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Appendix 11A

 

THE LAST WILL AND TESTAMENT OF THOMAS ROSE

Transcribed by Pattrick Mould from:

Office Copy No 816, 1st Series

 

THIS IS THE LAST WILL AND TESTAMENT of me THOMAS ROSE of the District of Appin in the County of Cumberland in the Colony of New South Wales, Farmer and Grazier, First I direct the payment of all my just debts funeral expenses the charges of proving this my will and other incidental

expenses, And after payment thereof I give devise and bequeath as follows:

that is to say:

I give and bequeath to my wife Sarah Rose all the household goods and furniture mentioned in the schedule hereunto annexed (she having the choice of any article answering to the descriptions given in such schedule in case of my leaving more than the number therein mentioned) And likewise the sum of fifty pounds to be paid to her as soon as possible after my decease to supply her immediate wants. I give and devise unto Joseph Perkins (son of Sarah Perkins the widow of Richard Perkins) my farm on the Nepean River consisting of two several grants from Governor Macquarie, the one

of eighty acres originally made to John Burgiss by deed dated on or about the first day of January one thousand eight hundred and ten and the other to Richard Perkins by deed dated on or about eighth day of October one thousand eight hundred and sixteen and respectively purchased by me

from the said grantees AND also my farm at Curryjong consisting of fifty acres granted by Governor Macquarie to Patrick Clarke by deed dated on or about the first day of January one thousand eight hundred and ten and purchased by me from Charles Beasley and also my other farm at Curryjong consisting

thirty acres granted by Governor Brisbane to Patrick Baker by deed dated on or about the thirtieth day of July one thousand eight hundred and three and purchased by me from the said Thomas Baker AND ALSO my dwelling house at Windsor with the land and appurtenances thereto belonging purchased by me from Robert Thurston AND ALSO my dwelling house at Richmond with the land and appurtenances thereto belonging purchased by me from George Morley TO HOLD the said several farms and dwelling houses and hereditaments with all appurtenances unto and to the use of the said Joseph Perkins his heirs and assigns forever I GIVE AND DEVISE to Ann Perkins daughter of the said Sarah Perkins my farm in the District of Airds in the County of Cumberland consisting of sixty three acres granted by Governor Macquarie by deed dated on or about  the twentieth day of June one thousand eight hundred and sixteen and purchased by me from the said William Mortimer AND ALSO my other farm adjoining thereto in the district of Aids aforesaid consisting of the one hundred acres granted by Govenor Macquarie to James Fletcher by deed and dated the twentieth day of June one thousand eight hundred and sixteen and purchased by me from the representative of John Boodle deceased TO HOLD the said to several farms with the appurtenances unto and to the use of the said Anne Perkins her heirs assigns forever I GIVE AND DEVISE ......

 

(Thos Rose, Witness Geo Kenyon Holder, Jno. Can, Robert Burke)

 

 

 

 .......Unto Mary Perkins also daughter of the said Sarah Perkins my farm in the district of Airds aforesaid consisting of twenty eight acres of land granted by Govenor Macquarie to Francis McDonald by deed dated on or about the thirtieth day of June one thousand eight hundred and twenty three and purchased by me from the said Francis MacDonald AND ALSO my farm in Airds aforesaid consisting of thirty acres granted by Govenor Macquarie to Bernard Moran by deed dated on or about the seventeeth day of August, One Thousand eigth hundred and nineteen and purchased by me from him AND ALSO my farm in Airds aforesaid consisting of thirty acres granted by Govenor Macquarie to Peter Lillas by deed dated on or about the eight day of October One Thousand eigth hundred and sixteen and purchased by me under an execution against the said Peter Lillas AND ALSO my farm in Airds

