Chapter 3: The Court of Chancery

Martha was now 18, Mary Ann was 15, and Thomas was 11; they had all been motherless for the last five years, and now they were fatherless. The horror of the circumstances of their father’s death must have left each one of them traumatised. But there were other problems ahead, and they all concerned their father’s money.

First of all, there was the will. Anthony Clarke had written out the will the day before William had attempted suicide, and had used the normal legal terminology about being “of sound mind”. A will made by someone who was not of sound mind would not be valid. However, the jury at the inquest had decided that William was a lunatic. Therefore the will was not valid.

Secondly, even if everyone kept quiet about the will not being legally valid, and if it was successfully (and illegally) proved in the probate court, the children would still not be old enough to take control of the money, because they were all under 21. Someone would have to be appointed to take charge of it for them.

Thirdly, there was the problem of Martha and her lover, William Milburn. He, of course, was over 21, and no doubt would have been delighted to be put in charge of the children’s inheritance. If Martha were to take it into her head to marry him, he, as the new head of the family, would be in control of all the money; and then they could all say goodbye to it because he would use most of it to pay off his debts and squander the rest.

There was also a fourth problem, which was that Milburn was already married, and so a marriage to Martha would be bigamous; but Martha didn’t know about that, and Milburn wasn’t intending to tell her. He was getting more desperate for money by the day.

Martha was now seriously considering marrying William Milburn. According to Samuel Buxton, Martha was at this point about to contract an improvident and ruinous marriage. If only Samuel Buxton had also known that it would also have been a bigamous marriage!

A friend of the family enters the story now, called Richard Barnard Fisher. He was probably related to the family of Fishers who were important in London for wholesale haberdashery, the same line of business as William had been in. He had been an intimate friend of William Habgood during his lifetime, and was very well acquainted with the children. It is probable that he was a good man and had the children’s interests at heart; though he might have had other motives as well for the actions he was about to take.

The adults in the family told Fisher all about the scandal of Martha and her friendship with Milburn, and how they thought he was only after her money. Fisher said he thought someone should take action to prevent them marrying; if the children could be made wards of court, Martha could not marry Milburn without the permission of the court – which would certainly not be given. “Understanding from (Martha’s) relatives that (she) had formed an indiscreet connection with a young man supposed to have some design upon her fortune, (Fisher) made no scruple to advise the measure of making the infants Wards of … Court”.

Perhaps the family asked him to initiate the action, or perhaps he made his decision independently of the relatives. Anyway, he moved swiftly as soon as the family had left for Latton. On 18 April, the very day when William was being buried in Latton, he wrote to Martha, and to William Milburn, saying that he was going to oppose the will in court. He said he was afraid that Martha might marry Milburn, and then Milburn, being officially head of the Habgood family, would have legal responsibility for all the money – not just Martha’s share, but the entire fortune – and that he would squander it all. If the marriage took place, the fact that William’s will stipulated that Anthony Clarke was to be the executor would then legally be over-ridden; Milburn would be the legal representative of the Habgood children. By opposing the will, Fisher could draw to the attention of the court the fact that the children needed protection, especially Martha. If they were wards of court, Martha could not marry without the court’s consent; and they would never give their consent if Milburn’s financial situation were to be investigated. Thus the children’s interests would be safeguarded.

He later put it in these terms to the court: At 18, he said, she had “formed an improper attachment and connection, and unless she was put under some immediate protection and restraint, she might connect herself with a person of no property and who might waste her fortune and that of her brother and sister without making any provision for her or any child she might have”.

When William Milburn first received the letter from Richard Fisher saying that he was going to oppose the will in court, he must have been furious. He saw his chance of getting the money slipping out of his hands. He would have thought hard, and decided on a plan of action to be implemented as soon as Martha got back to London.

Meanwhile, the aunts and uncles of the children asked Anthony Clarke if he would prove the will. It had been his idea, after all, that William should make a will; he was the very person who had sat down and written it out for William to sign; he had even written in his own name as executor. Yet how could he possibly prove the will, knowing that William had not been in his right mind on that day? It had been established as a legally accepted fact that William was a lunatic. The will was completely invalid. He simply could not execute it. It was he who had been the chief witness in the coroner’s court. If he tried to prove the will, knowing full well what the verdict of the court had been, he would be in serious trouble himself. He therefore flatly refused to prove the will and announced to the family that he was going to renounce executorship. The family were greatly alarmed at this, and repeatedly begged him to go ahead and prove the will, in spite of everything; but he would not.

