Benjamin Smith's Will 15 July 1840

National Archives Probate 11 1983 126 (Proved 9 July 1843)

Added by Pat Marsden

Extract from 1838 Tithe Award Map showing parcels 313, 324, and 327 owned or occupied by Benjamin Smith
Essex Record Office D/CT 406B
Chelmsford Chronicle Friday 10 August 1838 [British Newspaper Archive]
Essex Standard Friday 26 March 1841 [British Newspaper Archive]
Sales details of Johnson's Farm in Beckingham to be sold by direction of the late Benjamin Smith
Essex Herald Tuesday 20th June 1843 [British Newspaper Archive]
Sale notice for Wivenhoe Cottage (believed to be situated on parcel 313 of the 1838 Tithe Award Map)
Essex Standard 22 March 1854 [British Newspaper Archive]
Sale of Lots formerly part of the extensive garden attached to the residence of Benjamin Smith
Essex Standard 27 March 1857 [British Newspaper Archive]
What remains of the site of 'The Cottage' (top left) on the present day Alma Street as indicated on the 1876 Ordnance Survey Map after the building of the railway
1876 Ordnance Survey 'First Edition': Wivenhoe, Elmstead .& Ardleigh Parishes (1:2500, twenty-five inches to one Mile)

This is the Will of Benjamin Smith (1770/72- 1843),  Gentleman and Surgeon of Wivenhoe 

This is the last Will and Testament of me Benjamin Smith of Wivenhoe in the County of Essex Gentleman as follows that is to say I do hereby nominate and appoint my friends Thomas Joseph Turner of Colchester in the said County of Essex Banker and George Bawtree of the same place Wine Merchant and Edward Hedge of the Inner Temple London Barrister at Law joint Executors of this my Will and 

I give and devise unto my dear wife Sarah All that my messuage or dwelling house in which I now reside situate and being in Wivenhoe aforesaid with the yards gardens and appurtenances thereunto belonging and usually held and occupied therewith To hold to her my said wife for the term of her natural life if she shall so long continue to reside in and occupy the same 

and I give and devise unto the said Thomas Joseph Turner George Bawtree and Edward Hedge All that my messuage farm and lands called Johnsons containing sixty five acres more or less with the farm house two cottages and all barns stables outbuildings rights members and appurtenances thereunto belonging now in the occupation of Robert Turpin or his undertenants situate lying and being in the Parish of Tolleshunt Major otherwise Tolleshunt Beckingham in the said County of Essex and all the great or Rectorial Tithes thereupon annually growing and arising All which hereditaments and premises sometime since purchased of Messieurs White and Lay and also all that freehold field or closure of land containing two acres more or less situate in the said Parish of Tolleshunt Major otherwise Tolleshunt Beckingham now in the occupation of the said Robert Turpin and which I  lately purchased of William Smith and also all my freehold messuages lands tenements and hereditaments whatsoever situate lying and being in Wivenhoe aforesaid 

To hold the same to them the said Thomas Joseph Turner George Bawtree and Edward Hedge their heirs and assigns for ever upon this special trust and confidence nevertheless that they my said trustees or the survivors or survivor of them or their heirs and assigns of such survivor do and shall make sale and absolutely dispose thereof either by public Auction or private Contract and in one or more lot or lots to any person or persons whomsoever for the best price and most money that can be reasonably obtained for the same

And I do hereby order and direct my said executors or the survivors or survivor of them or the heirs or assigns of such survivor in like manner to bargain and sell all my copyhold estates held of the manor of Wivenhoe aforesaid 

And my will is and I do hereby declare and direct that the receipt and receipts of my said trustees or the survivors or survivor of them or the heirs or assigns of such survivor or other the trustees or trustee for the time being under this my will shall be a valid and effectual discharge and valid and effectual discharges to the purchaser or purchasers of the said premises or any part thereof for so much money as in such receipt or receipts shall be expressed or acknowledged to be received and such purchaser or purchasers shall not afterwards be bound to see to the application thereof but shall be wholly discharged therefrom

