Author: Edmund Wuyts.
Discussed Source: the Last Will and Testament of Sir John Franklin, PROB 1/92.

In 1829, Sir John Franklin made his will. This was after the disastrous Coppermine Expedition of 1819–1822, but more importantly, it was after Sir John had married Jane Griffin, who afterward became Lady Jane Franklin. The will is pretty clear in its intent, putting Sir John’s new wife, and any children they might have together, front and center.

This clear intention, however, does not make the will easy to read. In this post, I will attempt to explain the will and its confusing intricacies, starting with exploring who is involved and trying to understand all the instructions ‘upon trust’ and those clauses about non-existing children.

Before I start, I must thank Kathryn H. Stutz and other friends for helping me wrestle this will into something readable. More than that, I owe 90% of this blog post and all my gratitude to Lynn C. Stutz for pretty much all the explanations of what is even going on in this; definitely wouldn’t be writing this without her help.

I also want to note, as a disclaimer, that no one involved in the making of this blog post is a solicitor over 200 years old, nor a student of legal history.

Who’s Involved?

Before we figure out what various people are meant to be doing or will be getting, it’s good to look at who those people actually  are and how they relate to Sir John. And it’s especially a good idea because there are quite a few people.

I bequeath unto my Brother in Law Henry Sellwood of Horncastle in Lincolnshire, Esquire; Joseph Kay, Esquire, Architect of Greenwich Hospital; and Nicholas Garry, Esquire, Merchant in Old Broad street, London; and my Father in Law John Griffin of Bedford Place, Esquire, all the residue (…)

Let’s start with the people mentioned above: the executors of Sir John’s will. To put it simply: a will is just a set of instructions, given by the testator, in this case Sir John, to the executors. We’ll see in future Franklin Expedition wills that this doesn’t have to be multiple people (although it’s a good safety measure to have multiple executors) and sometimes Naval Agents are involved, not just friends and family.

As the name implies, executors make sure that the will gets executed after the death of the testator. We’ll find out later that this isn’t the only thing the executors will be doing in Sir John’s will, as they have a role to play in property and money-related business after the will’s execution.

Our executors are the following: Henry Sellwood of Horncastle, the brother-in-law of Sir John through his marriage to Franklin’s sister Sarah. Joseph Kay, the Architect of Greenwich Hospital—although perhaps more interestingly, the husband of Sarah Henrietta Porden, sister of Sir John’s first wife. Nicholas Garry, a merchant in London who was also Deputy Governor of the Hudson Bay Company at the time. And last, but surely not least, John Griffin of Bedford Place, the father of Lady Jane Franklin.

Next up: literally all the women in the life of Sir John Franklin (at that time) in some way or another. All the following people are (again, in some way or another) getting something from Sir John after his death, though what they get may be dependent on whether several others of them are alive by the time the will gets executed. Sounds kind of awful I’m aware, but it’ll make more sense and hopefully sound less awful later on.

I bequeath to my dear Wife Jane Franklin (…) my daughter Eleanor Isabella Franklin (…) my Sister Mrs. Thomas Cracroft (…) Miss Elizabeth Franklin (…) Mrs Kay Wife of the said Joseph Kay (…)

These are all the first mentions of the people involved, though when they get referred to in other places, they will either be “the said X” or include their name again, so don’t worry. Yet.

Lady Jane Franklin we know: she’s the wife of Sir John and basically the main person named in this will, together with any children that she and Sir John might have between the time the will was written and when it was executed. Eleanor, who was only four when this will was made, is Sir John’s daughter from his first marriage with Eleanor Anne Porden. Mrs. Thomas Cracroft is Isabella Franklin, one of  Sir John’s sisters and the mother of Sophia Cracroft. Miss Elizabeth Franklin, another of Sir John’s sisters, didn’t marry and thus kept her maiden name. Mrs Kay is the previously mentioned Sarah Henrietta Porden, wife of one of the executors and sister of Sir John’s first wife Eleanor.

The people we have left are the witnesses. These are “W. H. Tinney” and “[John] Lewis, Clerk to Mr. Tinney” for the will itself and “Thomas Goddard Grinfield” and “Robert Simmons” for the codicil. These people don’t have much to do with the will itself, they’re just there to witness the signing of it and/or the signing of any changes made to it.