At this point, the children were totally unprotected, alone in the world, each due to inherit a very large sum of money, which was not yet in their hands.

The following day, April 19, while the children and all the relatives were still in Latton, Richard Fisher filed a bill of complaint against Anthony Clarke in the court of Chancery: Habgood versus Clarke. This was a very audacious move, and could easily have backfired against the Habgoods if Anthony Clarke had chosen to reveal to the court the details of William’s death.

It happened that Richard Fisher shared a house with a man called Mr Dove. This Mr Dove was Richard Fisher’s clerk, and also a barrister, and Richard confided to him all the details of the situation. Perhaps it was Mr Dove who suggested that he should go to court. Certainly, once the decision to go to court was made, Fisher employed Mr Dove to act for him. Mr Dove probably sensed a very lucrative court case, in which Fisher himself, acting as the children’s ‘Next Friend’, might gain control of the money. Since it was not Fisher’s own personal money, he would not object to paying very high legal fees, Mr Dove probably thought.

All this happened within ten days of William ‘s death.

The children returned to London, to a house which must have seemed empty, now that their father was not there. There were plenty of people in the house, however: the partners, the workers, members of the family. Mary Ann and Thomas went back to boarding school: Mary Ann to Mssrs Cadman and Durrand in Bromley, Thomas to Burlington House in Hammersmith.

As soon as Martha returned from Latton, Milburn went to see her about Richard Fisher and the court case. That wicked Richard Fisher, Milburn must have said, is trying to stop you getting your money. He must have ganged up with your father’s partners. Weren’t they plotting to get the money from your father when he died? Martha agreed that she had indeed found them whispering together during the week her father was dying. Yes, they were definitely plotting to get the money for themselves! It would be easy for them to do it; they knew all the customers, and how much they owed; they could so easily embezzle it! It was the partners, Samuel Buxton and John Butler, together perhaps with Richard Fisher, who would get all her father’s money – unless she could stop them!

Actually, there could well have been some truth in this. Buxton and Butler did later tell lies to the court, and held back information when it was in their own interests. No doubt they did think that they would be able to make a discreet profit out of William’s death.

The case of Habgood versus Clarke finally had its hearing in the Court of Chancery, and Richard Fisher told the court some remarkable things; remarkable because they were untrue. He said that Clarke had already proved the will, and that Clarke had taken possession of most of William’s wealth, and had paid off most of William’s debts; but that once Clarke had the money, he refused to hand it over. Clarke, said Fisher, had found it a lot of trouble to execute the will, and William had not indicated in his will that he should be compensated for all the expense he was being put to; so he refused to carry on and finish the job off. He must be made to hand out some of the money to cover the cost of maintaining and educating the children. According to Fisher, Clarke was now pretending that William “died greatly in debt and left little personal estate”and what he had left had all been used up in paying William’s debts. Fisher also maintained that William’s will had not been properly witnessed by three witnesses.

Now all of this was blatantly untrue, and Fisher must have known it. Clarke had not proved the will at all, and had not collected in any money. The will had been quite correctly witnessed and Clarke was entitled to compensation for any expenses. Why was Fisher putting forward this pack of lies?

Anthony Clarke appeared in court and used great restraint and discretion. He could have simply said – ‘I can’t prove the will because William was a lunatic – the coroner’s court said so.’ But he refrained. He told the court that he had indeed refused to prove the will, and everyone was aware of this. In fact, the relatives had begged him to prove the will. The sole reason, he said, why he didn’t want to prove it was that “it was not in (his) power from his professional avocations to act in the trusts of the said will”.

Anthony Clarke had acted with humanity, intelligence and honour throughout the whole proceedings. It seems that he received very little thanks for his intervention in the affairs of the Habgood family.

The courts did not rush themselves to consider the case of Habgood versus Clarke. No official moved in quickly to take charge of the children or the money. Events were left to progress as they might until the courts saw fit to bestir themselves.

The Court of Chancery was never quick to take action; why should it be? The longer a case could be dragged out, the more money was made by everyone who earned their living from the court, – the masters, the solicitors, the clerks, the petty officials. The more frustrated the litigants were by the slowness of the court, the bigger the bribes they would pay to get the process underway. And the Chancellor, Lord Eldon, had other, more pressing government work to do. When he was too busy to hear the case himself, he deputised someone else to do it, and so the whole story had to be related afresh. It was not unknown for cases to take thirty years or more, to the ruination of the people concerned.