And I direct that my said trustees or the survivors or survivor of them or the heirs or assigns of such survivor or other the trustees or trustee for the time being under this my will after deducting all costs charges and expenses attending such sale or sales to lay out and invest the clear produce arising therefrom in their names or name on government or on good real security in England at interest

And upon further trust to vary alter and transpose the same from time to time at their or his discretion into for or upon other stocks funds or securities of the like nature

And upon further trust they the said trustees or trustee for the time being do and shall pay and transfer all such principal monies stocks funds and securities unto all and every the child or children of my late daughter Mary Ann late the wife of Robert Shaw King equally to be divided between them or among them share and share alike if there shall be more than one and if there shall be but one such child the whole to be paid or transferred to such one child the share or shares of such children or child to be or become vested in him her or their respectively on his her or them attaining his her or their age or respective ages of twenty one years provided and I do hereby declare my will to be that if any such child or children shall depart this life before he she or they shall attain his her or their age or respective ages of twenty one years and without lawful issue then the share or shares of him her or them so dying shall go and accrue to the survivors or survivor or others or other of such children to be equally divided amongst them if more than one share and share alike and the same shall become vested and payable or transferable at such ages as his her or their original portion or portions are hereby directed to become vested and payable or transferrable as aforesaid 

And in case of the death of any other of the children of my said daughter before such accruing or surviving share or shares shall become vested as aforesaid then every such accruing or surviving part or share shall again be subject and liable to such right chance contingency or condition of accruals and amongst the survivors or survivor or others or other of the said children as hereinbefore is provided concerning their said original portion or portions and in case any one or more of the children of my said daughter shall die before his her or their share or shares shall become vested under this my will leaving one or more child or children of his her or their body or bodies lawfully issuing then and in that case such grandchild or grandchildren of my said late daughter shall respectively have and be entitled to the part or share or parts or shares which his her or their deceased parent or parents respectively would have had or been entitled to by virtue of this my will in case the share or shares of such parent or parents respectively had become a vested interest or vested interests in him her or them respectively to be equally divided amongst them if more than one share and share alike to be assigned transferred or paid to such grandchild or grandchildren of my said late daughter at his her or their age or respective ages of twenty one years to survive amongst them share and share alike as hereinbefore is directed with respect to the original and accruing share or shares of the children of my said daughter

And upon further trust that they the said trustees or trustee for the time being do and shall pay and apply the dividends and interest of the share or shares of such of the said children of my said late daughter as shall not have acquired a vested interest or vested interests in such share or shares or to the issue of such of them as shall happen to die before he she or they shall have acquired a vested interest or vested interests in the share or shares hereby intended for them for and towards his her or their maintenance and education respectively until the same shall become payable or transferrable provided always and my will is that the trustees or trustee for the time being under this my will shall have full power and authority if they or he shall in their or his discretion think proper to pay and apply out of the said principal trust monies any sum or sums of money for my said grandchildren for the purpose of putting  or placing them or either of them Apprentice or Articling them to any business or profession or otherwise for their advancement in the world during their respective minorities so that the sum paid or applied for the benefit of each child shall not exceed one moiety or half part of his or her presumptive share of and in the said trust monies and premises 

And I do hereby fully authorize and empower my executors or the survivors or survivor of them or the heirs or assigns of such survivor to postpone the sale of my said freehold and copyhold hereditaments and premises or any part or parts thereof for so long time during the minority of my said grandchildren as they or he shall think most for their benefit and in the meantime the rents issues and profits of the said estates or so much thereof as may be necessary shall be applied for and towards their maintenance and education 

And whereas under and by virtue of the settlement made upon my marriage with my said wife she will in the event of her surviving me become entitled to an annuity otherwise yearly rent charge of one hundred and twenty pounds issuing and payable out and from my messuage farm and lands in Tolleshunt Major or Tolleshunt Beckingham in the said County of Essex now in the occupation of John Downes and Elizabeth Downes widow at rents amounting together to one hundred and seventy pounds per annum