aforesaid consisting of forty acres granted by Govenor Macquarie to Thomas Acres Senior by deed dated on or about the eight day of October one Thousand eigth hundred and sixteen and purchased by me from Joseph Inch AND ALSO  my farm in Airds aforesaid consisting of thirty acres granted by Govenor Macquarie to Thomas Macquarie by deed dated on or about the eight day of October One Thousand eigth hundred and sixteen and purchased by me from James Osman TO HOLD the said several farms with the appurtenances unto and to the use of the said Mary Perkins her heirs and assigns forever I GIVE AND DEVISE unto Jane Perkins also a daughter of the said Sarah Perkins my farm at Richmond situate on the river Hawesbury commonly called Cropley's Farm, otherwise Fulham Park, consisting of one hundred thitry acres granted by Acting Govenor William Paterson Esquire in the absense of the Govenor, to James Bannister and others by deed dated on or about the seventeeth  day of September, one Thousand seven hundred and ninety five TO HOLD the same with the appurtenances unto and to the use of the said Jane Perkins her heirs and assigns for ever. I GIVE AND DEVISE unto to my son James Hannibal Rose all those six hundred and sixty acres of land in the County of Murray granted to me by Governor Bourke by deed and dated on or about the seventeeth of March last past and also all my estsate and interest of and in eighty acres of land in the said county of Murry granted or duly granted by the Govenor for the time being to Francis Hainsworth and by him transferred to me by agreement dated on or about the twelth day of June one Thousand eight hundred and twenty one AND ALSO all my estate and interest of and in six hundred other acres of land in the said county of Murry duly promised or appropriated to me by Govenor Sir Thomas Brisbane the same being now occupied as my stock Station and called by the name of Mandoonon TO HOLD ALL THE SAID LAND with the appurtenances unto and to the use of the said James Hannibal Rose his heirs and assigns for ever. I ALSO GIVE AND BEQUEATH unto the said James Hannibal Rose one third part or..............

 

 

 (Thos Rose, Witness Geo Kenyon Holder, Jno. Can, Robert Burke)

 

 

 

 

 

 

share of all horses cattle sheep and livestock whatsoever of which I may die possessed I GIVE AND DEVISE unto the said James Hannibal Rose (in trust) my messuage or dwelling house in Castlereagh Street, Sydney now used as a Public House or INN and known by the name or sign of the 'Rose and Crown TOGETHER with the land and appurtenances thereunto belonging AND ALSO my farm in the District of Botany Bay consisting of one hundred and twenty acres granted by Govenor Macquarie to Frederick Meridith by Deed dated on or about the first day of January, one thousand eight hundred and ten and purchased by me from the said Frederick Meridith TO HOLD the said messuage and farm respectively with all the appurtenances unto the said James Hannibal Rose TO such uses and for such purposes as my Son-in-law John Henderson and my daughter Kezia Jane Henderson his wife shall by any writing under their joint hands and seals direct and appoint, and in default of any such appointment or so far as the same shall not extend to the use of the said James Hannibal Rose during the joint lives of my said son-in-law and daughter IN Trust to pay the rents and profits of the said hereditaments into the hands of my said daughter for her separate use and so that her receipt shall be a sufficient and the only sufficient discharge for the same during the joint lives of herself and her said husband AND from and after the decease of either of them my said son-in-law and daughter to the use of the surviver of them his or her heirs and assigns forever AND I GIVE AND BEQUEATH to the said John Henderson one third  part or share of all horses cattle sheep and other livestock of which I may die possessed  AND in case of his decease in my lifetime I give the same one third part to my said daughter Kezia Jane. I GIVE AND DEVISE unto to my trustees and executors hereinafter appointed my two messuages or dwelling houses in Market Street, Sydney, purchased by me from Samuel Rowley together with the land and appartenances thereto belonging TO HOLD unto and to the use of my said trustees and executors their heirs executors administrator and assigns according to the nature thereto respectively IN TRUST to convey the same to such one or more of the said children of the said Sarah Perkins namely, Joseph, Ann, Mary or Jane and in such manner as they shall jointly direct under their hands with a view to the most convenient equal division of the benefit thereof whether by one or more of them allowing a certain sum for the share or shares of the other or others of them or otherwise PROVIDED such direction shall be made within twelve calendar months next after my decease AND in case no such direction shall have been made In trust to sell and dispose of the said messuages and hereditaments with power to give receipts to the purchaser or purchasers discharging them from all responsibility regarding the application of the purchase money  and to divide the proceeds thereof equally between the said children of the said Sarah Perkins their executors administrators and assigns

 

 

 

(Thomas Rose Witnesses Geo.Kenyon Holden, Jno.J. Can, Robert Burke)

 

 

 

 

 

