Wills Pre 1858
By Sheila Smith
This article was originally published in the August 2001 edition of Soul Search, the journal of The Sole Society.
In the April edition of Soul Search, Richard Smith gave a fascinating account of his Sewell family dating back to the early 16th C. In the course of this research, valuable information was obtained from family Wills. Richard’s wife, Sheila, has kindly written this article to share their experiences.
Wills can provide much information by filling in gaps in the surviving parish registers and if you are lucky even taking you back a generation or two before their commencement in 1538.
We have some dating back to the 1460s. Testators, besides mentioning their children often mention other relatives, perhaps ‘my wife’s brother John Smith’ so now you know her maiden name and can look to see if her family left any wills. Daughters were usually given their ‘portion’ on the day of their marriage and may therefore not be mentioned in the will even if they are still living. Sometimes however a married daughter may be left a small bequest, when she will probably be referred to as ‘my daughter Sarah wife of John Brown’ or her children may be left something. Either way you usually find out her married name. Daughters were more usually left a sum of money, the real estate being reserved for the sons, with the lion’s share going to the eldest son.
Wives too were usually only left a life interest in some real estate to provide for her in her widowhood. After her decease it would descend in accordance with the husband’s will. This is particularly so in the earlier wills. This arrangement would have formed part of the marriage contract agreed between the fathers of the prospective bride and groom before their marriage, not the parties themselves. The contract woud settle the sum of money (her portion) the bride was bringing to the marriage which would of course immediately belong to her husband, and the property to be settled on her in the event that she became a widow (her dower). Pre-nuptial agreements as they are now called are not a modem invention, marriage contracts were common practice in any class of people affluent enough to own property.
Not many of these contracts survive since they would simply have been kept with the family papers but sometimes reference is made to them in wills. The will of John Sewell of Great Henny proved in the PCC in 1645 illustrates the point. ‘ Item in accomplishment and in performance or certain covenants and agreements had and concluded upon between me of the one part and Edmund Aiston and Thomas Sewell my son of the other part upon conclusion of a marriage between the said Thomas and Marie Aiston daughter of the said Edmund ‘ and it goes on to detail the property. Widows often forfeited any provision made for them in their husband’s will if they re-married.
Sons can also sometimes be given their inheritance during the father’s lifetime, usually on the son’s marriage. So if you know there was a son and he is not mentioned it does not necessarily mean that he is dead, or that he has been cut off without a penny.
Sometimes the names of houses or farms are given and we have been lucky enough to find several 16th C and 17th C farmhouses that our ancestors owned still in existence which we have visited, the present owners being kind enough to show us around. However don’t think that your ancestors had to be very rich to leave wills. Some folk were leaving only household items, individual kitchen utensils such as ‘to my daughter Mary, my best brass pot’. Or single items of clothing, ‘to my sister, my best gown and petticoat’. If you are lucky enough to get an inventory with the will which itemises the contents of the house you can get a real insight into lifestyle.
Care has to be taken in interpreting these old wills because relationships mentioned are not always as we would understand them today. Cousin can mean virtually anything, often a niece or nephew. Kinsman of course is vague enough to cover any eventuality. Daughter in law can mean a step daughter. Brother can mean brother in law.
There is also the problem of reading the very different handwriting styles at the various periods. Basically I find the earlier the will the more difficult it is. However having now transcribed several hundred I will say it becomes much easier as you ‘get your eye in’. There are professionals who will transcribe wills or just parts thereof for a fee and I did seek professional help in the early days.
First of all of course you have to find your will. Since 1858 all wills have been proved in the Family Division of the High Court of Justice but before that date probate matters were the prerogative of the Church of England and wills were proved in a vast variety of ecclesiastical courts depending on where the testator lived. The Gibson Guide, Probate Jurisdictions, Where to look for Wills is very useful in this respect.
The smallest land unit for ecclesiastical purposes is the parish. A group of parishes form an Archdeaconry and a group of Archdeaconries form a Diocese. As a very general rule of thumb, if a testator held land only in one Archdeaconry the will would be proved in the Archdeacon’s Court, if in two or more Archdeaconries in the Diocesan Court usually called a Consistory Court and if in two or more Dioceses in the Prerogative Court of Canterbury (PCC). This is a basic explanation and there are many exceptions to this rule. There are also what is called ‘peculiars’ which had their own jurisdiction for probate quite outside the scheme outlined above.
So there are always at least three courts where you must look for an ancestors will. I have lately been dealing with people who lived in Suffolk. First there is the Archdeacon of Sudbury’s court, the records for which are held at the Bury St Edmunds branch of the Suffolk Record Office. Secondly there is the Consistory Court and as Suffolk is in the Diocese of Norfolk these records are held at the Norwich Record Office. Finally the PCC wills which are at the PRO.
We live in Scotland and are researching ancestors in the south east of England but this does not cause as many problems as you might think. Suffolk, Essex and Norfolk and many other record offices have all indexed their probate records. The Bury St Edmunds office for example, just for the cost of photocopying, will let you have copies of the relevant pages if for instance you say you want a list of Sewell wills pre 1600. You can then order copies of any likely looking ones by post. You will have to complete a form concerning copyright and possibly pay the money up front but we find most offices we deal with quick and efficient at this.
Although the original PCC wills are held at the PRO at Kew, copies of the registered wills have been filmed and are held at the Family Records Centre in London. There are indexes. However the FRC do not operate any system comparable to the County Record Offices and you will either have to visit in person, or do as we do and use a researcher.
Below is the beginning of the Will of John Sewell of Great Henny, Essex made in 1644. Probate was granted 16th July 1645 to Parnell Sewell, relict. John and Parnell Sewell are the paternal nine times great grandparents of Richard Smith, my husband. My transcription follows with modernised spelling.
In the name of God amen the twentieth day of August Ann Dm millimo sexcenttisimo quadrantsimo quarto in the twentieth year of the reign of our Sovereign lord King Charles now of England etc I John Sewell of Great Henny in the county of Essex yeoman being sick in body but of good and perfect disposing memory thanks be unto God therefore revoking and annulling all other wills and testaments by me at any time heretofor made do now make publish and declare this present writing to be and contain my true and last will and testament in manner and form following First and principally I commend my soul into the hands of Almighty God my creator trusting and most steadfastly believing to be saved in the day of general resurrection and judgement not by mine own merits but by the only merits and passion of my lord and saviour Jesus Christ and my body I commit to the earth from whence it came to be buried in decent manner according to the discretion of Parnell my loving and well beloved wife And as touching the temporal estate which it hath pleased God of his infinite goodness and mercy to bestow upon me I do will give and dispose of them in manner and form following Item I give and bequeath unto Parnell my wife all that my freehold messuage tenement or farm and the lands tenement and hereditaments thereunto belonging with their appurtenances and now in the tenure farm or occupation of Thomas Sewell my son excepting one half acre of meadow abutting now upon the marsh of John Deekes on the west part And also all that my close of land called the Hyde part thereof being freehold and the other part thereof being copyhold containing in the whole by estimation ten acres more or less with the appurtenances And also all that piece of meadow ground called he great acre in Daggferm containing……………
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