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 246grandson, 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 con-247tended 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.

Samuel Clap Testator, left 2 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 Executrix 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.

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 249Clap 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 250him 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 Honors 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, 251so 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 252Deponent 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