 AND IT IS my will that in case of the lapsing of any or either of the devises or bequests hereby made to the children of the said Sarah Perkins such devise or bequest so lapsing shall not fall into the general residue of my estate but shall be equally divided amongst the survivors or pass to the survivor if one only of the said children of the said Sarah Perkins their, his or her heirs executors administrators and assigns I GIVE AND DEVISE unto my trustees and executors hereinafter appointed farm situate partly in the District Appin and partly in the District of Airds in the said County of Cumberland wheron I now reside the same consisting of the allotments following that is to say three hundred acres granted to myself by Governor Brisbane by deed dated on or about the thirtyth day of June one thousand eight hundred and twenty three, four hundred acres granted by Governor Macquarie to Reuben Elther by deed dated on or about the twenty fifth day of August one thousand eight hundred and twelve and by him sold to me Four hundred acres purchased by me from the representatives of the said Robert Elther ????part of line missing?????? granted to Charles Gray by Govenor Macquarie on or about the twenty fifth day of August one thousand eight hundred and twelve and purchased by me from George Wright, eighty acres granted by Governor Macquarie to Henry Early by deed dated on or about the thirtieth day of June one thousand eight hundred and twenty three and purchased by me from him,

Eighty acres granted by deed of the same date to Charles Rushton and purchased by me from him Eighty acres granted by deed of the same date to Thomas Byrne and purchased by me from him, Eighty acres granted by deed of the same date to William Wall and purchased by me from him. Eighty acres ganted by Deed of the same date to William Sells and purchased by me from him sixty acres granted by Deed of the same date to John Wright and purchased by me from him. Sixty acres granted by deed of the same date to James Haydon and purchased by me from him. Fifty acres granted by deed of the same date to James Dering and purchased by me from him. Fifty acres granted by Deed of the same date to John Bradford given by his will to my

daughter Kezia Jane and by her agreed to be conveyed to me (the fulfilment of which agreement if not fulfilled in my lifetime I hereby impose upon her as a condition to her receiving any benefit under this my Will) .Fifty acres granted by Deed of the same date to Francis Stafford and purchased by me from him.

Forty acres granted by deed of the same date to William Hewitt and Purchased by me from him. Forty acres granted by deed of the same date to Richard Appletree and purchased by me from him. Fifty acres granted by

deed dated on or about the eighth day of October one thousand eight hundred and sixteen to John Blackman and purchased by me from John Joseph Ward TOGETHER WITH all land whatsoever forming part of the farm belonging to and occupied by me called by the name of "Mount Gilead" .........

 

 

(Thos Rose, Witnesses, Geo, Kenyon Holden  Jno,J, Can, Robert Burke)

 

 

 

 

 

...........although the same may not be hereby particularly described or be incorrectly or defectively described and also all those my seven messuages or dwelling houses (Other than and besides the Rose and Crown Inn and Tavern hereinbefore disposed of) situate in Castlereagh Street in Sydney aforesaid and the land and appurtenances thereunto belonging AND ALSO one third part or share of all horses cattle sheep and other livestock of which I may die possessed and all the residue whatsoever of my estate and effects not specifically disposed of by this my will TO HOLD all the said

hereditaments and premises unto and to the use of my said trustees and executors their heirs executors administrators and assigns according to the nature thereof respectively UPON TRUST as to such part thereof as may consist of land or houses to pay to my present wife  Sarah Rose in case she shall survive me the sum of One hundred pounds per annum so long as she retain possession of the house in which I now reside (and which I direct that she shall be at liberty to do if she shall so please for one year after my decease) and from and after her relinquishment thereof the sum of hundred and fifty pounds per annum the same to be paid to her the said Sarah Rose during her life out of the rents and profits of the said hereditaments and premises consisting of land and houses as aforesaid which I hereby charge with the payment thereof AND subject thereto AND as to all other the property comprised in this present disposition In trust for such child or children of mine on the body of my present wife Saran Rose as 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 her guardians equally to be divided between such children if more than one and their respective heirs executors administrators and assigns AND I DIRECT that so long as any of my said children being a son or sons shall not have attained the said age or being a daughter or daughters shall not have so attained or been married in manner aforesaid it shall be lawful for my trustees and trustee for the time being to receive all such sums as shall be the presumptive share or shares of such child or children of the rents and profits of the said lands or houses(after providing for the annuity payable to my widow as aforesaid) and the same together with all other personal  property to which such child or children shall be presumptively entitled under this my will to retain manage employ invest and accumulate according to the nature of the property (as money, live stock or otherwise) for the benefit of such child or children and to employ any part of the same if they shall think fit (converting for that purpose if necessary any part of the same not being money and whether being in the nature of principal or income into money for the benefit of the child or children to whom the same shall presumptively belong during minority or  before such.............

