YALE UNIVERSITY UBRARY .•?1 ... wr^Ch Boylston, Thomas Will... n.d. J .( Ch32. 169 i*? s*'ii'^ ' YALE UNIVERSITY LIBRARY 1941 ">'?^ THOJl^AS ^OYLSTON, ESQ, LATP/O^ LONDON. INTRODUCTION. Having been of late often inquired of, fty many respectable citizens of Boston, relative to the Will of my la,te uncle ThomaS Boylston, Esquire, and the slate of the controversy between the Selectmen of Boston and myself. I have, pursuant to the advice and wishes of many of my friends, as well as others who feel aa^pterest in the benefits which. this Will, ftttuports to give to the innabilants df the town of Bos ton, beenylJduoedJ fo lay before thera the WiU in question with~ out any comraents, beyond thoSe in my last letter to the gentle men, the Selectmen, leaving every one to their own considpra- tions. of the instrument, with the attending ^ocumfiiits, jriach were sent by me with it to the Seje^tonen,, imniediately after letters of administr^tiop waS^granTed f#me in England. -; ;, A few prefatory facts may, however, J?e necessary tq Stat?, for the (information of those who may ijj^ad fhe Will : Namely,, that in E'ebruary, l793|,Mr. Boylston from his unfortunate coa nexion with a mercantTle-hause in London, became involved iii their misfortunes, and in the April following, a commissiDn pf bankruptcy was is^tied against Ihem and Mr. Boylston, updec the description of John Lane, Thomas Fraser and Thomas Bpylstoi^, of Nicholas-Lane, London, Merchants ; and uppn a Trial at Law, in the Cpurt of King's-Bencb, in London, it was, decided that Mr. Boylston, (the testator,) was a partner in that|irm, up to 18th February, 1793. And he afterwards surrendered himself W^ith his effect^ books, and papers, fo the operation of the gjeneral Bankrupt Law of that country. - -^*, On the 1st March, 1794, Mr. Boyl^fon executed a Deed o? indenture fO(0eorge Lee, "Thomas Latham, and George Erving, Esquires, investing them with absolute and irrevocable pollers to dispose of all his effects, real, personal, or raixed, to be applied, first to the payment of his own personal debts, and aftprwnrds, to the payment of the debts of the copartnership, nntil the the same should amount to fiftee^shillings on tbe pound sterling ; buf under certain reservations, should a surplus beyond the pay ment of fifteen shillings arrise, and certain allowances made to him out of his effects for his separate use. ' In virtue of thia Deed or Instrumept, his trustees proceeded, and did sell all his effects, kaii baame, rimong many others, that were purchasers of his effects.ifiafga'rt'^rEis property that was in the hands of the late Lieuf>Gov; GiU; which wiU appear by- reference lo the Law Reports of Mr. Tyng, October Term, 1812, page 337, to which I ask leave lo refer. Four years and nine months after his assignment of aU his property fo Messrs. Lee, Latham, and Erving, Mr. Boylston made this Will, now the Subject of litigation, and has been under various shapes pending ever since the death of Mr. Boylston, which took place atftut seven weeks after it was executed, 30th .December, 1 798, aged 78. . L TnbMAs Boylston, late of Bbston, in the StalcoWassachn- setts Bay, in New-England, M^chant, but now ofthe city of Lon don, being sensible I shall ere long, resigil' this moHal for an imraorf.iriife, and by the blegSlnSjOf heaven, being of Sound Mid disposing mind, memory and unOTr^ndirig, do make and publis'h this present writing to be my last Jr^l and Testament, in mariner following '• tJiat is ?•> ^"Yt ^•¦s^ I resign my soul info the hands of its infinite merciful (ELi4ator, and through the merits of my mdSt gracious ftedeemer, Jesus Christ, hope f(i|) its future baj^iness in a blessed state of eternity. And as to my temporal estate effects, I give, bequeath, and devise as follows : To the inhabitants of the town of Boston, in their politick and corporate capacity, 'and their siiccessors, ali my estate personal and real, wheresoever, and'in whatsoever shape, ol- place it may lay, fo keep and hold fhe same for themselves, or their successors, fot the time beings inhabitants ;. aforesaid, andl do appoint the Seil^CtmeRi or their successors, chosen by the town, (so long as the affairs of said to^'n shall continue to be administered by Selectmen, chosen ali aforementioned,) Trustees; (and if fhe constitution of fJie'fown should be altered, such persons as shall have the nianng<}r*ient of fhe prudentials or pecuniary concerns of the tdwh) fdr the uses, purposes, and intentions hereafter dirfected in this fny* last Will. Article 1. That they place fhe personal estate, anA rent of the real estate, at interest in the funds of the United States of AmeEica,/if any such funds are in being, if not,' in any other good publick funds