[May 17 1718]
To the Honourable Superiour Court of Judicature &c. held at Ipswich for the said County of Essex the Third Tuesday in May 1718.
Stephen Sewall of Salem in the County aforesaid Esq. and Margarett his Wife appellees, their Answer to the Reasons of Appeal of Col. Edmond Goffe of Cambridge in the County of Middlesex and Hannah his Wife Executors of the Last Will and Testament of Mr. Jonathan Mitchel her former husband Deceased Appellants from a Judgement of the Inferiour Court of Pleas Set at Salem for said County of Essex the 31st day of December 1717. In an Action or Plea of the Case for a Certain Tankard not deliver’d to the Then Plaintiffs now the Appellees.
The Plea, Verdict and Judgment was as is Set forth by the Appellants And the Appellees Say that the Judgment is not Wrong, nor Erroneous. And In Answer to the first Reason of the Appellants they Say, It is onely matter of form, And the Appellees authority is as good as the Appellants When they Say the Judgment is just and Right because by Law it is impossible the Judgment Should have been for the then Defendants the Now Appellants.
As to the 2nd Reason, Viz. Because the Appellees never demanded the said Tankard of the Appellants till now by their Writt et cetera they Answer,
1. That Supposing this were true, and material, this ought (being a Plea to the Writ) to have bin moved at the Inferiour Court, and there Rul’d and Saved by the Appellants, which was not, and therefore can’t be Received now.
2. But Stil Supposing the truth of the Suggestion, It is yet certainly not to the purpose1 for tho’ A Legatary may not of his own Authority take the Legacy, yet he may by the Kings Authority, that is, by Writt: Every Certain Legacy, Such an one is the Legacy in the Writt, may be Sued for and Recover’d, are the very words of the Act of this Province, pass’d 5 Guil. & Maria, in which there is not the least direction for a demand to be made previous to the taking out A Writt, nor in any other act that gives power to Sue an Executor. It may be argued from the Nature of the thing, and perhaps proved by Another Act of this Province, that an Executor or Executrix2 is At his or her peril to take care to deliver a less Certain Legacy than the Tankard is to the Legatary within Convenient time after the Will is Consummated by the Testators death, which wilbe esteemed to be long within two or three and Twenty years3 as Mr. Mitchels is.
3. Once more, the4 Appellants while they pretend no demand till by the Writt forget that they make this pretence with the worst grace of any in the World. They have Set the Example, in bringing A Writt wherin the Appellees are intimatly concern’d, without any previous demand in A Cause, wherin the very Act that intitles to a Suit expressly Requires a demand at least A moneth before a Summons Can be purchas’d as will appear elswhere to your honors if they wilbe So hardy as to urge their fate to the Extremity. But this I onely mintion to hint how impertinent and incongruous for the Appellants this Reason is. There is another thing that can’t but excuse the Appellees had they omited Such a Complement to the Appellants as is pretended. The Appellees had Reason enough to think5 it would be lost upon the Appellants. And besides they might Suspect jusly enough that it would not have bin Safe for ’em to have attempted it without an Extraordinary guard, for all the World knows what an unapproachable Gentleman the Appellant is, that he is Realy one of those Sons of unsubjugation that a man that Shall touch them must be fenced with Iron and the Staff of a Spear. The Officer that has the posse Comitatus is the onely person in the World that is fit to make the first demand of ones right of the Appellants. They Know that the Appellees have all the Reason in the World to have and Express these their Sentiments of ’em, and that theyr own Conduct gave the Reason above two or three and twenty year ago, and it has never Since given them any occasion to alter their thoughts. But this is enough to Show the Insufficiency of the Reason from no demand till now by the Writ, if there was the Least Shadow of truth in the pretence. Whereas there is not a Syllable of truth in the assertion that the Appellees never demanded the Tankard till now by their [Writt].
As to the third Reason, Because they Well knew in their own Consciences how and what their Brother Mitchel had disposed of by his Last Will and otherwise; the Appellees Answer, and Say, that they have made Conscience always to pay a greater Respect and honour to their brothers dispositions than6 the Appellants have ever don, And Perhaps Should never have complain’d of the Executrix her failure of truth had they not bin forced to do what they have don. And it is likely enough that they might have detain’d the Tankard as long as the Executrix had lived with7 the Same undisturbed Ease and quiet as they had don for 2 or 3 and twenty years past, if they could have been content with the patience and good temper of the Appellees, and not Shewn their own Vengeance and ill nature to all the World, both towards the Dead, and towards the Living.