 

 

 (Thos Rose, witnesses Geo Kenyon Holden, Jno J. Can, Robert Burke,)

 

 

 

 

 

 

 

.............marriage as aforesaid such part thereof as shall not be so applied and the accumulations thereof to be payable to every such child on his or her attaining such age or being married as aforesaid and his or her expectant

interest in such part of my estate as may remain charged with the said annuity to my widow to be likewise on such attainment or marriage absolutely vested in him or her and disposable accordingly AND I authorize and empower my said trustees or trustee if they or he think fit to lay out in building or other improvements on any of the lands lastly devised in trust any part of the income or personality to Which my said children may be presumptively entitled and which may be remaining in their hands under the trusts aforesaid PROVIDED always that the same shall be laid out in such manner as that an equal thereof shall be contributed by or on behalf of each of the parties to be ultimately entitled to the property intended to be benefited thereby to which end my said trustees and trustee shall be equally authorised to make such outlay notwithstanding any one or more of the children claiming under this present provision shall have attained or become married as aforesaid provided he she or they shall respectively join in contributing a share of the amount to be expended proportionate to his her or their share of the property to be benefitted thereby, PROVIDED also and I hereby declare that it shall be lawful for the trustees and trustee for the time being on this my will at the request and with the direction in writing of my said wife Sarah during her life and afterwards of their own proper authority but in conjunction with such of my children by my said wife as may have at the time being attained a vested interest under this my will to sell and dispose of all or any part of the herditaments and premises vested in them in trust for my said wife and my children by her as aforesaid to any person or persons whomsoever for such price or prices as to my said trustees or trustee shall seem reasonable or to exchange the same hereditaments and premises respectively for any other hereditaments and premises either of a freehold or leasehold tenure to be settled and assured upon the trusts of this my will and upon every such exchange it shall be lawful to pay or receive any sum or sums of money for equality of exchange AND it is my will and I direct that for the purpose of giving effect to every such sale or exchange it shall be lawful for the said trustees or trustee by any deed or deeds to be executed by them or him respectively in the presence of and to be attested by two or more witnesses absolutely to revoke and make void all the uses trust and pro visions herein before contained in reference to the hereditaments and premises which may be the subject of such sale or exchange and by the same or any other deed or deeds to be executed in like manner to limit any such other uses or trusts of the said last mentioned hereditaments and premises as shall be expedient in order to effectuate such sale or........

 

 

(Thos Rose,witnesses Geo.Kenyon Holden,Jno.J- Can,Robert Burke)

 

 

 

 

.......................exchange yet so that no such revocation or new limitation shall affect any lease to be made under the power next herein after contained that is to say PRODIVDED FURTHER and I hereby further declare that it shall be lawful for my said trustees or trustee with such consent of my said wife and in conjunction with such of my children by her as may have attained a vested interest as aforesaid as hereinbefore provided in case of any sale or exchange as aforesaid by any deed or deeds executed by them or him respectively in the presence of and to be attested by two or more witnesses to direct or appoint by way of demise or lease all or any part of the said hereditaments to any person or persons for any term not exceeding twenty one years in possession and not in reversion so that there be reserved in every such lease the best or most improved yearly rent that can be reasonable obtained for the same without taking any fine or premium on the making thereof AND also in case any person or persons shall agree to build upon any part of the said hereditaments and premises to a point the land so agreed to be built upon with any reasonable portion of the adjoining

land not exceeding in the whole one rod and a half to such persons or persons by way of demise or lease for any term of years not exceeding thirty years to take effect in possession and not in reversion or by way of any future interest so that there be reserved in every such demise or lease the best or most improved yearly rent that may be reasonably obtained for the same but nevertheless with liberty to reserve in every such lease a nominal rent or a less rent than the best and most improved yearly rent during so many years of the term for which the same may be granted as may be necessary to complete the buildings agreed to be erected and as is usual and reasonable in such cases BUT I hereby declare that no lease whether an ordinary or building lease to be granted under the foregoing powers shall be valid unless