What Are They Doing? What Are They Getting?

Time to go over the will itself. For this, the will has been divided into sections that I will quote, after which I’ll give the explanation. I’m also using the adjusted version of the will for this, meaning there is punctuation added to make it more readable. Once again, all my thanks to Lynn C. Stutz for the explanations; I’m playing communicator for most of this section.

This is the Last Will and Testament of Me, Sir John Franklin, Knight, a Captain in the Royal Navy, now residing in Devonshire street, Portland Place in the County of Middlesex. I bequeath to my dear Wife Jane Franklin her Wearing Apparel, Jewels, Watches, Trinkets and other Articles of her dress and Personal Ornaments, and all Provisions, Wines and Liquors which shall be in the House in which she shall reside at my death. 

We start off very simple. The testament belongs to Sir John Franklin, then a Knight and a Captain in the Royal Navy. He lives at Portland Place in the County of Middlesex; a fun sidestep here is that the probate has a clerical error in it and says ‘Portman Place’.

In the following sentence, Sir John bequeaths, or gives, Lady Jane her “own” possessions upon his death, as (under the the rule of coverture, in place until the Married Women’s Property Act of 1870)  she could not be the legal owner of them as long as he still lived. This includes her clothes and jewelry, but also food and drink that will be in the house they live at upon his death. Good reason to keep a well-stocked cupboard?

I bequeath unto my Brother in Law Henry Sellwood of Horncastle in Lincolnshire, Esquire; Joseph Kay, Esquire, Architect of Greenwich Hospital; and Nicholas Garry, Esquire, Merchant in Old Broad street, London; and my Father in Law John Griffin of Bedford Place, Esquire, all the residue of my Personal Estate and Effects whatsoever which shall belong to me or be held in Trust for me at my death, to hold and receive the same to them, their Executors, administrators and assigns; upon Trust to pay my debts and to permit my said Wife to reside if she shall think fit in my Leasehold House in Devonshire street, Portland Place during the Interest I shall have therein at my death (she paying the rent and all rates and taxes for the same) and to have the use of all my Household Goods and Furniture, Plate, Linen and China during her life.

Long sentence time! In this sentence, the executors (Sellwood, Kay, Garry and Griffin) are given Sir John’s property (broadly defined: not just real estate, not just cash) in trust. Trusts involve three  different parties: the trustor (Sir John), the trustees (the four men), and the beneficiaries (including Sir John’s creditors, Lady Jane Franklin, and various other persons). The trustees will be considered the legal owners of the property, but they’re not the “real” owners of it, and thus they don’t get to have it for themselves, or use it for their own purposes.The four trustees are instructed to settle Sir John’s debts after his death and also make sure that Lady Jane can live in the Portland Place residence until her death and allow her to use everything in the house as if it’s her property, though it would technically remain under the control of the trustees upon Sir John’s death.

Also included in this paragraph: what if the trustees die? If the will needs to be executed but an executor has died, then his own executor, administrator or a specific assignee becomes the new trustee. This is to make sure that the property that initially belonged to Sir John, which Lady Jane is using, won’t simply be taken away from Lady Jane if the trustees die before her.

[A]nd subject thereto upon trust for them and the survivors and survivor of them and the Executors, administrators and assigns of such survivor at their and his discretion to call in, sell and convert all my property and effects into money and to invest such money in the Public stocks or funds or upon Government or real securities and to vary such stocks, funds and securities from time to time at the discretion and to pay the annual produce thereof unto my said Wife during her life.

Next up, the trustees are allowed to sell all of Sir John’s property, except the leasehold and the items in the house unless Lady Jane declines to live there, to invest it in the stock and bonds, both public ones and government ones. They are allowed to reinvest the money at any time thereafter. The money made by the investments, however, won’t go to the trustees themselves, it will go, on a yearly basis, to Lady Jane for as long as she lives. This is to make sure that Lady Jane will have an income after Sir John’s death.

