Roger Wygston of Wolstan, armiger, & William Wygston, gentleman v. John Preston of London, citizen and mercer of London: Michaelmas term, 1539; Court of Common Pleas

             This action of debt on a performance bond rested originally on a testator’s devise that left two life estates, one to his widow and another to a couple (possibly a daughter and her husband) as well as certain other legacies. He provided in the will that his moveables were insufficient to perform his will, the lands of which he was beneficiary in a use should be sold to complete the performance of his will. After the testator’s death, everyone agreed that the moveables were insufficient. The reversioners, however, prevented the sale of the lands by a money payment to the executors accompanied by a series of covenants incorporated in an indenture and by the performance bonds for 200 marks.

This case and the Statute of Uses

             The testator here died prior to the Statute of Uses. The lands in the use were to be sold if the moveables were insufficient for the performance of the will. The determination that the moveables were insufficient was made definitively only around May 1537, so that at the time the Statute of Uses became effective it was unclear whether the lands would have to be sold to perform the will or could instead go to the people for whom the feoffees otherwise stood seised. The assumption in this case seems to be that the feoffees were effectively out of action, since the people who apparently were the beneficiaries dealt directly with the executors to prevent the lands from being sold, thus clearing their own title. The implication, however, is that the will provision that the lands might have to be sold remained a sufficient complication (whether at law or only ethically is unclear) that substantive compliance had to be ensured.

[IMG 9717] Warwickshire. John Preston lately of London, mercer otherwise called John Preston, citizen and mercer of London was summoned to answer to Roger Wygston of Wolstan in the county of Warwickshire, armiger and William Wygston, gentleman son and heir apparent of the same Roger concerning a plea that he render to them 200 marks that he owes to them and unjustly detains etc. And whereof the same Roger and William by Michael Purfrey his attorney says that, whereas the abovesaid John on May 6 in the 29^th year of the reign of the now lord king [May 6, 1537] at Wolstan by his certain obligatory writing had granted that he was bound to the same Roger and William in the abovesaid 200 marks to be paid to the same Roger and William on the feast of Pentecost then next following, nevertheless the abovesaid John although often asked, has still not rendered the 200 marks to the same Roger and William but to this time has refused to render and still refuses, wherefore they say that they are worse off and have damages to the value of £20, and thereof they produce suit etc. And they proffer here in court the abovesaid writing that attests the abovesaid debt in the abovesaid form, the date of which is the abovesaid day and year etc.

             And the abovesaid John by Ralf Caldwall his attorney comes and defends force and injury when etc. and asks oyer of the writing abovesaid, and it is read to him etc. He asks also oyer of the indorsement of the same writing, and it is read to him in these words [in English]:

The condicion of this obligacion is this that if the within bounden Julinus Nethermyl & Margery his wyffe Raff Rowlett & John Preston & every of them & the heyres & executors of every of them do at alle tymes hereafter performe fulfyll & kepe alle & singuler covenauntes grauntes articles & agreamentes one his & ther parte to be performed fulfylled or kept & comprysed in a payer of indentures had & made betwen the seid Julynus Margery Raffe & John on the one partie & the within named Thomas Wygston Roger Wygston & Wyllyam Wygston on the other partie beryng date the day of the date of this obligacion that then this present obligacion to be voide or of none effect or elles to stande in full strenght & vertue.

[IMG 9718] These things having been read and heard, the same John says that the abovesaid Roger and William ought not have his abovesaid action against him, because he says that the indentures in the abovesaid indorsement specified above were made on the day and year abovesaid at London in the parish of St. Peter in the ward of Chepe between the aforementioned Julinus, Margery, Ralf, and John Preston by the names of Julinus Nethermylle citizen and draper of Coventry and Margery his wife late wife and co-executrix with others of the last will and testament of William Wygston sr. late of Belgrave in the county of Leicester armiger deceased & Ralf Rowlet armiger & John Preston citizen and mercer of London co-executors with the abovesaid Margery of the abovesaid last will and testament on the one part and Thomas Wygston cleric rector of Aylston and the aforementioned Roger Wygston and William Wygston, jr., son and heir apparent of the abovesaid Roger on the other part, the other part of which signed with the seals of the same Thomas, Roger, and William the same John Preston here in court proffers, the date of which is on the same day and year, which certain indenture attests that,