the same shall contain a covenant on the part of the lessee for payment of the rent thereby reserved and a condition for re-entry on non-payment of the same for the space of thirty days after the same shall become due and a covenant for keeping and yielding up the buildings and premises agreed to be erected in repair nor unless the lessee or lessees shall execute a counterpart therereof AND I HEREBY DECLARE  that the receipt or receipts of said trustees or trustee for any sum or sums of money to be paid to them upon any sale or exchange as aforesaid or as rent upon any lease or tenancy of the said hereditaments and premises to be held by them or him in trust as aforesaid shall effectually discharge the person or persons paying the same from all responsibility regarding the application thereof AND as to the moneys to arise from any such sale or sales or from any payment for equality of exchange (after accounting to any of my said children by my present wife who may have attained a vested interest under this my will for his her or their share or shares thereof.................

 

 

 (Thos Rose,witnesses Geo.Kenyon Holden. Jno.J, Can. Robert Burke)

 

 

 

 

 

...................... in case my said wife shall be then deceased or with her consent in writing if living but not otherwise) I Direct the same to be held by my trustees or trustee for the time being in trust either to lay the same out in the purchase of other hereditaments and premises to be conveyed to the same uses and upon the same trusts and subject to the same powers and provisions upon which the hereditaments and premises were held which were the subject of such sale or exchange or otherwise to lay out the same in Building upon or otherwise improving the remaining hereditaments and premises held upon such trusts or otherwise to invest the same at interest upon good or sufficient mortgage of lands or hereditaments or to lay out part of the same in one of the said modes and the residue in the others or any other of the said modes as to my said trustees or trustee for the time being shall deem meet PROVIDED that such sums as shall be laid out in building on or improving any part of the said land and hereditaments shall be so laid out in such manner so that an  equal share thereof shall be contributed by or on behalf of each of the parties to be entitled ultimately to the property improved thereby AND FURTHER direct and declare that in case the trustees hereby appointed or either of them or any trustee or trustees to be appointed under this present provision shall die or become unwilling or unable to act in the aforesaide trusts before the same shall be fully performed then and in every such case it shall be lawful for the surviving or acting trustee or trustees for the time being of this my will or if there be none such for the unwilling trustee or trustees or in case all the trustees shall have departed this life then for the executors or administrators of the last surviving trustee with the consent in writing of my said wife during her life and afterwards of the proper authority of the person or persons to whom this present power is given to nominate any fit person or persons to supply the place or places of the trustees or trustee so dying or becoming unwilling or unable to act as aforesaid AND that immediately on every such nomination the said trust premises shall be conveyed and transferred to and in such manner as that the same may vest in the surviving or continuing trustees or trustee and in such new trustees or trustee or in such new trustees or trustee solely as the case may require and such new trustees or trustee shall be entitled to exercise the same powers and authorities in relation to the said trusts as if he or they had been appointed a trustee or trustees by this my will PROVIDED nevertheless that notwithstanding this last provision or anything therein contained it shall be lawful so far as regards the trust hereinbefore created in the said James Hannibal Rose solely in favor of the said Kezia Jane Henderson my daughter for her separate use during the joint lives of herself and her husband for the said Kezia Jane Henderson and for no other person or persons to appoint a new trustee or new trustees in the stead of the said ...................

 

 

 

(Thomas Rose witnesses Geo Kenyon Holden.Jno.J.Can.Robert Burke)

 

 

 

 

 

