Patriarchal terms and conditions – Wills that bridge family politics or the restrictions of law

Two 18th century Wills cast light on either sibling rivalry or on a way to avoid the restrictions of the inheritance laws.

Only a short while before their deaths, two 18th Century Barber ancestors who were generations apart, wrote their Last Will and Testaments. Were they trying to bridge family politics, or to cleverly work around inheritance laws?

reeds, peat, river bank
Rich and fertile fenland close to Witcham, with the 100 Foot River bank in the distance.                       © jsomerville8973

The Will of Thomas Barber, carpenter of Witcham, 1706

On April 4th 1705, carpenter Thomas Barber of Witcham, Cambridgeshire, wrote his Will. One year later he was dead, aged 71 years.

The Will reveals that Thomas owned five acres at ‘The Dams Heads’ (now appears to be called ‘Dams Head Drove‘). This piece of land forms the centre of his Will and he lays out strict instructions to his children:

‘… I give and bequeath unto Wenham Barber my son and his heirs forever all that my 5 acres of fenn ground be the same more or less lying and being in a  drain venn belonging to Witcham aforesaid called ‘The Dams Heads’, provided he and his heirs admit my daughter Winifred ye now wife of Paul Gawthorne and her heirs peaceably and quietly to have hold and enjoy all such fenn grounds as I shall by this my last will and testament give…’

So whilst Thomas leaves his land to his son, he leaves the right to enjoy to his married daughter Winifred Gawthorne (Thomas’ half-sister). However, he may have foreseen some half-sibling rivalry, so adds..

‘…but if he or they any ways disturb or molest her or her heirs, then I give the aforesaid 5 acres hereby before given to my said son Wenham Barber unto Winifred Gawthorne my said daughter and her heirs forever.’

By adding this, he is clearly issuing his son Wenham with an ultimatum that allows his half-sister to enjoy the inheritance too.

Thomas goes on to leave his tenement, and 2 acres of land (‘ye Cow Crofts‘ – now Cowcroft Drove) to his other son John Barber – also making him the executor of the Will. John was a son from Thomas’ 2nd marriage – whilst Wenham and Winifred were children of his 1st and 3rd marriages respectively. Was John being trusted to play the diplomat here?

What happened next?

After Thomas’ death, the arrangement must have been in place but just 5 years later, Winifred died aged 36.

Now, had Thomas bequeathed his land to Winifred and not her half-brother Wenham, the 5 acres would have technically been owned by her widower Paul Gawthorne by default due to restrictions on what women could inherit (unchanged until the Married Women’s Property Act of 1870). By Thomas giving the land to his son, but allowing Winifred to enjoy it, he was in essence providing for both of these children, and keeping the ownership within the family.

Thomas’ 1706 Will stated that Winifred’s heirs could enjoy the land forever – although the oldest was just 15 when Winifred died.

Whatever happened after Winifred’s death is unclear, but the land returns to the Barber family, as found in Winifred’s half-nephew’s Will of 1729…..

The Will of Wenham Barber of Witcham, 1729.

Thomas‘ grandson, Wenham Barber of Witcham, wrote his Will on 30th October 1727. A year later at 41, he was dead. His third and final wife, Mary, had just 6 years of life left herself, remarrying in her final year to John Scam of nearby Sutton.

In all, Wenham’s three marriages brought him seven children, but at least three of these died in infancy or childhood, although I suspect that it was actually all but two that were dead by the time he wrote his Will, as they’re the only ones to get a mention.

His children, Wenham Barber (born about 1712) and Robert Barber (born about 1727) are the only two children named in his Will, along with Wenham’s wife (their mother), Mary.

At the time of writing the Will, Wenham owned land in the fertile fens northwest of Witcham, alongside the One Hundred Foot River. The ‘Damhead’ (now appears to be called ‘Dams Head Drove‘) was his main land (although he doesn’t mention its size) and he is careful as to how this asset is handled.

..I give and bequeath unto my wife Mary Barber all thereunto and profits of my Damhead ground abutting upon the 100ft bank which theeshall occupy and enjoy without indistraction for the term of 9 years. Expiring after the date hereof under this condition and limitation that if she ploughs it up or digs any turf in it, she shall forfeit it to my son Wenham Barber to whom I give and bequeath the sum of 20 shillings to be paid to him by my executrix upon the day his time is out and upon default payment she shall resign the aforesaid ground to him. Item at the expiration of the said term of 9 years to be commenced from my decease I give and bequeath all the my said Damhead and ground for ever to my said son Wenham Barber and to his heirs but if he dies before the age of 21 years. Then I give to my younger son Robert Barber.

Wenham’s younger son Robert was baptised at Witcham on 29th October 1727 – just one day before Wenham wrote his Will. Whilst the above is just an excerpt, it is very precise and I wonder where he got the 9 years (not 10) from? Why would he stop his widow from using the land for agriculture?

His Will also notes that the rest of his estate (including 4 cows, 6 heifers, 1 mare, household goods and his purse) were to the value of £17 and 10 shillings.

Again, there seems to be some kind of plan here. No doubt the family had worked long and hard to buy their lands, and so giving them up was something they wouldn’t do easily even after the current holder’s death.

Wenham appears to be restricting his widow Mary – stating that she is not allowed to do anything to the land other than profit from it, otherwise she’d forfeit it to their son. However, it doesn’t state that during the oddly chosen nine years, that Wenham isn’t permitted to farm it. This would leave the farming decisions to his son and heir, and therefore give him an incentive to work and build it up until he himself inherited it for his family.

Wenham Jnr did live beyond the age of 21, married and had at least 4 children. I have not seen Wills of Wenham or his younger brother Robert to see what happened to the land.

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