Meanwhile, Richard Fisher was on the move again. He galloped off to see William’s brothers, James, who lived in Down Ampney in Gloucestershire, and Robert, who lived in Cerney Wick – both villages quite close to Latton. The brothers were old men, who had lived peaceful lives in the tranquillity of their farms. They must have seemed like country bumpkins to Fisher. Now that Anthony Clarke has refused to prove the will, would they, as William’s brothers, agree to administer it, he asked. Who else should do it, he must have said, but the older, experienced members of the family. There is no-one else! They willingly agreed. After all, the family had always stood together; brother had helped brother, cousin and in-law. It was their duty to their dead brother and those three orphan children. Poor old men; sincerity was not enough! They knew nothing of a huge, complex London business, and (according to Martha later on) that was the whole idea.

And would they act as guardians to the children? After some hesitation as to whether Mary Butler (William’s sister, and wife of John Butler, his former partner) should be one of the guardians, James and Robert agreed. They would not be asked to look after the children on a day-to-day basis, but rather to be the guardians of their money. A Proxy of Guardianship was drawn up, and the three children signed it to show that they accepted the arrangement. The brothers went back to London with Richard Fisher, and under his guidance took out letters of administration. They were now the legal representatives of their dead brother, and the guardians of the three orphan children, and they would remain so until Martha reached the age of 21 in three years’ time – or until she married.

Having arrived in London, they started to look around at what they had taken upon themselves At this point it must have dawned on them that they had taken on a huge task, which they could not possibly perform. They inspected the warehouse, with its stock and bales of velvet, lace, cotton, room after room of it; machinery for loading the heavy bales, the workrooms, where, no doubt the maids and the men were trying to continue with the last work which William had set them, and wondering anxiously what was to happen to them; if they lost their jobs, they also lost their lodgings. What would become of them? they must have asked James and Robert. What indeed. James and Robert had no idea. They stayed in the living quarters of the house, with its comfortable furnishings, obviously knowing that something must be done; but what? The children must have looked at them in bewilderment, needing to know what life they were to have now, and who was to care for them, and where they were to live; the brothers were non-plussed. “They are old men, and farmers,” said Martha, scornfully.

What ought they to be doing? they asked Fisher. Take an inventory, collect in the money that tradesmen owed to William … An inventory was taken. Value of goods in Rood Lane, and also Stockwell, £25,000. But they had forgotten to give details of the value of the money owed to William by the traders he supplied, and his real estate, and his rents, and many of the loans he had issued.

Out of the money that they had collected in from the tradesmen, Robert and James started to pay out money to support the children, from July onwards. To Martha, they paid regular, adequate sums: normally £15 per month, because she was the one who did all the shopping for Mary Ann and Thomas now, and bigger sums when something extra cropped up. They paid Mary Ann’s larger expenses, such as school bills and clothing, and also made her a regular allowance of about £10 a month. It was the same for Thomas; most of the money for his upkeep was given to Martha, and she bought him things like hats, and mourning suits, and paid for his coach fares to school.

It was clear to Martha that her uncles were unable to perform all the work required, and she tried to persuade them to let Edward Colyer take over administration of the will. But when James and Robert discussed this possibility with John Butler, he would not hear of it, and assured them that they should continue. By 20 July 1803, the children and the relatives had all moved out of the house in Rood Lane, but where Martha and the children went to live is not clear. The business partners would move out later to set up their own business elsewhere and arrangements were made to sell all the furniture from the London houses, as well as the remaining stock. John Butler had the responsibility for selling the furniture, and he gave public notice was given that a sale was to take place.

Later accounts of the sale varied considerably. John Butler said that he gave plenty of notice of the sale, which was properly conducted and well attended. Martha, on the other hand, said that he gave very little notice of the sale, so that hardly anyone was there, and that this was deliberate, so that he could buy what he wanted cheaply for himself.

