Florilegium urbanum - Death - Enquiry into the charge of forgery of a testament

TRANSLATION

[Parts of this document were illegible to the transcriber]

To all true Christian people by whom this document is seen, we Thomas Cristmasse senior and Nicholas Clare, bailiffs of the town of Colchester, give greetings in the name of the Lord, and all reverence and due honour to those who merit it. Since it is well known to be meritorious and necessary to testify and bear witness to the truth in all matters, so that any intrigue and fraud may be averted and suppressed, and what is right and fair applied without bias, we the bailiffs certify and assure you, and every one of you, that on 3 April 1492, at Colchester, John Dixwell gentleman and his wife Katherine, daughter and heir of the late William Bury gentleman of Colchester, came before us, the bailiffs, to complain that they had for a long time been suffering from a great wrong, causing them much damage, and that they and their lawfully begotten children, the rightful future heirs of William Bury, were likely to suffer being wrongfully disinherited of the manors, lands and tenements [...] of William Bury, whose heir Katherine [was ...] in the matter of the truth concerning [...] the form and making of the last will of the same [William] ... to the utter misfortune of them and their [...]. As a consequence of which John Dixwell and Katherine [...] requested us, the bailiffs, that we should [...] the statements of the persons named below, who, according to John and Katherine, were willing to take an oath on their Holy Doom to declare and affirm the truth in that regard. To which [request] we, the bailiffs, being impartial and fair-minded, not motivated by malice or favouritism towards any person in this matter, agreed to allocate time and effort to hearing all such statements and depositions as should be impartially given and declared before us regarding this affair.

Whereupon, on that same day, John Dixwell and Katherine brought before us, the bailiffs, those persons named hereafter; that is: Edmund Martyn fletcher, William Bloy, and John Algood, our fellow residents and burgesses. Which persons then and there, of their own free will, each individually took a solemn oath upon the Holy Evangels to testify and bear witness as to the truth in this matter.

Then Edmund Martyn, who was about 70 years old, took oath (as described above), stated and affirmed that about 20 years previous – whether a little more or less he could not remember – he was a tenant of William Bury in a rental property in Colchester situated next to the residence of William Bury, on the day that William Bury departed this world. And that he was, among various other persons, in William Bury's chamber in the quarter of an hour immediately before he died. Then and there he saw one Benet Popy, an educated man who was regarded with particular favour by William Bury, enter bringing with him pen, ink and paper, and ask William Bury [...] with making his last will, and then [...] Bury, noticing his daughter Jane [...] the wife of Thomas Chevyng, coming towards [...] William said to Benet that the same [...] over-hastily, because it was not William's intention that Jane should be involved in and privy to the making of the will. Yet nonetheless, Benet began to draw up a section of the will, viz. that William Bury gave and bequeathed his soul to Almighty God and his body to be buried in the Abbey of St. John, Colchester, beside the grave of his second wife. Then Edmund left to return to his shop, which was adjacent to William Bury's house. Fairly soon afterwards various women, who were then gathered around William Bury (his caregivers, servants, and others), loudly cried out to Edmund begging him to come to them and saying that William Bury had departed this world. As soon as Edmund could return, he found William Bury dead there. Then Edmund asked Benet Popy, who was present, how much more he had drafted or heard of the last will of William Bury; and Benet answered that there had been nothing more of the will drafted or declared in any particular or in any regard, other than what he had drafted at the beginning.

Immediately afterwards William Bloy similarly took oath and deposed and affirmed that at the time of William Bury's death, and prior to that time, he was a servant in attendance on William Bury, and a son of the caregiver for the illness of which he died; and he was present at William Bury's death. He went on to state and declare, concerning the last will [...] everything that Edmund Martyn had just before testified and deposed.

[John Algood] also took oath, and testified and deposed that at the time [of the death of] William Bury, before and afterwards, John was one of [...] the court of Colchester. Also how within [...] following the death of William Bury, Jane [daughter ...] of the late William Bury, sent for John Algood to come to her [...] residence, formerly belonging to William Bury; and once John Algood had come before her, Jane showed John Algood a paper document and then told John that it was the last will of William Bury, concerning the disposition of and arrangements for his lands and tenements, and she wished John Algood to write out a copy of the same on parchment. So John Algood, as he was requested, wrote a copy of the same on parchment and subsequently delivered it to Jane. John further stated and deposed that in the paper it was included that Jane should have various lands and tenements of William Bury, for her lifetime, with the remainder after her death going to the rightful heirs of William Bury; he added that the paper document Jane showed him contained or specified nothing about any manors, lands, or tenements to be had by Jane in fee simple. Furthermore, he said that the matters he copied from the paper to the parchment and those contained in what is called the last will of William Bury, registered in the court rolls of the Colchester moothall, are contradictory and incompatible in every clause, because the so-called will, as enrolled, purports that Jane should have various manors, lands, and tenements in fee simple.

