The Last Will and Testament of Peter Stewart, 1725 - 10 Nov 1805.
In the Name of God Amen, I Peter Stewart of Prince Edward Island North America Esqr. being weak in Body, but of sound Mind Memory and understanding do Make and Publish this My last Will and Testament in manner and form following, that is to say – First I give and devise to my oldest son John Stewart all my Lands, Tenements and Hereditaments situate and parcel of Lot or Township No 48 in the said Island, excepting such parts thereof as by this my last Will and Testament shall be otherwise disposed of, to hold to him the said John Stewart and the heirs male of his Body and Bodies of said and the several and respective heirs of the Body and Bodies of said Sons. Then I give and devise to my Daughter Annabella, the Lands and premises situate on Lot 18 now let to and in the possession of John Lawler, John Merchland, Peter Heron and Archibald McKay, to hold to her and the heirs of her Body lawfully to be begotten. Then I give and devise to my Daughter Mary the Lands and premises on Lot No. 18 now let and in the possession of Howlan, John and Angus MacLellan to hold to her and the heirs of her Body lawfully to be begotten – and in case both or other of my said Daughters Annabella and Mary shall die without having been married, then my Will is and I give and devise the Lands of such of them as shall die unmarried to my son John and the Heirs Male of his Body lawfully begotten and for want of such issue then I give and devise the same to my said Sons Charles Robert & James successively and in remainder the one after the other and the several and respective Heirs Male of their Bodies lawfully issuing. Then – I give and devise to my Daughter Penelope Wife of James McNutt all the Lands lying between Roderick Morrisons farm and the Lands formerly Conveyed by me to her use under the same limitations and trusts as are expressed and Contained in the Conveyance of the said Lands.
Then I give and devise to my son James Two Hundred Acres of Land part of Lot 48 and adjoining the Lands belonging to Collector Townshend – to hold to him and the Heirs Male of his Body lawfully issuing, and in case he shall die without being married then, I give and devise the same to my Son John Stewart and the Heirs Male of his Body lawfully issuing, and in default of such issue then to my Sons Charles and Robert in succession and remainder and the respective heirs of their Bodies lawfully issuing.
Then I give and devise to my son Robert the farm on Lot 48 of which he has been sometime in possession containing Two hundred Acres to hold to him and the heirs of his Body lawfully issuing and in default of such issue then to my Sons John, Charles, James in succession and remainder and the respective heirs of their Bodies lawfully issuing.
Then I give and devise to my Daughter Margaret wife to the Reverend Mr. DesBrisay all the Lands lying between Mr. Cambridges Lands on Lot 48 and the Lands devised to my son Robert to hold to her and to her heirs and assigns forever.
Then I give and devise to my sons John and Charles all the rest residues and remainder of my Lands, Tenements and Hereditaments on Lot No. 18 or wheresoever situated and not herein before devised, to the intend and purpose of providing a decent Maintenance and support for their Brother Peter my youngest son for and during his natural Life, and after his decease I give and devise the same to my said sons John and Charles and the Heirs of their Bodies to be equally divided among them. My Will nevertheless is and the foregoing several devises are upon the express condition, that my said Sons and Daughters who are Benefitted thereby shall and do according to and in proportion to the value of their several devises pay to my present wife Sarah the sum of Forty pounds Yearly and every Year for and during her Natural life to be taken and accepted by her for and in lieu of Dower in the Estates and premises, whereof I am possessed.
I hereby charge my personal Estate with the payment of a Debt due to David Simpson Merchant in Island and I appoint the Reverend Theophilus DesBrisay, my said sons John, Charles and Robert, Executors of this my last Will and Testament.
In Witness whereof I the said Peter Stewart have to each Sheet of this my last Will and testament, contained in two sheets of paper set my hand to the last page thereof being the Sixth, my Seal also, this thirteenth day of December in the year of our Lord One thousand Eight hundred and three.