Appalled at the amount of work ahead of them in winding up the business, dealing with the children, the courts, the debtors, the creditors, and selling the house, it must have seemed like a godsend to James and Robert when, one day, Richard Fisher came to see them, and kindly offered to do all the work for them, and without even being paid for it! What a relief that would be for them! They only needed to make out power of attorney to him and the partners, Fisher told them, and then they could both go home to Wiltshire and look after their farms in peace. With a sigh of relief, they signed the necessary documents, kissed the children goodbye, “and have scarcely ever since interfered,” said Martha, later, somewhat unfairly.

Richard Fisher, John Butler and Samuel Buxton now had power of attorney. Between them, they were in complete control of the money, as well as the business.

However, in the weeks before Robert and James Habgood had signed over power of attorney, the brothers had in fact collected some money; perhaps from the debtors, or perhaps from the sale of the furniture. When they went home to Wiltshire they were in possession of over £9,000, and they made sure that they took it with them. Once back in Wiltshire, they also collected the rents from William’s house in Cricklade and his grazing land in Purton.

Richard Fisher realised that they had absconded with the money and wrote to them asking them to hand it over. They wrote back that there was practically nothing left of it; they had hardly collected anything anyway, and William’s funeral expenses had used most of it up. (Perhaps they weren’t such innocents after all!) They were obviously not going to part with the money easily, and try as he might, Fisher could not get it from them. So in November of the same year, 1803 Fisher initiated another action in the court of Chancery, in the name of the children, to get the money back from them: Habgood versus Habgood. They ought to give a clear account of the money they had, he told the court, invest it, and pay the children a regular allowance out of the interest.

The news that they were being taken to court should have galvanised James and Robert into action of one kind or another, but it did not; the old men did nothing. Frustrated by their silence, the courts contacted them again. Surprised, James and Robert claimed they had not received any communication at all about the matter; what order was the court talking about? They lived so far away, in Gloucester … They were given more time to sort things out. On 5 December, they went to Cirencester, to the house of Joseph Pitt, the respected local solicitor, and he helped them to draft an answer. They said they really didn’t know how much money they had; they didn’t know what William’s assets were worth; they were in a bit of a muddle. They said they had “so lately obtained letters of administration that they are unable to set forth of what particulars the same consists”. The court allowed them yet more time to sort things out.

By now, William’s business had been completely wound up. The partners had continued to run it until July 20. Most of the stock from the warehouse had been sold now, and the partners had bought quite a lot of what was left. They were going to set up their own business, so the stock would be useful to them. They were to pay for it in instalments.

At Christmas 1803, Richard Butler and Samuel Buxton moved out of Rood Lane to a house in Fenchurch Street. They managed to retain quite a lot of William’s old customers, so their business was on a very sound footing from the outset, with William’s stock and William’s customers. Back in court on 26 January 1804, the whole story was gone through yet again, and each time there was an order, a subpoena, an interrogatory, an answer, or a hearing, the clerks copied the whole history of the case out once more, painstakingly, in large books or on huge sheets of parchment, running up enormous legal fees, safe in the knowledge that someone would foot the bill at the end of it; probably the children, out of their father’s estate.

The Master of the Court who was supposed to be deciding who would be the children’s guardian, was a Mr Spranger. Within a few months of the beginning of the court case, he died, and so the matter was to be dealt with by a new master – Mr Stanley. He read through the history of the case, and concluded that Robert and James should pay the money they had into the bank, into an account which would be held by the court.

In February 1804 James and Robert had to come to London to appear in court and were ordered to hand over the money they had collected earlier – £9,780 15/6 in total. The court would use the money to buy annuities which would provide a steady income for the children to live on. Also, it was decided that the inventory that James and Robert had drawn up was just not good enough: one of the Masters of the Court would arrange for proper accounts to be taken. Advertisements would be placed in the London papers calling for William’s debtors and creditors to appear, and then at least that part of William’s affairs could be sorted out properly.

On 18 December 1804, a notice was put in the London Gazette: Pursuant to a Decree in the High Court of Chancery made in a Cause Habgood against Habgood, the Creditors of William Habgood, late of Rood Lane, Fenchurch Street in the city of London, wholesale Haberdasher, deceased, (who died on the 17th of April 1803) are forthwith to come in and prove their debts before James Stanley Esq, one of the Masters of the said court, at his chambers in Southampton Buildings, Chancery Lane, London or in default thereof they will be excluded the Benefit of the said decree.

However, no-one came forward; any debts which William had owed at the time of his death had already been paid off by the partners, or by James and Robert.

Chapter 4: Martha

Habgood versus Habgood in Chancery Index page

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