Adams’ Address and Minutes of the Argument: Supreme Court of Probate, February 1768
Adams’ Address and Minutes of the Argument1
Supreme Court of Probate, February 1768
Samuel Clap Testator, left2 a Grandson Michael Clap, Son of the Eldest Son of the Testator, whose Name was Michael Clap, deceased.
<William Clap, the oldest Son Living dis>
Sarah Randall Widow of Samuel Randal deceased who left by her, four Children, 2 Sons and 2 Daughters, the Names Samuel, Mary, Sarah and Elijah.
William Clap the Eldest son living. Disinherited.
Samuel Clap, the Executor, and principal Legatee. Mrs. Randall Ex[ecutri]x too.
The Testator in his Life time, had allowed large Priviledges to his eldest son Michael in his Life time, whereby he had acquired a pretty Estate of his own, and young Michael being young but six or seven Years old, might die and then whatever he might have would go to his Mother, entirely out of the Family and Name of Clap.
Evidence vs. the Will
Joseph Jacob. Testifies that he looked upon him, for several Years before his Death, not to be a Man of a sound Mind. But Jacob gives no Reason, relates no Fact on which to ground his Opinion. Informs the Court of no Action nor Expression of the deceased, to satisfy the Court that his Opinion was just—excepting the Will itself. He refers you to the Will to prove him mad. But I say his Referring you to the Will as Proof of Insanity, is a much stronger proof of his own, for the Will itself is a sensible wise and judicious one. Will cant be proof of Insanity for years before it was made.
Bezaliel Curtis. Did not look upon him for some time, before he made his Will, to be in such a Frame of Mind, as a Man ought to be in when he makes his Will. This is mere Opinion, Judgment, Conjecture again, without any Word or Deed to support it. Besides no Man can tell this Witness’s meaning by Frame of Mind. He does not tell Us what Frame of Mind a Man ought to be in <when he> in his Judgment and Opinion when he makes his Will. He does [i.e. does not] say that he ever heard him speak a silly or an idle Word, or do a wild or inconsiderate Action. He dont so much as say that he ever perceivd him Unsound in his Mind, deficient in his Memory or weak in his Understanding, but not in a suitable Frame of Mind to make a Will. And I suppose his Meaning was really this. This Word Frame is a technical Term among the Visionaries and Enthusiasts in the Country and signifies the moral and religious state of the soul, rather than the Conduct of the Understanding, the Government of the Passions and Appetites, rather than the command of the intellectual Faculties.3 So I suppose Mr. Curtis thought that the [testator]Clap was not meek and patient and humble and devout enough, but was too peevish and passionate for so solemn an Action. But the Law makes no Enquiry about the Frame of his soul, and the vilest Sinner living has as good a Right in Law to make a Will and may be as capable of it as the most emminent saint in the Calender.
Zecharias Daman is the next Witness and he testifies, he was intimately acquainted with Saml. Clap for many Years, and that for about a Year before his Death, it appeared to him he was not in a sound Mind, nor capable of disposing of his Estate by Will. That he found visible and material Alterations in him from what he formerly was, and that he perceived these Alterations and this Unfitness to make a Will, at 4 or 5 Conversations he had with him, within about 2 months before he died.
This Testimony is like the two former. The Deponent barely gives his Opinion, not founded on any facts, Words, or particular Observations, not that the Testator was unsound <Non Compos, delirious, lunatic, &c. but that he was> unfit to make a Will, and incapable of disposing of his Estate by Will. The Deponent indeed informs us that he always made use of odd Expressions in all his Discourse, ever since he knew him.
Anna Cothrel testifies, that she was well acquainted with Samuel Clap, and always for many Years, looked upon him of sufficient Understanding to dispose of his Estate, till the June before he died, when I looked upon him in a Case tending to Distraction. Some Weeks before his Death, I perswaded him to come in but I could not get any other Words from him, than these God blast the Corn, which he often repeated.
