after various bequests, including the interesting one of $100 “unto the redemption of the poor english captives in constantinople,” the will of james peckett, merchant, made in smyrna, may 3, 1634, breaks off suddenly, and we read: “the aforegoing is as much as was delivered by mr. james peckett, who afterwards falling weaker in body and his memory decaying, it was propounded unto him whom he should make choice of for to be his executors in trust, whereupon he nominated mr. richard chambers of london, merchant, and mr. lawrence greene, consul for the english nation in smyrna, and afterwards for his overseers, not knowing who to nominate through his weakness there was propounded unto him whether he would accept of mr. rainsbrow and mr. thomas moody of london, merchants: unto the which he answered ‘yea.’”

this will is, therefore, a mingling of the written and unwritten testament. the nuncupative will, the will by word of mouth, was common [pg 94] in former times; but since the stricter methods of the wills act, 1837, it has been mainly in abeyance. attempts are still made from time to time to establish the words of dying men. a recent action in the court, to legalise some strangely made codicils, reminds us of james peckett’s acquiescence and of older methods. “don’t you want to leave something to me?” the testator was asked. he answered, “yes,” the question was put, “how much?” and a codicil straightway prepared.

the prevalence of such wills, without even the necessity of a written record signed by the testator, must have led to much abuse. but not always were testators so complaisant. roger potter, of mildenhill, suffolk, a bachelor “in the time of his last sickness (viz.) upon or about the 12th day of november 1664, did make and declare his last will and testament nuncupative as followeth. he being moved to make his will, he answered ‘with all my heart.’ and then, being asked or demanded whom he would make executor, he replied ‘executrix,’ and named mall, meaning as was understood by those present mary potter, his brother’s grandchild, whom he especially regarded. and then being moved what he would give to any of his friends, he expressed an unwillingness to do any more, saying ‘why do you urge me?’” so, too, reginald greene “on a sunday, being the fifth day of july a.d. 1635, ... being then very sick but of good and perfect mind and memory, with an intent [pg 95] to make his last will and testament nuncupative spake these words, or the like in effect, as followeth, viz.: he gave all his goods chattels and debts unto his cousin john greene ... and his son john greene. judith springatt being present did desire that she might be remembered in his will and to have a legacy therein: he replied ‘no, no,’ and said he had been always beholding to his cousin john greene and that he and his boy, meaning his said son john greene, should have all that he had.”

how often a dying man may have fallen a prey to the designs of friends or foes one could not hazard a guess: it is remarkable, on the other hand, what powers of resistance a man in his last sickness may show. two instances have just been given, but still more interesting is the final will of henry akerman, a victim of the plague. what perturbation of mind for a dying man to suffer! “memorandum that at or upon the vith day of august a.d. 1603, and between five and six of the clock in the afternoon of the same day, or thereabouts, henry akerman, of the parish of st. giles without cripplegate, london, being weak in body and visited with the sickness, but of perfect mind and memory, did, with an intent absolutely to revoke all former wills before by him made, make and declare his last will and testament nuncupative in manner and form and by the words following, or the like in effect, viz.: ‘whereas this day i did unadvisedly make a will in [pg 96] writing by the procurement of some of my friends, and named therein john dardes and jarvice pitt to be my executors, i do now upon better consideration clean revoke that will, for that i distrust and find that i had done my children wrong thereby. and therefore now i make mary my well beloved wife my executrix. and i give will and bequeath my goods and chattels, and whatsoever else hath pleased god to bless me withal, to be equally divided betwixt my said wife and my children according to the custom of the city of london’: and these or the like words in effect he spake in the hearing of divers credible witnesses.”

the temptation to postpone a will, to refuse to look death in the face, must have been great when a few dying words were valid. to some how hard is the horatian theme: divitiis potietur heres!

“i’m growing old, and hence ere long shall fare, how i should love to be my only heir,”

a hebrew epigrammatist makes a miser say. pope depicts the miser clinging at the last moment to his lands and his cash, only with his latest breath, reluctantly, making some disposition of his goods.

“‘i give and i devise’ (old euclio said, and sighed), ‘my lands and tenements to ned.’ ‘your money, sir?’ ‘my money, sir, what, all? why,—if i must’—(then wept) ‘i give it paul.’ ‘the manor, sir?’—‘the manor! hold,’ he cried, ‘not that,—i cannot part with that’—and died.” [pg 97]

nuncupative wills are, in fact, often of a vividness as keen as pope’s example. the friends, interested or otherwise, who gathered round the testator in a moment of peril or in the hour of death, reproduced his words or actions with quaint exactitude. sometimes it is in times of peril. “memorandum that james dixon, late mariner to his majesty’s ship the pearl, but in his majesty’s hired sloop the sloop jane, bachelor, deceased, did on or about the 22nd of november 1718 in the morning of the said day, he the said james dixon being in the hole (sic) of the said sloop and then about to engage with a pirate called the adventure sloop, did in the presence of several credible witnesses utter and declare his last will and testament nuncupative or by word of mouth in the words following, or to that effect: messmate, being going to engage which god knows whether of us shall live, but if it please god it is my misfortune to die first, i desire that you would take care and demand all my wages prize money and what shall be due to me from this day, and the longest liver of us to take all; meaning and speaking to evender mackever who was then his messmate on board the said ship.... and the said sloop jane about half an hour after engaged their enemy, and in such engagement the said james dixon received a shot, who immediately died.”

