| Abstract | Bill of Complaint in the Court of Chancery between Robert Halls of the first part
(defendant) and Philip Cleare and Sandford Cleare of the second part (plaintiffs) dated
28th June 1694 pertaining to the last will and testament of the late Phineas Cooke of West
Mersea.
Transcribed from National Archives document reference: C 5/152/80
Transcription, abstract etc by Trevor Hearn (December 2022)
Abstract:
Bill of Complaint dated 28 June 1694 addressed to the Right Honourable Sir John Summers, Lord Keeper of the Great Seal of England.
Phillip Cleare, yeoman, of West Mersea and Sandford Cleare, mariner, of West Mersea are named as orators (plaintiffs) in this Bill of Complaint against Robert Halls, Gentleman, of Colchester (defendant) acting in his capacity as executor to the last will and testament of Phineas Cooke, late of West Mersea.
The complaint specifies the considerable personal estate of the deceased, valued at in excess of £600, which was taken into the hands of Robert Halls as executor upon the death of Phineas Cooke. In accordance with the terms of the will, the executor was to deal with the estate on behalf of the orators until they both attained the age of 21 years. Phillip Cleare reached this age at least 2 years prior to this complaint and Sandford Cleare became 21 years old 6 months prior to the complaint. The estate was to be divided equally between the orators.
The complaint specifies that Robert Halls took possession of the estate but produced an inaccurate inventory of it, understating the value of the estate and the amount of cash generated from it. The defendant stated that very little of the estate was actually in his hands due to a number of legal disputes with various tenants of the properties, the legal costs of which were consuming the cash assets generated. Further cash had to be held in reserve to cover future litigation expenses. The defendant had allied himself with Peter Marsh, victualler, of Colchester, John Freeman and James Battey, both of West Mersea, and several others whose names remained unknown, to further pursue litigation which the orators maintain is frivolous and a delaying tactic in settling the estate of the deceased.
Several actions and a Bill in Chancery was brought against Sandford Cleare while he was a minor naming Robert Halls as defendant as he was at the time guardian to Sandford. Although Sandford had answered the Bill, the alliance had not settled the action nor put steps in place to bring the complaint to a satisfactory conclusion. The orators maintain that this is deliberate on the part of the defendant as settlement would require him to disburse the estate of the deceased in accordance with the terms of the will.
In view of the fact that the orators are relying on their bequests to support their living expenses, they plead to the court to subpoena the defendant and his alliance to answer the complaint and to produce an accurate inventory of the estate of the deceased, including everything currently in the hands of the defendant, prior to disbursing it in accordance with the terms of the will of the deceased.
Transcription of the document
1 28 June 94
2 Clutterbuck To the Right hon[oura]ble S[i]r John Summers [Note 1] Knt Lord Keeper of the Great Seal of England
[in the margin: Essex]
3 humbly complaining show unto your Lordship your oratours [Note 2] Phillip Clear of West Mersey in the County of Essex Yeoman and Sandford Clear of the same Marriner and Brother of the s[ai]d
4 Phillip Clear <...................> That Phineas Cook late of Mersey afores[ai]d Yeoman deceased
5 was in his lifetime possessed of and interessed in a very Considerable Personall Estate To the value of six hundred poundes and upwards And alsoe seized of [Note 3] a plentifull reall estate And
6 being soe seized and possessed as aforesaid The said Phineas (being of sound and disposeing mind and memory [Note 4]) made his last Will and Testament in writeing dated [blank]
7 And some Yeares after the making of the s[ai]d \last/ Will, hee departed this life ordeyning Robert Halls of Colchester in the County aforesaid Gentl[eman] sole Executor thereof And the s[ai]d Robert Halls
8 took upon himselfe the burden of the said executorshippe and proved the said Will in due forme of Law, In which said last Will the s[ai]d Testato[ur] Phineas Cook gave and bequeathed severall
9 landes and Tenements to your oratours And all his p[er]sonall Estate Goods and Chattells (his debts and funerall-Charges and some other small Legacyes first p[ai]d and discharged)