This Witness has come to particulars. Has sworn to one Expression tending to convince the Court, of Claps Insanity. But before I consider that Expression I should Observe that she differs widely totally from one of the former Witnesses Dr. Joseph Jacob in her general Opinion of him. Dr. Jacob swears that for several Years before his Death, he looked upon him not to be a Man of a sound Mind. She Anna Cothrell swears that she was acquainted with him for many Years, and always looked upon him of sufficient Understanding to dispose of his Estate till June before he died. Here is a Difference in Opinion which I shall leave them to reconcile. She is willing to allow him his Reason till June before he died, Jacob strips it all away from him for several Years before, ay and all for the small offence of making a wise, sensible tho an odd Will. Anna Cothrell in June looked upon him in a Case tending to Distraction, I was mistaken I thought she gave her Opinion that he was distracted, but she does not go so far, she only says tending to distraction. I must own I like this Witness better than Jo. Jacob. He deals in Distraction by wholesale and inferrs several Years of it, from one sensible Will. She only infers a Tendency to Distraction from a strange Expression, and that is God blast the Corn. This as it stands in her Deposition is a strange Expression. One knows not what to make of it. But it is so loosely and uncertainly related to us by her that we can conclude nothing from it with Safety. She says it was some Weeks before his Death—how many is uncertain. I am told that before the Commissioners4 she said Three. But this is impossible, as we shall shew presently. But the Time is not ascertaind when these Words were spoken. Nor is there any one Circumstance that accompanied them related. We are not told what went before or after, We know not what he was doing whether he was on Horseback or a foot, whether looking on the Cornfields or contemplating the Heavens. If these Circumstances were known we might perhaps see that the Words were sensible. He might be a looking towards a Cornfield and see young Ears of it blasted. And he might say to some body or to himself that God blasts the Corn. I say to himself, because many a sensible Man is frequently found talking to himself alone. So that no Inference of Insanity can be drawn from his talking with himself, nor are the Words insensible. Blasts are a Part of the Constitution and Course of Nature, the whole of which is under the Providence of God, and he may be said to blast the Corn as well as to send Rain on the just and unjust.
There is but one Deposition more against the Will and that is of
James Lambard, who was intimate with Clap 35 Years. Several Years before his Death he was not as rational as usual, particularly the last Year, when he was not of a sound And disposing Mind because he knew him to be out one morning and cry out, with a loud Voice I am King I am King and at another Time I heard him cry Murder Murder no Body near him as he saw and he at 80 Rods Distance, both in the High Way.
This Mr. James Lambard, your H[onor]s will remember is the Grandfather of Michael Clap, a Child of 7 Years old, who is the Representative of his father, who was the Eldest son of the Testator, so that necessary Allowances will be made for the Affection of a father to his Child and fatherless Grandchild. For this Grandchild of his will be intituled to a double share in the Estate if the Will is disapproved.5 Mr. Lambard differs from all the other Witnesses in one Particular and agrees with Jos. Jacobs that for several Years before his death he was not as rational as usual particularly the last Year, and that he was not of a sound mind, because he cryed I am King. In order to satisfy the Court about this odd Expression We shall presently read some Depositions to shew that This Rebellious son Wm. was often wrangling with his father and abusing him, and that the father used to say to him I am King yet in my own House and over my own Estate And will be obeyed. This son used to steal his fathers oxen and cutt his Timber, and sell it, which the old Gentleman thought was an Usurpation, and a taking by Violence, the Reigns6 of Empire from his Hands. The other Cry of Murder, if true, was owing I suppose to the same Cause, for his son used to strike and beat his father as well as steal and destroy his substance and it is most likely he had been beating of him when he ran out and cryed Murder.
John Jacob. We begin with his Barber who shavd him constantly for six Weeks before he died and saw nothing in his Conversation or Behaviour, but he had the free Use of his senses and Reason, as well as ever for 10 Years, and he thought him to be of a sound Mind, and all the Time thought it impossible he should go out, which shews the Probability and Incredibility of Anna Cothrells story, that she saw him a broad some Weeks before his death, and heard him say God blast the Corn. This Witness in 6 Weeks Attendance must have had Opportunity to observe his Wildnesses, if he had been wild. He swears he saw none.