[A]nd at the death of my said Wife to pay the sum of One Thousand Pounds sterling to my Sister Mrs. Thomas Cracroft to be a vested Interest in her at my own death. [A]nd if my said Sister shall die in my life time then I direct such sum to be paid at my said Wife’s decease unto or amongst the Child or Children if any of my said Sister who shall be living at my death; if more than one in equal shares to be a vested Interest or vested Interests in such Child or Children at my death.

Now the other people come into play, specifically after Lady Jane Franklin’s death and this is important for pretty much all sections after this. The section above, and those following, can only be fully executed after Lady Jane’s death. After she dies, the trustees have to pay £1000 to Sir John’s sister Mrs Isabella Cracroft. If Isabella were to die before Lady Jane, however, the money would go to Mrs. Cracroft’s children, each of whom would receive  an equal share of the £1000.

Notable here: “vested interest.” A vested interest means that the instruction is set in law and no one has a right to eliminate it or alter it, so if Lady Jane were to die and Isabella were to not get her £1000 (or her children didn’t get their share had Isabella died), she can drag the trustees or whoever is acting for them at that time, to court to get that money.

[A]nd subject thereto to stand possessed of the said Stocks, funds and securities as to the sum of One thousand pounds Sterling, part thereof In Trust for my daughter Eleanor Isabella Franklin, her executors, administrators and assigns.

Sir John then gives £1000 to Eleanor, his daughter. Since Eleanor was, at this point, only four years old and therefore quite a while away from marrying, the trustees get to manage that money until the money can be transferred to someone else to manage (likely her future husband).

And as to the residue thereof In Trust for all or such one or more of my Children by my said present Wife born and to be born. [F]or such interests and in such shares (if for more than one) and at such ages or age and times or time and subject to such conditions, restrictions and limitations over (the same being for the benefit of some or one of such Children) and with such provisions for maintenance and education and advancement and in such manner in all respects as my said present Wife shall from time to time by any writing or writings under her hand, with or without powers of revocation and new appointment or by her Will or any Codicil or Codicils thereto to be signed and published by her and attested by two Witnesses direct or appoint.

We get to the confusing part: Sir John’s bequests for his as yet unborn children with Lady Jane Franklin. I could skip all this because we all know, in ever-knowing hindsight, that they won’t have children together, but considering we run into other people along the way, I’m still going to mention it all, especially because it also shows a little bit of the relationship between Sir John and Lady Jane and how he thinks of her, even if he has to stay within the limitations of the law.

After Lady Jane’s death, the leftovers from the trust that has paid out Mrs. Cracroft (or her children) and Eleanor and has been used to pay debts and make sure Lady Jane is comfortable will go in trust for the as yet unborn children – or child, though I will tend to use plural here – of Lady Jane and Sir John. So the money will be used to make sure those children lead good lives and get a good education.

Interestingly, Lady Jane can make changes to how this specific part of Sir John’s will will be executed, either through any legal writing, including her own will or codicils to that will. Her changes don’t have to apply to all the children but can apply to only one or some of the children.

[A]nd in default of any such direction or appointment and so far as none such shall extend In Trust for my Child or Children by my said present Wife born and to be born, who being a son or sons shall attain the age of twenty one years or being a Daughter or Daughters shall attain that age or marry (with the consent of my said Wife if living), if more than one in equal shares Provided always. 

However, if Lady Jane doesn’t give any directions, as mentioned in the previous section, it will all go to the children in equal shares once they reach the age of 21 (the legal age of majority at that time) or, if they are female, when they marry which can be earlier than the age of 21. If they marry however, the money would go to the husband, not the daughter herself.

[A]nd I direct that subject to any direction or appointment to be made by my said Wife as aforesaid the annual produce of the presumptive portion of every or any Child during minority shall, after my said Wife’s decease, be paid to and applied by his and her Guardian or Guardians for or towards his and her maintenance and education respectively.

If they are not 21 years old (and unmarried girls until they turn 21 years old) upon Lady Jane’s death, part of the estate that will go to them when they turn 21 (or if a girl, marry) will be held in trust for them with income from that trust being used for their needs.