[1. Provision of will to have land in use sold if necessary to carry out will provisions]

whereas the abovesaid William Wygston, sr., among other things in his said last will and testament made in writings bearing the date of August 14 in the year of the lord 1534 and the 26^th year of the reign of the said now lord king willed and declared that if his executors not have sufficient goods of the abovesaid William Wygston, sr., beyond and besides such goods as the same William Wygston, sr., by his said will legated and gave to the said Margery then his wife with which his said last will, his debts, and other legacies and grants specified in the same to be made to be performed and would be able to be paid, that then their feoffees would stand and be seised of the residue of their lands not legated by his said will to the use and performance of his same last will, and that his abovesaid executors ought to sell the residue of the said lands and tenements and the money thereof to be counted and distributed by their abovesaid executors for the payment of his debts and the performance of his said last will and legacies in the same and for the salvation of his soul [IMG 0549] as by the said last will among other things more plainly appears,

[2. All parties now agree that the movables were insufficient to perform all will provisions]

and because now evidently and truly it appeared both to the same executors and to the aforementioned Thomas Wygston, Roger, and William, jr., that the abovesaid executors did not have sufficient goods that were their abovesaid testator’s on the day he died beyond and beside such goods as their same testator gave and legated to the said Margery then his wife for the performance of the said last will, the payment of debts and legacies of their said testator according to the just and true sense and intention of their same testator but thereof they lacked the sum of £100 and beyond, by reason of which the abovesaid executors lawfully and justly were able to sell the abovesaid residue of the said lands according to the limitation and appointment of their abovesaid testator for the uses, plans, and intentions above specified

[3. Prevention of sale of lands by payment of £100 to executors]

nonetheless in consideration of the £100 sterling paid by the aforementioned Thomas Wygston, Roger, and William his son on the day of the date of the same indenture to be paid to the abovesaid executors for and toward the full payment of the residue of all such debts and legacies as the goods of the said William Wygston deceased do not extend to, which certain sum of £100 the abovesaid executors acknowledge themselves fully to have received on the day of the making of the same indenture and to have been contented and paid fully of the same in and for the complete recompense and performance of their testator of the abovesaid last will and the payment of all his debts, and that the abovesaid Thomas, Roger, and William his son and the heirs of each one and their executors and heirs and the executors of each of them were acquitted and exonerated thereof clearly in perpetuity, [IMG 0550]

[4. Covenants made in consideration of that payment]

then it was condescended concluded and agreed between the abovesaid parties and each of them for and concerning the performance of the abovesaid last will and testament and the said residue of the said lands and tenements as well as all other manors, lands and tenements of the abovesaid William Wygston, sr., burdenable and appointed by the said last will to be sold by the same executors in the manner and form following, viz.,

[a. Covenant that the executors would not implement the will provision to sell the land]

the abovesaid executors covenanted and granted by the same indenture to and with the aforementioned Thomas Wygston, Roger, and William his son that they the abovesaid executors and each of them ought not at any time thence into the future take any advantage or do any act or thing by whatever authority granted to them in the said last will for and concerning the abovesaid sale of the residue of the abovesaid lands whereby the same residue of the same lands and tenements limited and appointed to be sold as set out before or any part, parcel, or member of the same to be sold, alienated, burdened or encumbered by them or any of them or by the executors or administrators of any of them without the assent or consent of the abovesaid Thomas, Roger, and William or of one of them or their heirs, but rather the whole said residue of the abovesaid lands and each part thereof (excepting the manor of Thedyngworthe and other lands and tenements parcel of the abovesaid residue limited in the abovesaid will being before then bargained and sold to Martin Bowes alderman of the city of London) immediately after the death of the abovesaid Margery ought and could descend, come, revert, remain or accrue to the same Thomas and Roger and the heirs of the same Roger without any whatsoever act, thing or things done and perpetrated or from thence into the future to be done, perpetrated, or permitted by the abovesaid executors or any of them or the executors or administrators of any of them by any authority given to them thereof by the abovesaid last will;