James Cushing. Looked upon him a cunning subtle Man in Managing his Affairs the last Year of his Life, which he did with much Prudence and Discretion. Trouble in his family put him into a Passion, but when out of a Passion a reasonable Man, of a sound Mind and capable of disposing of his Estate.
David Kent. Took Care of his Cattle and got his Firewood for the Winter for his Victuals, lived with him till his Death, and always looked upon him capable of disposing of his Estate. Deceased told Deponent that Wm. would undo him, that he stole his oxen and carted his Wood in the Night Time, to prevent which he ordered his Yokes to be locked up, and that he shoved him about House, and struck him and that he could not go out for 5 Weeks.
Israel Silvester. Acquainted 20 Years. Clap told him, that his son William had broke his Corn House open and stole his Corn. Hasp to keep him out. Told him he was going to alter his Will— that he had made two Wills. That this was the Third, that he was about to make and this the last. And that he determined to cut his son William <off> short, for he had behaved badly and had got enough out of his Estate. Visited him 4 or 5 days before death, and talked with him and did not find or perceive but that he was as reasonable as usual.7
Elisha Jacob. In June 1766 a Controversy between Saml. Clap and his son Wm. Was called in as a Witness. Clap appeared very rational, then and always. Said Wm. would not go off according to Promise, but took oxen and carted Wood, without Leave. Said He would be King Yet. Of sound Mind and Memory and capable of conducting his affairs and disposing of his Estate.8
Here it seems that he was fond of the Expression that he would be <Master> King, which shews the Probability that I was right in my Conjecture about James Lambards Deposition. Lambard heard him say he would be King and no doubt there had been then a Dispute between Wm. and him and He said then as he said upon this occasion that he would be Master Yet.
Joshua Jacob Jnr. Acquainted 15 Year, conducted with Prudence, the last Year as well as ever, and that in his Opinion he was capable on mature Consideration of making a Will. And heard Wm. own he had struck his Father with as good a Will as he ever did a snake.
Desire Clap. Vizited him a Week before he died. Told her, he had not long to live, that he had made a new Will and cutt Wm. off or given him but a Trifle.9
Mr. Auchmuty.
Exhibit. 3 or 4 Reasons. Not sound Mind. Blanks liable to be filled. No Proof that Will the same.
Inconsistencies. Absurdities and Nonsense. Devise to Sarah his Wife, that I have not given belonging to.10
Wm. Clap, Chubbuch’s11
3d Mod. 263. 3 Witnesses—one never saw this Will. Court if Witnesses saw the last Paper and never saw the first. Wm. & Mary.12
Vid. Lex Testamentaria Page 529.13
1 Sid. Stephens vs. Gerard 315.14
5th Bacon 502.15 Godolphins Orphans Legacy Page 23. 24. 25.16
1. In JA’s hand. Adams Papers, Microfilms, Reel No. 185.
2. These three words, and the headings and names of deponents printed in large and small capitals below, were written by JA in a hand much larger than that in the rest of the MS, perhaps as a device to call his attention to important points as he spoke.
3. For examples of “frame” used in this sense, see RPB: Diary of Isaac Backus, vol. 4, 20 July 1755: “One thing that has burden’d my Soul of late is having my mind and my hands too much cumberd with earthly things, So that I’ve greatly neglected private reading meditation and prayer. By reason of which I’ve often come before Gods people very unprepar’d both as to matter, and also as to a sutable frame of mind to treat with Souls about eternal Things.” Id., 21 July 1755: “I visited Sister Elizth. Show who has been sick this fortnight with the long fever, and she complain’d much of a confus’d and stupid frame of mind; but while I pray’d her Soul was bro’t forth so that as soon as I had done she broke forth in the praises of the Lord, and did admire his great goodness to such a vile Backslider, O! said she ’I have found him whom my Soul Loveth.’ And I left her in a sweet frame and went to see some others, and found Some engagement of mind to labour to stur up Souls to mind their Spiritual concerns.” For this and other similar references to the Backus Diary the editors are indebted to Professor William G. McLoughlin of Brown University. Professor McLoughlin points out that the term was in very general use among the pious. Letter to the editors, 16 Dec. 1963. See, for example, the following stanza of a Watts hymn, quoted in Backus, Diary, vol. 4, 27 June 1756: “My willing soul would stay,/In such a frame as this,/And sit and sing herself away/To everlasting Bliss.” See Isaac Watts, Hymns and Spiritual Songs 106 (Boston, 37th edn., 1774).
