McIVER LAW
| |
McIVER LAW |
Samuel Johnson’s Benevolence and His Trustee’s Duty
John Milton’s Oral Will
Charles Dickens’ Will and his Bequest to Ellen Lawless Ternan
Shakespeare’s Will: An Historical Note
Samuel Johnson’s Benevolence and His Trustee’s Duty
Reprinted from Santa Barbara Lawyer October 2005
By Bruce McIver ©
Nearing death, the great Samuel Johnson asked one of his physicians what a faithful servant should receive by way of a bequest. The physician told him that for a nobleman, £50 a year would be adequate. Johnson replied: “Then shall I be nobilissimus, for I mean to leave Frank seventy pounds a year.”
This bequest was indeed most noble, the more so because it constituted the lion’s share of Dr Johnson’s estate. In comparison, the five relatives named in his will received lump sum gifts from the balance of his estate amounting to roughly £30 to £60 each, paltry sums in comparison to an annuity of seventy pounds a year!
In the will, which he dictated a few days before his death, Johnson created a testamentary trust, giving his faithful servant, Francis Barber, a guaranteed annual income. Francis was a Negro brought from Jamaica as a slave and freed. He entered Johnson’s household and worked as his valet for over thirty years.
The trust was to be administered by Johnson’s attorney, Sir John Hawkins. The annuity to Barber brought out the worst in Hawkins. Indeed in his biography of Dr Johnson, Hawkins has nothing good to say about Barber. He goes out of his way to imply that Johnson’s nobilissimus was returned with cold ingratitude.
Hawkins claims, for example, that Barber came to him to report that one Humphrey Heely, a distant relative of Dr Johnson by marriage, was placed in an alms-house and needed money to buy bedding and clothing. Hawkins answered that since he, Barber, possessed “almost the whole of his fortune,” he should have compassion and supply the poor man’s wants. Barber simply said: “I can’t afford it.”
Hawkins rubs it in further by going on at length about poor Humphrey Heely’s penurious condition. Heely’s income was a mere half-crown a week and “half a chaldron of coals at Christmas.” His wife bought and resold milk, bringing in a shilling a day. This scanty income forced the poor couple “to study the art of cheap living,” reducing them to a pint of beer each evening.
All the while Hawkins is playing with the inference that Barber’s annuity was absurdly large for a mere servant. The shadow of the inference goes even further, with the perhaps unintended consequence of implying that Johnson himself was imprudent in favoring his servant over a relative.
This quibbling, however, is all in Hawkins’ own mind; he felt hamstrung as a trustee and more than a little irked that Johnson would favor a negro slave over even a distant relative. He quite obviously did not like Barber. He even claims that Barber later came to him asking for more money, claiming he was broke.
Though sometimes more than challenging, the role of a trustee is to carry out the settlor’s wishes, not to judge them. Johnson’s gift to Francis Barber was quite consistent with his generous actions throughout his lifetime. He was always quick to help the disadvantaged. And he detested the institution of slavery.
Acting with nobilissimus by ensuring a lifetime income for a faithful valet, who might otherwise be reduced to worse than an alms-house, was perfectly in accord with Dr Johnson’s nature. Although he dictated his will only a few days before his death, and was infirm of body, no one doubted the soundness of his mind. He disposed of his worldly wealth, as he wanted. Who are we to judge?
John Milton’s Oral Will
By Bruce McIver ©
If you’ve ever considered leaving an oral will, the case of John Milton may be a reason, among others, not to. In the great poet’s later years, when he was blind, he dictated much of Paradise Lost to his daughters, who served as his amanuenses. So Milton was used to composing orally, but, fortunately, the daughters in this case wrote it down.
But when it came to his last will and testament, he neglected to have it written down, and in it he showed little gratitude to these daughters. Instead, he made an oral or nuncupative will. Is an oral will, like an oral contract, as we sometimes incorrectly say, not worth the paper it is printed on? The answer is: it depends. In Milton’s time, one could file an oral will, if there was no written one, in the Prerogative Court.
