“fallax saepe fides, testataque vota peribunt; constitues tumulum, si sapis, ipse tuum.” ancient epitaph.

it is impossible for a will to be always and in all events binding. if virgil’s will had been scrupulously observed, his fame would have been grievously curtailed; for the “?neid” should never have been published. it is said that he gave directions for its burning, and that his executors, varius and tucca, received his manuscripts on condition that they published nothing he had not edited himself.

“for poetry is nothing if not perfect,” and the three years which he was to devote to its polish and perfecting were not granted in his allotted span. but augustus, and virgil’s executors, were wiser than he himself, though the touch of the vanished hand could not mould its beauty to perfection. it was unfinished: but only as turner’s “canal at chichester,” or schubert’s “symphony,” are unfinished. [pg 60]

there are such occasions: but it is easy to understand with what desire the testator desires his wishes to be fulfilled. his will, he feels, should be inviolable. “finally,” says george ludewig count von der schulenburg in 1774, “as i hope that this my disposition and last will will be strictly and inviolably observed by my dear children, provided they do not mean to merit my paternal displeasure and the wrath and punishment of the supreme being, so on the other hand i heartily wish them every fatherly blessing and the grace of the almighty, and do earnestly recommend them to his omniscient guidance.”

thomas rigden, of the county of kent, shows a lively desire that nothing should be done amiss. “june 24th, 1746. this in the name of god, the father son and holy ghost. i thomas rigden, having a very great desire that my last will and testament may be fulfilled after that i am dead, for the good of my wife and children, have taken upon me to write these few lines. now this is my desire as follows. now with my free will do i give all that i have or all that i shall leave ... to my wife alice rigden, for her use and for the use of bringing up my children. and my desire is by all means that my children may all agree and live in love one with another, which i pray god grant they may all do. so fare you all well, my dear wife and my dear children. this is my last will, and i hope you will fulfil it.” [pg 61]

times without number the most insistent thought of mortal man must be, whether his wife and children will be kindly treated when he is gone. how can a parent endure the thought of such scorn and suffering as a jane eyre is forced to undergo? “as i remember, adam,” says orlando in the opening of “as you like it,” “it was upon this fashion bequeathed me by will but a poor thousand crowns; and, as thou say’st, charged my brother on his blessing to breed me well: and there begins my sadness.” hinc illae lacrimae. there indeed begins the sadness, it may be feared, of many outside fiction and the drama, in spite of prayer or threat.

elenor clarke (cp. p. 52), widow of bartholomew clarke, of clapham, whose will was proved in 1594, gave the custody of her son francis to her brother john haselrigge, “charging my said brother as he will answer before the tribunal seat of god to deal honestly and faithfully with him and by him.” but how he fared we do not know. “and i charge you ed. lascelles my sole executor before god to be punctual,” says robert knox, for twenty years a captive in ceylon, “in performing all this that i have given, lest the cries of the widow and fatherless come up to heaven against you, and your lot be a curse instead of a blessing” (1711: died 1720).

bishops and kings of old were next to none in the vigour of their language. theodred, bishop of london in edgar’s reign, is aggressively violent: “and whosoever takes from my testament, may god take him from [pg 62] the kingdom of heaven, unless he amend it before his death.” in the same spirit, if with less directness, henry vi. requires the fulfilment of his will: “and that this my said will in every point before rehearsed may the more effectually be executed ... i ... not only pray and desire, but also exhort in christ require and charge, all and every of my said feoffees, my executors and surveyor or surveyors, in virtue of the aspersion of christ’s blessed blood and of his painful passion that they having god and mine intention before their eyes, not letting for dread or favour of any person living of what estate degree or condition that he be, truly faithfully and diligently execute my same will and every part thereof, as they will answer before the blessed and dreadful visage of our lord jesu in his most fearful and last doom, when every man shall most strictly be examined and deemed after his demerits. and, furthermore, for the more sure accomplishment of this my said will, i in the most entire and most fervent wise pray my said heirs and successors and every one of them, that they show themselves well willing faithful and tender lovers of my desire in this behalf; and in the bowels of christ our altogether just and strict judge exhort them to remember the terrible comminations and full fearful imprecations of holy scripture against the breakers of the law of god, and the letters of good and holy works.” [pg 63]

if bishops and kings must write with such vehemence, how shall the humble citizen fare? the possibility of the deceased’s wishes being neglected or overridden was so real that old writers advise the charitable to exercise their charity in their lifetime, and not to trust to executors or friends. their faithlessness had even passed into a proverb: “three executors make three thieves.” thus john stow, in his “survey of london,” remarks how often wills were proved but not performed: “thus much for famous citizens have i noted their charitable actions, for the most part done by them in their lifetime. the residue left in trust to their executors. i have known some of them hardly (or never) performed, wherefore i wish men to make their own hands their executors, and their eyes their overseers, not forgetting the old proverb:

“women be forgetful, children be unkind, executors be covetous, and take what they find. if any body ask where the dead’s goods became, they answer, so god help me and holydom, he died a poor man.”

