Joseph Saberton Saberton's will

[horselydown86]

It was proved in 1847:    https://discovery.nationalarchives.gov.uk/details/r/D127138

[mezentia]

Also available on Ancestry, search wills and probate for Joseph Saberton Saberton. The Ancestry images are better quality than those on the National Archives site. If anyone would like a copy of my transcription, please PM me with an email address.

[mezentia]

As we appear to have some contributors to this thread somewhat more knowledgeable than me on the subject of Wills, I would like to pose a question to them.

The will that is the subject of this thread contains the following devise at the start:

...

1. made by me at any time or times heretofore and declare this to be my last will and
2. testament I give and devise unto my dear wife Emma Saberton and her assigns during
3. her widowhood one annual sum or yearly rent of three hundred pounds of law-
4. ful money of the United Kingdom to be charged upon yearly issuing and pay-
5. able out of all my farm and lands ...

I was under the impression that one would devise real estate, that is to give as a gift of real property and lands in a will, but all else would be bequeathed. Is income from property and land therefore counted as real estate? And as an aside, why would Joseph devise one annual sum, when he later talks of it being

yearly issuing and payable out of all and singular other my lands tenements and hereditaments whether freehold or copyhold

?

[Bookbox]

Is income from property and land therefore counted as real estate?

Devise is used mainly for real estate, not normally for profits issuing from it, but you will often find variation in the terminology used in wills.

And as an aside, why would Joseph devise one annual sum, when he later talks of it being

to be charged upon yearly issuing and payable out of all and singular other my lands tenements and hereditaments whether freehold or copyhold

Your transcript omits a word - the wording is

 ... to be charged upon and yearly issuing and payable ...

The repetition of annual and yearly is just the standard tautology often found in wills and legal documents. Similarly, you will often find a property described in a will as ... situate, lying and being in the parish of ... when all it means is ‘situated’. I wouldn't read too much into it.

[horselydown86]

I was writing this when Bookbox posted.  It may be partly of small value so I will post as written.

I'm not sure that anyone other than a nineteenth century lawyer could answer your questions definitively.

Regarding the first - modern dictionaries don't make a clear distinction between devise for real estate and bequeath for other gifts.

How strictly the distinction was observed in the nineteenth century is something I can't answer.  (I am aware people on this forum have sometimes implied there was a strict distinction.)

It may be relevant that my interpretation of the wording of this part of the will is that he is creating a rent-charge on the properties and giving it to his wife.

One of my ancestors qualified to vote in St Giles in the Fields on the basis of a freehold rent-charge on a property in Drury Lane.  (This was 1835 - 1842.)

So there's a case that a rent-charge may have been considered as real estate.

(I just saw Bookbox's reply.)

Like Bookbox, I think the second question is just about wording.  After all, shortly after he refers to the one annual sum, he says that the several annual sums or yearly rents are to be paid in equal quarterly portions.

[mezentia]

Thanks horselydown86 and Bookbox. Your explanations help. I will make a footnote to my transcription to paraphrase your views for future reference.

[mezentia]

Just as a little postscript. We can see from Joseph's will that he had children from a previous relationship. His first wife was Elizabeth Skeels, although no trace of a marriage could be found initially for her and Joseph where it might be expected. Joseph married his second wife Emma on the 12th September 1826 in Chatteris. I'm assuming that Joseph's first wife had by that time died; I have still to track down a burial for her. Imagine then, my surprise, when a marriage for Joseph and Elizabeth did get uncovered, on the 27th February 1825, at, of all places, Gretna Green although, Elizabeth has become Henrietta somewhere along the way. Joseph and Elizabeth's first son was born in 1815, and their youngest in 1818.

The marriage entry can be seen at Ancestry in the Gretna Green, Scotland, Marriage Registers, 1794-1895. There can't be too many Joseph Saberton Sabertons, so I'm sure we have the right groom.

All of which, of course, raises a few questions. Why didn't they marry earlier? Was Elizabeth ill? Why didn't they marry by licence somewhere closer? If she was ill, how did she manage the journey to Gretna? Would the fact that Elizabeth's name was registered as Henrietta affect the validity of the marriage? I need to check the marriage law at the time, but would the marriage legitimise their children?

[Maiden Stone]

Interesting complication! How old were they? Were their parents alive? Joseph and Elizabeth might have been living for years as if they were married. 
Did the bride sign a marriage register? I'm wondering if whoever married them or wrote the register confused Betty and Hetty. (The priest at one of our family weddings kept getting the bride's name wrong until she corrected him, loudly and clearly.)

[mezentia]

Joseph was born about 1786, so he was about 28 years old when his first son was born, and about 38 when he married Elizabeth/Henrietta Skeels. The page from the Gretna records on Ancestry simply says:

Joseph Saberton Saberton
Stonea
March
Cambridgeshire
Henrietta Skeels
Chatteris
March
Cambridgeshire
February 27 1825

It is signed John Johnstone and John ??, and both signatories seem to appears on other pages, so are probably local witnesses. If Elizabeth died, then it didn't take Joseph long to get over her death, as he remarried only about 18 months later

As it is the Sewell family that are my main interest I haven't yet looked at the Sabertons in any great detail, but it looks like it's someting I might need to do now my curiosity has been aroused.