Milton’s brother, Christopher, who was conveniently an attorney, did just that, filing Milton’s nuncupative will in the Prerogative Court of Canterbury. The will read in part:
The portion due to me from Mr. Powell, my former wife’s father, I leave to the unkind children I had by her, having received no part of it; but my meaning is, they shall have no other benefit of my estate than the said portion and what I have besides done for them, they have been undutiful to me. All the residue of my estate I leave to the disposal of Elizabeth, my loving wife.
Before the will could be probated, its three witnesses were compelled to answer certain questions posed by the daughters, such as: were not the daughters “good livers”, and was not one of them “lame and almost helpless”? And was not Christopher acting for personal gain?
As happens today, before this highly contestable will reached probate, the parties settled. Christopher and a member of the Powell family, both attorneys, were members of one of the Inns of Court, the Inner Temple, and most likely also friends. The two of them signed a bond that probably settled the long overdue debt owed to Milton by his first wife’s father, allowing Elizabeth to take the residue.
However, had there been no oral will, Milton’s “loving wife” would have inherited her dower’s portion, or two-thirds of the estate, while the remaining one-third would have been distributed equally among his three “unkind” daughters. This is a result substantially similar to what Milton’s nuncupative will attempted, but, significantly, one that could have been achieved without the public airing of family animosity.
So in Milton’s case, no will at all would have been better that the nuncupative one his brother attempted to probate. Most estate planners today would probably agree that the will should be in writing, however, and if the estate is substantial enough, that probate be avoided with a trust.
Charles Dickens’ Will and his Bequest to Ellen Lawless Ternan
By Bruce McIver ©
I Charles Dickens of Gads Hill Place Higham in the County of Kent hereby revoke all my former Wills and Codicils and declare this to be my last Will and Testament. I give the sum of one thousand pounds free of legacy duty to Miss Ellen Lawless Ternan late of Houghton Place Ampthill Square in the County of Middlesex
By all accounts, the great Charles Dickens’ bequest to Ellen Lawless Ternan is more than puzzling. It is, after the usual formalities, the first gift mentioned in a will involving many beneficiaries. It is for a substantial, though not excessive, sum (£1,000), and it was for a woman whose existence in his life Dickens had taken great pains to marginalize, if not obliterate. So why the bequest in the first position, as it were, of his will, above that of family and friends?
The answer goes to the heart of what we can and can’t learn about a testator from his will. Ellen, or Nelly, as she was called, was Dickens’ mistress, and the amount of the general bequest was both too much and not enough. Too much in the sense that, contrary to his public behavior, it put a woman in the forefront of his life whom he had carefully kept in the background. Too little in the sense that, if that was all he gave her, she deserved much more.
At the age of 45, Dickens fell in love with an 18-year-old actress of a family of three generations of stage performers. Dickens was a family man, to be sure, but actors and actresses had a certain place in English society of the 19th century, and it was decidedly not in the realm of good society. On the stage they were fine, but off stage, an actress was stereotyped as a loose woman, deceptive, and conniving. Yet, Dickens’s fondness for the stage and love of acting involved him with this family of professional thespians, and he found Nelly irresistible.
His relationship with Nelly led to his estrangement and separation from his wife Catherine, and only with firm public denials did he narrowly extricate himself from a brewing public scandal. He had created the image of a man who in his novels and Christmas stories had come to personify the ultimate good family man.
Why then after thirteen years of keeping his dear Nelly well hidden from the public did he disclose the relationship by naming her first in his will, written shortly before his death? Some argue that he was coming clean, finally acknowledging her importance in his life, without having to answer to the public response. Then again, £1,000, though about one percent of his gross estate, was not what one might reasonably expect to take care of a mistress he had kept for years. In comparison he left his estranged wife an income of £600 a year, so why not leave Nelly a similar annuity instead of a mere £1000 outright? Perhaps, some argue, he did not want Nelly to become a ward of his children.