in America, and so to abide and cpnfiflue forever at interest, to be a perpetual fund for the purposes intMid- ed by this my last Will. And if no such publick fiinds are then exis^ng, to private persons of known good circumstances, on good land security, not exceeding five hundred pounds tp any one person, with good land security, as aforesaid, for the term of two years. And if the sum so placed at interest, should amount from eight to thirty thousand pounds sterling money pf Great Britain, the interest arising therefrom, is lo be added to the principal sum or stock until the accumulation or increase thereof shaU amount to a capital stock, which shall produce the annual interest of four thousand pounds sterling money of Great Britain. Article 2. This interest money of four thousand pounds annually arising, is to be applied as follows : To purchase a piece of ground in the Town of Boston, to build a'small-poK hospital for the convenient and commodious reception of one hundred persons, who may be desirous to be inpcculated for the said, small pox, or who are already infected or sick with the same. In this hospital is fo be placed a marble statue of the late learned Doctor Zabdiel Boyl ston, the able physician and surgeon, who first introduced Jhe practice of inoccjilation into America, (with a suitable inscription, in order to perpetuate the epoish of so useful discovery, or improve ment, and transmit the name of » the person who first practised in that part of the world, to posterity,) when it was not yet knofrn in England, or scarcely known in .Europe, against all, or most of the profession at that time, who opposed and reprobated the practice, he stood alone against a violent and dangerous opposition, at the hazard of his life. Article 3. Also, a piece of ground for a hospital for those people, who are disordered or insane in mind, sufiBcient to accommodate one hundred persons. These two hos pitals will support themselves, and need no endowments ; but least this should not be the case, I do endow the same with one hundredt*^ and fifty pounds per annum to each, fo be paid out of the interest money of four thousand pounds, arising aforesaid. Article 4. And further to pay, out of said sum of four thousand pounds, to the Overseers ofthe Poor, one thousand seven hundred pounds thereof, per annum, to purchase firewood, or other fuel for the use of fhe poor of said town, during the cold winter season, and other necessary wants, as fhe said overseers shall judge most for their comfort and relief at that cold season. Article 5. And my fur ther wiU is, that they apply two thousand pounds, the residue „of the foresaid fourltbousand pounds, interest money, to purchase glass lamps, and whale oil, or any other oil, to supply said lamps as far as the said two thousand per annum will go, to defray, the expense of lighting the said town of Boston, from September 20th fo March following, six months. Article 6. If the money collected or received by them, the said Selectmen of the foresaid town of Boston, together with the value of the real estate, shall amount to thirty thousand pounds sterling money of Great Britain, or upwards, or whatever more may be collected, or received by them as my estate, is in fhe like manner to be placed in the American "United States' funds ; and if no such funds are in being, then in other good publick funds of America, and so fo abide and con tinue for ever at interest, to be a perpetual fund for the purposes intended by this my last Wih. And if no such good publick funds are existing, then in good private funds, not exceeding to any one person of known good circumstances, more than five hundred pounds sterling, nor longer than for two years, with undoubted good land security, fpr fhe due payment of said money, with the interest so lent. And the annual interest arising thereon, is to be added to the principal sum or stoqk, and placed together in said funds, till the accumulation or increase thereof shall amount to a capital sum, or stock, which shall produce the annual interest thirteen thousand pounds, money of Great Britain. Article 7. The interest of thirteen thousand pounds aforesaid, is to be applied fo purchase a suitable place in State-street, for merly called King-street (if any sucb place, af any rale, can be there procured by purchasing mansion-houses, or other building. Standing on such suitable places, and taking them down, fo clear the ground thereof,) to build and erect a substantia), elegant, superb Exchange, of stone or fhe best of hard bricks, made pur posely for this building ; it must be large and commodious, of considerable length and breadth, in order to give an open sky light, without a roof, for merchants of all nations