such is the end of the adventurer’s life. at another time we are present at the death-bed of the village blacksmith. thus it is deposed of john silkwood, a blacksmith residing at chartham, that he “did on [pg 98] thursday the 17th day of february, 1691 (s.a.), lying very sick in his then dwelling-house in chartham aforesaid of the sickness whereof he died, being of perfect mind and memory, and having an intent to make his will and dispose of his estate, declare the same by word of mouth in these or the like words following, viz.: taking his wife by the hand, and putting her wedding ring on her finger, said to her, ‘thus we have lived together in love, and all that i have both within doors and without i give unto you, and make you executrix of my will.’ ...”

nor did humble folk only thus make or amplify their wills. it is recorded of sir giles dawbeney, knight, that on march 3, 1444, he wrote his will, but made no disposition of the residue. “wherefore afterwards, that is to say the xith day of january, the year of our lord 1445, at barington, to the said sir giles lying in his sickness, whereof he died soon after the same day, sir robert wilby, priest, his ghostly father, said: ‘sir, ye have made a testament and bequeathed many things to divers persons, making no mention who should have the residue of your goods that be not bequeathed; will ye vouchsafe to say who shall have it?’ forthwith the said knight, without any tarrying, said: ‘my wife shall have it.’ this was his last will.”

it is inevitable that we should again turn to times of plague to illustrate the theme. early in the seventeenth century there died of the plague a certain thomas robinson and his wife joanna, of uxbridge. [pg 99] the husband was the first to die. “memorandum that thomas robinson, late of uxbridge in the county of middlesex, deceased, on good friday or thereabouts in the year 1609, being sick of the plague but of perfect mind and memory, did declare his last will and testament nuncupative in manner and form following, viz.: he said unto his wife joanna robinson, ‘i give thee all that ever i have, and all is too little for thee’; or the like in effect, and these words he spake in the presence and hearing of his maid isabel and divers others.”

but that “little” joanna was not to enjoy for long. “memorandum that on sunday, the 7th may, 1609, or thereabouts, joanna robinson, late wife of thomas robinson, of uxbridge in the county of middlesex, deceased, being sick of the plague but of good and perfect memory, did make and declare her last will nuncupative in manner and form following, viz.: she looked out at the window of her house in uxbridge, and said unto agnes gyles (wife of william gyles) dwelling in fleet lane, london, she being then in the street in uxbridge, this or it in effect, viz.: ‘here now i give unto you all that i have’; and then threw out her keys unto the said agnes, and said, ‘look unto it, it is all thine; saving i give unto bessie crippes, my husband’s cousin, half a dozen napkins, a pair of sheets and a table cloth, and to her father i give my husband’s best suit of apparel, and to my husband’s sister i give my gown a hat and a [pg 100] smock, and to my maid isabel i give my frifado petticoat and some of my work-a-day clothes besides.’ then being put in the said street and hearing the premises william day, and elizabeth day his wife, john kirton, julian tanner, and many others.”

these wills, spoken by those stricken with the plague and in many cases carefully recorded, show that the poor creatures were not always deserted in their sickness. writers make much of the many devices to escape contagion, but nicholas holmes actually did not hesitate to take a legatee by the hand. “memorandum that nicholas holmes, late of the parish of st. dunstan’s in the west, gent., upon the third day of october in anno domini 1636, being taken sick of his last sickness whereof he died, being in perfect mind and memory, did publish and declare his last will and testament nuncupative in manner and form following, viz.: he said that he was suddenly taken so sick that he thought he should die of the sickness, and thereupon he took mary willowe, the daughter of john willowe of the said parish, clockmaker, by the hand and said, ‘mary, if i die i do give thee an hundred pounds’: and he further said that he did not know how his landlord might be prejudiced by his death, in case he should die of the sickness in his house; therefore he said that, if he died of the sickness, he would give him threescore pieces.” [pg 101]

