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THE

NUNCUPATIVE WILL*

JOHN MILTON..

WITH NOTES,

BY THE REVEREND T. WARTON, B. D.

MEMORANDUM, that JOHN MILTON, late of the parish of St. Giles Cripplegate in the Countie of Middlesex Gentleman, deceased, at feverall times before his death, and in particular, on or about the twentieth day of July, in the year of our Lord God 1674, being of perfect mind and memorie, declared his Will and intent as to the difpofall of his eftate after his death, in these words following, or of like effect: "The portion due to me from Mr. Powell, my former wife's father, I leave to the unkind children I had by her, having received no parte of it: but my meaning is, they fhall have no other benefit of my eftate than the faid portion; and what I have befides done for them; they having been very undu tifull to me. All the residue of my estate I leave to [the] difpofall of Elizabeth my loving wife." Which

[From Mr. Warton's 2d edit, of Milton's Smaller Poems, 1791.]

As propounded in the Prerogative Court.

words, or to the fame effect, were spoken in the prefence of CHRISTOPHER MILTON .

X [Mark of] ELIZABETH FISHER."

Nov. 23, 1674 ".

I.

The Allegation propounding the Will, on which Allegation the Witnesses be examined.

Negotium Teftamentarium, five probacionis Teftamenti nuncupativi, five ultimæ Voluntatis, JOHAN

JOHN MILTON's younger brother: a ftrong royalist, and a profeffed papift. After the civil war, he made his compofition through his brother's intereft. Being a practitioner in the law, he lived to be an ancient Bencher of the Inner Temple: was made a judge of the Common Pleas, and knighted by king James the fecond; but, on account of his age and infirmities, he was at length difmiffed from bufinefs, and retired to Ipfwich, where he refided all the latter part of his life.

A fervant-maid of JOHN MILTON.

Regiftr. Cur. Prærog. Cant. This Will was contefted by Mary, Deborah, and Anne Milton, daughters of the poet's firft wife Mary, daughter of Mr. Richard Powel, of Forefthill in Oxfordshire. The caufe came to a regular fentence, which was given against the Wil; and the Widow, Elizabeth, was ordered to take Administration instead of a Probate. I must add here, that this caufe, the subject of which needed no additional luftre from great names, was tried by that upright and able statefman, Sir Leoline Jenkins, Judge of the Prerogative Court, and Secretary of State; and that the depofitions were taken in part before Dr. Trumbull, afterwards Sir Willam Trumbull, Secretary of State, and the celebrated friend of Pope. As a circumstantial and authentick history of this process, the following inftruments, which were otherwife thought too curious to be fuppreffed, are subjoined.

• Viz. Chriftopher MILTON, and JOHN MILTON's two fervant-maids Elizabeth and Mary Fisher. Witneffes on the part of the widow.

NIS MILTON, nuper dum vixit parochiæ S. Ægidii Cripplegate London generofi, defuncti, habent, &c. promotum per Elizabetham MILTON' Relictam, et Legatariam principalem nominatam in Teftamento nuncupativo, five ultima Voluntate, dicti defuncti, contra Mariam, Annam, et Deboram MILTON, filias dicti defunéti.

THOMPSON. CLEMENTS.

f This was his third wife, Elizabeth Minfhull, of a gentleman's family in Cheshire. He married her at the recommendation • of his friend, and her relation, Dr. Paget, about the year 1661, and in his fifty-fourth year, foon after he had obtained his pardon from the restored king; being now blind and infirm, and wanting fome more conftant and confidential companion than a fervant to attend upon his perfon. The elder Richardfon infinuates, that this lady, being no poct or philofopher like her husband, ufed frequently to teaze him for his careleffnefs or ignorance about moneymatters, and that she was a termagant. He adds, that foon after their marriage, a royal offer was made to Milton of the refumption of his old department of Latin Secretary, and that, being ftrongly preffed by his wife to an acceptance, he scornfully replied, "Thou art in the right; you, as other women, would ride in your Coach. My aim is to live and die an honest man.” LIFE, &c. p. xcix. feq. edit. 1734. From these papers, however, it appears, that fhe confulted her husbands humours, and treated his infirmities with tenderness. After his death in 1674, the retired to Namptwich in Chefhire, where fhe died about 1729. Mr. Pennant fays, her father, Mr. Minfhull, lived at Stoke in that. neighbourhood. W. Tour, and Gough's Camden, Cheshire, p. 436. The third edition of Paradife Loft was published in 1678: and this is the poet's widow, to whom the copy of that work was then to devolve by original agreement, but who fold all her claims to Samuel Simmons, his bookfeller, 'for eight pounds, according to her receipt given Decemb. 21, 1680.

