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At the date of his will in 1710 he was evidently in full possession of his faculties, as is definitely shown by the particular bequests and arrangements he made.  Notice that he remarks upon his age; that he mentions each of his surviving sons and gives legacies to the representatives of those who had passed away; that he tells the number of his surviving daughters; that he states that his second wife was a widow when he married her by bequeathing to her the property she brought to their marriage; and the reference given to his former marriage by the provision for the care of and decent burial of the surviving brother of his former wife.
 
 
 

                                         THE WILL OF THOMAS TOBEY
 
                                                 made 29 March 1709/10

I, Thomas Toby of Sandwich in the County of Barnstable in New England, being aged and weak of body yet thro' the mercy & goodness of God of Disposing mind and memory and calling to mind the uncertainty of this Transitory Life, I am Desirous according to my Duty to set things in order before God shall call me hence and therefore do make this my Last Will & Testament hereby Revoking and Disannulling all former Will & Wills by Word or writing heretofore by me made; and do hereby Constitute and Declare this to be my Last Will & Testament in manner and form following viz: my Will is to Comitt my Soul to God in Jesus Christ who gave it and my Body to Decent burial when God shall pleas to call me hence and as Touching my worldly estate which God hath beyond my Deserts bestowed on me my will is to Dispose of it as Followeth.

Impr. My Will is that all my Debts in Right or Conscience to any persons due, Together with my funeral Charges shall be first paid and Discharged by my Executors hereafter Named in convenient Time out of my estate.

Item.   I do hereby Give bequeath and further Ratify and confirm unto my Loving son John to by his heirs and assigns forever that Lott of upland which I formerly gave to him Lying near ye now Dwelling house of Joseph Foster in Sandwich aforesaid being now in ye Tenure and occupation of sd Joseph Foster according to the known bounds yr'of.

Item.   I will and bequeath unto my loving son Samuel Toby his heirs & assigns forever the stone end of my Dwelling house in which ye sd Samuel now dwelleth and the one half of my Barn now in his possession and his Improvement and the moyety or one half part of my old field so called part of which the sd Barn now standeth; and I also give and bequeath unto him the sd Samuel Toby his heirs and assigns forever my Lott of Land Lying near ye now Dwelling house of Edward Dillingham and Adjoineth to that called ye twenty acres; ad Lott being by estimation six acres be it more or less and is bound as ye fence now stands; and ye orchard and piece of upland fenced in with it and the piece of fresh meadow Adjoining to it together with my piece or parcel of meadow ground or salt marsh Lying below ye now Dwelling House of Eliakim Tupper; only Reserving to my son Garshom convenient ways to his Lands within these Lands.

Item.   I will and bequeath unto my Loving son Garshom Toby the other half of my sd old field by the barn which is now in his occupation & improvement with a convenient way to it where it is now used at ye head of ye other half and also the Little pasture called the horse pasture att ye foot of ye other piece before mentioned; and also all ye Right of my Lands on ye westerly side of ye way that Leads Down to the House in which sd Samuel now dwells and the neck of Land behind and att ye Southwest end of sd Dwelling house and so extending all Round between the Mill pond and sd fresh meadow and so home to the farm of my son Jonathan Toby Togather with all my meadow and marsh Lying below the now Dwelling House of Widow Ruth Chipman between sd house and ye Town Harbour near Skaffold point so called and also ye Least piece of my meadow in ye on pasture neck so called Lying between yea meadow of Shubal Smith and Jashub wing with all my meadow & upland Lying between the fords so called having the meadow of William Bassett on the one side and ye meadow of Mr. John Smith & Stephen Skeffe Esq on ye other side Together with All my meadow and marsh Lying over ye creek on Sawpit neck side as also all my upland adjoining to that meadow excepting two acres att ye upper end; Together with the other part of my Dwelling House being the southwest end of it; and also the other half of my sd barn with free Egress and Regress To and from the same; All which sd Parcels of upland and meadow ground to be to the only proper use & behoof of him the sd Garshom Toby his heirs and assigns for ever.

And I Do also will and bequeath unto them the sd Samuel toby & Garshom Toby my sons their heirs and assigns forever my Lott of land in ye Towneck so called and my twenty acres of Land formerly Given to me by Quachatasett Indian Sachem Lying near Snake pond as also my twenty acre Lott and my forty acre lot that is yet to be Taken up and divided; as also all my Right in the Comon or undivided Land in sd Town of Sandwich all which is to be equally Divid between them; But the Condition on which I give all the sd Lands & meadows unto the sd Sam'l & Garshom is that they or their heirs exec'rs or admin'rs Do Keepe maintain yr uncle Samuel Knott During ye time of his Naturall Life both with food Drink Lodging and Apparill  and to allow him a decent Buryal after his death.

Item.   I do give and bequeath unto my son Jonathan Toby his heirs and assigns forever ye lands on which he now Dwells and in his possession and my biggest piece of meadow in sd ox pasture.

Item.   I give and bequeath unto my grandson Thomas Toby or Yarmouth besides what I have already given him one heifer of two years old and one shilling in money.

Item.   I give and bequeath unto my son Nathan Toby his heirs & assigns forever all those my Lands att & near his Dwelling house now in his possession and the two acres of Land before Reserved in Sawpit Neck.

Item.   I give and bequeath unto my Grand daughter Sarah Toby the daughter of my son Ephraim Toby Deceased that Lott of Land on which her mother Hannah Toby now dwells and to her heirs and assigns forever; provided that she live to the age of one and twenty years or marry but if not then to be Equally divided amongst all my sons Then surviving.

Item.   I give and bequeath unto Hannah my Loving wife all the Estate which she had when I married her and what she now hath which she gott by her own Labour or that was Given to her; and one Cow and all ye money which she shall have of mine in her hands at the Time of my Death.

Item.   I give and bequeath unto each of my three daughters five shillings apiece; and what other Estate shall be left of myne when Debts Legasys & Funerall charges are paid out my will is that it be Equally Divided to and between them the sd Sam'l and Gershom Toby whom I Do ordain & constitute to be Joynt Executors of this my will.  In testimony whereof I have hereunto sett my hand & seal this 29th of March 1709-10.

      THOMAS [TT] TOBY      (Seal)
      his mark and seal

Signed, sealed & Declared To be his Last Will & Testament

In the presence of

 Wm. Bassett Sen'r.
 Wm. Bassett Jun'r.
 Thankfull Bassett
     Proved April 9, 1714.

  (Barnstable Prob. Bk. 3, p. 352, et seq.)