The truth very likely is: he did take care of her, but he did so outside the will. Not long after Dickens left his wife, Nelly’s spinster sisters, who had little known buying power, purchased the ninety-nine year lease of a substantial house in the residential Somers Town, Middlesex. That was on March 24, 1859. A year later, when the minor Nelly came of age, and turned twenty-one, the sisters transferred ownership of the house to Nelly for a nominal sum. Nelly later wrote, “Since my said purchase, I have had quite enjoyment of the said premises and have received the rents and profits thereof.”
Very likely it was Dickens who quietly put up the purchase money for the Somers Town house. At his death the property was producing for Nelly a handsome income of £300 a year. This was not, to be sure, the £600 his wife Catherine got, but substantial enough for her to live comfortably for the rest of her life. Indeed, from the time she moved in to number 2 Houghton Place, Somers Town, Nelly gave up the less than respectable profession of acting and never worked again.
Shakespeare’s Will: An Historical Note
By Bruce McIver ©
Item, I gyve unto my wief my second best bed with the furniture
Shakespeare’s will was (of course) a handwritten document, probably drafted by his attorney Francis Collins in January of 1616, a few months before the bard of Avon’s death. Collins was asked to return two months later to make some revisions on March 25th. Among these interlinear revisions is the above captioned bequest, over which not a few scholars have spilled black ink. This little essay (from the French assai, to attempt) will shed a little more.
The only part of the will that is actually in Shakespeare’s hand is his signature, which appears at the bottom of each of the will’s three pages. The will was probably drafted in his attorney’s own hand or that of his scrivener. After the changes were made, Collins did not make a “fair” copy, which was the common practice, perhaps because of a sense of urgency. Instead, Shakespeare signed the “foul” copy, and promptly died a few weeks later.
Such a will would very likely not be admitted to probate today; it is not in the author’s hand, and the interlinear changes are not initialed, as is customary today with holographic wills. Nevertheless, the one change that has inspired the most interest is the bequest to his wife of “my second best bed.”
Was this an afterthought? She is otherwise not mentioned in the will. And if it was an afterthought what, if anything, was the significance of the gift? Was it a demeaning, antifeminist remark indicating the low esteem in which he held his wife, Anne Hathaway? Or was it a gift of endearment, ensuring that she would have their wedding bed?
Beds and all their furnishings in Shakespeare’s time were significant items of personal property, as they certainly are today, although they seldom get mentioned in wills. One view holds that, in Shakespeare’s day, a second best bed was likely the one the husband and wife slept in, while the best bed was the one the honored guests slept in.
Second best beds were not infrequently mentioned in wills of the time, and in at least one such will in Shakespeare’s time, the second best bed was bequeathed to the surviving spouse with great affection. Best beds, on the other hand, customarily passed to one of the children.
Another view holds that the best bed was in fact the wedding bed and it customarily passed to the eldest child to ensure that, if the wife were to remarry, she would not sleep with her new husband in her old husband’s bed.From this view, one might infer that Shakespeare’s bequest to Ann of his second best bed tacitly recognized the possibility that she might remarry, despite the fact that Ann was nearly sixty.
However, the best view of Shakespeare’s gift of his second best bed, in my humble opinion, is that it was an afterthought necessary to clarify what was already an accomplished fact, that the best bed had already gone to his elder daughter, Susanna, or perhaps even to his younger daughter, Judith, who was just about to get married.But it was not an insult. Shakespeare did not need to mention Ann in the will at all. She would automatically receive a “dower’s portion” of her husband’s estate. This was normally a third of the real and, depending on local custom, a third of his personal property.
Both the second best bed and the best bed would certainly fall into the ambit of the dower’s portion. Shakespeare wanted to make sure his widow had a bed to sleep in, which is not a bad idea when you’re making a will.