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[Among the letters of Mr. G. Grey to his brother Dr. Zach. Grey, is the following notice of this lady's death, which has

Secundo Andreæ, A. D. 1674. Quo die......... Thompfon, nomine, procuratione, ac ultimus procurator legitimus, dicta Elizabethæ MILTON, omnibus melioribus et effectualioribus [efficacioribus] via, modo, et meliori forma, necnon ad omnem juris effectum, exhibuit Teftamentum nuncupativum dicti JOHANNIS MILTON defuncti, fic incipiens, "MEMORANDUM, that JOHN MILTON, late of the parish of S. Giles, Cripplegate. &c." Which words, or words to the fame effect, were spoken in the prefence of Christopher MILTON, and Elizabeth Fisher; et allegavit confimiliter, et dicens prout fequitur. I. Quod præfatus JOHANNES MILTON, dum vixit, mentis compos, ac in fua fana memoria exiftens,.. Teftamentum fuum nuncupativum modo in hoc negotio exhibitum.... tenoris schedulæ.... testamentariæ condidit, nuncupavit, et declaravit; cæteraque omnia et fingula dedit, donavit, reliquit, et difpofuit, in omnibus, et per omnia, vel fimiliter in effectum, prout in dicto Teftamento nuncupativo continetur, ac poftea mortem obiit: ac Principalis Pars ifta proponit conjunctim, divifim, et de quolibet. II. Item, quod tempore conditionis, declarationis, nuncupationis Teftamenti, in hoc negotio exhibiti, præfatus JOHANNES MILTON perfecta fruebatur memoria; ac proponit ut fupra.

....

been obligingly communicated to me by J. Nichols, Efq. from the original in his poffeffion: There were three widow Miltons there, (at Nantwich) viz. the poet's widow, my aunt, and another. The poet's widow died laft fummer." Dated July 30. 1731. TODD.]

Regiftr. Cur. Prærog. Cant. ut fupr.

II.

Interrogatories addreffed to the Witneffes examined upon the Allegation.

Decemb. 5, 1674. Interrogatoria miniftrata et miniftranda ex parte Annæ, Mariæ, et Deboræ MILTON, teftibus ex parte Elizabethæ MILTON productis five producendis fequuntur.

Imprimis, Afke each witneffe, what relation to, or dependance on, the producent, they, or either of them, have; and to which of the parties they would give the victory were it in their power? Et interrogatur quilibet teftis conjun&tim, et divifim, et de quolibet.

2. Item, Afke each witneffe, what day, and what time of the day, the Will nuncupative was declared; what pofitive words did the deceased use in the declaring thereof? Can you pofitively fwear, that the deceafed did declare that hee did leave the refidue of his estate to the difpofall of his wife, or did hee not not fay, "I will leave the refidue of my estate to my wife? Et fiat ut fupra.

3. Item, Upon what occafion did the deceafed declare the faid Will? Was not the deccafed in perfect health at the fame time? Doe you not think, that the deceased, if he declared any fuch Will, declared it in a prefent paffion, or fome angry humour againft fome or one of his children by his former [firft] wife? Et fiat ut fupra.

4. Item, Afke each witneffe, whether the parties miniftrant were not and are not greate frequenters of the Church, and good livers; and what cause

▲ Here seems to be an infinuation, that our poets's difpleasure against those three daughters, arofe partly from their adherence

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