and countrys, to meet on the groiind floor or parade thereof, and be tonve- jiiently accommodated to transact their business. The chambers of this building' will be many large rooms, one of which ¦ may be appropriated to an Insurance oflSce, where brokers and under writers of policies of insurance may meet and be accommodated with seats, (with a lobby or side room for their committees, to set in, and settle all matters of doubt and disputation) and every convenience,- fo transact their business. Another for publick Letter or Post-OflSce, another for Coffee-room, one for pub-r lick Bank-Office, another for Cusfom-House, or Naval-Office, or any other office the Selectmen think better fo apply them, The model for this building, may be taken from fhe best constructed Exchange in Europe, which fhe Architects fo be consulted and employed, wiH do well fo acquaint themselves perfectly there- ^vith ; no expense is to be considiered, or to limit the gopdnesig an^ elegance of this building. Thirteen thousand'pounds aterling^ per annum, which is here provided for it, is equal to any expense which such ;Exchange may caU for. The Exchange which Ib to be erected, and the expense thereof, is to be paid out of fhe interest of thirteen thousand pounds, arising out of the capital sum or stock aforesaid, and is fo be applied to that purpose annually, as it comes due, until the said Exchange or building, shall be completely finished. The chambers, cellars, or vaults, and other buildings included in this Exchange, or building, may be let, as is here done in London, the income of which may be applied to pay the keepers or porters, and other expenses of repairs which said Exchange may require, and fhe surplus (if any) be placed with the capital stock at interest. The Exchange being done with. Article 8. It's my desire,, and 1 do hereby order and direct, that the said thirteen thousand pounds, per annum, be further applied, to purchase a piece of ground in the foresaid town of Boston, sufficient fo build a hospital thereon, which shall be of such extent and dimensions, as will comfortably and con veniently contain two hundred and fifty boys and fifty girls, (and such other persons as may be necessary to take charge of, and provide the immediate care and concerns of said hospital,) to be clothed with suitable apparel, and be provided with suitable food for their subsistance; the boys fo be taught to read, write, and arithmetick and navigation, by proper persons, masters and ushers, who are to be appointed by fhe foresaid Selectmen : also, women attendance and nurses, at such salaries or annual wages as they, the Selectmen aforesaid, shaU judge sufficient .therefor ; the girls fo be taught to read, write, arithmetick and sewing. The children aforesaid, to be on this foundation, are children of poor people of the town of Boston, whose circumstances are such as need fhe benefit of this establishment ; none fo be received info it as objects of it, that are imperfect, deformed, or have any evils, ruptures, or infectious diseases. The age they are , admissible info this hospital, and the time and age they are fo be discharged therefrom, and put to prentice, or sent fo their parents or friends, and all orders, rules, or laws, for the well governing of said hos-r pifal are to be instituted, and made therefor, by fhe foresaid Selectmen of said town of Boston, and for fhe payment of these expenses, which the said hospital shall be liable to and charged therewith, I do order and direct forty-five hundred pounds steriing, per annum, to be paid out of the thirteen thousand pounds, annual interest money, arising out of fhe capital stock aforesaid. Article 9. And my further Will and desire is, that a small-pox hospital, and hospital for distracted, insane persons, as are describ ed in the 2d and 3d article of thia Will, be erected and endowed> 6 if any endowment is needed, I give one hundred and fifty pounds sterling, per annum, to each. This, and the expenses oFpurchas-, ing the. ground to erect' the said building thereon, and placing therein a handsome, well executed marble statue of the late learn ed Doctor Zabdiel BoylsfAn, are to be defrayed and .paid out of the said thirteen thousand pouhds, annual interest money, arising out ofthe capital stock aforesaid. And in case one or both of these hospitals aforementioned should be judged, by the Select men, or such other persons who may have the management of the prudentials and pecuniary concerns of said town of Boston, afore said, not so beneficial to the town as they might wish, they may convert them into two others, or two others may be erected instead thereof, built in a substantial, workmanlike manner, of stone, or fhe best of hard bricks, namely : a hospital convenient and commodi ous for the reception of one hundred poor, distressed seamen, of all nations and countries, belonging to vessels laying in the harbour of Boston, who stand in need of temporary reliefi by reason of sickness, accidents, or other causes ; and there to be provided with medicines, and other necessaries, until such time as they shall have recovered from their sickness, hurts, or other injuries, and be able to proceed to their respective vessels again, and pro ceed fo sea, or otherwise be provided for. But it is my desire, and I hereby tlirect, that the seamen belonging to the United States of America, and those of the Massachusetts State particu larly, be first preferred and received info this hospital. And ehould there be, at any time, a vacancy, or less number than one hundred persons of the aforesaid distressed seamen in said hospi tal, my desire and will is, that any number uot exceeding, fifty poor people of the town of Boston, not being seamen, and being, in the judgment of the Selectmen, aforesaid, proper objects of this establishment, be received into this hospital, as well as those that ave seamen, and partake.the benefit thereof. It is my desire and will, that if the small-pox hospital be rejected and dropped, as not so beneficial as they, the Selectmen, aforesaid, should wish, the marble statue of fhe late learned and able physician and sur geon, Doctor Zabdiel Boylston, be placed in this hospital, with a suitable inscription, in order to perpetuate the ejyich of so useful discovery or improvement, and transmit the name of fhe person who first practised it, in that part of fhe world, to posterity, when it was yet not known in England, or scarcely known in Europe, against all, or most all of the profession at that time, who opposed and reprobated the practice, he stood alone against a violent and dangerous opposition, at fhe hazard of his life. The endowment of this hospital I give three hundred pounds sterling money of Great Britain, per annum, fo be paid out of the foresaid interest ? money of thitf een tBeus'aWd pounds, b(Sf0re= frientiPned. The othe» hospital, that may be' er€dation bf one hundred person^, who should be''deeayed mer- «*fants and masters pf vPssels ofthe'lown of Bostoii, and of good WputeJ reduced to inability of supporfihg themselves, by accidents -and perils of the ^ea, or any other accidents^, Ways, and means. Inthis college, or htispifal, is to be placed and ftiaintained, as mihy ¦such decayed merchants and masters of vessels, as shall be objects -of this said establishment, of which* the Selectmen of the fowti of Boston, aforesaid, are tobejudgesjaicafli be supported' with seven hundred and fifty pounds, money of Great Britain, per annum,'Eit the rate of twenty-five pounds to each person, or pensioneri re ceived iritp it, to be paid out of fhe thirteen thottsand pounds in terest money, aforesaid. Two pf the four ho^pifials above cited, or described, are to be dropped, and the pecuniary concerns of said town of Boston, all monies or effects, which they shall be ahl>e to obtain payment. of, (except seventy pounds to be paid the three children of igy late -sister Mary Hollowell, to wit : to Ward Nicho las Boylston, forty pounds sterling; to Benjarain Hollowell, bis brother, twenty pounds sterhng ; and -to Mary, their sister,, ten pounds sterling.) And I do hereby assign tbem one per cent. commissions on all monies or effects they may collect together, as aforesaid, and remit to the- said Selectmen, for' their trouble in so doing. Article }3. And should, any money lay unapplied in the hands of fhe Selectmen, aforesaid, after the several expences of those establishments of this my last JTiiJ, ordered and directed to- be established, are paid, and' being less than the endowment herein provided for them by this my Will, the money so resting) unapplied, in their hands, being the savings arising out of and from the several endowments thereof; and also, alt suph other monies as may remain in their hands, undisposed of, by this my last Will, I do hereby order and direct, that they, the Selectmen aforesaid, s^dd it to, and place af interest with the capital stock at interest, to be improved for the benefit of these several establishments, aforesaid, and be paid to their several supports, as fhe growing expences thereof shall require, or fo other purposes, should there be any which may be directed hereafter in this my last Will. Article 14. The proceeds of fhe aforesaid Selectmen, in execut ing this trust in favour of the town of Boston, aforesaid, they arc annually, and every year, in the tnonth of March, to lay the same 9 bef$ii!