Subsequently, on 5 April, John Dixwell and Katherine advised us, the bailiffs, that one Agnes Bloy, widow, who at the time of the death of William Bury was William's caregiver and very close to him, could give more reliable testimony on these matters than most others, because she was associated with William Bury long before his death. As that widow was then bedridden, John Dixwell and Katherine requested us to [... go to] the widow and [hear] her statement [...] say on these matters.

Agnes, after she had that same day been administered an oath upon [... for which] she would be answerable before God at Judgement Day [...] time of the death of William Bury and earlier, she [...] William Bury, and that she saw [...] William shortly before his death intended to have his last [will] drawn up [...] and how William Bury could not be persuaded to proceed with making the will because Jane was present and close at hand. She also said that William, immediately after Benet Popy had begun to draft the will, died; Agnes Bloy and various others standing beside and at the head of the bed having expected that William would have lived longer. Furthermore, she had never heard of William Bury having made any will.

Not long afterwards, on 16 May, John Dixwell and Katherine brought before us, the bailiffs, Richard Sabern, and Alice Lenynton and Alice Garsey, widows. Who, as John and Katherine said, were prepared of their own free will to testifying and make a statement of their knowledge as to the truth concerning the drafting or dictating of the last will of William Bury.

Whereupon, that same day, Richard Sabern, after taking oath upon the Holy Evangels that he would say or affirm nothing but what he knew to be the truth in this matter, immediately deposed that when William Bury had reached a critical point in his illness, Jane sent for Richard Sabern, who was then the sacristan of the church of St. Runwald, Colchester, in which parish stood William Bury's residence; Jane requested Richard Sabern to arrange for William Bury to have the holy sacraments administered to him as soon as possible. At Jane's summons, Richard came as quickly as he could to the residence of William Bury, where he then lay ill, and there he saw (among others) Benet Popy, an educated man, with pen and ink.

DISCUSSION

The surviving copy of the record of this investigation ends abruptly and incomplete as above.

If the accusation made by William Bury's daughter Katherine and her husband has any foundation, then the implication is not merely that a will was forged, to fill the void left by Bury's death before he could carry out his intent to dictate a will on his death-bed, but that the beneficiaries of this forged document – Bury's other daughter Jane and her husband – subsequently had a second forgery made to improve the terms of the original. Whether the absence of further record of the depositions implies, as Benham thought, that the bailiffs were not convinced of the truth of the accusation and never completed their investigation, or whether due to some defect in the register in which a copy was made – or perhaps the whole was never even copied into the register – we cannot say. But the fact that the bailiffs felt it appropriate to draw up a testimonial letter documenting the evidence is suggestive that they felt the accusation was not groundless. Their concern may have been prompted by the possible compromise of the official borough record as much as anything else.

A few scattered points can be added that corroborate more than elucidate. Although the court roll for the administrative year 1471/72 has not survived to us, a calendar of selected features of the court rolls includes the fact that the testament of William Bury was indeed registered in that roll, roughly 20 years prior to the investigation, as Edmund Martyn correctly remembered.

We do not know much about William Bury. He was already resident in Colchester in 1445 when he obtained, without fee, citizenship at Ipswich; that act was probably prompted by family reasons (inheritance), his lawyer father having served as Ipswich's town clerk and later, in the 1420s, as coroner and parliamentary representative. The testator of ca.1472 was alive, but probably underage, when his father had become a freeman of Ipswich in 1421. William Bury junior played no similar role at Colchester to that his father had at Ipswich, not being seen involved in any way in affairs of local government, and his business is unknown, although he may have been the William Bury who was licenced in 1439 to ship 500qt. of barley from Yarmouth to Colchester.

Whether the thrust of Katherine's challenge to the purportedly false will was intended to nullify it and thereby ensure herself of an immediate share in the properties then in Jane's hands, or whether the concern was rather with the issue of the nature of Jane's rights in those properties (for life vs. unfettered ownership) is not clear, as we do not know for certain which daughter was elder; however, when Bury had entered the franchise at Ipswich the only of his children mentioned were Nicholas, Katherine, and Margaret, and this list would likely have been complete for that date (but Jane might not have been mentioned if already married). The long delay between the death and the challenge to the will is mystifying, if Katherine was suspicious about the terms of the will. But perhaps the purpose of the version drafted by Algood was for Jane to show Katherine, a more plausible version that might pacify the latter and avert any legal challenge until too late. Possibly Jane's own death, and a consequent revelation that the property would not revert to her older sister, occasioned the challenge. As is too often the case with medieval legal battles, we see only part of the evidence and cannot surely decide where lies the truth.