...................James Hannibal Rose in case of his dying or becoming unwilling or unable to act such appointment to be made and to take effect in every other respect in accordance with the provisions lastly before contained AND I hereby further declare that the trustees and trustee for the time being of this my will shall be chargeable only with such monies as they respectively shall actually receive by virtue of the trusts reposed in them respectively notwithstanding their joining in receipts for the sake of form only and shall not be answerable or accountable for any Banker Broker or other person with whom or in whose hands the said trust monies or any part thereof shall be placed for safe custody or otherwise nor for the insufficiency or any security upon which the same shall be invested nor for any other loss misfortune or damage which may happen in the execution of the aforesaid trust or either of them unless the same shall happen by or through their or his own willful default And also that it shall be lawful for the said trustee respectively by and out of the monies which shall come to their or his hands respectively to retain or allow to each other all costs damages and expenses which they respectively shall sustain or expend in and about the execution of the said trusts AND I appoint the said James Hannibal Rose and John Henderson to be trustees and executors of this my will and I appoint the said James Hannibal Rose and John Henderson to be likewise together with my said wife so long as she shall continue my widow and unmarried and afterwards only the guardians of such of my children as shall be underage and unmarried at the time of my decease during minority AND I direct that in case I shall in my lifetime complete an arrangement already verbally agreed upon for entering into partnership with my son John Hannibal Rose and my son-in-law John Henderson in the possession and management of cattle and sheep such partnership (although the whole of the stock may not be contributed by me) shall operate as an ademption or satisfaction of the Legacies of the  several thirds of such stock hereinbefore given to the said  John Hannibal Rose and John Henderson and the whole third share of such partnership stock whereof I my die possessed shall pass under the trust disposition before made in favor of my younger children AND I direct that in case of any dispute arising between any of the parties cIaiming  under this my will regarding the division of stock such dispute shall be settled after first dividing the same as nearly as may be into equal thirds by drawing lots for the same my widow drawing in respect of the bequest made for the benefit of my younger children and lastly I direct and it is my will that in Case of my widow marrying again after my decease one half only of the annuity hereinbefore directed to be paid to her out of the rent and profits of the land and houses hereinbefore given subject  thereto for the benefit .............

 

 

(Thos Rose,Witnesses Geo,Kenyon Holden,Jno..J.Can,Robert Burke )

 

 

 

 

 

.................of my younger children shall from the time of such marriage be payable to her by virtue of this my will the remainder being then immediately applied or left to accumulate for the benefit of my younger children at the discretion of my trustees.

 

IN WITNES whereof I have to the first nine sheets of this my will set my hand and to this tenth and last by hand and seal the fifth day of November One thousand eight hundred and thirty three,

 

************************************

 

 

THE SCHEDULE BEFORE REFERRED TO

 

For one bedroom one four post bedstead and bedding with furniture complete one chest of drawers one side table one dressing table and swing glass six chairs three trunks or boxes. For another bedroom one tent bedstead bedding and furniture one chest of drawers one dressing table and swing glass one trunk or box for the parlour one pier glass one dining table two side tables twelve chairs one sofa miscellaneous the smalI Silver teapot one dozen cups and saucers six silver spoons.

(Thos Rose L,S.),

 

 

 

SIGNED SEALD PUBLISHED AND DECLARED by the said Thomas Rose as his last will and testement in the presence of us who at his request in his presence and in the presence of each other have hereunto subscribed our names as Witnesses, Geo Kenyon Holden, Campbelltown. Jno.J Can. Robert Burke,

 

I THOMAS ROSE of Appin being of sound mind but in a state

of health which renders life uncertain and in all probability of very short duration DO HEREBY revoke and disannul the executors nominated

 in my last will and testament from acting as such and in declaring such individuals hereby released from the duties the executorship involves I NOW APPOINT in their stead the following gentlemen :Viz:

            Mr James Pye of Baulkham Hills agriculturalist and Mr Edward Smith of Parramatta licensed victualler both of the County of Cumberland to act as my executors to such will the terms and conditions of which I hereby authorise them to fulfil and to which effect I hereunto set my hand and seal this second day of March 1837.

 

                                     his

(Thomas X Rose  (L,S,) Witness Jno, J, Car,

                                      mark

 

                                                                        RO.R. Ruttor. Squire Mason,

 

 

17th March, 1837, On this date the abovenamed Thomas Rose died, 13th April 1837 On this date Probate of the last will and testament of the abovenamed deceased was granted by the Supreme Court of New

South Wales in its Ecclesiastical Jurisdiction to James Pye and Edward Smith the executors named in the said Codicil Dated 25th May 1837.

This copy is contained on this and the seven preceding pages of brief paper,

 

 

Seal of Supreme Court

of N.S.Wales

Probate Jurisdiction,


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