$ a CQtnnj;itftee of eighteen respeefahle house-keep^rS, to be chosen by the good pepple pf said town, who are to be called to* gether, at some piiblick place, or hall, du:ectly on f heir receiving this my last Will and trust ; and there, and then, and every two yeai'S afterwards, to nominate, appoint, and choose fhe said com mittee of eighteen respectable house-keepers, who are fo receive snd inspect the proceedings aforesaid, and see that all and every partpf sMd trmt has been duly executed; and where it has not been faithfully executed, pc where any wilful neglect or omission has been committed, to. correct the same, so that it may be execute ed agreeable fhe intention ofthe trust hereby committed to them ^he. said Selectmen ; and in case of death, or any should be rC" nioved from the town of Boston, during the interim of fhe fwp years, when a new chpice of the whole number of eighteen com- aiitteemen are to be r.e-chosea by fhe good, people of the said town ; fhpse so dying, or removed from the town, are to be replaced by others., tp be chosen hy the remaining number of commiftemeti, so, that the whple nuniber of eighteen committeemen may be kept up^ Article 15. And further, the Selectmen, aforesaid, is by this, my Will) directed to give notice in a publick manner, by advertise- ine.nts in the newspaper, or fixed up in some publick place, as the marketshpose, town-house, upon their receiving any raoney or effects, by virtue of this my last W'ill, to the town of Boston, and to the eighteen committeemen, aforesaid, of fhe sum or sums of pioney which fhey, from time to time have collected^ or may be remitted, sent or paid into their hands ; and fhe said committee- pien, hereupon, are requested and directed to acquaint themselves |f ith a|l such deposits, or collections of money, aforesaid, that fhey and the town at large , may see that fhe said money received is so placed as to produce the continual increase or accumulafion there- pf, as is herein, by this my last Will, directed. Article 16. And fof the more easy and readily executing of this trust, I give unto the said Selectraen pf the town of Boston, or their successors, foe the tinie being, in fhe office of Selectmen, one hundred pounds sterling, fo be. paid out of fhe thirteen fhpusand pounds, interest nioney, aforesaid, for fhe purpose to provide a secretary, or clerk, tp aid and assist thera in fhe management of this trust, in addition to the secretary or clerks already employed by thera, in transact. ing and managing ofthe business or prudentials of the town of Bos ton, aforesaid. Article 17. I dp further order and direct fhe Selectmen of the town of Boston, aforesaid, or such other persons who may have the management of the prudentials and pecuniary concerns thereof, that they apply fhe money, being savings, rest ing in their hands, out of and from fhe*several endowments hereto?' fore given by this my last Will, (if any there be,) and also, all a _ (10 such monies as may reiiiain undisposed of by this, my WiU, in their hands, and other monies annually cqming into their posses sion,, fo purchase real estates, consisting of good iltpproveable land; afld that they continue to purchase such land, from time fo time, with' the aforesaid money, ds it may be received by them, till the said real'! estates shall produce annual rent of fifteen hundred poundsi sterling money of /Great Britain. Article 18. These lands, SO! bought, I conceive in fhe light of a family estate, which I bequeath and devise, order and direct to be disposed of as fol lows. That the aforesaid Selectmen, or their successors, afore said, with fhe annual rent of fiften hundred pounds sterling money of Great Britain, per annum, arising out of and from the real estate,' aforesaid,: coming due, purchase a piece of ground in fhe town of Boylston, and county of Worcester, in America, and build, or cause fo be built thereon, a brick school-house, handsomely and workmanlike manner executed, with a chamber of the fuU length and breadth of the building, for a large town hall, for fhe benefit of said town in their politick and corporate capacities, to meet or assemble together, and transact all publick business of said town ; of sufficient dimensions, in their opinion, for the education of fhe children of said town of Boylston, in reading, writing, arithmetick, surveying, and mensuration ; and also, to purchase real estates, the annual rent of which may produce fifty pounds sterling, per annum, fo be a perpetual fund to support and maintain a master of said school, to be oppointed thereto by fhe said town, to instruct the children thereof, as far as fhe same will go for that purpose. Article 19. The whole of which, as above ordered and directed, 1 bequeath and devise to the inhabitants of said town of Boylston, in