[b. Covenant that the executors would assist in securing the reversions]

and also the abovesaid executors and each of them for himself and for his heirs, executors, and administrators covenanted and granted by the same indenture to and with the aforementioned Thomas, Roger, and William his son, their executors and administrators that they the abovesaid executors and each of them at all times thence into the future would do, permit, and cause to be done and to be permitted from time to time all and [IMG 9719] each such reasonable and lawful act, thing, and things as would be from time to time devised or advised by the learned counsel of the abovesaid Thomas, Roger, and William or any of them at the costs and burdens in law of the abovesaid Thomas, Roger and their heirs, either of them or of theirs heirs, for the further and better assurance and the making secure in law to be done by them and the executors only of the reversion of the whole abovesaid residue of all the said manors, lands, and tenements and other hereditaments with their appurtenances except the things excepted before after the death of the abovesaid Margery to the aforementioned Thomas and Roger and the heirs of the same Roger in perpetuity whether it be by fine, deed, enrollment, release, or confirmation with warranty against the abovesaid executors and their heirs alone;

[c. Covenant that the reversioners would assist in securing the life estates of the widow of the testator and of John Preston and his wife Cecilia given in the will]

and also the abovesaid Thomas Wygston, Roger, and William for themselves and their heirs covenanted and granted by the abovesaid indenture to and with the aforementioned executors that they and their heirs at all times thence into the future would do, make, and permit to be done all and singular such reasonable and lawful action, thing, and things both for the aforementioned Julinus and Margery his wife during the life of the same Margery as by their learned counsel it should be advised or devised at the costs and burdens of the abovesaid Julinus and Margery for the further and more perfect assurance to be made, had, and done for the same Julinus and Margery during the life of the abovesaid Margery of and in all such manors, lands, tenements, and other hereditaments with their appurtenances being the jointure of the abovesaid Margery or otherwise appointed to her by the same last will of the abovesaid William Wyston late husband of the abovesaid Margery and also they should make and permit to be done all and singular such reasonable act, thing, or things for the aforementioned John Preston and Cecilia the wife of the same John and either of them longer living as by their learned counsel should be advised or devised to be done at the costs and burdens of the said John and Cecilia for further assurance and security for them to be had and done thereof concerning all such lands, tenements and other hereditaments with their appurtenances in “Wheston,” Wartnaby and Carlton Curlieu in the county of Leiceister that were and are given and granted to them by the aforementioned William Wyston, sr., by his same last will or otherwise according to such estate, title, and interest as they the abovesaid John and Cecilia then in the abovesaid lands, tenements, and other premises with their appurtenances or in or at any of them whether the abovesaid separate assurance be by fines, deeds, enrollments, releases with warranty only toward the aforementioned Thomas, Roger, and William and their heirs in perpetuity;

[d. Covenant that the reversioners would warrant the widow’s jointure against John Wygston]

and particularly the abovesaid Thomas Wygston, Roger, and William son of the abovesaid William for themselves and their heirs in perpetuity covenanted and granted by the same indenture at and with the aforementioned executors that they the abovesaid Thomas, Roger, and William and their heirs from time to time during the life of the abovesaid Margery on reasonable notice and warning given to them whether to one of them or to the heirs of any of them by the aforementioned Julinus and Margery or one of them ought sufficiently by law to warrant, maintain, and defend the said Julinus and Margery during the life of the said Margery at the costs and burdens of the abovesaid Thomas, Roger, and William and their heirs from time to time in all actions, suits, complaints, debates, and demands to be begun, taken, prosecuted, or moved against the abovesaid Julinus and Margery during the life of the abovesaid Margery by a certain John Wygston gentleman or his male heirs of his body of and for the manor of Belgrave with the appurtenances in the abovesaid county of Leicester or for some part or parcel thereof that stands appointed to the aforementioned Margery among other things of and for parcel of her jointure by the abovesaid William Wygston deceased

