William Holowell junr Benjamin Holowell and Edward Ashley who married Mary Holowell or their Attourny plts conta Stephen Butler pretended Executor of Mary Ward late of Boston deced Defendt for that the sd Stephen Butler doth under pretence of such Executorship and colour of Law, withold for about eleven years last past, the moity of the Estate of Benjamin Ward sometime Husband of the sd Mary to the value of Four Hundred pounds or thereabouts as by Inventory thereof upon Record will more fully appear with the profits and improvements thereof from the sd William Benjamin and Edward the right heires of the same, together with damages as shalbee made appeare. . . . The Jury . . . found for the plaints the Estate Sued for [591 ] According to Inventory and costs of Court: The Defendt appealed from this Iudgemt unto the next Court of Assistants & put in Security for prosecution thereof to Effect.
[ Benjamin Ward, shipwright, died intestate in 1666, leaving a widow, her son by a former marriage, Stephen Butler, and a son-in-law, William Holowell (father of the plaintiff in this case), who had married Benjamin s own daughter Mary Ward. When the case was reviewed in 1680, several men, who as apprentices had lived in the Ward household, testified as to the relations between the members:
S. F. 1911.27
The Deposition of John Yyall Junior aged about .34. yeares testifieth
That I lived with Wm Holowell five yeares an Apprentice the most of which *1030time was before Benjamin Wards decease, Benjamin Ward & Stephen Butler and Wm Holowell caried on the trade of building Vessells & other Carpenters worke together in partnership Father Ward one halfe and Steven Butler & Wm Holowell each a Quarter for the most of the time of my Apprenticeship I kep’t the Accounts and was present at the time of their Reckonings and to my certain knowledge Stephen Butler upon makeing up of Accounts most commonly fell in debt unto Benjamin Ward by reason of having taken up beforehand more then his part and alwaies observed that Stephen Butler was beholding to Benjamin Ward and no waies advantagious to him but the benefit & profit of all Butlers Labour accrewed to himselfe, I never heard said Ward say that hee intended to give Stephen Butler anything; but have often heard him Say Benjamin Holowell should bee his heire Sworn in Court: 28° July. 1680.
attests I: Addington Cler
S. F. 1911.29
Thomas More aged 42 years or therabouts Testifieth that in the month of February 1665. to the best of my remembrance being in discourse with the old goodman Ward about a match between his son in law William Hollowell & the widdow Ryder, who had some time before yt liued in my house, he said that William Hollowells children should be no charge to him for said hee I haue none so near related as they are, & that he Intended to giue the greatest part of his Estate to them, & farther saith not.
Taken upon Oath 13.9.1667
Richd Bellingham Govr
S. F. 1913.25
The Deposition of Timothy Thornton aged about 30. yeares. Testifieth that whereas I lived with mr Benjamin Ward Ship wright for the space of Four yeares or thereabout and Six months or thereabout with his widdow after my Masters decease, So that I do certainly know and do testify that my Master Ward & his two Sons to Say William Holowell & Stephen Butler were in partnership as followeth my Master Ward one halfe and his sd two Sons each of them one quarter and was to bee carried by an equall proportion of profit or loss, but at the end of severall peices of worke & Accompts being made up I heard complaints of Stephen Butler his takeing of more then his proportion but that hee was any waies a help to my Masters Estate for the time I lived with my sd Master I do certainly know the contrary, and further that hee was rather a hinderance to it, by reason of the great love of my Mistris Ward to her Son Stephen Butler and to his Children So that almost anything in the house was at the command of the sd Butler and his family, and the sd family of Stephen Butler to say his wife and Children made no small improvement of her love by comming from time to time for such things as they wanted either for back or belly, if the house would afford it they had it in such measure as might bee without too much observation of my sd Master & further Saith not.
Tymothy Thornton
Sworn in Court. 28° July. 1680.
There are other depositions favorable to Butler, including the deposition “in perpetuam rei memoriam” of Richard Gridley (S. F. 1911.3), made 15 August, 1667, soon after the widow Ward’s death and before *1031HolloweU began suit. This deposition was recorded in the book of wills for Suffolk at the request of Butler.
S. F. 1911.22
An Inventory of the Estate of Benjamin Ward deeed taken the 26. January. 1666‘ ® £. s. d.