Now I do hereby will and direct that the rents issues and profits of my said last mentioned farm shall be received and taken by the trustees and executors of this my will and I hereby give devise and bequeath the same to them accordingly for and during the natural lives of my said wife and my sister Susanna Mustard widow and the life of the longer liver of them upon trust to pay to my said wife and her assigns for her life the said annuity or yearly rent charge of one hundred and twenty pounds secured to her by her said marriage settlement and in discharge and satisfaction thereof And upon a further trust to pay to my said sister the sum of fifty pounds yearly and every year for and during the term of her natural life in satisfaction and discharge of a bond or security given by me to her for the same

And from and after the decease of either of them my said wife and sister in the lifetime of the other of them upon trust as to the annuity hereby provided out of the said rents for the one of them so dying to pay the same annuity to my son Benjamin Smith for his own use and benefit during the life of the survivor of them  my said wife and sister and from and after the decease of the survivor of them my said wife and sister

I give and devise the same messuage farm and lands unto my said son Benjamin Smith his heirs and assigns for ever Subject nevertheless to and I do hereby charge  the same with the payment of the sum of one thousand pounds to the trustees for the time being of this my will  upon and immediately after the death  of the survivor of my said wife and sister and such trustees shall stand and be possessed thereof and interested therein

In trust to invest the same on government or real securities in England and to vary alter and transpose the same from time to time into for and upon other stocks funds or securities of the like nature 

And upon further trust to pay assign and transfer the same and the interest dividends and annual proceeds thereof for the benefit of the children of my said daughter in the same manner as I have hereinbefore directed with regard to the produce of the said estates hereinbefore devised in trust and otherwise directed to be sold

And whereas in the event of my said sister dying without issue I shall or in case of my decease before her then upon her death my executors will become entitled under and by virtue of the will of my late father to the sum of four thousand five hundred and seventy pounds or therebouts (sic) Now I do hereby bequeath to my said trustees and executors the sum of two thousand two hundred pounds part of the said sum of four thousand five hundred and seventy pounds upon trust to lay out and invest the same in manner hereinbefore directed concerning the produce to arise from the sale of my said messuages farms lands and hereditaments hereinbefore devised in trust and otherwise directed to be sold and my said trustees and executors shall stand possessed of and interested therein upon and for the same trusts ends intents and purposes as are hereinbefore mentioned and expressed of and concerning the produce to arise from the sale of the said messuages farms lands and hereditaments hereinbefore devised to my said trustees and otherwise directed to be sold for the benefit of the children of my said daughter as fully and effectually to all intents and purposes as if the same were here again repeated and set forth and I give and bequeath to my said wife

All my household furniture plate linen china and all other my personal estate and effects whatsoever except monies debts and securities for money which shall be in upon or about my dwelling house with the appurtenances at my death

To hold the same to her my said wife for and during the term of her natural life and from and after her decease the same shall sink into and become and be deemed part of the residue of my estate and effects

And as to all the Rest Residue and Remainder of my messuages lands tenements hereditaments real and personal estate and effects whatsoever and wheresoever in possession reversion remainder or contingency I give devise and bequeath the same and every part thereof unto my son Benjamin Smith his heirs executors administrators and assigns according to the nature tenure and quality thereof respectively and in case of his decease in my lifetime then I give devise and bequeath the same to the children or child of my said son lawfully begotten and to their his or her heirs executors administrators and assigns according to the nature tenure and quality thereof respectively equally to be divided between them if more than one share and share alike as tenants in common and not as joint tenants and if but one the whole to such only child