[e. Reciprocal covenant for that warranty obligation that the widow and her husband would make available to the reversioners all the muniments at appropriate times]

for which certain warranty and defense of the abovesaid manor with appurtenances by the abovesaid Thomas, Roger, and William his son to be made and performed in the abovesaid form, the abovesaid Julinus and Margery his wife covenanted and by the abovesaid indenture granted to and with the aforementioned Thomas, Roger, and William by the same indenture that they the abovesaid Thomas, Roger, and William his son and his heirs at whatsoever such time and times when they or any of them will be ready to defend the aforementioned Julinus and Margery for the abovesaid manor as is abovesaid would have during the time of the abovesaid defense the use and possession of all manner deeds, charters, writings, and other writings being in the custody of the abovesaid Julinus and Margery concerning the said manor with appurtenances for [IMG 9720] that only purpose and intention to defend and warrant the abovesaid manor to the said Julinus and Margery during the life of that Margery and also they should deliver or cause to be delivered to the aforementioned Thomas Wygston, Roger Wygston, and William or their heirs on their request within the space of one month next after the death of the abovesaid Margery all such deeds, charters, writings and muniments that they the abovesaid executors or any of them then have or thence or in the meantime would have or conveniently can obtain [IMG 0551] concerning and pertaining to any part or parcel of the abovesaid residue of the lands, tenements, and hereditaments (excepting the things excepted before) that by that agreement or by any other way or manners after the death of the abovesaid Margery can or ought to revert, remain, or to come to the aforementioned Thomas and Roger and the heirs of the same Roger or any of them as to cousin and heirs of the abovesaid William Wygston testator,

[f. Covenant that the widow and her husband would grant Willilam Wygston an annual rent of 20s that was part of Margery’s jointure]

and also the same Julinus and Margery his wife for them and their executors covenanted and by the abovesaid indenture granted to and with the aforementioned William Wygston that they the abovesaid Julinus and Margery on reasonable request to be made to them by the aforementioned William the son at the costs and burdens of the said William the son before the feast of St. Michael the Archangel next to come after the date of the same indenture would make a good, secure, sufficient, and lawful grant or some good and perfect assurance in law of all their interest and title both of and in an annual rent of 20s issuing from certain lands and tenements in Enderby in the county of Leicester which certain rent the abovesaid William Wygston, sr., deceased among other things gave and granted to the aforementioned Margery then his wife by his said last will and testament and of and in one messuage with its appurtenances lying and being in the town of Leicester then in the tenure of a certain John Tyms,

[g. Covenant by reversioners that they would not disturb any of the other provisions of the will]

and particularly the abovesaid Thomas, Roger, and William his son for him, his heirs and executors covenanted and granted by the abovesaid indenture to and with the aforementioned executors that neither they the abovesaid Thomas, Roger, and William nor their heirs nor any of them would do, make, procure, or assent to be done any act, thing, or things in to or for the disturbance, impediment, molestation, interruption, or disannulment of any other legacy, gift, grant, or will of any lands, tenements or hereditaments or of any other thing whatsoever thus in the abovesaid last will of the same William Wygston, sr., mentioned, specified, or declared, the said clause for sale of the said lands as is set out before only excepted, but they should make or permit all and singular person or persons to whom any such legacy, gift, grant, or will by the abovesaid testament were made to have and to enjoy according to the abovesaid will as in the same indenture is more fully contained.

