|Chancery Court Case: Walter v Walter (1657)|
The Walters were a substantial landowning family, who lived at Pennis House, Fawkham, but by the 1650s their landholdings had declined and John Walter has considerable debts. This case followed the death of John Walter in 1657. He made his will on 11 May 1657, died on the 16th and was buried at Fawkham on 18 May 1657. In his will he appointed his wife Bennett as executor and instructed her to sell his estate which he reckoned would fetch at least £1,900. Out of which she was to pay his debts of £1,000 and then £900 to be shared between their daughters Dorcas, Bennett and Alice. Any surplus was to be shared between his sons Thomas and Ambrose.
This will did not leave much to John's sons, and they were not happy about it. Thomas in particular claimed that his father had promised him land as part of a marriage settlement. They said "their said late father John Walter departed this life upon Saturday the 16th day of May last past, having by the extremity of the sickness whereof he then died, been deprived of his sense and memory for about a week before bis death." They claimed the will was published at midnight when John was not of "sound and disposing mind and memory". Bennett also claimed they had said the will wasn't properly witnessed.
It appears that Bennett prevailed because it is she who sold the Hartley and Ash lands for £665 on 17 August 1657 (although Thomas and Ambrose both admitted too that the estate would have to be sold). In Hartley these comprised about 2/3 of the Fairby Estate, but excluded the house itself and the land between Castle Hill and Fairby Lane, which the Walters had never owned. The will was proved in London on 10 June 1657 and there is no note to say that it had been invalidated in any way.
In most humble manner complaining doth shew you good lordships your daily orator Bennett Walter widow, the executrix and relict of John Walter, late of Fawkham in the county of Kent, esquire deceased. That whereas your orator [ ] late time. That is to say upon the 11th day of May last past lawfully sized in his demesne as of fee of diverse messuages, lands, tenements and hereditaments, lying and being in Fawkham aforesaid and Farningham, Ash and Hartely and [ ] yearly value of £200 a year besides all reprisals. And in a likewise at the same time possessed of a personal estate amounting to £400 at the least. And being so thereof seized and possessed and [ .....] ordain, declare and appoint his last will and testament in writing in these words following:
"In the name of God, Amen. I John Walter of Fawkham in the county of Kent esq. being sick and weak of body but of sound and perfect memory for [ ] This 11th day of May in the year of the Lord etc., do make and ordain this my last will and testament in manner and form following. First and principally I give and bequeath my soul into the hands of Almighty God who gave it and my body to be [...] whence it was taken to be decently buried according to the discretion of my executrix hereafter named, in full assurance of the free pardon of all my sins in the blood of Christ, and of a joyful resurrection of soul and body at the day of the just. And for that [ ] pleased the Lord to bless me withal in this my pilgrimage here on earth, make disposition thereof in manner and form following: First I give and bequeath to Mr Edward Archbold, minister of the parish where I do now dwell, the sum of 20(?)s [....] paid unto him the day of my burial to preach my funeral sermon. Also I do give and bequeath unto my beloved good wife Bennet whom I make my sole executrix my funeral expenses and gift? and legacy being discharged all my goods, chattels of household stuff and personal estate whatsoever, my debts excepted, which I have within the county of Kent aforesaid or elsewhere within this Commonwealth of England. And as for touching and concerning my lands I make disposition thereof [...] form following: And first my will, intent and meaning is I do hereby give and bequeath unto my said wife, my sole executrix: All that my farm in the tenure or occupation of John Nicholas, lying and being in Fawkham aforesaid and in [....] in the said county of Kent. And all that wood and woodland containing by estimation 20 acres more or less, lying and being in Fawkham aforesaid now in the tenure of me the said John Walter. And all that my wood, woodland containing by estimation 20 acres more or less adjoining to him the said John Nicholas, commonly called or known by the name of Chokes Feild and Chokes Wood, in the tenure of me John Walter [ ] and being in Fawkham aforesaid. And also all those my two tenements or cottages lying and being in Fawkham aforesaid, in the tenure or occupation of John Gardiner and Edward Carryer, their assignees. And all that my farm [...] ground thereunto belonging, situate, lying and being in the parishes of Ash and Hartely in the said county of Kent, late mortgaged to Edmond Tooke esq. and now in the occupation of me the said John Walter and of Robert French [....]. And all those my lands, arable and woodland now in the tenure or occupation of John Dawlton, his assignee or assignees, lying and being in Ash and Hartely aforesaid.. And also all those my lands, lying and being in the parish of Hartely aforesaid and in the tenure or occupation of Edward Best, his assignee or assignees. And all those my three pieces or parcels of land with the appurtenances, lying and being in Hartely aforesaid, in the tenure or occupation of the widow Crowherst, her assignee or assignees. [And] all those my lands and woodground, lying and being in Hartely aforesaid, now in the tenure or occupation of Leonard Carryer, and of me the said John Walter, our assignee or assignees. To sell as soon as possibly she can to pay my debts in the first place befing...] near as I can remember about £1,000, and to raise the sum of £900 more, to be equally divided between my three daughters, Dorcas, Bennett and Alice, share and share alike, within one year after my decease [...] can possibly be sold so soon. And my will, intent and meaning is that all the profits of the lands aforesaid which shall arise until sale of them or any of them can be made as aforesaid, shall be