His purse & wearing Clothes Bootes & hatts........... 08:19:00
In the parlour .1. old table .2. old formes 2. old joint Stooles . . . 00:13:00
2. old Leather chaires..................... 00:09:00
1. Chest of drawers. 30s 1 great Chest. 15s............ 02:05:00
1. Feather bed. 1: Boulster. 2. pillows and a green Rugg ..... 05:00:00
The Bedsteed wth Curtains vallents & curtain Rods ....... 01:15:00
1li thrid & a pr of woosted Stoekins .............. 00:08:00
4. pair of Sheets....................... 03:01:00
2. Table cloths........................ 01:02:00
4. pillowbeers. 8s 5. Napldns. 5s................ 00:13:00
A parcel of Flax wth a wheele................. 01:00:00
2. barrells of Sugars valued at................. 05:00:00
a hatt ........................... 00:04:00
In the Chamber over the Kitchin one Feather bed one boulster 3. pillows. 2 ¡.blankets 1. old curtain one old Rugg ........ 06:00:00
pair of Sheets an old bedsteed & Bolster ............ 00:19:00
9. yds ½. of damaged broadcloth................ 02:05:00
2. Chests wth an old chaire.................. 01:01:00
an old warming pan wth a pair of tongs ............ 00:04:00
an old Lampe with ½li yarne.................. 00:01:06
In the .2. Garretts .2. flockbeds & .4. boulsters.......... 01:15:00
Two old bedsteeds & a Settle................. 00:08:00
two hundred of Cotton wool as is judged at 5d perli ....... 04:11:08
a small parcel of Sheep’s woole ................ 00:04:06
2 muskets. 2. Rapiers & 2. pr of Bandileers........... 01:15:00
In the Kitchin a parcel of pewter ............... 02:03:00
Earthen & tyn ware .2s & a pr of Styliards ........... 00:12:00
In plate .1: beer bowle .1: wine cup & 2. Spoones ........ 02:00:00
In Bookes .11s 2. brass kettles. 1li 5s 3 Iron pots & a frying pan 37.6 . 03:13:06
2. traméis .l.pr pot: hookes. 5s l:boxlrons5s 3. old chaires .8. . . 00:18:00
1. old cupboard wth an old table. 8s a pr andirons 5s a parcel of tooles. 22s........................... 01:15:00
Severall parcels of old Iron.................. 02:00:00
⅛th part of the Katch Guift.................. 50:00:00
¼ part of the Katch Endeavour ................ 60:00:00
⅓ part of a Lighter...................... 12:00:00
a parcel of Oares ......... 32:10:00
By .2. hundred of planke or thereabouts ............ 01:00:00
By a parcel of old planke & a peece of old Rack......... 01:10:00
By a parcel of Masts & poles ................. 04:00:00
By a parcel of Land before the house of his Son Holoway unto the Sea wth the Shed ..................... 40:00:00
*1032£. s. d.
3. dwelling houses wth the yard Roome belonging to each of them . 450:00:00
The Orchard above the houses ................ 35:00:00
A Smith’s Shop & a Coopers Shop............... 20:00:00
12. Acres of Land at Muddy River .............. 24:00:00
By part of a parcel of Land at Bilrica ............. 04:00:00
By debts due to the Estate part of them accompted desperate . . . 90:12:00
By old Lumber in the house & Cellar ............. 01:11:00
By Wharfes & Docks..................... 40:00:00
940:00:00
taken by us.
Peter Oliver
Henry Allin
By what Benjamin Ward was indebted to severall persons ..... 82:15:07
At a County Court held at Boston. 15th February .1666
Mary Ward Relict of the late Benjamin Ward deposed that this paper containes a true Inventory of the Estate of her late husband Benjamin Ward to her best knowledge, that when Shee knows more Shee will discover it; The Court Order that the Estate remain wholy in the Widdows hands till the Court take further order — Edw. Rawson Recordr
Ward’s widow died in July, 1667. Her will is as follows (S. F. 1911.21):
In the name & fear of God Amen. I Mary Ward the Relict of the late Benjamin Ward of Boston Shipwright being weak of body, but through the Mercy of God in perfect understanding knowing that its apointed for all men to die, though the time be uncertain, Considering ye trouble I haue met with & being put unto by reason Sickness came so on, & death so suddainly Issueing, taking my husband out of this World before he setled his Estate and knowing that he often declared to me, yt haueing from a Child brought up my Son Stephen Butler, yt I had by a former husband, whom he found So dutyfull, helpfull & servisable to him as if he had been his own, hee alwaies telling mee he minded to giue him a Considerable part of his sd Estate, yt had so great a hand in helping to get it, least after my decease both my dear husbands mind & will Should not be understood I haueing allwaies a hand in geting of the Estate, Judg it for peace sake, yt my Son, & Son in law & Grand Children may liue in loue and peace, thought necessary to make this my last will & testament being Sole Administratrix to my sd husbands Estate, hereby annulling any late or former Will of mine resigning up my Soul into the hands of the Lord yt gaue it, & my body to the Earth, to be Interr’d by my Execut” herafter named, looking for a Glorious Resurection through the merits of Christ Jesus my blessed Sauiour.