their politick and corporate capacities, aforesaid. The deed of said ground, and all other necessary papers fo convey to the in habitants of said town, in their politick and corporate capacities, and their successors, forever, a full and just right fo said premises, aud put them in peaceable possession thereof, are to be executed by the Selectmen ofthe town of Boston, or their successors, afore-- said, in a legal raanner, with all fhe forms required by law, and given to the said town, gratis. Article 20. I do further bequeath and devise the said estate, producing fifteen hundred pounds ster ling, annual rent, with all fhe privileges and improvements made thereon, fo Ward Nicholas Boylston, fhe male heir of the narae and fatnily of Boylston, if living, during his natural life, and af his death, to the next male heir of fhe name and family of Boylston, and at his death also, fo fhe nejtt male heir of fhe name and family of Boylston, and so to continue to descend to the next male heir for ever. And in case of a. total and absolute failure ofthe male line of said name and family of Boylstou, then to the sons of the l\ ^'^.Tl?;'^ fi''6,inext,p? kin tp mq th;e,^^sfatpr, to wit: the des.ciendai|ls, qfjMarj' Hallowell, wife ofl^epjfimin HaUpwell, Esq- my lafe sister, and. on faijuj-e of m;*ale< descei^^ahts of this line, to the .sons bf^ the teniale fine next of kij Jo, me the .lesfatpri to wit : Jolin,A.(ia,nis," Esq. now President of the Uniled States of America, he b.eing th.e .next. pf kin, tp me the., testator, in the female line, following Mary Hjoljowell, pny Jatejsister, afpresaid. ' Ao.d on failure of rnale d^tscendaiitp of.this.iiinej^also, thei] fq.the sons of other female lines next of kin fo me fhe 'testator ; tbey, respectiveiyi first applying (in case they should not already- bear the name of Boylston) to the General Court, or Assemblyof the States, or other proper authority in this behalf, for liqense.to itake and bearrthe name of Boylston, in constant succession,. during such, failure in the male line, as^foresaid. AHicle 21. And in case the sons of the fe male line, as forementioned and described, should be extinct, the estate here bequeathed and devised to them, is tp revert to the Selectmen of said town of Boston, or other persons who may have the management ofthe prudentials and pecuniary cPncertis there of; and the rents or incomes of which, be placed at interest with the-capital stock'or fund, at interest, for fhe uses and purposes heretofore assigned by this my last Will. Article 22i.' The Se- lectoien of tbe town pf Boston, or other persons who may have the managcnient of 'the 'prudentials and pecuniary concerns thereof. I do further 'direct, that all the monies'.^ijsfityg in their harids unap plied 'or' not dispbsed of by this my WM] hb disposed of ih siich ways and means as will give employ to the poor 'people Pf -said town, to earn an 'honest subsistance for themselves' and families, or in preVriiums of reward, or s'lich other ways and mteaBS that Wilt contribute to promote the industry and Welfare of said town of Boston, as' they together with fhe eighteen Gommit'teeitienychoseii by the good people of said town of Boston, aforesaid, shall judge best and' most expedient. ¦ , , ' ,,'" ' ' ' '" Article 2^. And I do hereby revoke ail former Wills, aind de clare these seven sheets 'of paper, wrillfen'on one side, and each' of them signed by me, and the last of them sealed with my seal, :fo be my last Will and teistaTnenf, this twelfth day of November, in iheyearof our Lord one thousand seven hundred and ninety-eight. • /;.'-': ' ' ' i: ; .. ,'•,':. ¦ ' ; !,,¦>, These seven sheets of paper, written on one side pnly^,%ere each of them signed by fhe said Thomas Boylston, testator, and the last of them sealed with. his seal, and were by him published and declared asand for his last Will and testament, in the pre sence of us, who at his reqties't, and in the preseii'ce of each other have subscribed aur names as witnesses. The interlineation of the words " and devised," " fhousand," in fhe fi,rst sheet ; ii ^< pounds," " pt-der," in fhe second sheet ; *' tp be," in the ftilrd eheet ; " late," " governing," " pounds," " per annuED," in the fourth sheet; "sterling," "or," "number," in the filth shtee't ; " or snccessttr for the lime being in the pfficfe pf Selectmehi" " being,'' in the sixth sheet. These words were first interlined in the presence of u^ ; aS also, the word "hundred," Messrs. Godwin, and obliterated "Thomas," interlined in the fifth sheet ; " two," obliterated, 'f three," interlined in the fourth sheet. ' RUPUS KING, of New-York, C. GORE, of Boston, R. COATES, of London, B. DANDRIDGE, of Virginia. THOMAS BOYLSTON* The above