute. The investigation was still going on in March 1485, when it seemed to have made little progress.