Imprimis I giue to my Reuerend Pastour mr Jn° Wilson forty Shillings. To mr Thatcher & mr Allen forty Shillings apeece, & to the poor of the Church of Boston foure pounds.
Item I giue & bequeath to my Son in law William Holloway Ten pounds.
Item I giue to my much honrd Friends Major Generali John Leueret & mr Peter Olivar my antient & neer neighbours alwais helpful! to mee. Three pounds apeece to buy them a Ring.
*1033Item I giue and bequeath all the rest of my Estate both reall & personall, in houses lands, wharfs goods & housholdstuff & whatsoeu’ my husband left & I now possess & Enjoy, the one half therof that is of all ye houses and & lands & goods to my thre Grandchildren, mary Holloway whom my husband & I brought up. William Holloway & Benja Holloway to be divided Equally between them when they come to bee of age & that they be heyrs Each to other, & in case of their decease the One half to their Father Wm Holloway & ye other half ther of to Stephen Butler my Son & his heyres.
Item I giue & bequeath the other half of the houses lands & goods to my beloued Son Stephen Butler and his children, he haueing so Industruously laboured with & for my husband, & in case of his & al his Childrens decease before my Grand Children being of age, in Such case what I giue to them my minde & will is should goe to my Grandchildren or the longest liuer of them.
Item. My mind & will is that my Son in law Wm Holloway shall (giueing Security to my Executr to render it up wt I haue giuen to my Grand children, that dureing their Nonage) he shal haue ye benefit & Improuemt therof.
Lastly I doe hereby nominate & appoint my Son Stephen Butler to be Sole Executr of this my last will & testament & Earnestly desire my Honrd Friends major Generali John Leueret & mr Peter Oliuar to be Ouerseers of the same & yt they would Assist my Execut’ wth their best Councel & advise & see that this will be performed. In witness I haue here unto set my hand & Seal this 4th day of July 1667.
mary M Ward
her mark & a seale
Signed. Sealed. Deliurd & published by ye sd mary Ward to be her last will & Testament this 4th day of July in the pursence of us.
Wm Salter, Jn° Prince
Henry Allen, Jn° Saunders
In May, 1667, the widow Ward had filed a petition for division of her husband’s property. Action was taken on this after her death.
S. F. 1911.13
To the Honourable the General Court now assembled
The humble petition of Mary Ward Widdow
Humbly Sheweth
That it hath pleased God lately to take to himself the late Benja Ward, yor petitionrs dear husband before he did or could setle that Estate which God had bestowed on him by his and yor Petitionrs labour and care for about forty & fiue years wherin they liued togather with the constant & faithfull seruice of Stephen Butler Son to the petr by a former husband who was very dear to your petrs late husband Ward, who alwaies told yor petr that he resolued to manifest his loue & affection to her said Son Butler as to his owne, that God had giuen unto them selues as a reward of all his faithfull & dilligent seruice both before & after he was for himself; but he dyeing Jntestate, & yor petitionr very aged & weak, & unfit to manage what is left, & being desireous that ye Estate of her late husband may bee divided & setled on herself & her thre Grandchildren wch is all the Jssue *1034that God is pleased to Spare the petitionr & her late husband, the one half ther of to yor petitionr & her dispose wherby she may be enabled to Iiue in some measure, Comfortably the remainder of her time, but also leaue behind her some testimony of her loue to her Son Butler, and his Children to whom her husband Intended soe well, & the other half of the whole to hir sd Grandchildren to bee giuen to them at the day of maryage. & yor petitionr as in duty she is bound, Shall pray.
That this is a true Copy Compared wth ye Originall Exhibited to the Genrl Court may. 1667 Attests Edw Rawson Secretary
Vera Copia attests Isa Addington Cler At a Generali Court held at Boston the 15 May. 1667
In Answer to the petition of Mary Ward widdow, the Court on perusall of the petition declares yt ye Cognisance therof belongs to the County Court of Suffolk to whom it is referred.