And it shall be lawful for my Trustees or Trustee for the time being after my said Wife’s decease or in her life time with her permission to apply the whole or any part of the presumptive portion of every or any son respectively in or towards his advancement, fitting out or placing out in life provided also that no Child taking any share by appointment of my said Wife shall, unless she shall so direct be entitled to, share with any other Children or Child in the unappointed part of the said Trust property without bringing such appointed share into Hotchpot, and accounting for the same accordingly Provided nevertheless.

Simply put: trustees can give the son(s) early money to make something of their life before they turn 21. They need Lady Jane’s permission if she is still alive. However, when the division into equal shares happens at Lady Jane’s death, the money that has been given to the sons already is deducted from their individual share.

[A]nd I declare that my Trustees and Trustee for the time being may in their and his discretion let at a rent or rents instead of selling any Messuage or Leasehold Estate to which I shall be entitled, with or without any fixtures and furniture belonging to or being upon the same all such rents to be considered as annual Interest or produce of my Estate.

If Lady Jane isn’t living at the Portland Place house – don’t ask me why they didn’t put this in an earlier section – the trustees can rent the house out and the rent they get from it will be considered part of the annual income they’re paying to Lady Jane.

And I direct that if I shall have no Child by my said present Wife who under the aforesaid Trusts and powers shall live to become entitled to the said Trust property then subject as aforesaid the same or the unapplied part thereof shall be held In Trust as to Five thousand pounds Sterling in Trust for my said present Wife her executors, administrators and assigns if she shall be living at my decease.

Back to the children! Who decided the order of this thing? If they have a child and the child dies after Sir John but before Lady Jane, Lady Jane will be getting £5000. She can spend it, not spend it, or spend only part of it, and give the money to someone else at her own death via her own will. The money is thus truly hers.

And as to Three Hundred Pounds Sterling in Trust for Miss Elizabeth Franklin if living at my decease and subject thereto In Trust for my said Daughter Eleanor Isabella Franklin, her Executors, administrators and assigns, but if my said Daughter Eleanor Isabella Franklin shall not be living at my decease then In Trust for my said present Wife and my two Sisters, the said Mrs Thomas Cracroft and Miss Elizabeth, and my Sister in Law Mrs Kay Wife of the said Joseph Kay or such of the same four persons as shall be living at my deceased (if more than one) in equal shares.

The most confusing section of the entire will! Because now, people are getting money that all depends on whether other people are already dead or not. Firstly, £300 must be held in trust for his sister Elizabeth Franklin at Sir John’s death.

If however Elizabeth Franklin is not alive and his daughter Eleanor Franklin is, the money will go in trust for her.

But, if Elizabeth Franklin is alive and Eleanor has died already, then the money will go in trust for four people, namely: Elizabeth, Sir John’s other sister Mrs. Cracroft, his sister-in-law Mrs. Kay, and his wife Lady Jane. This happens in equal shares.

And whereas I have for some time with my said Wife’s approbation made and may hereafter during my Life continue to make an allowance to my said Sister Mrs Thomas Cracroft. Now I do not think proper to make any provision for her by my Will during my Wife’s life, my said Wife I have no doubt will be disposed to assist my said Sister in case her own circumstances and those of our Children shall make it in her Judgement expedient so to do.

To quote Lynn C. Stutz: “right out of Sense and Sensibility!” (for those of us who have read Jane Austen and aren’t just pretending we have). Sir John has the power to make sure that Mrs. Cracroft still gets money after his death, as she appears to be getting whilst he’s alive already. Yet, he doesn’t think it proper to decide that and instead believes that his wife Lady Jane will make sure that Mrs. Cracroft is financially without problems during her lifetime and via her will.

And I hereby Appoint and Confirm my said Wife and in case of and after her death the said Henry Sellwood, Joseph Kay, Nicholas Garry and John Griffin, Esquires, and the Survivors and Survivor of them, Guardian and Guardians of my Children born and to be born until such children shall respectively attain the age of twenty one years.

This is just to make sure that, upon his death, the guardianship of his children, presumably including Eleanor, goes to Lady Jane and, if she were to be dead, to the executors until the child is 21 years old.  