4. That is, the Commissioners to administer interrogatories and take depositions for the Supreme Court of Probate. See note 2 above.
6. Thus in MS.
7. The deposition of Israel Silvester, taken for the Probate appeal at Samuel Clap’s request on 18 Feb. 1768, was as follows:
“That I have been Well Acquainted with Samuel Clap Late of Scituate Deceased for About Twenty Years Passed and that Sometime In August AD 1766 According to the best of My Remembrance I Exchanged Some Rye with Said Clap for Indian Corn and at That Time he Told me that his Son William had broke his Corn House Open and had Stole his Corn and that he would Undo him and Desired me that I would make him a Good Strong hasp for he Said he had Got a Sufficient Lock to keep him out. I accordingly made him a hasp. Some time after this as I was Riding the Road with Said Samuel In Conversation with Said Samuel he Told me that he was Agoing to Alter his Will and that he had made Two Wills and that this Was the Third that he was about to make and He hoped this Would be the Last and that he Determined to Cut his Son William Short for he had behaved Badly and had already Got Enough out of his Estate. After this I heard that Said Clap was Very Poorly and Not Like to go Abroad again. I went to See him According to the best of My Remembrance about four or five days before his Death and talked with him and I did not find or perceive but that he was as Reasonable as usual.” SF 129912.
8. The deposition of Elisha Jacob, taken for the Probate appeal at Samuel Clap’s request on 17 Feb. 1768, was as follows:
“Some time in June 1766 Theare was a Controversy Arose Between Samuel Clap Late of Scituate [Deceased?] and His Son William Clap and I Was Called in as an Evidence to Some of Their affairs and the said Samuel Appeared to be Very Rational at that and at other times Ever Since the Year 1750 and More Espesally the Latter Part of his Life as I Was More Entimately a Quainted With his affairs. He appeared The Mane [i.e. in the main?] Rational for He Said his Son William Would Not goe off according to agreement But Continued Theire and Took his oxen and Carted wood Without Leave. Said Samuel Said he Would Bee King yet and he Still Apered of Sound Mind and Memory By his Conducting of his affairs The Latter Part of his Life. For he Repaired his Buildings and fences Which he Said his Son William would Not Do. Furthermore I Looked upon him Capable of Disposing of His Estate as Ever I Knew him in all My Life.” SF 129912.
9. See Desire Clap’s deposition, taken for use at the Superior Court in Clap v. Randall, No. 16. SF 142299.
10. Samuel Clap’s will:
“I give to mi wife Sarah Clap for her support one half of my improved Lands and and one third part of the House I now Dewil in and also one third part of my quick Stock of Cattel and Sheep to improve for her suport, also I give one third part of all my Household Goods as long as she lives, and I also give to improve that part I have not given to my son Samuel Clap, and I also give my wife Two pounds a yearely as long as she lives if wanted and called for from them or Her who it belonging tow.” Supreme Ct. Probate Rec. 1760–1830, p. 57.
11. Samuel Clap’s will:
“Item, I give to my son William Clap one part of a House and part of a Barn and one fourth of a acres of Land lying in Hingham lying at Thomas Chubbuck and if not disposed or Sold in my life time. If sold then I give my Son William Clap ten shillings in lawful money forever.” Supreme Ct. Probate Rec. 1760–1830, p. 57.
