[adolescent, mother Ann Freer died 1642, John’s will disputed by his aunts Isabel Clarke als Freere, wife of Thomas Clarke, and Joney Freere on the one part, and Thomas Callow (who died during the dispute) & his wife Margaret Quayle & William Callow, Catharine Callow, & Ann Calow on the other part]
To the Right xxxx James Challoner Esquire & Govenor of this Isle, The humble petition of Tho: Clarke of Ballalaugh Parish: Humbly Shewinge That whereas one Ann Ffreere who died in Anno 1642 willed to her children executors, all of them dyinge in minority save one, who as is alledged attained to the age of 14 yeeres or thereabouts, & in his nonage of understanding (thought of yeeres if that may appeare) was seduced & sinester meanes drawne to make a will as is likewise alledged; wch will was (without competent witnesses contrary to the Lawes of this Isle) approved of & recorded in your peticioners absence by one of the judges without the app---ance of his associatt, or Register; though the same was in dispute in a full Court twice before; by wch meanes the goods wch of right and by law ought to descend to your peticioners wife and her sister, are contrarie there unto alienated to a strange kindred; and for like to continue, except your good worship in wisdom, and your sender respect of justice grant some speedy releife or The promises tenderly considered your peticioners most humbly craves that your worship would be graciously pleased to require the now officers of the will Courte, and if your worship thinke it convenient to joyne Mr Hugh Cannell, Mr Robb Parr, and Mr James Moore, or two of them who formerly were judges of that Court and who knows the law and practiced in their resp----- them to take examination of this business and if they find accordinge to law xxxxxx or ca----- formerly used in this Isle the said will now alledged to be authentic xxx they may see giving it under theire hands and your petitioner will submit and ever cease to prosecute the same; but if they shall otherwise find that they may decree accordinge to law, and the ancient practice of that part[?], that soe in xxxx may be done, and your peticioner relieved; And this for Christ Jesus his sake; and your petitioner for your worship prosperitie will never cease to pray. & also Sir Robert Parr & Sir Hugh Cannell. Lett the wi---- take the business into serious consideracion and examination; and compose the differences betwixte ye parties if they ca; or els make Reporte there of to me. Castleton: 18 Ja:1657: James Chaloner.
At St John Chappel the 29th of July 1658: In obedience to the honorable Governor his Referrence directed unto us whose names are Subscribed, we have taken these examinacions followinge: Wm Ffeere aged 55 yeares or thereabouts sworne and examined saith That he came to see Jo: Callow on May day before his death being then on his death bed and then asked him whether he had made a will who answered he had not, afterwards he came to see the sd Jo: Calowe (beinge sent for) 1 day or 2 before his death, and perceiving he would not recover told to Tho: Calowe father to the sd Jo: That what goods the sd Jo: had came by his mother, and in case he dyed there would be strife betwixt his friends concerninge the sd goods; and desired, that if the sd Jo: would make a will that he (being his Supervisor) might be by; then Tho: Callow weeping answered if I loose the boy, I care not if I loose the goods also and further saith not. Wm Ffreere his mark w. John Killip witness to the alledged will of Jo: Callowe aforesd being examined wheter the sd Jo: Callow was (at his sd will) instructed in themaking thereof, or whether the wordes of the sd will were not dictated to him by Tho: Calow his father or any other; denyeth to attest or swear any thing to that pointe. Edmond Kewne sworne and examined saith that he was by at St Patricks of Jurby when the alledged will of Jo: Calowe was proved; and that there was noe officer in Court at that time nor that day but Capt Jo: Teare and that neither Tho: Clarke, nor any of Ffreeres the partiys concerned mencioned in that will was then present in the Church and further saith not. Edmond Kewne his mark. Ffinloe Ffreere sworne and examined saith that there was no officer in Court when the will abovesd was proved, nor that day but Capt Teare abovesd and further saith not. Ffinloe Freere his mark X. These deposicions taken by and before xxx as abovesd: Richd Stevenson, William Quaille, Ro:Parre. Bishop’s Court 7th Aug 1658: Concerning the will of John Callow was not duely proved before John Teare late Judge of ye Will court, xxxx as is alledged all