But Whereas the said Appellants Say, the Appellees knew in their Conscience particularly that they had no Right or property to any Tankard they pretend to in their Writ, The said Appellees Answer It is a bold and daring Assertion made without any truth or Conscience by the Appellants as Are the following assertions, Viz. that the Appellees don’t aver any Right to the said Tankard in their Writ, and that they were perfectly assur’d their Brother Mitchel had disposed of the said Tankard in his Life time, as he had by firm Deed disposed of five Acres of Marsh &c. and thereby Vacated his said Will as to the said Tankard mentioned in said Will.
If the Appellees did not averr their Right to the Tankard in their Writt, Why did not the Appellants plead this in the Inferiour Court? Why did they allow the Appellees to prove by the Will that their brother gave8 his Sister the said Tankard? And if the Appellants themselves had a perfect Assurance that Mr. Mithel had disposed of the said Tankard in his Life time as he had by firm deed disposed of 5 Acres of Marsh, and So by9 firm Writing under his hand and Seal vacated his said Will as to the Tankard mention’d in it, Why did not the Appellants produce Such Revocation in the Court aforesaid? As for the Appellees they were perfect Strangers to this pretention,10 So far were they from being perfectly Assured their Brother Mitchel had Disposed of the said Tankard in his Life, as he had disposed of 5 Acres of Marsh, and Vacated his said Will as to the tankard mentioned in it, in manner and form as is asserted by the Appellants That they never heard that ever any Such thing was So much as lisp’d or thought on until they Saw it in this Third Reason of their Appeal. Nor do Appellees now believe it, no nor do they believe that the Appellants believe themselves though they have both Set their hands to these Assertions. And the said Appellees do aver their Right to the said Tankard, and are perfectedly assured that their brother Mitchel never did dispose of the said Tankard in his Life time otherwise than as is Expressed in11 the Paragraph of his Will Carefully and honestly Recited in their Writ, and that the Appellants cannot nor ever wilbe able to prove that he vacated his said Will as to the Tankard Mention’d in it; though the said Appellees are well assured that the Appellants have used their utmost Endeavors to12 persuade themselves that Som persons can Say somthing in their favor. And for this end Mr. Attorney was call’d upon to Say somthing at the Last Court and no pains travel nor entreatys have bin Spared to prevail with another to Swear to Som such thing as they had dream’d of or contrived, untill13 all their Endeavors have bin Rejected; and they have bin told their desires could not possibly [be] comply’d with, and that the person apply’d to Assured ’em that Such designs could not nor ought to be comply’d with.14
The Appellants Insinuation of Mr. Mitchels disposition of the five Acres of Marsh is altogether Impertinent to this Case of the Tankard;15 And the fag-end of their Third Reason is abominably fallacious and Injurious to the dead, and de mortuis nil nisi bonum; for the Vindication of An abused dead Brother, and who was not less abused by his Wife while alive, your honours wil favor the Appellees with your Patience.
As to Mrs. Goff’s formerly Mrs. Mitchel’s assenting to and Conveying Away a Considerable part of her inheritance which he the said Mr. Mitchel Sold for four hundred pounds &c. for which So considerable an Acknowledgement was due, That All he could give his Wife was but A Small one, the Appellees will set that Mighty Obligation in its true Light, and it is thus.
Mrs. Biggs that was the Gentlewoman’s name when Mr. Mitchel Married her, had16 Remaining of Real Estate two houses in Boston, which was the bulk of her Inheritance Vallu’d at £400, both the houses were made over for the Security of two hundred pounds, the Appellees Suppose to her own Brother Mr. B. Lynde by Mr. Biggs and Hannah his then Wife one of the now Appellants And thus dipl [?] She brought her Inheritance to Mr. Mitchel, who Some time after his Marriage consider’d how to free the said two houses, and Soon found A purchaser, who was willing to give four hundred pound for one of the said houses,17 for which he Sold the said home and out of the money discharge’d the said Biggs his Debt, and purchased A Negro boy, which the Appellants now have that is grown up to be Valued by them at £100 and have never embesseled [embezzled] the Remainder of it, and withal advanced the other house to be worth as much as both of them were by her own Relations esteemed before, and left the Same clear and discharged of the Incumbrance unto her, and full as well if not much better in Estate than when he Married her, for the Estate was not18
John Leverett Papers. Margaret (Mitchell) Sewall was a sister of Jonathan Mitchell (A. B. 1687), who died on March 16, 1694/95. Jonathan’s widow, Hannah Lynde, then married Edmund Goffe (A. B. 1690); she had earlier been married to John Biggs. For a reference to Goffe’s numerous lawsuits relating to Hannah’s dowry see Sibley, Sketches (Shipton), iv. 59. Leverett was evidently advising Stephen Sewall on this matter, and he corresponded with him about it in the next year or two; see Nos. 192, 193, 196.