And I appoint my said Trustees to be the Executors of this my Will Provided always and I declare that the receipts in writing of my Trustees and Trustee for the time being shall be sufficient discharges for all money payable to them or him under this my Will and that the Persons to whom the same shall be given shall not afterwards be answerable for any loss or misapplication nor concerned to see the application of the money therein acknowledged to be received Provided always.

This was mentioned in the ‘who’ section of this post: the four trustees are also appointed as executors of the will. They are to follow the instructions of the will and are liable only for Sir John’s actions, not the actions of any of others, and all liability of poor investments doesn’t fall to them.

[A]nd I declare that if the Trustees named in this my Will or either of them or any Trustee or Trustees to be appointed as hereinafter is mentioned shall die or be desirous of being discharged from the trusts hereby created or shall decline or become incapable to act therein It shall from time to time be lawful for the surviving Trustees or Trustee or the executors or administrators of the last surviving Trustee for the time being (nevertheless with my said Wife’s consent during her life) by any deed or deeds to appoint any person or persons to be a Trustee or Trustees in the place of the Trustee or Trustees so dying or declining or becoming incapable to act. And that upon the appointment of any new Trustee, the Trust, Estate and Funds then vested in the Trustee or Trustees so desiring to be discharged or declining or becoming incapable to act as aforesaid, either solely or jointly with the other Trustee or Trustees or in the surviving Trustee or Trustees for the time being or the Executors or administrators of any deceased Trustee shall be so transferred as to become vested in such Trustee or Trustees Jointly with the continuing Trustee or Trustees if any or solely as the case may require. And that such new Trustee or Trustees may act in the execution of the Trusts to which he or they shall be so appointed with all the same powers as if he or they had been hereby named a Trustee or Trustees.

This is a lot of words to say: the trustees that exist can replace/add other trustees in case one of the existing trustees can’t serve. They need to have Lady Jane’s permission whilst she lives. The trustee that has been removed, by his own choice or for external reasons, will have his part of the trust, estate and funds moved to the new trustee and/or all the trustees that still exist. The new trustee will also have the same power as if he were named in this will, so the same power as the original four trustees.

And that the Trustees hereby named and the Trustee or Trustees to be appointed as aforesaid shall not be answerable for each other, but each of them for his own acts and receipts only. [A]nd that they respectively shall not be answerable for the insufficiency of any Stocks, funds or securities in which any Trust monies may be invested or for any involuntary loss or damage. And further that it shall be lawful for the Trustees for the time being out of the Trust monies to reimburse themselves and allow to their co-trustees all Costs, charges and expenses incident to the execution of the Trusts hereby created or in any manner relating hereto.

This repeats that the trustees, appointed or added later, will not be responsible for each other’s investments and failures, and that the trustees will be reimbursed by the trust for their expenses.

In witness whereof I the said Testator have to this my last Will and Testament contained in five sheets of paper set my hand and seal (that is to say) to the first four sheets thereof my hand and to this fifth and Cast sheet my hand and seal this eight day of October in the year of our Lord One thousand eight hundred and twenty nine.

Signed, sealed, published and Declared By the said Testator John Franklin as and for his last Will and Testament in the presence of Us who in his presence at his request and in the presence of each other have subscribed our names as Witnesses hereto

W. H. Tinney of [Lincoln’s] Inn, _
Mr Lewis, Clerk to Mr. Tinney.

The will concludes by saying there are two witnesses who signed the document alongside Sir John (since two witnesses are needed for a will to be valid) on October 8^th, 1829.

The Codicil

The will does have a codicil, though it doesn’t modify a lot. It was made in 1836, about a year after Nicholas Garry was declared ‘of unsound mind’. For this reason, Sir John removes him as both a trustee and an executor of his will. The rest of the executors-slash-trustees are meant to continue with the execution and instructions in the will as if Nicholas Garry had never been mentioned in the first place.

The Probate

The first section of this doesn’t actually appear in the probate you can find in The National Archives under reference PROB 11/2204/120. It’s a testimony, as can also be found in the wills of James Fitzjames and Francis Crozier, where Henry Sellwood, one of the executors, swears before the court that Sir John has died in the Arctic during or after July 1845, when the members of the Franklin expedition were last seen in Baffin Bay.

The will was then proved at London, meaning the executors are now the trustees and all the instructions from the will come into play.