That something may have come of the investigation is suggested in that ca.1493-95 Dixwell and his wife were involved in granting or releasing their rights to Bury's property to others. There is no evidence Dixwell was a Colchester resident himself; referred to as "esquire", it is likely he was a country gentleman and only interested in the Bury inheritance in order to sell it.

Other records of disputes over wills, some complaining disinheritance as a result of fraud or forgery, make it plausible that Katherine's accusation had merit. A testator relied on his executors to fulfill his last wishes properly; the appointment of supervisors of wills was intended to keep the executors honest, and the payment of executors "for their labour" may have been as much to discourage embezzlement as to thank them. Even so, executors (including widows and sons) did not always respect the letter of the law when administering bequests. Sometimes it was a matter of convenience to do otherwise that the testator wished; sometimes changes may have been forced on them when the testator's assets did not prove equal to his or her ambitions. An executor of Simon Mate of Colchester (d. ca.1439) complained that property Simon had bequeathed to his widow, for life, and afterwards to their children; but the widow, also executrix, had – in order to fulfill testamentary bequests and pay Simon's debts – mortgaged some of this property to William Barker for far less than their worth, and Barker had subsequently sold them at a sizable profit, so that Simon's daughter was disinherited, she was evicted from the property, and ended up in prison where she died. The complainant argued that Barker had arranged for forgery of deeds whereby the widow granted him the property; the town clerk was named as co-feoffee with Barker and might perhaps have been the forger, if the accusation were true.

Executors had some leeway in interpreting the broad wishes of testators. But there was always that risk that an executor might try to defraud the heirs. For example, ca.1456 the widow of John Syffe of Lynn complained to Chancery that her late husband's sole surviving executor, also the feoffee-to-use in one of Syffe's tenements, was refusing to recognize the widow's life tenure of the property.

Often it was one or more of the feoffees-to-use of a testator's property, or those trustees and executors in cahoots, who blocked the claims of the heirs. For instance, John Fyllebregge, the son of Johanna the late wife of John Caldwell of Ipswich (whose own will is elsewhere given here), complained in 1454 that his mother had held by dower right a property in Bury St. Edmunds; following her death, one of the feoffees was refusing to hand it over to Fyllebregge. The reverse problem could also occur: at some point in the 1430s, the executors of John Joye of Ipswich complained that his widow had persuaded Joye's feoffees-to-use that a particular tenement had been bequeathed to her and her heirs, whereas it was only to go to her for life and after that to Joye's children; now the widow had obtained access to the property and the executors could not ensure Joye's testament would be upheld.

On the other hand, disputes between the heirs were equally problematic. One of the sons of John Spryngwell of Lynn (d.1439) complained that his father had bequeathed his property to be shared between all his children, but that the eldest son, Edmund, by domineering his mother, into whose hands the estate initially came, had controlled the total inheritance; with the mother now dead, Edmund was only allowing the complainant a token share of his inheritance, and the only surviving executor was being allowed no say in the matter. The complainant had originally brought his case before the mayor, who appointed arbitrators who failed to bring the parties to a settlement; so an external arbitrator was brought in, and Edmund promised to deliver the inheritance, but subsequently reneged; recourse was consequently had to the king's court.

Quite a few of the class of records called Early Chancery Proceedings in fact stem from disputes over testamentary bequests, failures to pay debts owed to or by testators, or problems in obtaining a claimed inheritance. With the onus on documentary proof of claims, it is no surprise that some parties resorted to forgery. Fraud was made that much easier by adversities such as the fire of 1421 in Lynn's guildhall, through which many registered copies of wills and deeds were destroyed, as the heirs of Geoffrey Tolbooth discovered to their dismay.

Subject:	Enquiry into the charge of forgery of a testament
Original source:	Essex Record Office, Colchester borough records, D/B 5 R2 (Red Paper Book), ff.312-314
Transcription in:	W.G. Benham, ed. The Red Paper Book of Colchester, Colchester, 1902, 112-14.
Original language:	Middle English
Location:	Colchester
Date:	1492

Keywords: medieval Colchester investigations testaments forgery heirs testimonials death property disputes executors fraud