jeremy taylor, in “the rule and exercises of holy dying,” has the same thought and the same proverb in his mind: “he that gives with his own hand shall be sure to find it; but he that trusts executors with his charity, and the economy and issues of his virtue, by which he must enter into his hopes of heaven and pardon, shall find but an ill account when his executors complain he died poor: ‘think on this.’” [pg 64]

this interesting proverb was written upon a wall in st. edmund’s church, lombard street, and is thus quoted in weever’s “funeral monuments”:—

“man, the behoveth oft to have this in mind, that thow geveth wyth thin hond, that sall thow fynd. for widowes be sloful, and chyldren beth unkynd, executors beth covetos, and kep al that they fynd. if eny body ask wher the deddys goodys becam, they answer, so god help me and halidam, he died a poor man. think onthis.”

other proverbial lines are quoted by thomas fuller, and a fresh turn is given to the thought, in his “cambridge history.” “it is the life of a gift, to be done in the life of the giver; far better than funeral legacies, which, like benjamin, are born by the loss of a parent. for, it is not so kindly charity, for men to give what they can keep no longer: besides, such donations are most subject to abuses.

“silver in the living is gold in the giving; gold in the dying is but silver a-flying; gold and silver in the dead turn too often into lead.”

it is pitiable to think how many elaborate and kindly dispositions never bore fruit, and legitimate to believe that executors are more honest now. but, in spite of failures, english life and customs are [pg 65] largely bound up with bequests. innumerable gifts meant for perpetuity never took effect or have passed into oblivion; but a goodly number remains, to which year by year additions are made. picturesque survivals may often be traced to some will, no less than studentships or professors’ chairs, almshouses or doles, institutions or the treasures that adorn them. such a record as johnson’s “annuities to the blind” suggests how much one class owes to beneficent testators.

for nearly two hundred years a quaint custom has marked february 2nd at wotton, in surrey, in pursuance of the will of william glanvill. boys of twelve to sixteen stand bareheaded round the testator’s tomb, recite the lord’s prayer, the ten commandments, and the apostles’ creed, read the 15th chapter of the first epistle to the corinthians, and write down two verses therefrom. after these tests five boys are selected, and receive 40s. apiece. as an instance of a school founded by a will, john neville, lord latimer (1542), may be quoted. “after my decease the master and vicar (of well, in yorkshire) shall take all the rents of the parsonage of saint george church in york, for the term of forty years, and therewith to find a schoolmaster at well for keeping a school and teaching of grammar there, and to pray for me and them that i am most bounden to pray for.” the school exists, but does the master pray for the worthy founder still? [pg 66]

there are various reasons why wills should sometimes not be fulfilled. the estate, for instance, may not be adequate. it is strange how vague are the ideas of some testators in this respect, and one recalls what dr. johnson said of a certain bequest to erect a hospital for “ancient maids” that the word maintain should be expunged and starve inserted, so insufficient were the funds. it is amusing (to the outsider) when legacies are given with effusive expressions of admiration or gratitude, while all the time there is no money to pay them.

some admit frankly that they have no material blessings to bestow. thomas johnson, otherwise john plummer (proved january 22, 1780), left everything to his “dearly beloved and most deservedly esteemed ever loving affectionate friend ann watson ... being thoroughly sure she will take good care of the dear boy, j. h. plummer, to whom unfortunately i have nothing to leave but the wide world to seek his fortune, excepting my prayers for his success.” queen elizabeth woodville, in her will dated april 10, 1492—a death-bed will—pathetically says: “whereas i have no worldly goods to do the queen’s grace, my dearest daughter, a pleasure with, neither to reward any of my children, according to my heart and mind, i beseech almighty god to bless her grace, with all her noble issue; and with as good heart and mind as is to me possible, i give her grace my blessing, and all the aforesaid my children.” maeonides nullas ipse reliquit opes. even homer died penniless. [pg 67]

another cause of non-fulfilment may be a legal barrier. there is no legal method of enforcing a testator’s wishes for the disposal of his body, except for anatomical purposes. the bequest is void if money be given to expend the interest in keeping up a grave. in england there is a legal obstacle against a bequest for the celebration of masses for the repose of the soul: it is termed a “superstitious trust” and is invalid. the famous decision in 1835 in the case of west v. shuttleworth has not been superseded. the master of the rolls, sir charles pepys, afterwards lord cottenham, held that in this country gifts to priests “that i may have the benefit of their prayers and masses,” or “for the benefit of the prayers for the repose of my soul, and that of my deceased husband,” were void, and void such bequests remain.

personal reasons, lastly, may bring about the breaking of a will. sir edmund bury godfrey’s recommendations for his funeral have been quoted: he desired to be buried in the meanest place, without pomp or pageantry, without numerous attendants either of friends or relations, very early in the morning or very late at night, as privately as possible, without sermon or harangue. but the excitement and notoriety of his end, the passions that it aroused or signified, could not suffer him so to depart. his death and funeral are part of the history of his time. on october 12, 1678, he disappeared: on the 17th he was found dead in a ditch on the southern side of primrose hill. the funeral was [pg 68] postponed till the 31st, when his body was borne to old bridewell, and publicly lay in state. a solemn procession accompanied it through fleet street and the strand to st. martin’s church, where it was buried and a sermon preached by the vicar, william lloyd. thus was his will wholly set at nought—a remarkable but perhaps a pardonable violation.