12. Lea v. Libb, 3 262, 87 173 (K.B. 1689), a case in which there were two witnesses to the will and two to a codicil, one of the latter having also been one of the witnesses to the will. It was asserted that the will was valid, there being three witnesses in all. The court held otherwise, stating, at 3 263, 87 174, that “If a Man make a Will in several Pieces of Paper, and there are three Witnesses to the last Paper, and none of them did ever see the first, this is not a good Will.” The last phrase noted by JA is an incomplete reference to the date of the case, given in the report as the first year of the reign of William and Mary.
13. This and the following citations were written by JA in a heavier hand similar to that in his address, suggesting that these are authorities for his position. The work cited here is William Nelson, Lex Testamentaria 529 (London, 2d edn., 1724), a passage setting out the Statute of Frauds, 29 Car. 2, c. 3, §6 (1677), (No. 16, note 7), as well as cases on the signing of wills to the effect that under the statute a will need not be signed at the end, and that before the statute unsigned wills could be valid in certain circumstances. One of the cases on the latter point is Stephens v. Gerrard, note 14 below. JA’s spelling, “Gerard,” which is that used in Lex Testamentaria, suggests that the latter work, rather than the report, was his source. See also No. 16, note 2.
14. Stephens v. Gerrard, 1 Sid. 315, 82 1128 (K.B. 1666), was an action in ejectment in which “le title del defendant fuit le volunt [will] de Sir Edward Worsley ... et ceo volunt fuit escrite per un Bainham de Greys-Inn, et come il jure publy per luy mes ne fuit subscribe per Sir E. W. sed remain in loose sheets.” The case was heard “Sur trial al Bar” and various “excepcons” were taken to Bainham’s testimony on the grounds of his interest in the will and the lands in suit. The court allowed his evidence, however, “et le jury done verdit ple [pour le] volunt.” The discussion of the case in Nelson, Lex Testamentaria, upon which JA probably relied, concludes: “and this was adjudged to be a good Will.” See note 13 above. The report indicates, however, that the issue of informality was not directly raised.
15. 5 502, a section dealing with capacity to make wills, includes this passage: “A mad or lunatick Person, during the Time of his Insanity of Mind, cannot make Will of Lands or Goods; but such a one as hath his lucida Intervalla, clear or calm Intermissions, may, during the Time of such Quietness and Freedom of Mind, make his Will and it will be good.”
16. John Godolphin, The Orphan’s Legacy 23–25 (London, 4th edn., 1701). The pages cited deal with the capacity of “mad persons.” In addition to the passage quoted by JA from , note 15 above, the pages contain a discussion of the manner of proof of insanity, including the following: “And here note, that every Person is presumed to be of perfect Mind and Memory, until the contrary be proved. So that he that objecteth Insanity of Mind, must prove the same, for which it is sufficient if he prove, that the Testator was beside himself, or had lost his Reason but just before he made his Testament, though he prove not the Testator’s Madness at the very time of making the same, unless the contrary be proved, or Circumstances to induce a contrary presumption. For it is a very tender and difficult point to prove a Man not to have the use of his Reason and Understanding; therefore it is not sufficient for the Witnesses to depose that the Person was mad, unless withal they render upon knowledge a sufficient reason thereof. Neither is one Witness sufficient to prove a Man mad, nor two, in case the one depose of the Testator’s Madness at one time, and the other of his Madness at another time; but both agreeing in time, if then the one Witness deposeth of one mad Act, the other of another mad Act at one and the same time, these sufficiently prove that the Testator was then mad, though they do not both depose of one and the same mad Act.” Godolphin goes on to state presumptions in favor of sanity, including the propositions that if the testator is known to have intervals of lucidity, or if the will is “wisely and orderly made” it will be presumed to have been drawn during such an interval. Godolphin, Orphan’s Legacy 24. JA copied some of this discussion into his diary, Feb. 1763, when dealing with another will case. 1 243–244.