Thomas Penistone, in the preamble to his will quoted in “The Way of All Flesh,” insists on the confusion or disputation an intestacy might cause. The regular formula, occurring over and over, is that the will is made for avoiding controversies after death; or, as one John Nabbs says (1665), “the unhappy controversies usual in default of such settlements.” Robert Collyer, whose will was proved November 8, 1665, makes a peculiarly interesting addendum as to the law in his day: “the reason why I trouble not myself with witnesses is because a will so made by a man himself, although many imperfections in regard of form and the like may be in it, yet it is as good in law as if it were published and declared before many witnesses; which if people did but take notice of, many wills would be made that are not and much contention prevented; which I heard Serjeant Maynard plead for law in a case between Master Christopher Coles and Master Walter Bartellott at Westminster Hall.” [Pg 149]

There is a pathetic fallacy in this expectation. Some controversies may be avoided, but bitter disputes too often are aroused—disputes about the will’s validity, the meaning of its provisions, the capacity of the testator, the legality or interpretation of a bequest, its justice or injustice, and so on interminably. Such a work as Theobald’s “Law of Wills” illustrates, by the thousands of decisions it brings together, what questions and queries arise on the legal and interpretative sides alone.

Some seem to foresee trouble, or “fuss in the way of quarrel,” as one testator puts it. A clause is frequently inserted barring disputants from any benefit. George Spence (1587) expresses this well: “I will that if any person or persons shall not be content with such gifts as given to them by virtue of this my will and testament, shall be clearly and utterly voided out of the same, and they shall have no commodity or profit by virtue of the same.” And Anthony Wayte, of Clapham, whose will is dated September 10, 1558, believes in an original remedy—a short way with disputants. “If any dispute as to the meaning of my will, I will two or three unlearned husbandmen of my parish of Clapham to interpret my meaning as they or two of them shall think in their conscience.” It is a delightful touch of sarcasm and sagacity.

It was no wonder that Sir George Hervey, of Thurleigh, Bedfordshire, who died about 1536, took his friends and even his servants into his [Pg 150] confidence, acquainting them with the tenor of his will. For it was found, when the will was taken from its place of custody in a coffer “standing in the house of one Richard Holt, draper, dwelling in Watling Street,” that he had left his estates, his manors, and lands in Huntingdon, Bedford, Buckingham, Hertford, and Oxford, to his reputed son Gerard, to the exclusion of his generally recognised son and daughter, Nicholas and Elizabeth. Needless to say the will was called in question, but the affidavits of Sir George’s friends and servants, in whom he had confided, secured its admission to probate.

Thus one witness said that “about ten or twelve days before the death of the said Sir George, this deponent was eftsoons in hand again with the said Sir George, that he should be good unto Nicholas Hervey; to whom the said Sir George answering this deponent, showed of a displeasure that was grown between him and the said Nicholas, and said that he had given him a dash with a pen, and that he should never have groat of him, and this deponent saith also that he was present when the late Abbess of Elstow went unto the said Sir George instanted and moved the said Sir George to be good unto the said Elizabeth, whereunto the said Sir George utterly refused to do her any manner of good, saying that she was not his daughter.”

Thomas Smith Panuwell, of Tonbridge, seems not to have had much faith in peaceableness and honesty: to his will is appended the following: [Pg 151] “As the above written was copied from a will written by me some time before the above date, (1779) but not witnessed as I lay very ill of a fever, I was dubious and revolving it in my mind whether it was authentic, I had it written afresh by an attorney in form of law; ... but as I am now sensible my brain was then in perplexity through weakness, the authenticity of this will might be questioned and possibly for the benefit of trade by the man who wrote it, I hereby declare it is my will, now it has pleased the merciful Almighty to raise me from the jaws of Death and bless me with opportunity to endeavour to attain through a sincere repentance and reform the salvation of my spirit; and I am in perfect and sound mind and memory. Witness my hand and seal this 20th day of February, 1780.”

Few cases in the courts are more interesting than doubtful or disputed wills. But, however romantic, there is much that is sordid and miserable in probate actions, much lamentable bitterness of spirit. It may be hoped that when these cases are heard the testator has drunk deep of the Lethean stream. But the controversy may begin before the testator’s death, and cruel such wrangling is.

The story of the last days in the life of Elizabeth, mother of John Stow, is a curious tale at once comic and distressing. John appears not to have been on the best of terms with his family, and especially to have irritated his younger brother Thomas. Elizabeth Stow, in 1568, was [Pg 152] living with Thomas and his wife, but one day chanced to go and visit her son John. She was refreshed with the “best ale and bread, and a cold leg of mutton was put before her, whereof she ate very hungerly, and thereafter fell both to butter and to cheese.” On leaving, she promised John not to slight him, as he was her eldest son. But Thomas and his wife would give her no rest till she had told them all that she and John had spoken together. It leaked out that John had insulted Thomas’s wife, whereupon he “would never let my mother rest” (John tells the story himself) “till he had forced her to break her will, wherein she bequeathed me X li., (equal with all the younger children, except Thomas, which had all indeed) and to put me in nothing at all.” But she found that her friends would not witness the will, nor did they until Thomas pretended he had restored the ￡10, though he put down ￡5, in fact. “And so they set their hands to it, and after heard it read, wherein they found the V li. and would have withdrawn their hands again, but it was too late.”

Thomas took great offence at John’s insult to his wife: but soon afterwards he himself thrust her out of doors, and she, getting in again, “he beat her and threw her again into the street; and all the neighbours could not get him to take her in again, yet again she was conveyed into the house, and at X of the clock at night, he being bare-legged searched and found her and then fell again a-beating of [Pg 153] her, so that my mother lying sick on a pallet was fain to creep up, and felt about the chamber for Thomas his hosen and shoes; and crept down the stairs with them as well as she could, and prayed him to put them on lest he should catch cold. So my mother stood in her smock more than an hour entreating him for the Lord’s sake to be more quiet: so that at this time my mother took such a cold that she never rose after, but he and his wife went to bed and agreed well enough.”

Then began a long wrangling about the will, the minister who attended her much misliking it, and Thomas and his wife neglecting no device to keep the poor mother to the will. Her son-in-law, Rolfe, a priest, also tried to persuade her to do justice to John, but “she always bade him hold his peace, or else speak softly, for her son’s wife was in one corner or other hearkening, and she should have a life ten times worse than death if Thomas or his wife............