10 Unto your Oratours Equally to be divided betwixt them by his said Execut[our] Robert Halls soe soone as your oratours severally and respectively should arrive to the age of One &
11 Twenty yeares As by the said last Will (Could your orat[our]s come by the same) more fully and at large it doth and may appeare To which age of One and Twenty yeares yo[ur]
12 Oratour Phillip Clear arrived Two yeares agoe and upwards, And your Oratour Sandford Clear arrived to the s[ai]d age of One and Twenty yeares in January last past And yo[ur]
13 Oratours further show unto your Lor[dshi]pp That the said Robert Halls did possesse himselfe of all or the greatest parte of the said p[er]sonall Estate of the s[ai]d dec[ease]d And exhibited an
14 Inventory thereof but a very imp[er]fect Inventory, severall of the particular good[es] Chattells creditts and ready moneys by him received being therein omitted And alsoe those that
15 were inserted in the s[ai]d Inventory were much underprized and undervalued, But now soe it is may it please yo[ur] Lord[shi]pp The said Executo[ur] designing to defraud your Oratours of
16 their just dues And knowing that what moneys and goods he has in his Custody for their use, Is all or most of the livelyhood that they have, wearyes your Oratours as well
17 as impoverished them by needlesse and vaine delayes Refuseing to come to any accompt with your Oratours for the same Although he hath often been by yo[ur] Oratours in friendly
18 manner thereunto requested sometimes p[re]tending that he had little or nothing of the goods and Chattells of the s[ai]d Phineas in his handes and possession but that the same is
19 consumed or will be spent in Accou[nt]o[ur] [Note ]5 of Law or suites in equity [Note 6] and what such suites and accord[ance]s may cost he cannott tell nor what will be the Event thereof And therefore the s[ai]d
20 Executor p[our]tends That he will detayne in his hand[es], Moneys, sufficient to defray such Charges Whereas if there be any such suites or Accou[nt]o[ur] they are by the s[ai]d Robert Created
21 or fomented And he being an Attorney at Law gives out in speeches that whoever looses by such suites and accou[nt]o[ur] he will gaine and will never leave and desist from such
22 litigious Controversyes Relateing to the Reall and p[er]sonall estate of the said deceased soe long as one penny thereof remaines unconsumed & in his custody And the
23 said Robert Halls Confederateing [Note 7] to that purpose with Peter Marsh of Colchester afores[ai]d, Victualler, John Freeman & James Battee of Mersey afores[ai]d Miller and severall
24 other p[er]sons at present unknowne to yo[ur] oratours (Whose names when discovered yo[ur] Oratours Humbly pray may be inserted in this Bill with apt words to charge them) Severall
25 Actions have beene brought and alsoe a bill in Chancery Twoe or Three Yeares agoe against your orato[ur]s (Your oratour Sandford Cleare being then an Infant and by the s[ai]d last
26 Will and Testament under the Care and Guardianshippe of the s[ai]d Robert Halls whoe is alsoe by the said contrivance and Confederacy made one of the def[endan]t[es] to the s[ai]d Bill accord[ance]
27 and suite) And though your oratour Phillip Cleare hath above a yeare agoe put in his answer to the said Bill And your oratour Sandford Clear being then an Infant as afores[ai]d
28 did by his guardian alsoe above a yeare agoe put in his answer to the said bill Yet to this day by meanes of the said Confederacy the said Bill is neither dissmissed as in
29 Course it ought and might bee for want of p[ro]secuc[i]on Nor will the said playntiffes p[ro]ceed in the said cause well knowing That if there were an End thereof the s[ai]d Robert Halls
30 could have noe p[re]tence for detayning your Oratours money in his handes soe long and soe wrongfully by meanes of the said accou[nt]o[ur] in law and equity still kept on foot [Note 8] and
31 continued with designe as aforesaid to colour [ Note 9] the said delayes and excuses of the said executour and to prolong the time of Com[m]ing to accompt with your oratours untill
32 all your oratours porc[i]on left and bequeathed by the said Testatour be consumed and spent in Law suites which the said Executo[ur] by his ignorance or injustice hath
33 carryed on and continued many yeares All which doeinges are contrary to equity and good conscience and [blank]
34 [blank] tend to the utter ruine of yo[ur] orato[ur]s whoe have Little or noe Estate but what remaines in the Custody of the said Executor Robert Halls And
