Another example, this time of John Cornforth of Heighington who left a will to be executed by his wife Mary Cornforth, illustrates the same Custom of York in operation, but this time as it applied to testates' goods.12
Cornforth explicitly bequeathed 'the rest of my goodes moveable & unmoveable [the] debtes, legacies, Childrens porc[i]ons, and funeral expenses discharged' to his five children equally. He also made certain legacies to his wife and some of his children, well knowing the Custom of York would allocate to each fixed shares over and above what he specified - their 'porcions'. This custom of thirds was applied strictly, and there are examples of persons who knew the law and whose estate planning fell in with the custom and who therefore declined to make a will, thereby saving their executors the cost of proving and registering a will.
|Soe there remaineth in this Accomptants hands
the som[m]e of Cxxiiij li xvij s x d
to be divided into three parts that is to this
Accomptant for her widdowes part the som[m]e
of 41 li 12 s 7 d the childrens parts 41 li 12 s 7 d
& for the deathes part 41 li 12 s 7 d
|Out of which som[m]e of 41 li 12 s 7 d being the deathes
part there is to be deducted the severall legacyes
|To the poore||xl s|
|It[e]m a legacy left to this Accomptant||xl s|
|It[e]m a legacy left to the deceaseds sonne John
|It[e]m a legacy left to Thomas Cornforth the
|It[e]m a legacy to Sara the deceaseds daughter||xl s|
|It[e]m a legacy to Martha the deceaseds daughter||xl s|
|It[e]m a legacy to Martha the deceaseds daughter||xv li|
|which being deducted out of the said deaths part
|xxvj li xj s vij d|
|And that being added to the childrens part it will be
Lxviij li iiij s ij d w[hi]ch being devided amongst the children
according to the deceaseds will it will be to ev[er]y of
them as followeth
|To Mary Cornforth xiij li xij s x d to Martha xiij li xij s x d
To Sara xiij li xij s x d to John Cornforth xiij li xij s x d
To Thomas Cornforth xiij li xij s x d
|Lastly there porc[i]o[ns] widdowes part & legacyes being
added togeather it will be as followeth
|To this Accomptant for her widdowes part & legacy||43 li 12 s 7 d|
|To Mary Cornforth whoe had noe legacy left for her
|xiij li 12 s x d|
|To Martha Cornforth whoe had 10 li left for a legacy||xv li 12 s x d|
|To Sara Cornforth the like||xv li 12 s x d|
|To John Cornforth whoe had v li left for a legacy||xviij li 12 s x d|
|To Thomas Cornforth for his porc[i]on & legacy||xv li 12 s x d|
|Vis[us] et approbat 12 Juli[i] 1640
[Inspected and approved 12 July 1640]
The accountancy of his wife (or her proctor) in calculating the residue demonstrates the Custom at work. The costs of the funeral and alms to the poor, of administration and tuition, and of 'keeping fower children of the deceaseds since Christmas' are all quite correctly itemised in the discharge, while the legacies including a further 40s. for the poor are only deducted from the death's third after the balance is drawn.13 This distributes the cost of administration etc. between the interested parties - the administrator should not suffer financially by carrying out the office - while ensuring the widow's and children's third shares are not diminished by any legacies.
For the Custom of York determined in this case that, all debts etc. having been paid, the widow received a third of the estate and the children also a third. Cornforth had liberty to bequeath only a third of his goods to whomsoever as he chose - unequally as it tuned out among his wife and certain of his children.14 Thus the residue stipulated in the will 15 is not the balance after all debts had been paid but in fact was only that portion of the third of Cornforth's estate that remained after any legacies he had given had been drawn from it. It is for this reason the legacies are only itemised after the balance has been drawn and after the thirds have been allocated. This residue Cornforth requested in his will to be divided between the five children equally.
Had Cornforth not named a residuary legatee then this residue of the death's third - if small - would normally have passed to the executor, and if large would have been divided proportionally among the legatees, and not as one might expect used to supplement the widow and children's shares. This was because, conversely, had the death's third been insufficient to pay the legacies stipulated in the will, then each of the legatees would have received proportionally less than Cornforth had directed. If a testator died without a wife or any children, then he was completely free to bequeath his goods as he chose. In these cases, as no shares need be calculated by the executor or accountant before any legacies are drawn off, then legacies can be accounted within the discharge, and the whole balance is the residue.
12 Cornforth's will was proved on 17 Jan 1640, when administration of
the goods etc. and the tuition of Thomas Cornforth, his son, were granted to Mary Cornforth, his widow
(DPRI/4/15 f.85). Then on 12 June 1640 the tuition of Martha, Sarah, John and Thomas was granted to
Thomas Birkbecke of Morton Tinmouth in County Durham with the consent of the widow.
13 Within the discharge is also found the cost 'paid for fun[er]al expenses & to the poore'. This additional gift to the poor was as the inventory makes clear 15s 8d distributed at the funeral as was the tradition, and as such is deemed a funeral expense which is why it is not drawn from the death's third as was the 40s legacy to the same poor of Heighington made by Cornforth in his will.
14 From the two facts that Mary Cornforth claims for maintaining only four of her five children since Christmas, and that no legacy was paid by John Cornforth to his daughter Mary, it may be that her father had already advanced to her part of her portion during his lifetime, or simply that she was no longer living with her mother and siblings.
15 '… the rest of my goodes moveable & unmoveable [the] debtes, legacies, Childrens porc[i]ons, and funeral expenses discharged'.
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