parties concerned were not present, nor Register and for other reasons wch ye xxxxx are readie xxxx offere, I referr ye same to ye heareing and determination of ye jusdges in ye will office. James Chaloner. I find annexed to an order written & submitted by ye late Bishop in Anno 1643 in these words, note that in the Regrs absence ye Biship did ex---- all acts this Court day Mr. Vicr Cannell & Mr. Parson Parre being present instead of the Regr, I find likewise recorded in Anno 1634 a Case grated[?granted] by Bishop Ffoster to Parson Thompson, & Sir Hu: Cannell jointly to execute the affair of the Vicar Generall, & Sir Wm Cosnahan Regr & them to th--- to keepe the Ecclesiastical Court jointly. I finde likewise recorded in Anno 1626 xxxxx granted to Sr Wm Crow & Sr Wm Norris by Bishop Phill, to be substituted jointly, xxx Parson Thompson his Regr Episcopall. Tho: Norris Regt. At Ballagh Church 22 9bris 1658: Forasmuch as in order to a Reference from our honorable Governor directed unto us This day was assigned for hearinge of ye difference concerninge the xxxx alledged will of Jo: Calowe and both parties accordingly appearinge it was alleged by one quayle and the exec xx Tho: Callow that they had not timely notice for the bringing in of their evidence, and desired further time; Therefore for the -----inge[?adjudging] of all cause of complainte we thought it fitt to grant the same and now doe order that all parties doe appear at Duglas on Tuesday the 22 of 10ber next when all further evidence as can be produced, and in case any faile herein we shall proceede accordinge to the evidence already taken, Date the day and year above sd, Richd Stevenson, William Quaile. 23d 9ber 1658: Let there be no unnecessary delay used in xxxxxxx & therefore let the meetinge at Duglas hold as hath been appointed. James Chaloner. Per me Tho: Norris, Regr. For as much as it appears to me that some of the witnesses to the will of John Callow are not in a condition to travel as far as Douglas, I therefore thinke fitt and doe soe order that the matter now pending betwixt Thomas Clarke and the adverse parties be deferred till the cominge over of the Judges of the Will Court, on this side, and then to proceed to the consideration thereof, given under my hand this 2th day of 10ber 1658. James Chaloner. [top is torn at a diagonal] xxxxxxxxxxxxxxxx probacion of John xxxxxxxxxxxxxx said was lawfully proved xxxxxxxxxxxxxxxx if two sufficient witnesses according to that law xxxxx Isle, whene severall other wills from the respective xxxxx north side were also proved ye said day as appears upon record, xxxxxx was legally & honestly proceeded in, as I shall make to appear whensoever thereunto called, as wittnes my name subscribed this 8th day of Februarie 1658. John Teare. At St Johns Chappell 10th March 1658. for as much as it is alledged by Thos: Clarke that theire was in the Courte att the probacion of John Callow his will but xxx[hidden in fold] witness and that it was not lawful for one judge to prove xxx will, these xxxxxxxxxx and to cdertifie that Captain Radcliffe xxx Christian & myselfe xxxx together att a Courte in KK Michell, where the sd will was to be proved, pett Clarke ---dyed[?] to produce summe thing to hinder it, desired that ye probacion of the sd will might be deferred to the Court day that was at balu---- xxxx, wch was ye next day after Sant Andrus day, when the xx will was discussed, the sd Clarke produced nothing to hinder ye xxxxx will & yet tyme was given him to the next Courte, wch Courte was at Jurbie Church upon Sant Brydson after, and if he could not produce any witnesses against that day to hinder ye probacion xxx the would be proved that day soe when theire did nothing ----are to the contrarie, the will was proved legally in courte xxx severall other wills more, nether did any statue appeare to hinder one Judge to prove a will, for that statute was made xx Capt Caldewells time wch was proclaimed the last ---sume xxx the xxx att the tinwald, this I will justifie to be true this 18th of februarie 1658[1658/9]. John Teare.
At St Jo: Chappell 10th March 1658. Cosson Stevenson, the bear hereof Tho: Clarke of Ballagh, came unto me, to know, whether I gave my consent unto the proveing of Jo: Callow by his will, with Jo: Teare, I doe remember that, he & I, was at a difference—wise about the proveing of it, but would never give my consent unto the same, or unto any such, unless I know it very lawfull, & this I doe certify for a trueth noe more only my true love to your selfe & the rest of your fellow officers I remaine, your loving kindsman, Sam Radcliffe.