And my will is that my trustees and executors shall in that case receive and take the rents issues and profits interest or dividends thereof to pay and apply the same for the maintenance education and support of the children or child of my said son during their his or her minority and I give to each of my executors the sum of one hundred pounds for his trouble in the execution of this my will provided always and I do hereby declare that if the trustees hereby appointed or either of them or of any trustees or trustee to be appointed in the stead or place of them or either of them or of any future trustees or trustee as hereinafter mentioned shall die go to reside beyond the seas or shall be desirous of being discharged from or decline or become incapable to act in the several trusts hereby in them reposed as aforesaid before the said trusts shall be fully performed then and in any such case it shall and may be lawful to and for the surviving or continuing trustees or trustee if any (and whether such surviving trustees or trustee shall be willing to continue to act in other respects or not) or if all the trustees for the time being shall be then dead then for the executors or administrators of the survivors of the trustees by any writing or writings under his or their hand and seal from time to time to nominate substitute or appoint any other person or persons to be a trustee or trustees in the stead or place of the trustee or trustees so dying going to reside beyond the seas or being desirous of being discharged or declining or becoming incapable to act as aforesaid and thereupon all the monies and premises hereby bequeathed and directed to be laid out and invested in their names upon the trusts and with and subject to the powers and provisoes (sic) aforesaid to be produced under any of the said trusts shall with all convenient speed be assigned and transferred respectively and the estates hereby devised to my said trustees if not sold shall be conveyed so and in such manner that the same shall and may be legally and effectually vested in the surviving or continuing trustee [insert ‘or trustees and such new or other trustee or trustees or if there shall be no continuing trustee’] then in such new trustees only upon the same trusts and with the same powers and authorities as are hereinbefore declared and contained of and concerning the same estates monies and premises or such of the same trusts powers and authorities as shall or may be then subsisting or capable of taking effect

And it is my will that the said trustees for the time being and every of them and their respective executors administrators and assigns shall severally be charged and chargeable only for such monies as they shall actually receive respectively by virtue of the trusts so in them to be reposed although they or any of them may give sign or join in any receipt or receipts for the sake of conformity and that each of them shall only be answerable for himself and his own acts and that none of them shall be answerable for any money paid over by one to another of them the said trustees nor for any Banker Broker or other person with whom any part of the trust monies to arise under this my will shall or may be deposited nor for the insufficiency or deficiency of any security of or upon which the said trust monies or stocks or any part thereof shall be placed out or invested nor for any other misfortune or loss in the execution of the trusts of this my Will or any of them unless the same shall happen by or through their own wilful default respectively and that it shall and may be lawful to and for the said trustees or trustee for the time being and every of them to retain to and reimburse themselves and to allow their or his cotrustee or cotrustees by or out of the trust funds and premises comprised in or to arise under this my Will all costs damages and expences (sic) which they or any of them shall or may suffer sustain expend disburse be at or be put unto  in or about the execution of the aforesaid trusts or any of them or in relation thereto

In witness whereof I the said Benjamin Smith the testator have to this my last will and testament containing in six sheets of paper set my hand to the first five sheets thereof and my hand and seal to this sixth and last sheet thereof this fifteenth day of July in the year of our Lord one thousand eight hundred and forty

Benjamin Smith 

Signed sealed published and declared by the said Benjamin Smith the testator as and for his last Will and testament in the presence of us who in his presence at his request and in the presence of each other have hereunto subscribed our names as witnesses 

W Sparling Attorney Colchester

Sayers Turner Attorney Colchester

First Codicil dated 15 July 1840

I the within named testator Benjamin Smith do make this codicil to my within named Will which has been duly executed by me before the executors of this my codicil thereto whereas I have in and by my said Will devised and bequeathed to my son Benjamin Smith and his heirs executors administrators and assigns 

All the rest residue and remainder of my real and personal estate and effects with a limitation over for the benefit of his children in the event of his dying in my lifetime

And whereas the said residuary devise comprises amongst other lands and hereditaments a messuage farm and lands part freehold and part Copyhold situate lying in the parish of Thorrington in the said county of Essex now in the occupation of John Dawson his undertenants or assigns and also the woodlands and plantations belonging thereto now in my own possession 