Will was submitted, by the executors named thereiir, to the first law officers of England, requesting their, opinion and advice, in the words following : lo which is subjoined their opi nion, that was sent to the Selectmen with fhe Will in my letter of the 25th of April, 1799, a copy is here added. " The executors, fearful of assuming a very troublesome trusty " and of incurring the risk of being involved in long and intricate " law suits, wish fo haye.ypur opinion for their governraent. " 1st. Is the bequesi {Ijsade by tbe Testator, of all his real and ?' personal estate fo the inhabitants pf Boston in their politick and "corporate capacity, valid, or are such inhabitants capable of '* taking or enforcing the payment of such legacy, either by •• themselves, or by the Selectmen, who are a fluctuating body, f chosen, annually by the inhabitants at large of Boston, ^' 2d, In case the ejtecutprs should decline proving the Will, f' who will }ie entitled fo fake fhe administration of fhe said «' deceased'? effects with fhe said Will annexed, as his estate is " likely .to suffer much, unless an administrator is speedily ap-, ^'pointed. " 3d. Could fhe executors, or those who may become the " representatives of the deceased, act under the deceased's Wiij ff with safety, without fhe direction of fhe Court of Chancery, " Sir JOHN Mit FORD, goIicitor-General, »Pii- JOHINT NIt'HOLL, King's Advpcate, and- '» SAMUEL ROMIIjLV, j:sq." ^, p. Ti" ' 'st gentlgaian, Sir S. R. ig dow acting SpUcitor General, IS OPINION. " A Devise of Real Estates in England, for the "purpose men- ", tioned by the Testator, would clearly be void, but we under- " stand that the Testator had not any real estate at fhe time of " his death ; whether the bequest of his personal estate fo the " inhabitants of Boston be valid, appears fo us to be a doubtful " question ; our opinion, however is, that the bequest is not valid. " We think that both the inhabitants of Boston, and fhe Select- " men of Boston, are incapable of instituting any suit lo enforce " it,' and that an Information could not be filed by the AtfPrney " General to have the charities established.' . " If the executors renounce the probate of fhe Will, we think " that fhe next a kin of the -Testator, who are legatees, named " in fhe WiU, are entitled fo fake out adrainistration with the WiU " annexed. Bul we think, that neither the executors, nor the " person who may take out administration, can act with safety " but under the direction of fhe Courf of Chancery— and that ii " wiU be adviseable for the person who takes administration, "to file -a bill in Chancery against the of her next a kin, and " against the Attorney General, praying the directions of the " court as lo the manner in which the estate of the Testator " ought to be administered, and we think that in such a suit, the " question as to the validity of the bequest to the inhabitants of " the Ipwn of Boston, wiU come bettJre Ihe court in a raanner as " favourable for fhe persons who claira the benefit of tliat bequest " as If would in any other way, in which it coiild be brought " before the court." Signed, " JOHN NICHOLL, ," Lincoln's Inn, ffeb'raary l6, 1799." ""* (copv.) " JOHN MITFORD, " SAMUEL ROMILLY," London, April 25, 1799. Sib, I use the first opportunity, since the probate has been granted me, to transmit you a copy of fhe Will of my late uncle, Thomas Boylsfpn, together with the legal opinions on the dispositions made therein. The whole, I request the favour, you will lay before the Select men of the town of Boston, who are the trustees named under it, tp whom you wiU also, be pleased to express my readiness to com- 14 ply with any suggestions they may make, as (o the moat expedi tious, and least expensive mode of ta;^ing the opinion of a Court of Chancery on the validity of the bequests. .j , a .' I am, sUvwjt/i. the. greatest ,j r . . '{q ysilvit! /;.''• ' '""¦' ' respect, your obedient liumble servant, , . , , ^lj,..!, -- i^ .'o» ,,'^, ;,-,', ''WARD MC&LAS BS6YLST0N. TotheCfiairmffli'ofthe'Sel^ctirien ; , , a C... '"'^ -• of-the town of Boston, -iii ;.. ' -.ir''; ¦'•! .' ; riiiisi; ii'.i *' . ; I : ¦ . ?itl.'. (iJKiiUi ¦" ' , The following letter, addressed to the SelejCtrae^,,ji,yas'4elis^ed lo the chairraan at 1^,6, time it bears date, a few days' ^ after I waited. ^upon him,, when he verbally. acquainted rae, the board, did not think fit to insert my request in the warrant- ¦^ '<¦• ' ' . Boston, Mky' 2, 1816. To Ui.c Hon. Selectmen' ; , , , ' ¦ ,, ¦ .' i'.