March[?] the 10th 1658. At St Johns Chappell 10th March 1658[1658/9]. In our tyme it hath been the custome and accordingly the practice of the Spirituall Court in this Isle, that one witnesse cannot prove a will, nor any of kinne within the degrees prohibited for marriage but cum consensus parium. Hu: Cannell, Ro: Parre. The premises are true. And also one witness hath usually proved a will if the testator willed the same as the Church wold denie[?] it. Jam:Moore. At St Johns Chappell 10 March 1658. At St Johns Chappell ye 10th of March 1658[1658/9: Foreasmuch as the heareing & determinacion of the differences concerninge ye will of Jo: Calow son of Tho: Calow of Jurby (now betwixt Tho: Clark in ye behalf of his wife & her sister on the one part, & ye exec & wife of Tho: Callow on the other part by our honorable governor his order beareinge date ye 7th of August 1658 is referred unto us; & having had several meetings about the same (upon some allegations of ye sd exec & wife of Tho: Callow or one Quaile in their behalf), The matter was deferred from time to time till this present day, we have (in pursuance of ye sd order & other orders from his hand concerninge ye same) mett to give our censure & full determinacion therein, The sd exec & wife still alledging they have more proofes & endeavors to produce notwithstanding such time given them and delayes used as afforesd wch is onely Capt Teare who hath certified under his hand what he can say in the business; and as we con----- is merely offerred to prolonge the time; And haveinge heard, & duely weighed all & every ye circumstances allegations profes & endeavors on both partes, we find the sd will of Jo: Calow not proceeded in nor proved according to Law upon these Reasons followinge: First by reason ye sd will was not proved in a full court but onely before Capt Teare who could not keepe a Courte of himselfe any more than any one officer formerly could, as appears by a precedent under ye late Bishop his own hand, and other reason, if occations be offered and also an order enacted in the government of ye late Major Cadwell; Though certified under the hand of Capt Teare to be done in open Court but contradicted by Capt Ratcliffe the other judge at that time, who remembers that they both were twice at differences about ye proving of it but never was nor would be consented to by him nor any such. Secondly because the witnesses to ye sd will are not competent and authentick in Law to prove the same, one of them beinge within the degrees of kindred prohibited for marriage except cum consensus particum[?], as appears hath been the practice by the testimony of the former judges of ye Spiritual Court. Thirdly, because ye probacion of ye sd will was not absolute being a legasye to be made to ye Antes at next meetinge, wch never yet was performed, & therefore ye sentence not definitive, And lastly in regard it doth not clearely appeare unto us that ye sd Jo:Calowe attained to ye full age of 14 yeares at ye making of ye sd will, by reason one of ye parties has procured a copie under the hand of ye minister & the other partye cannot procure ye same, All wch and other circumstances beinge taken to our consideracion, we are of opinion and soe declare ye sd will to be invalid & of noe force in Law; & decree ye 2 Antes on ye mother side viz Jony & Isabel Freere & his father Tho: Callow or the exec & wife of ye sd Tho: Calow accordinge to ye will of Ann Ffreer mother of ye sd Jo:Calow (proved in Anno 1642), his Administrators, yet nevertheless we shall humbly submit to our honorable Governor his further order or approbacion hereof. Date ut Supra. Richd Stevenson, William Quaile. I conferme what the Willers have done in ye praises 14th March 1658. James Chaloner.
This confirmacion is a copie of ye originall examined by me, Tho: Nooris, Regr. To ye Honorable James Chaloner Esq, Governor of this Isle, these: Honored Sir: There bearer hereof Phinlo Quaile came to me to get a copie of witnesses to certaine wils and having examined ye Records I finde certaine proceedings, & examinacions upon the probate of all or most of ye sd wills wch I offered to give for your honorable satisfaction together, but is refused by ye sd Quaile, who onlely desireth to have what makes for him & not otherwise, wch cannot be given a part Therefore rather then I should run such a Course as I could not well answear and your honor get noe satisfaction therey; I shall content to attend your honor with ye original Records at such time, and place, as your honor shall appoint, and in the meantime waite your honors further pleasure & remaine, Your honors readye & faithfull Servant, Tho: Norris, Regr. 4 March 1658. Bishops Court 25 March 1659: The Register is to bring ye Record before me upon Munday on Easter-weeke. James Chaloner. Bishop’s Court July the 1, 1659: Whereas it appeareth unto mee in the Cause betweene thomas Clearke p----- in the behalfe of Isabell Fryer and Joney Fryer And William Calow, Katherine Calowe, Anne Callow and Margeet Quaile wife and executris of Thomas Calow deceased defendants, in the case formerly referred unto your formal determination in the wch you gave your -----ment and I my approbation accordingly, Nevertheless I refer it unto your further consideration, yet agreeing with you in this, That the will in contraversie was not duly proved for that there was but one Judge present at the tyme of the probation made by John Teare, one of the then Judges and no Register in Court at all), first that I find by the Testemoney of Sir William Crowe, and William McYlecarane That John Calowe was at the age of fourteen yeares at the tyme of the making of his last will and testament And whereas you take exceptions, to one of the witnesses to the said wil, for that he is within the degrees exhibited for Marriage to the Executor of John Callowe, I find by the Testemoney of Sir Hugh Cannell, Sir James Moore, & Parson John Harison the one a Judge and the other Regesters to the Spirituall Court, That, the degrees of exhibition of Marriage, ought to be suited to the blood of the Testator, and not to the blood of the Executors, besides it Standeth with reason as well as practictises, That any person ought to be recomed[?recommended] as a competent witnesse to the will, That is not to gayne anything by the will or testament, And alltho such witnesses reape any benefits, as a Competent witness to any part or clause of such a last will or Testament wherein him selfe is not concerned as a legacie, and this was the practice, as to witnesses, to will, in the consis----- xxxxxx unto wch Jurisdiction, all Eccleasticall Causes, have formerly beene subvert to, in this Isle, by way of appeale, as to the sworne[?] Judicatories and although I might reassume this business, by way of appeale, I chose rather to recommend it back, upon these considerations, to your further hearing, and consultation forthwith and give me your answer. The Willers these. Your loveing friend, James Chaloner.