Now I do hereby revoke the said devise to my said son and the limitations over to his children so far as the same comprises the said messuage farm and lands woodlands and plantations in Thorrington aforesaid but no further or otherwise and I give and devise all such part and parts and so much of the said messuage farm lands woodlands and plantations as is or are of freehold tenure unto the within named Thomas Joseph Turner George Bawtree and Edward Hedge their heirs and assigns upon trust nevertheless to make sale and absolutely dispose thereof as soon as conveniently may be after my decease along and together with the copyhold parts thereof hereinafter directed to be bargained and sold and either in one or more lot or lots by public Auction of private contract as they my said trustees shall think most advisable to any person or persons whomsoever for the best price and most money that can be reasonably obtained for the same and I do hereby authorise and empower my said trustees or the survivors or survivor of them or the heirs or assigns of such survivor in like manner to bargain and sell all and every my copyhold messuages land tenements and hereditaments situate lying and being in the parish of Thorrington aforesaid 

And I do hereby direct that the receipt or receipts of my said trustees or the survivors or survivor of them of the heirs or assigns of such survivor shall be a good and valid discharge or good and valid discharges to the purchaser or purchasers thereof or of any part or parts thereof for so much money as in such receipt or receipts shall be expressed or acknowledged to be able of accountable for the same or the misapplication or non application thereof or any part thereof and shall be wholly discharged therefrom and my will further is that the clear produce arising from such sale or sales after deducting all costs charges and expenses attending the same shall be paid by my said trustees to my said son Benjamin Smith for his own use and benefit absolutely but in the event of his dying in my lifetime then the same shall go and be applied to and for the benefit of his children or child as in my said Will is in that event directed of and concerning the residue of my estate and effects

As witness my hand and seal on the fifteenth day of July in the year of our Lord one thousand eight hundred and forty

Benjamin Smith (LS)

Signed sealed published and declared by the said testator Benjamin Smith as and for a codicil to his last Will and Testament in the presence of us who in the presence at his request and in the presence of each other have herewith subscribed our names as Witnesses 

W. Sparling 

Sayers Turner

Second Codicil dated 15 July 1840

This is a Codicil to the last Will and Testament of me Benjamin Smith late of Wivenhoe and now of Colchester in the County of Essex Gentleman which bears the date the fifteenth of July in the year one thousand eight hundred and forty

I do hereby revoke the appointment of Thomas Joseph Turner of Colchester aforesaid Banker as one of the Executors of my said Will and I do hereby appoint John Bawtree the younger of Colchester aforesaid Banker to be an Executor of my said Will jointly with George Bawtree and Edward Hedge who [were] thereby appointed two of the Executors thereof

And whereas I have by my said Will devised to the said Thomas Joseph Turner George Bawtree and Edward Hedge certain messuages lands tenements and hereditaments upon trust to sell the same and I did thereby direct them to sell my copyhold estates held of the Manor of Wivenhoe and to apply the produce to the benefit of the children of my late daughter as therein mentioned 

And whereas by a codicil to my said Will bearing even date therewith I have devised the freehold parts of a certain farm at Thorrington in the said County of Essex unto the said Thomas Joseph Turner George Bawtree and Edward Hedge and their heirs and I have therein directed them to bargain and sell the copyhold parts thereof for the benefit of my son Benjamin Smith the younger and in case of his death in my lifetime his son

Now I do hereby revoke all and every the said devises powers and authorities and I do hereby give and devise all and singular the said several freehold hereditaments unto the said George Bawtree Edward Hedge and John Bawtree the younger

To hold the same to them their heirs and assigns for ever upon trust to sell and dispose thereof in manner in the said Will mentioned (except as hereinafter is provided)

And I do hereby authorise and empower them or the survivors or survivor of them or the executors or administrators of such survivor to bargain and sell all my copyhold hereditaments by my said Will and Codicil directed to be bargained and sold (except as hereinafter is provided)

And my Will is they shall stand possessed of the clear monies arising therefrom upon the several trusts and for the several acts intents and purposes as are expressed of and concerning the same respectively in my said Will (except as hereinafter is provided)

And whereas such? the date and execution of my said Will and Codicil I have contracted the said farm at Thorrington to Mr. William Hawkins for the sum of four thousand five hundred pounds and I have also since contracted to sell all my Wivenhoe Estates to Mr. John Green Chamberlain for the sum of one thousand five hundred and fifty pounds