\ •'> '.i , of the town of Eo,?ton, ¦ -c GEtTTLEMEN-^i haVe been advised by Several gentlemen of this town, well atquaitiled with the controversy depending between Ihe town and myself,, fo make one further effort' to make alri ami cable compromise. They have expressed their conviction, that if the inhabitants of Boston were acquainted with the true merits ofthe Case, its legal intricacies, its final' uiicelfta!Jnty, and 'the futility and utter absurdity of fhe legacy if recovered, fhey would not hesitate fo enter into terms of an equitable nature, a'nd such only, I should presume to offer. They added, that if the Seleet- meh knew as accurately as,.they do, the true state of the^ case, they had no doubt they would recommend the subject fp Ihe Cpn- sideratibn of the lown.. :The reason these gentlemen have !m6're accurate knowledge is, that Ihey are professional men, and yet not at present interested for either party in the suit. The decision of the Suprcine Judicial Court, on my probate bond, still left open two questions ; first, the amount which should appear to be due in Chancery ; secondly, whether I am not solely accountable to the administrator in England. As fo fhe first, the court have sent fhe parties before auditors, before whom, it has been pending nearly two years. It is qlear, that I am only responsible, for what I have actually received, subject to deductions for all expenditures, disbursements, interest of inoney, and claim for my own services, to whifch'o'fher administrators are entitled. This is not only the opinion of my eOurisel,:but of other gentlemen of the law, and is sanctioned by fhe opinion of fhe court in sending the cause to auditors. Oh this prindiple, you wili Cnd, that not only have I no asseltsin my hands, but the estate stands indebted tome a very large ampurit.' This will not appear surprising to gentlemen of your experience, i ^5 whenl remark, that the property taken was '¦ c/ii6^2/ farffls, ati^ fdtogether real estate, that it was charged with great disburse^ merits, previoifely made in its recovery, with taxes, "rapairs, an annuity to Moses GiU of fiv^ hundred and twenty dollars per annum, and- a thousand other items, tP which estattesj^of this nature are subject, while the very dispute itself, and the uncertainty of tenure has rendered them infinitely less productive than they might otherwise have been.' ¦ The truth is, that at the end of two years more, when the court wiU have -to pronounce on fhe account returned by the auditors, it will betfoundthaf I am a large creditor to the estate at present, and that I shall be directed to proceed in fhe sale- for the purpose of -satisfying that amount, and to render a further account at a future day. > ; So much fpr fhe first question. As to ! the ; second, it would seem fo be settled by fhe former opinion of fhe court as' reported, that whatever balance should be found due from nie at any future time, if any, fhe court would not proceed to' award execution therefor, but would leave the parties to their remedy against the administrator in England. S.uch cer tainly is the law as I am advised, and such is the clear intimation of the court in the former cause. If therefore, at some future period, several years hence, there should be found assetts in my hands which there are not at present, the town would be driven to a new process in England, where the whole question as lo fhe validity of the sale of the assignees to me, would be again opened, and the legality of the devise to the town of Boston, be brought into discussion, which legal advice in Great Britain has once decided lo be invalid. ':¦ But the most important consideration remains. If the town at the end of two suits, and some further years delay, should find itself entitled to a small sura, for it will prove to be such, what pos sible use can fhey make of the inoney limited and fesifrained as it is by fhe will of Mr. Boylston. It would- be two hundred years before it could be applied, according lo the provisions of the.. WiU, and then fo objects to which the town would not probably con sent if it had a choice it should be applied. Yet they would bo bound to fhe literal fulfilment of it, or else the residuary legatee or the heirs at law, might avhil themselves of the defect. But for the purpose of shortening and closing for ever, any cause of legal quibble that may hereafter arise between those who may be interested, and the town, after ages of care and expense might lose all Ihey had acquired. I would submit one simple proposition more upon this express condition, that no legal use shall be raade pf it in any court of law or equity, but that the 16 ^ (5|uesfion between the hgirs of Thomas Boylston and the; townj should remain precisely as it did previous to this propositiOB; lyhich is made solely tp avoid delays and impediments, which even the most seeming practi.s»-..>.,vV , ^ .-V" '-:-€a^ •'>t?'W:£^^^^ '• X ¦, .,,.-c «-v-