S. F. 1911.21
At a County Court held at Boston 31. July. 1667
The Court on due perusall of the late Mary Wards petition to the Genrl Court in May last, & ye Courts Answer therunto with the Evidences of Richard Gridly & Henry Allen to gather wth the last will & testament of ye sd Mary Ward now also proued in this Court by Suffitient Evidences to be her last will & Testament, & Considering her equall minde & due care to her Children both by first & Second husband, doe allow & Confirme the said Will to be a finall Issue for setling of that Estate between the Children. Ordering that her petition & Euidenees here with be recorded with that her will. Edwd Rawson Recordr . . . true Copie . . . Edw. Rawson Recordr
At this point William Hollowell began proceedings to get the property away from Butler, his wife’s half-brother, alleging in a petition to the General Court in April, 1668 (S. F. 1911.14), that “according to the law of God” (Numbers xxvii: 7-11) and “the law of our Nation” he and his should inherit the Ward estate; that Mrs. Ward had no power to dispose of her husband’s estate out of his line. The General Court at that time (1668) refused him redress; then years later this suit was started.
S. F. 1911.11
Stephen Butlers Reasons of Appeale from the verdict of the Jury and Judgemt of the County Court held at Boston. 29th July ann° Domi 1679 @
Humbly tendred to this Honoble Court of Assistants sitting in Boston the 2d September 1679 in that Action, wherein Wm Holowell junior Benj0 Holowell and Edward Ashley were plaints and Stephen Butler Defendt
That whereas the Appellant was Sued for witholding an Estate from the Defendt under pretence of Executorship to his mother the late Mary Ward will and to give an Accot into the Court according to the Inventory given in by the Appellants mother in the year. 1666.
1st Because the Appellant possesseth no Estate but as a Legatee as appeareth by will.
*10352ly. Whereas hee is Sued for an acco** of his Father in law Wards Estate given in by Inventory by his late mother and committed wholy to her dispose by the then Honord County Court that had the legall power so to dispose thereof, which act no way concerns him and therefore not liable to give an Acco* of that Inventory which came to nine hundred and Forty pounds and there was due out of that Estate Eighty two pounds Fifteen Shillings and Seven pence as appeares by that Inventory whereas the Estate of Mary Ward the Relict widdow of of the sd Benj0 Ward after her decease was given into the Court; it came to but Seven hundred Seventy & two pounds Seven Shillings & eight pence for there was losses in parts of severall vessells before her decease and there was due from the Estate upon her Inventory given in Forty Six pounds and ten Shillings besides the Appealant had disburst for physick for his Mother and debts due from his Father in law’s Estate and Legacies given by his Mother and funerall charges, and other necessary disburstm*3 Forty five pounds five Shillings and Six pence, all which hath been given in an acco* though nothing as yet paid by the now Defend*3.
3ly. The Mother of the Appellant and wife of the said Ward brought a considerable'Estate to him wch was the appell*3 own Father Butlers Estate of which hee had no part (though hee ought to have had) and the Appell*3 mother by her care & Industry was helpfull in getting part of the sd Estate and yor Appellant lived with and wrought for his Father in law with diligence from his youth untill hee was married as hath been owned by his Father in law Ward and known to many in this Towne without any Satisfaction
4ly. Because the Appel* posseth what hee now enjoies legally it being granted by the County Court to him who by law onely had the power to take probates &ca and was confirmed by the Gen11 Court and divided by a Committee chosen by the County Court; and that confirmed also by the Gen11 Court and the Ap-pell* recd his part and his Brother Holowell recd the other parts for his Children (hee being then appointed Guardian to his daughter &ca
5ly. The Appell* hath enjoyed that part of the Estate laid out to him by the sd Committee peaceably above eleven years and hath disposed of some part of it since it was in his possession and^hath laid out above two hundred pounds in building repairing & wharfeing upon the sd Lands to the great advancement of the sd Estate alwayes accounting it his own inheritance as by law it is if our laws bee laws.
6ly. It was the Appell*® Father in laws minde that the Appell* should have an equall Interest in his Estate with his Brother Holowells Children as appeares by the testimony of Mary Busbey Henry Allin and Richard Gridley & gave his Reasons for it.
7ly. Because the Appell* understands not how a Jury can overturn an act of a County Court the same act being confirmed by the Gen11 Court without some strong and new Evidences appearing in like manner to both Courts, but the now Defend*3 have produced none but what was then produced both before the County Court & Gen11 Court.