accounted for by my said wife and shall go to the said [ ]. And that if my said wife shall depart this life before she have made sale of all or any of the lands and tenements aforesaid, appointed for payment of my debts and daughters' portions as aforesaid. That then the executor or administrator of [my] wife shall have the same power to bargain and sell all and singular the premises, which shall then be unsold, for the uses and purposes aforesaid, as fully and amply as my said wife might have done if she had been living [ Jfurther will, intent and meaning is that whereas I have appointed £100 a year as near as I can imagine to be sold as aforesaid for the payment of £1,000 debts and £900 portions for my said three daughters as aforesaid [....] the money upon sale of my said lands shall amount unto more than nineteen hundred pounds or to more than will pay my debts and my said legacies to my said three daughters. That then the overplus whatever it be, shall be equally divided [....] sons Thomas and Ambrose share and share alike. And whereas I receive about £300 owing to me by several persons abroad, my will, intent and meaning is that my said executrix as fast as she can recover or get in the same [...] about getting in the same, shall divide the same, share and share alike between my three daughters, their executors and administrators and assignees; and I do give the said debts to my said three daughters according to the further augmentation of the same [....] by me formerly given unto them. Also I do further give unto my said beloved wife Bennett in lieu and recompense of her dower, moiety and title of dower to any of the lands aforementioned to be sold as aforesaid and in further manifestation of the [....] love and affection which I do bear unto her, I do bear unto her, the remainder of all my messuages, lands, tenements and hereditaments whatsoever for and during her natural life, not before disposed of to be sold as aforesaid and from and immediately after the date of [...] I give and bequeath all the said remainder of my said lands and tenements whatsoever not disposed of to be sold as aforesaid, unto my said sons and to their heirs, share and share alike equally to be divided between them and their heirs [....] renounce, revoke and make void all former wills by me made and do make and ordain this my last will and testament, containing 2 sheets of paper whereunto I have respectively set my hand and seal the day and year aforesaid John [Walter....]"
by the said will be ready to be produced it doth and may appear. And you said oratrix doth further shew unto your good lordships, that after the making of the said last will and testament of him the said John Walter. That is to say upon the [....] day of May last past, departed this life, leaving your said oratrix his sole executrix, having appointed diverse lands to be sold by your said oratrix for the payment of £1,000 being the proper debts of him your said oratrix's husband [ ] and for the payment of £900 for portions from his said three daughters, as in and by the said recited will is more particularly set forth. And your said oratrix well hoped quietly to have sold the said lands and to have according to the [ ] and discharged the said debts and ?mortgages, according to the trust reposed in her by her said deceased husband
But now so it is, may it please your good lordships, the said Thomas and Ambrose Walter, your said oratrix her sons, being coheirs [in] gavelkind, according to the custom of Kent, and perceiving their said father hath appointed £100 a year lands and tenements to see sold for payment of debts and paying of daughters' portions as aforesaid, as in the said will is particularly [....] hereby their estates will be far short of what they expected, do give out in speeches sometimes. That your said oratrix's husband did not make any such will and testament as is before expressed. And if any such will and testament were made, that the [....] was not of sound and disposing memory, when the same was made. And at other times that your oratrix hath no witnesses to prove the said will and that their said father never did read the same or heard the same read unto him. And therefore [....] and oppose the sale of the said lands and tenements, appointed to be sold for payment of debts and daughters' portions as aforesaid. Although they well know the said will was duly made and published by their said father as aforesaid. In tender consideration [of the] premises, and for that your oratrix hath no other way to prove the said will to enable your oratrix to sell the said lands for the uses aforesaid; nor to keep alive and preserve the testimony of [ ] invoking (?) and publishing of the said will, but before your honours in the High Court of Chancery. And to the end the said will may be established by decree of this court, and the witnesses to the same may be examined 'in perpetuam rei memoriam' [....] may be allowed at any trial, which shall be at the common law concerning the said will. And to the intent the said Thomas and Ambrose Walter may upon their several oaths, severally set forth whether their father was not seized and possessed as aforesaid [...] whether he did make the said recited will in manner and form as aforesaid, and if not the same what other will did he make. And whether he were of sound and disposing memory at the time of the making of the same. And why they or either of them do [ ] the performance of the same. And may likewise true answer make unto all and singular the parts of your said oratrix her bill. And your said oratrix may be therein relieved accordingly, as to your honours shall seem to stand with equity and good conscience]. May it please your good lordships, the premises considered, to grant unto your oratrix one or more writ or writs of subpoena to be directed to the....? said Thomas Walter and Ambrose Walter, commanding them and every one of them at a certain day and under a certain pain therein to be limited, personally to appear before you good lordships and further to stand to such order and decree, as to your good lordships shall seem to stand with equity and good conscience. And your said oratrix as in duty bounden shall humbly pray [.......]