35 being matters of Accompt and Testamentary yo[ur] orato[ur]s are remedilesse in the p[re]misses [Note 10] save only by the aid of this Hono[urable] Court; In tender Considerac[i]on therefore
36 of the p[re]misses And to the End that the said Confederates may by their Answers On their Corporall Oathes true and p[er]fect answer make to all and every the
37 p[re]misses as if the same were againe here Interrogated, particularly that the s[ai]d Robert Halls may sett forthe and discover the s[ai]d last Will and testament of the s[ai]d
38 deceased Phineas Cook And alsoe discover what moneys Jewells good[es] and Chattells that apperteyned to the s[ai]d Phineas Cook have come to his handes
39 Custody or possession or of any other by his consent knowledge or privity and the severall values thereof and how much ready moneys thereof and when the
40 same came into his Custody and how he hath improved the same for your orato[ur]s use and to whome he placed the same to Interest or otherwise, and when, and where
41 the said moneys have beene ever since hee received the same, and when he rec[eive]d the same, and to what value or \sum, such/ improvement[es] or Interest p[ar]ticularly does amount
42 and what legacyes or debts or other disbursements he had paid, and to whom, and for what particularly, and what reason he had to create foment or carry on such
43 said accou[nt]o[ur] or causes of accou[nt]o[ur] relating to your oratours or the said last Will and Testament, And particularly why he \inter/ meddled with distrayning any good[es]
44 or demanding any rent of the Occupiers of that Copyhold-land in West mersey Called the Lyon when he knew there was noe surrender to the Use of the s[ai]d last Will
45 and Testament of the said Testatour Phineas Cook, and consequently noe lawfull title in your orato[ur]s or either of them And may show Cause (if he can) why he
46 had created or fomented, continued, carryed on or given occasion for soe many frivolous and needlesse Accou[nt]o[ur] and suites at Law for the Matters afores[ai]d and why he
47 does not come to Accompt with your oratours, and why he does not pay to them their severall porc[i]ons of and in the said p[er]sonall Estate bequeathed to them in the
48 s[ai]d last will and Testament, And that yo[ur] oratours may be relieved in the p[re]misses according to Equity and good Conscience, May it therefore please Your Lor[dshi]pp to
49 grant unto yo[ur] Oratours their ma[jes]tyes Gracious writt or writts of Subpena or Subpena's Under the seale of this Hono[urable] Court To be directed to the s[ai]d Robert Hall[es]
50 Peter Marsh John Freeman and James Battee Thereby Comanding them and every of them at a certeyne day and under a Certaine paine therein to be limitted
51 Personally to be and appeare before yo[ur] Lord[shi]pp In the High and hono[ur]ble Court of Chancery, Then and there to give a p[er]fect Answer to all and singular
52 the p[re]misses, And further to stand and abide such further order decree and direction therein as to yo[ur] Lord[shi]pp shall seem meet and agreeable to Equity and
53 good Conscience And yo[ur] oratours shall pray e[t]c
Cooke La: Gurdon
Notes
1. Sir John Somers. He was Lord Keeper of the Great Seal until 1697 when he became Lord Somers (1st Baron Somers)
2. Orator: In law this is the plaintiff or petitioner in a case in a court of chancery (Source: OED)
3. To be seized of: in law this means "to be the legal possessor of..." (Source: OED)
4. Of disposing mind and memory: so sound in mind and memory as to be capable of making a will (Source: OED)
5. Accountour: in modern parlance, an accountant who "accounts, reckons, or calculates. Also: one who presents an account (of money, responsibilities etc)" (Source: OED)
6. Suit in equity: A suit in equity is a legal action where the plaintiff seeks an equitable remedy. A remedy is whatever the party to a lawsuit is asking for (Source: https://legalbeagle.com)
7. Confederate: transitive. To unite (persons or states) in a league, bring into alliance, ally; to form into a confederation.
Const. with, together, unto. Source: OED
8. "on foot" in legal terms means a contract or agreement signed but not yet performed
9. In this instance, colour means "to portray in a false light; to put an unfair or untrue interpretation on (words, facts, evidence etc) to misrepresent, falsify" (Source: OED)
10. premises: In law The matters or things stated or mentioned previously; the aforesaid, the aforementioned, the foregoing. Often (and now only) in legal phraseology.
Read More
Will of Phineas Cooke 1686
|
