The litigation arising from Samuel Clap’s will is illustrative of two very important features of the Massachusetts system of distributing decedents’ estates: the necessity that wills be executed under conditions of capacity and formality similar to those required in English law; the interaction and conflict between the Province probate court system and the courts of common law in dealing with contested wills.
Clap, a resident of Scituate in Plymouth County, died on 8 December 1766. On 25 October of that year he had made a new will in order to disinherit his eldest living son, William, whom he accused of a variety of unfilial acts. After a life estate to his wife and a token for William, he left the bulk of his realty to another son, Samuel Jr., and the rest of it to his grandson, Samuel Randall, at age 21. Clap’s daughter, Sarah Randall, was to receive certain household goods, and there were small cash legacies to Sarah’s daughters, as well as to Michael Clap, another grandson, whose father had predeceased the testator. Samuel Clap Jr. and Sarah Randall were nominated as executors and were bequeathed all of the testator’s bonds and notes under a direction to pay debts, legacies, and funeral expenses.1
In April 1767, before Plymouth County Probate Judge John Cushing, William Clap attacked the will, and it was disallowed. Samuel Clap Jr. appealed in August to the Governor and Council sitting as the Supreme Court of Probate. There, Commissioners appointed for that purpose proceeded to administer interrogatories and take depositions in February 1768.2 At the end of that month a hearing was held in which Adams argued for the will and Robert Auchmuty opposed it. Adams’ notes for his own address and his minutes of Auchmuty’s argument, which are printed below, show that there were two lines of attack. Clap’s testamentary capacity was called in question by a series of witnesses who reported that he had not been himself for the last year of his life, and that on at least two occasions he had given vent to expressions indicative of an unsound mind. Certain unusual features of the will itself were also pointed to as indicative of lack of capacity. In addition, Auchmuty argued that the will was invalid for noncompliance with the formalities of execution. The will was in writing and signed by the testator and three witnesses, as required by the Statute of Frauds, but it was written on several sheets stitched together in a “paper book,” and Clap had left numerous blank pages, which he allegedly planned to fill in later.3 Auchmuty thus contended that the will offered in probate could not positively be identified as the will attested by the witnesses.
Adams seems to have concentrated his argument on the question of capacity. His review of the depositions is a witty and effective resolution of conflicting testimony in favor of Clap’s sanity. His notes also show that he cited authority indicating that only the literal requirements of the Statute of Frauds need be adhered to, and that, the Statute aside, a will such as this one was good. His arguments were apparently convincing. On 2 March 1768 the court ordered that the decree of the probate judge should be reversed and so upheld the will.4 Clap’s heirs were not yet out of difficulty, however. The will was soon to be tested at law in the action of Clap v. Randall, No. 16.
1. For the will, see Supreme Ct. Probate Rec. 1760–1830, p. 57–60. The devises to William and the testator’s wife are set out in notes 10 and 11 below. The date of Clap’s death appears in the writ in Clap v. Randall, SF 142299. See No. 16, note 3.
2. See Supreme Ct. Probate Rec. 1760–1830, p. 57–61; SF 129912. In the files one Benjamin Jacob appears as “appellee” in the subscription of two depositions taken at Samuel Clap’s request. Ibid. Jacob has not been further identified but may have been a representative of William Clap at the taking of the depositions. Interrogatories were a civil law practice, perhaps adopted on the recommendation of Governor Thomas Pownall, who reorganized the court in 1760. See his Message to the Council, Quincy, Reports (Appendix) description begins Appendixes to Quincy, Reports. description ends 572–579. As to the probate system generally, see p. xliv above; No. 16, note 1.
3. As to the Statute of Frauds, see No. 16, note 7. The blank pages are noted in the copy of the will in Supreme Ct. Probate Rec. 1760–1830, p. 57–60. See testimony of Joshua Jacob, SF 129912, and Thomas Clap, SF 142299; No. 16, note 4. The execution of the will is described in
“The deposition of Elisha Barrel relating to a paper Book purporting [to be] the will of Samuel Clap Lat of Scituate in the County of Plymouth yoman decesd dated October 25 ad 1766, taken upon interrogatories as follows viz. Question. Did you see the said Samuel sine and seal the Last written Leaf of said book and hear him Declare the same to be his Last will and testament. Answer. Yes. Question. Did you with David Jacob and Ja[mes] Jacob subscribe as witness thereto at the same time in his presence, and was he then of sound mind. Answer. Yes as I apprehended. Question. Did you obsarve any blank or clean unwritten leavs in said paper book when you set your hand as a witness there to. Answer. I did not obsarve it. Question. Were all the Leavs stiched to gether as they now are when you signed as a witness as aforesaid. Answer. The book appeared in the same shape as it does now, but whether there was so many leaves I cannot say. Question. Was what now appears in the several leaves of said book wrote before you subscribed as a witness. Answer. I am not abel to say.” Dated 19 Feb. 1768. SF 129912.