Sgd. Peter Stewart
Signed, Sealed and Published and Declared by the said Peter Stewart as and for his Last Will and Testament in the presence of us, who at his request and in his presence and in the presence of each other, have hereunto subscribed Our Names as Witnesses. –
Sgd. Spencer Crane
Charles Stewart
Margaret DesBrisay
C. Stewart
Jno. BovyerNo. 1
A Codicil to be added to the last Will and Testament of Peter Stewart before named. I the before named Peter Stewart having thought fit to make some alterations in the disposition of my Estate within mentioned do hereby declare my further Will is and I give and devise to my son in law the Reverend Mr. DesBrisay one of the Lots of marsh Land at Fullertons Marsh being the uppermost division and marked No. 1 together with three hundred and twenty acres of upland in the rear of the same to hold to him and his Heirs Male lawfully issuing. Then I give and devise to my son Robert another Lot of the said Marsh marked No. two together with three hundred and twenty acres of upland in the rear of the same to hold to him and his Heirs Male lawfully issuing, failing such issue then to my sons John Charles & James successively & in remainder & their respective heirs lawfully issuing. Then I give and devise to my daughter Penelope two hundred acres of woodland on Lot 18 in addition to what she is Otherwise entitled to, in such situation as she shall think fit to hold to her & heirs lawfully issuing.
And My further Will is that instead of the devise within mentioned to be made to my sons John & Charles jointly for the purpose of providing a maintenance & support for my son Peter, I give and devise for that purpose the remainder of the Tract of land on Lot 18 which I got from my Brother undisposed of together Eight hundred Acres of the Allanby division of the said Lot near to the Beach Point – the remainder of my Lands on the said Lot I give and devise to my son Charles and his heirs lawfully issuing. And I do hereby declare that my said Will hereto annexed and this Codicil which I write shall be added thereto and deemed part thereof do contain my last Will and Testament. In witness whereof I have to this Codicil set my hand & Seal this thirteenth day of April 1804.
Signed Sealed & Published by the Sd. Peter Stewart as and for a Codicil to be added to & made part of his last Will & Testament in the presence of us who in his presence & that of each other have subscribed our names.
Sgd. Jno. Boyver, Ketty Stewart, Neil Beaton.
Sgd.Peter Stewart. (Seal)
No. 2
A Codicil to be added to the Will of Peter Stewart of Prince Edward Island Esqr. Having considered that my son Robert has lived with me for so long a space of time during which he has been of great service to me. My Will is and I do hereby give and devise to my said son Robert the Mansion House and premises wherein I now reside together with three hundred and fifty Acres of Land which I Will make to be the content of the farm. To hold the said premises to my son Robert and his heirs lawfully to be begotten, and failing of such issue then I give and devise the same to my sons John Charles and James successively and in remainder the one after the Other and their respective heirs lawfully issuing.
And my Will is that this Codicil being the second be added to and made a part of My said last Will and Testament and together with the Codicil annexed thereto, do contain my last Will and Testament. In Witness whereof I have to this Codicil Set my hand and Seal this thirteenth day of April one thousand eight hundred and four.
Sgd. Peter Stewart (Seal)
Signed Sealed & Published by the said Peter Stewart as and for a Codicil to be added to and made a part of his last Will and testament in presence of us who in his presence and in presence of each other have subscribed our names as Witnesses.
Sgd. Jno. Bovyer, Ketty Stewart, Neil Beaton.
No. 3
Whereas since the Execution of the foregoing Will & the two foregoing Codicils my son James hath lately died in the West Indies, My Will therefore is and I hereby give and devise the Tract of land formerly devised to my said son to my daughters Annabella and Mary to be equally divided between them to hold to them and their respective heirs lawfully issuing and failing of such issue then to my sons John Charles and Robert in succession and in remainder and their respective heirs Lawfully issuing. And my Will is that this be added to and with the two preceeding Codicils be made a part of my last Will and Testament. In Witness whereof I have to this Codicil set my hand and seal this Sixteenth day of June in the year of our Lord One thousand eight hundred and four.