8ly. The Appell* conceives that the testimony of William Greenough mentions onely some transient expressions of his Father in law, and some words that past from him and not any legall dispose of his Estate And as for the testimony of Thomas Moore given into ye last County Court; It is contrary or far besides his former Oath, in his last testimony hee sweares that Goodman Ward said that *1036hee intended to leaue his whole Estate to his Son Holowells Children which is but a single witness, and that to an hearesay, and this was his sd intention (but not a legall disposing of his Estate, and in Thomas Moore testimony taken about ten yeares since hee there saith that Goodman Ward said that hee did intend to give the greatest part of his Estate to his Son Holowells Children & so his testi-monys are contrary the one to the other or at least so far different one from the other [torn] renders them no evidence in law, And so the Appell* doth commit & commend his case to the Judgem* and determination of this Honoble Court & Gentn of the Jury, hopeing they will see just cause & good reason to reverse the Judgement of the former Court and am
Yor Hono™ most humble Servant
Steven Butler
These Reasons were received
28° aug° 1679 per I: Addington C
The Court of Assistants (Records, i. 140), confirmed the former judgment “in part, that is to say the moyety” of the estate, or 4001 in money, and 56s 10d costs. From this decision, Butler appealed to the General Court (S. F. 1911.15):
To the Honord Governo* & Deputy Governo* with the HonorbIe Assistants & Worthy Deputys, members of the Generali Court now Assembled in Boston .15. (8). 79.
The humble petition of Stephen Butler most humbly Sheweth that whereas yor poor peticioner was cast in a case at the last Court of Assistants upon an Appeale from the Judgement of the last County Court holden in Boston upon the .29th July .1679. whereby yor peticionfi] doth apprehend himselfe much wronged, for by that Judgement your petitioner hath lost most part of his Estate being to the value of Six or Seven hundred pounds besides the great charge I have been at in buildings and wharfeing and paying of Legacies out of the sd Estate that I have been possessed of above these eleven yeares, which Estate was given me by my Fathers and also of my Mothers will & confirmed unto me by acts of the County Court & Generali Court and now disposessed of my Estate by the acts of the two last Courts to my utter undoing unless I finde releife from yor. Hono™ — The humble Request of your poore petition1 therefore is that my case may have a full hearing in this Generali Court, that the oppressed may be eased, and to obtain his just Rights, and yor Favour & clemency to yor poor petition1 in granting his Request shall ever oblige him to pray for yor poor peticoner in granting his Request shall ever oblige him to pray for yor Hono™ prosperity. &
sRemail1 yor Hono™ Servant
Stephen Butler
The General Court (Records of Massachusetts Bay Colony, v. 251) on 15 October, 1679, granted a hearing of the case, after which it took the following action:
On a full hearing of the case brought by petition from Steven Butler, plaintiffe, against Willjam Hollowell, Benjamin Hollowel, and Edward Ashley, deffendts, this Court judgeth it meete to reuerse the judgment of the last Court of Assistants, *1037and doe confirme the setlement- of the County Court in Boston enstating the cleare halfe of the estate of the late Benjamin & Mary Ward, as therein is exprest, to be deliuered vnto the sajd Butler, and be to him & his heires foreuer, granting the sajd Butler his costs, & of the Court of Assistants, ten pounds.
Even after this, Butler was not left in peace. On 27 July, 1680, the jury of the County Court gave a verdict against him on the old claim of the Holowells that he had withheld the Ward estate from them (Records of the Court of Assistants, i. 380). Butler then appealed to the Court of Assistants, sitting in September, 1680. In his Reasons of Appeal (S. F. 1911.10), besides asserting that the case was finally decided by the prior proceedings in the General Court, Butler points out the dangers lurking in the Holowell contention that Massachusetts inheritance law should be determined by the Book of Numbers:
For if that Law should take place for our Wrights heare in New England then in ye 60: yeare wok is ye Jubell: that all Lands Disposed of by their predicessors must then sertainly Returne to their Heires: so y* not only Diuers Purchisers will Lowse their Just Intrusts: but aliso great peart[e] of many plantashons must Doutless fall backe Againe to their heires whose Fathers soulde their Rights & titells.
The Court of Assistants, however, confirmed the judgment of the lower court, and imposed 616s costs on Butler. The record of the appeal is to be found in the Records of the Court of Assistants, i. 380, followed by the subsequent executions and returns.]