Now I do hereby direct authorise and empower my said trustees George Bawtree Edward Hedge and John Bawtree the younger or the survivors or survivor of them or the executors or administrators of such survivor to covey and assure unto the said William Hawkins his heirs and assigns or as he or they may direct my said farm and estate at Thorrington and in consideration of the purchase money agreed to be paid by him for the same and the same purchase money shall also go to my said son or if he should die in my lifetime to his children as mentioned and directed in and by my said Codicil and I do hereby direct authorise and empower my said trustees or the survivors or survivor of them his executors or administrators to convey and assure to the said John Green Chamberlain his heirs and assigns or as he or they shall direct my said Wivenhoe Estates and all other the hereditaments so contracted to be sold to him as aforesaid in consideration of the purchase money agreed to be paid by him for the same and the same purchase money shall be added to and deemed as part of the provision made by my said Will for the children of my late daughter and shall go and be paid and applied accordingly 

And my Will is that the shares of my said grandchildren shall not vest until they severally attain the age of twenty five years

And I will and direct that during the continuation of my term in my present dwelling house the rent or sum of sixty pounds shall be annually paid to my wife to enable her to reside therein and pay the rent and taxes thereof and upon the expiration of the tenancy I give and bequeath to my wife thirty pounds per annum for her life to enable her to pay the rent of a dwelling house instead of her residing in the Wivenhoe cottage as given by my Will and which I have agreed to sell as aforesaid 

And I will that if the interest of the portion provided for my daughter’s children should not be sufficient in the opinion of my executors for their maintenance and education my executors shall have power [insert ‘yearly and every year’] to apply any part of the principal trust money not exceeding in any one year the sum of twenty five pounds

And I do hereby in all other respects ratify and confirm how said recited Will and Codicil 

In witness whereof I have to this Codicil to my said Will contained in three sheets of paper to the two first sheets thereof set my hand and seal this twenty fourth day of February in the year of our Lord one thousand eight hundred and forty two 

Benjamin Smith (LS)

Signed sealed published and declared by the said testator Benjamin Smith as and for a Codicil to his last Will and Testament in the presence of us who in his presence at his request and in the presence of each other have hereunto subscribed our names as witnesses

William Waylen of Colchester Surgeon

W. Sparling Atty, Colchester

Third Codicil 1 November 1842

Whereas since the date and execution of my before written Codicil I have conveyed all my Wivenhoe estates to Mr. John Green Chamberlain pursuant to the Agreement with him as before mentioned and I have received of him the sum of one thousand five hundred and fifty pounds being the purchase or consideration money for the said estates and the same sum now forms a part of my personal estate

Now in order that my late daughter’s children may have the benefit thereof as before mentioned or as equivalent for the same

I do hereby will and direct that the sum of one thousand five hundred and fifty pounds out of my personal estate shall be added to and deemed a part of the provision made by my before named Will and my before written codicil for the children of my late daughter and shall go and be paid and applied accordingly in lieu and instead of the same amount of purchase money by my said codicil directed to be paid and app to and for their benefit

In witness whereof I have to this my further codicil set my hand and seal this first day of November in the year of our Lord one thousand eight hundred and forty two

 Benjamin Smith (LS)

Signed sealed published and declared by the said testator Benjamin Smith as and for a further codicil to his last Will and testament in the presence of us who in his presence at his request and in the presence of each other have herewith subscribed our names as witnesses 

J. W. Maybey Crouch Street Colchester Captn. East Essex Regmt. Militia

W. Sparling Atty. Colchester 

Proved at London with three codicils the 17th July 1844 before the judge by the oaths of George Bawtree Esquire and Edward Hedge Esquire the Executors named in the Will and John Bawtree the younger Esquire the Executor named in the second codicil to whom Admon. was granted having been first sworn to wit the said George Bawtree and John Bawtree the younger by Commission and the said Edward Hedge before the Worshipful William Calverley Curteis Doctor of Laws and Surrogate only to administer 

[Transcribed by Pat Marsden and John Foster January 2021]

This page was added on 09/01/2021.

No Comments

Start the ball rolling by posting a comment on this page!

Add a comment about this page

Your email address will not be published. Required fields are marked *