6 July 1659: Honored Governor: In pursuance of your honored order date 1st July instant directed unto us concerning ye differences betwixt Tho: Clarke in ye behalf of his wife & her sister on the one part and ye exec & wife of Tho: Calow in the other part we have this day met And having formerly used all circumspection, and diligence to fine out the truth before the making or grantinge of our late order in that case, wch was as well grounded upon several materiall circumstances as upon ye reasons therein inserted: First for that ye goods mencioned and in question were disposed of by the right proprietor Anne Freere to ye sd Jony and Isabell Freere, and Tho: Callowe jointly in case of all her childrens death and besides a legasie to ye sd Tho: in her will & 20s more decreed by ye Spiritual Court to him out of ye sd goods upon ye death of his children with wch he might have rested satisfied, had not his too much avarice have induced him to thirst after ye whole. 2ly, for that the sd Tho:Calow and his said son (upon his death bed) denied that he had made any will. 3ly, for that ye sd exec & wife have endeavored to produce other witnesses to prove ye alledged will before us (wch is all the relief could be afforded then in case their now allegations could be justified) and could not; But contrarywise Jo: Killip the Strang Testi, beinge examined whether Jo:Calow was instructed at his will making, or that ye sd will was dictated to him by tho:Calow or any other refused to attest any thinge to that pointe, neither can we yet find any just cause to alter the same upon ye testimony of Sr Hu: Cannell, Sr James Moore & Parson Jp: Harrison being not now sworne by ye Laws more than any other of the clergy; & their testimony not altogether concurring with ye practice in their own time, when xxxx a will proved in form of Law one of ye witnesses being the Testators brother, the wife, and one of his children exec & ye rest of his children cutt off with legacies; and in case it were so one of ye witnesses to his will is still within ye degrees prohibited for maryage to ye Testator knowing no Law to ye contrary & likewise we fine by ye practice of ye Consistory at Yorke; yt kinred, or xxx xxxx xxx xxxxxx and xxx are excepted to be witnesses to prove a last will & testament and this exceptioin is to ye party producting there xxx or reaping any benefit by their deposicion, and not to ye Testator. And whereas very much is left to ye discrecion of ye Judge in such cases, truly we must confess, and do hereby declare, That we have not likewise seen or found any just reason, cause or ground (in whole progress of this business) to alienate the goods in tra--- from ye kinred sworn wherein it came b—it was provided by the proprietor her selfe; And your honor xxx xxx not this our ansswerr satis---- we shall humbly desire that ye judges Temporal ---ther wth ye clergy, & body of ye Country may be called[?] to bive xxxx xxxxxxxx in Law concerning the oint in question wherein we shall (in all submission ---ever) Subscribe ourselves, and likewise remaine, Your honors most obedient, & dutifull servants: Richd Stevenson, Wm Quayle."
Thomas CLARK (M)...................... M: 12 Nov 1642 Spouse: Isabel FREER Jurby
Archd will 1661 #53 Ballaugh, of Isabel Clark als Freer: sister Joney; brother John Freer; Averick Nederagh; son William (apparently the eldest); next eldest is son John, then son Patrick Clarke, youngest son is George; husband Thomas Clarke exec
Fa of John Callow:: A 1656 w Jur CALLOW, Thomas LDS film 0106199 ::