Sgd. Peter Stewart (Seal)
Signed Sealed & Published by the said Peter Stewart as and for a Codicil to be added to and made a part of his last Will and Testament in presence of us who in his presence and in presence of each other have subscribed our Names as Witnesses.
Peter DesBrisay, William Wadman, Donald Stewart.
The afore written Will being presented for Probate by the Executors therein named bearing Date the thirteenth Day of December, A.D. 1803. John Bovyer made Oath that he saw Peter Stewart Esquire the Subscriber to this Instrument sign the same and also heard him publish and declare it to be his last Will and Testament and that when he did was of sound disposing mind and memory according to this Deponents best discerning and that he set to this hand as a Witness thereof in the said Testators presence and that Spencer Crane Margaret DesBrisay C. Stewart & Charles Stewart now absent subscribed their names as Witnesses at the same time. Sgd. Jno. Bovyer
Sworn before me this 15th day of May in the year of our Lord 1806.
Sgd. J. Robinson, Surrogate.______________________________
No. 1
The Codicil to the last Will and Testament of the late Chief Justice Stewart Esquire Dated the thirteenth Day of April A.D. 1804 Being presented for Probate by the Executors named in the Will & Testament John Bovyer made Oath that he saw Peter Stewart Esquire the subscriber to this Codicil sign the same and heard him declare to be a part of his last Will and Testament and when he did he was of sound disposing mind and memory according to this deponents best decerning and that he set his hand as a Witness thereof in the said Testator’s presence and that Ketty Stewart and Neil Beaton now absent subscribed their names as Witnesses. Sgd. Jno. Bovyer
Sworn before me this 15th Day of May in the year of our Lord 1806.
Sgd, J. Robinson, Surrogate
______________________________
No. 3
The Codicil to the last Will and Testament of Peter Stewart Esquire Deceased Dated the thirteenth Day of June 1804 being presented for Probate by the Executors named in the Will & Testament made Oath that he saw Peter Stewart Esquire the subscriber to this Codicil sign the same and heard him declare it to be a part of his Will and Testament and when he did he was of sound mind and memory according to this deponents best discerning and that he set his hand as a Witness thereof in the Testators presence and that Donald Stewart and Peter DesBrisay and William Wadman now absent subscribed their names as Witnesses.
Sgd.. Donald Stewart
Sworn before me this 15th Day of May in the year of our Lord 1806.
Sgd. J. Robinson, Surrogate.______________________________
Opinion on the late Peter Stewarts Will as relates to Annabella his daughter ---
Edw Palmer
23 Nov 1844Having read the Will of the late Peter Stewart Esquire dated the thirteenth day of December in the Year of Our Lord one thousand eight hundred and three, and the codicil thereto added dated the sixteenth of June one thousand eight hundred and four and considered of the devises to the Testator’s daughter Annabella given respectively in each of these instruments.
I am of opinion that the said Annabella having been married, altho’ having failed to have issue, the limitation, after the conditional estate devised to her of the farms of Lot 18 as therein enumerated in favour of John Stewart, in tail male has not taken effect. It may not certainly be unreasonable to suppose that the Testator by having used the words "in case both or either of my said daughters Annabella and Mary shall die without having been married then" intended to provide merely against a failure of issue on their part and that the estate in that event should go to John whether the daughters should be married or not; but I think there is not by any means sufficient appearing in the will to indicate that intention, and that the law must give affect to and cannot disregard the words "without having been married:"
I am therefore of opinion that upon the marriage of the Testator’s daughter Annabella the Farms so devised to her, became vested in her as an estate tail general, and she having died without issue and without having (????) the entail(?), the estate would revert to the Statutable heirs of the Testator under the Law of this Islands.
The share which by the said codicil Annabella would take as tenant in tail general in common with her sister Mary of the land at first devised to the Testators son named, would become vested according to the usual couse of law in the heir in tail of the Testator’s son John who I believe is Mrs Littler.
(Signed) Edw. Palmer
25th Nov 1844