The joint and several answers of Thomas Walter and Ambrose Walter gentlemen, defendants to the bill of complaint of Bennett Walter widow, complainant.
The said defendants, saving to themselves now and at all times hereafter all advantage and benefit of exception, to the uncertainties and other apparent defects and imperfections in the said bill of complaint, contained for answer unto so much thereof as doth in any wise materially concern them, these defendants or either of them to make answer unto, they do jointly and severally answer and say. That it may be true that John Walter deceased, in the said bill named, about the time in the said bill for that purpose mentioned, was seized in fee of the messuages, lands and tenements in the said bill particularly mentioned and expressed, being of such yearly value as is therein likewise mentioned, but subject to the payment of £30 pa to Mrs Dorothy Browne, widow, during her natural life, and to the payment of £12 pa for charitable uses, charged to be issuing out of the same by the last will of John Walter esq, deceased, late uncle of them these defendants, and subject to a recognisance or statute staple heretofore entered into by the said John Walter since deceased, unto John Robinson the elder of Gravesend in the county of Kent esquire, or unto some other for his use, or in trust for him of the penalty of £600 defeazanced for the payment of £300 with damages at a day yet to come, and some part of the said tenements was mortgaged unto and as these defendants believe was in the life time of the said John Walter forfeited by breach of the condition contained in the said indenture of mortgage unto Edmond Tooke esq, in the said bill also named. And it may be true that the said John Walter deceased, was at the time of his death possessed of a personal estate of the value of £600 or thereabouts, but that he made any such last will and testament, as in the said bill is set forth, or any other will they these defendants do not believe, or if such will as is at large set forth in and by the said bill were by their said late father John Walter, since deceased, assented unto, made or published, the same was assented unto, made and published at midnight and when he was not of sound and disposing mind and memory, for that he the said John Walter hath thereby made no provision at all for the maintenance of them these defendants, or either of them during the lifetime of their mother the complainant; neither hath he the said John Walter since deceased by the said pretended will made any provision for the indemnifying and saving harmless of this defendant Thomas Walter, against such bonds and engagements as he hath entered into by command of his said late father deceased, against which lands and engagements not above one week before the making of the said pretended will, he the said John Walter deceased faithfully promised him this defendant Thomas Walter, to defend and save him harmless; nor hath he the said John Walter deceased, thereby made any provision for, or directed the making of any present settlement of lands or tenements upon him this defendant, although not long before the making of the said pretended will, he had treated with several persons concerning a marriage for this defendant Thomas Walter, and had offered to settle lands of the clear yearly value of £130 upon him this defendant upon such marriage, by which way and means the debts and portions mentioned in the said pretended will might have been raised and paid, and this defendant might have had a subsistence of which he is now altogether left destitute; and this defendant would willingly take and accept [ ..] settlement of £100 pa. parcel of his said late father's estate, and pay his debts and secure the said portions to the sisters of this defendant, which to do, or to give him this defendant Thomas Walter any security against the bonds and engagements by him entered into on the behalf and at the command of his said late father, which engagements to amount unto £500 principal money, or to settle any certain allowance for this defendant's maintenance, or to acquaint him with the debts or estate of his said late father; the said complainant though in a civil and dutiful way and manner requested, hath and doth deny to the great grief of this defendant. And the said defendants do jointly and severally say. That true it is that their said late father John Walter departed this life upon Saturday the 16th day of May last past, having by the extremity of the sickness whereof he then died, been deprived of his sense and memory for about a week before bis death. And the said defendants do jointly and severally deny that they or either of them hath or have given it out in speeches that they will hinder or oppose the sale of the lands for payment of the debts, if such authority as is therein now pretended to by the said complainant were by their said late father committed to her, the said complainant, when he was of sound and disposing mind and memory; but if at the time of the making of such pretended will and granting such pretended authority for sale of lands, the said late father of these defendants were not of sound and disposing mind and memory (as they these defendants do verily believe he was not) they these defendants do conceive under the good favour of your lordships that they have good cause to oppose the same, they being thereby disinherited of their birthright and left altogether unprovided for during the life of the complainant their mother. And without that, that any other matter or thing in the said bill of complaint contained, material or effectual in the law for these defendants or either of them, to answer unto and not herein and hereby confessed and avoided, traversed or denied is to the knowledge of these defendants or either of them true. All which matters and things these defendants are ready to aver, maintain and prove as this honourable court shall award. And humbly pray to be dismissed the same with their reasonable costs and charges in this behalf most wrongfully sustained.