And the same John Preston says that neither he and his abovesaid coexecutors nor any of them take any advantage or any act or thing in any manner of authority granted to them in the abovesaid last will for and concerning the abovesaid sale of the residue of the lands, from which the abovesaid residue of the same lands and tenements limited and appointed to be sold as is said above whether they were some part, parcel or member thereof by them or some of them sold, alienated, burdened, or encumbered or otherwise sold by the abovesaid Thomas, Roger, and William his son and heirs by the abovesaid executors or any of them or by the executors or administrators of some of them or with the assent of the abovesaid Thomas, Roger, and William but that all the said residue of the abovesaid lands and each part thereof could descend to the same Thomas and Roger and the heirs of the same Roger or ought to come, revert, remain or accrue, excepting the manor of Thedyngworthe and all other lands and tenements parcel of the abovesaid residue limited in the last will before the time of the making of the indenture abovesaid bargained and sold to a certain Martin Bowes alderman of the city of London immediately after the death of the abovesaid Margery without any act, thing or things done or perpetrated by the said executors or any of them or set forth by any authority given in the abovesaid last will; and also the same John says that he did and permitted all and singular reasonable and lawful act, thing or things as from time to time by the learned counsel of the abovesaid Thomas, Roger, and William was advised or devised for further and better assurance and for [IMG 0552] certitude appropriate in law of every reversion of all the residue of manors, lands, and tenements and of other hereditaments with their appurtenances excepting wholly the things excepted before to be made by the same John after the death of the abovesaid Margery to the aforementioned Thomas and Roger and the heirs of the same Roger in perpetuity by fine, deed, enrollment, release, or confirmation with warranty against the same John and their heirs; and also the same John says that the abovesaid Julinus and Margery his wife or either of them were or was not required by the said William the son at any time before the abovesaid feast of St. Michael the Archangel next after the date of the abovesaid indenture to make good, sufficient and legitimate security or some other good and perfect assurance in law concerning every interest and title of them of or in any annual rent [IMG 9721] of 20s issuing from certain lands and tenements in Enderby in the county of Leicester, which certain rent the said William Wygston, sr., deceased, gave and granted among other things to the said Margery then his wife by his said last will and testament or of or in the abovesaid messuage with appurtenances lying and being in the town of Leicester in the tenure of the abovesaid John Tyms, as above specified, and this he is ready to verify, wherefore he seeks judgment if the abovesaid Roger and William the son ought to have their abovesaid action against him etc.

             And the abovesaid Roger and William the son say that they by anything alleged before ought not to be precluded from having their abovesaid action, because, protesting that the abovesaid John Preston did not fulfill any covenants, grants or agreements specified in the abovesaid indenture abovesaid that on the part of the same John must be fulfilled as the same John alleged above, for a plea the same Roger and William the son say that the same William after the making of the abovesaid indenture and before the abovesaid feast of St. Michael the Archangel then next following, scilt., on the last day of August in the 29^th year of the reign of the now lord king abovesaid [August 31, 1537] at Enderby in the abovesaid county of Leicester required the aforementioned Julinus and Margery to make and seal a certain indented writing dated on the same last day of August in the abovesaid 29^th year, whereby they were supposed to give and grant the aforementioned William Wygston, jr., all his title and interest of and in the abovesaid annual rent of 20s issuing from the abovesaid lands and tenements in Enderby in the abovesaid county of Leicester and also of and in the abovesaid messuage with appurtenances lying and being in the abovesaid town of Leicester then in the tenure of John Tyms to have and hold the abovesaid annual rent and the abovesaid messuage with their appurtenances to the aforementioned William Wygston, jr., his heirs and assigns in perpetuity according to the form and effect of the abovesaid indenture, which certain writing the same Julinus and Margery then there wholly refused to make and seal for the same William the son, and this they are ready to verify, wherefore they seek judgment and their abovesaid debt together with their damages by occasion of the detention of that debt to be adjudicated to them etc.

             And the abovesaid John says that the abovesaid William Wygston the son after the making of the indenture abovesaid and before the abovesaid feast of St. Michael the Archangel then next following did not require the aforementioned Julinus and Margery to make and seal any indented writing, whereby they were supposed to give or grant their whole title and interest of and in the abovesaid annual rent of 20s or of the abovesaid messuage with appurtenances as the abovesaid Roger and William above alleged. And of this they put themselves on the countryside. And the abovesaid Roger and William the son similarly. Therefore it is ordered to the sheriff of Leicester that he should make to come here on the Octaves of St. Hilary 12 etc., by whom etc., and who neither etc., to recognize etc., because both etc.