a landlord who did not turn away one who was sick of the sickness might merit gratitude, as surely would masters who did not dismiss their servants. there was no insurance act in those days. “the case of poor servants was very dismal,” says defoe of the plague in 1665, and doubtless it was so at every visitation. servants, it is said, were the chief frequenters of astrologers and quacks, who hung out their signs in almost every street. “oh! sir,” they would ask, “for the lord’s sake, what will become of me? will my master, or mistress, keep me, or turn me off? will they stay here or go into the country? will they take me with them, or leave me here to be starved and undone?” poor william aspinall was one of the unfortunates. “memo. that at or upon the 17th day of july, 1603, or thereabouts, william aspinall late servant unto richard leaver of the parish of allhallows, barking, in london, being visited with the sickness, but of perfect mind and memory, made and declared his last will and testament nuncupative in manner and form, or to the like effect here following, viz.: he bequeathed his soul to god, and his body to the earth. and as concerning his master richard leaver before mentioned, he said he had done him the best service he could, and had dwelt with him a long time, and had served him truly and honestly to the uttermost of his power; and in requital thereof his said master had dealt very unkindly with him, and in the time of his first sickness did forbid him his house and bid him seek lodging [pg 102] elsewhere, and by no means would in that his first time of need suffer him to lodge within his doors, which he took very unkindly.” it is only fair to mention that, on the friday following, he relented to the extent of giving to his master and mistress each a pair of gloves, to be bought at ten shillings the pair.

the will of a sailor about to engage a pirate has been quoted, and perhaps among sailors the nuncupative will was most prevalent. often we may catch a glimpse, particularly vivid, of the rough-and-ready life of the british tar. “memorandum that on or about the five and twentieth day of february, 1683, (english style) john jacques, late belonging to the ship st. thomas, (whereof augustine fincham is now master,) bachelor, being of sound and perfect mind and memory, and with an intent to make his last will and testament nuncupative, did utter and declare these or the like words following, viz.: being asked by mary anderson, his landlady, how she should be paid what was due to her, the said deceased made answer, namely: ‘what i have i give to you as soon as i am dead; do you go and administer and take my wages and that will satisfy you.’”

perhaps some novelist might weave his web round this landlady and her lodger. another sailor gives all to his landlady, one evidently who knew how to please. “memorandum that upon or about the month of october in the year ... 1665, richard blackman, late of the parish of stepney, ... mariner, deceased, ... made published and declared his last will and [pg 103] testament nuncupatively or by word of mouth: ... ‘i give leave and bequeath all and singular my goods chattels debts and estate whatsoever unto my loving landlady elizabeth cooke, the wife of thomas cooke mariner.’”

witnesses to such wills frequently forgot the adage de mortuis nil nisi bonum. they seem to add touches which are unnecessary and show the deceased, even at such an hour, not in his most amiable light. but we owe to them many a curious picture, many an amusing trait of human nature. at this distance of time the coarser details are humorous rather than distressing.

in the will of edward newby we are not let into any family secrets, though curiosity is aroused. “memorandum that on or about the three and twentieth of march, 1683, (s.a.) edward newby late of the ship called the grafton upon the seas, bachelor, being of perfect mind and memory, did, with a serious intent to make his last will and testament nuncupative, nuncupate utter and declare these or the like words, viz.: ‘if it should please god that i should do any otherwise than well on shipboard i give all my wages, and whatsoever else belonging unto me, unto my messmate, (meaning thomas foster), and i make him executor of all that i have. and if it please god that i live to come on shore none of my relations shall be one penny the better of what belongs to me.’” [pg 104]

in the following we are able to pry a little further into the life of a mariner, as far back as the sixteenth century. its vigour smacks of those adventurous days, if not wholly edifying for one about to take leave of land and sea for ever. “memorandum that thomas smith, late whiles he lived of london, gent., being captain at sea of a frigate or ship called the morning star, belonging to the earl of cumberland, being the 26th, 27th, and 28th of august a.d. 1594 or thereabouts chased upon the high seas by a fleet of spaniards of twenty two sail or thereabout ... and in great danger of taking, and having escaped that peril, within a day or two was demanded and asked by some that were in the frigate what he would have done with his goods and substance, and how he would have the same bestowed if he should happen to die or be taken or slain in that dangerous voyage. whereupon the said thomas smith answered and said that, ‘in case i shall die be taken or slain in this voyage, i give all that i have to my brother edward smith, for that he hath followed me in these actions and applied himself to my business, and hath been at the getting of part thereof.’ and being asked whether he had any other brother, and what he would give him, he replied that ‘as for my other brother, let him content himself with that he hath had already, for he shall have no more,’ saying further that ‘he hath had a great deal of money of me already.’ and being put in mind of his wife and asked whether he would give her [pg 105] nothing, he answered cursing her and said that she had played the lewd woman, and that she hath had enough already, and should suffice herself with that she had, for more she should not have; adding further, ‘my brother edward, if i die, shall have all that i have,’ or the like in effect: which words the said thomas did speak and utter in the presence of john thomas, william trigger, james bell, george lone, thomas foster, and others.”